People v. State

reading this:

Smith, who had been released from custody in 2006 pending the government’s appeal of her case, is expected to return to prison before Christmas, her attorney said.

. . .

Lawrence Daniels, a supervising deputy attorney general who argued the case for restoring Smith’s conviction, said he couldn’t answer questions about the case until he had fully reviewed the 18-page decision.

Smith’s attorney, Michael J. Brennan, said he would file a clemency petition with the state government but that the chances of it being granted were “extremely slim.”

“The attorney general’s office has fought vigorously to reincarcerate her for years. They don’t have the authority to say, ‘Just kidding, she doesn’t have to go back to jail,’ ” Brennan said.

. . .

made me think of this:

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Volokh has links to the judge’s offending opinion and the higher court’s contempt finding. A commenter writes:

Before this gets farther, the underlying case was the charge of murdering an officer. Subsequent evidence –official police investigation and all witnesses– state the act was unintentional homicide in the act of self defense. The officer had a history of violence, and first (without provocation or cause) chased one brother down and beat him with an axe-handle. Then the officer went after and started to beat the other brother with the axe-handle; initiating a 5 minute tussle in which the officer’s gun was discharged.

The trial court Judge’s disrespect was for the prosecutor who made an involuntary manslaughter plea offer, then denied making it. When confronted with an audio tape of the offer, the prosecutor retracted it for voluntary manslaughter. In addition, the prosecutor flouted the court by refusing to attend the plea hearing, etcetera ….There is far more underneath all this –and far more background too– but the Virgin Islands Daily News has a splendid reporter who gives a great summary of this series.

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Earlier this week one dismissed a pot possession case after I persuaded him that he couldn’t, or at least shouldn’t, prevail against my client’s motion to suppress based on an improper vehicle impound and search. What’s crazy is that the written impound policy used by the police agency that stopped my client’s vehicle and impounded it tells its officers that driving while suspended by itself is sufficient grounds to impound a vehicle, and this is the rationale the officers gave my client at the scene for impounding his vehicle over my client’s objection. But this clearly violates the Fourth Amendment to the U.S. Constitution, according to the Indiana Supreme Court in Taylor v. State (2006). The prosecutor tells me he’s going to work with the police agency to rewrite their impound procedures so this doesn’t happen again. Good.

What’s also crazy is that, based on an order issued this week in a divorce case by the same judge who presided over the pot possession case, I can’t at all be confident that I would have won the motion to suppress had it been left up to her. What’s frustrating is that her abuse of discretion in the divorce case order, as abusive as it was, only harmed my client by a few hundred dollars, making it uneconomical to appeal. I may do something anyway, just on principle. (Note to self: get out of family law already.)

The above was the original subtitle of this blog, before I changed it sometime back to “Fairly Undermining Public Confidence in the Administration of Justice.”

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

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Some defense attorneys who have blogs seem to be fans of D.A. Confidential, and revel in their professional cordiality. Me, not so much. Here’s #7 on his Top Eight list of why win/loss tallies are pointless:

7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it’ll be hard to prove it. The defense knows it, too, so won’t plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It’s simply the right thing to do. And, you know, sometimes when we do that, we win.

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Jamison Koehler cites Ashe v. Swenson (1970) as currently his favorite U.S. Supreme Court case. In a comment on his post I wrote: “If you like Ashe, you might also like Yeager. Until recently these used to be my favorite U.S. Supreme Court cases too.”

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

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In a comment on Mark Bennett’s post criticizing a Colorado district attorney’s plan to offer cash bonuses to her deputy prosecutors who participate in at least 5 trials in a year and win a felony conviction in at least 70% of them, I remarked:

I agree with Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.

[As I noted in this post, Spence wrote of his stint as a prosecutor in The Making of a Country Lawyer:

I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.]

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Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

— Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)

Prosecutors may read this famous opinion differently, but I read it to say that the mission of defense counsel is to do justice.

Justice is the absence of crime. Convicting the innocent is a crime if ever there was one. The “justice” of prosecutors is justice only in a derivative sense. It’s the use of punishment — which itself outwardly resembles crime — to try to prevent or deter future crimes and/or somehow negate or provide satisfaction for crimes which have already occurred. Its purpose is to approximate so far as possible justice in its root sense, but historically hasn’t gotten us very far.

Apparently I was wrong when I recently wrote that “everybody disagreed with . . . my skeptical challenge to the common wisdom regarding the role of the criminal defense attorney relative to justice and the role of the prosecutor.” In a post critiquing Mark Bennett’s recent post about The Defense Function, the anonymous author of Lawyers on Strike, noting my comment on Bennett’s post, writes:

Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”.  I’ve weighed in on that debate obliquely:  here and here, for example.  And here.

Does this segue into The Question?  Maybe.  Bennett seems to think so.

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In a post so perfect I couldn’t possibly add anything, Matt writes:

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

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