Friday, November 27, 2009

Double jeopardy lives

What kind of story makes a public defender feel all warm and fuzzy on Thanksgiving?  Why, a story about a man accused of murder having his case dismissed with prejudice, of course.  I want to give thanks to a Judge who holds the police and prosecution accountable for their actions, even if the end result is unpopular with the general public.

In this case, the defendant was on trial for murder.  During his testimony, the police officer dropped four little words, "I knew him prior."  The article isn't clear on this point, but I would imagine that the parties had already litigated the question of whether any of this defendant's prior contacts with police would be admissible at trial.  Upon hearing those words from, the defense attorney moved for a mistrial, which was granted.

After the mistrial, the defense filed a motion asking that the charge be dismissed with prejudice, meaning the charges are dismissed forever and can never be pursued by the state again.  This can happen sometimes when the Judge finds that the state goaded the mistrial through its actions.  The trial had not been going well for the state up to that point, so the defense felt that the state secretly wanted a mistrial so they could start fresh and present things better.  If the state does that, though, the Judge should refuse to allow the state to re-try the case, finding that jeopardy has attached and a second attempt at a trial would violate the defendant's right against double jeopardy.  The state doesn't get mulligans like that.

The trick, though, is finding a judge who will call the state on it.  Too often, judges insist on giving the state the benefit of the doubt.  They insist on ignoring the willfulness of the police officer's "slip" in testimony.  But these slips happen frequently, too frequently for me to presume they're not intentional.  Police officers who know they aren't allowed to mention the defendant's prior arrests love to mention that they know the defendant.  They seem to think that's ok as long as they don't explain how they know him, but of course they're hoping the jury will understand how.  And secretly, these cops think they know better than the judge what the jury should hear and what they shouldn't.  They think it's ridiculous that the judge has ruled the jury can't hear about how many times this guy has been arrested and charged in the past because if the jury  heard that, they would definitely convict the guy this time.  So they do their damnedest to get around the judge's ruling ecause the judge's ruling is wrong.  They think it's ok to bend the rules as far as they can without technically breaking them.

I once had a case in which it was made clear to the detective that he could not mention that his interview with the defendant occurred in prison.  But, boy, that cop went out of his way to describe the scene as occurring in a visiting room that they were allowed to use by the officials in charge of the facility.  Does it really require much imagination to figure out he's describing a jail or prison? 

This good judge in Kansas City didn't think it would require much imagination for the jurors to figure out just how the officer knew the defendant prior.  He even asked the jurors, who confirmed that they took that to mean the defendant had prior arrests.  Oh, and those jurors also confirmed that at the time of the mistrial, they would have voted 12-0 for acquittal.  So, yeah, the state's fear that the trial was not going well was confirmed.  And since the police officer is part of the state, the judge just couldn't let the police officer tank the trial to get the prosecutors a do-over.

So I'm thankful to this Judge for not letting the state manipulate this trial, for not letting the state create a second chance for itself when it was blowing the first chance, and for holding this police detective accountable.  Too many judges would have looked the other way and let the state have its second chance. 

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