Wednesday, February 10, 2010

Dear prosecutors: I'm not like you

Sometimes, I think prosecutors think I'm just doing my job for show, that I'm just going through the motions so that after my client is convicted we can all pat ourselves on the back for giving him a fair trial. I think some prosecutors think I secretly agree with them that my clients should be convicted and sentenced and then those convictions and sentences should be affirmed on appeal.

Well, those prosecutors think wrong. I'm not just requesting discovery to keep up appearances. And I don't just raise issues to "preserve them for the record." What the hell does that mean anyway?

If I request a report, I read it. I watch every video and DVD. I listen to the tapes. I look at the photos. I'm not going to take your word for it that there's nothing objectionable. I wouldn't much honor the 6th Amendment and that whole effective assistance of counsel thing if I did. So really, don't commit shenanigans with discovery materials and think I won't be angry as long as you tell me there is nothing important in those materials.

When I raise an issue, it isn't so the court thinks I'm earning my paycheck. I raise issues when I believe I have a valid point.

And I really, really don't think it's an acceptable result to convict obviously guilty guys in unfair trials. I care about a lot more than just going through the motions to get to a pre- determined result. I think it matters very much how we get to that result.

I suspect it would scare some prosecutors to realize just how often I truly believe evidence should be suppressed or my clients should be granted new trials. From some of the things they do, I don't think they get that at all.


Bob S. said...


Is there a difference, in your opinion, between evidence that was obtained by clearly violating a person's rights and evidence that was obtained by violating some arcane or technical rule developed by the system?

I am against illegal search and seizure but should a search be considered illegal because the subject was listed as wearing Keds when (s)he was actually wearing Converse sneakers -- if the rest of the information was correct?

I want everyone to get a fair trial but it often seems the system has been tilted off balance by a lack of common sense in applying the laws and rules developed to implement the laws.

I understand that as a defense attorney you are required use all measures to obtain an innocent verdict but has it gone too far in the direction of the defendant?

S said...

I have never seen a search suppressed because of something like misidentification of sneaker brands. But generally, I think the technical rules we apply exist for a reason, usually to promote reliability of evidence or information, so I think it really is important to follow them.

I think it's so interesting that the public sees the system as being so off balance in favor of defendants when nothing could be further from the truth. The system is heavily stacked against the defense. In pretty much every way. The defense loses most of the time, on motions, objections, instructional issues, and appeal.

Judges are almost uniformly former prosecutors. Former defenders rarely make the bench and former public defenders are rarer still. Any credibility determination made by the courts in suppression hearings go to the cops, no matter how clear it is that the cops are being less than truthful.

Courts pretty frequently let in the evidence the state wants and keep out the evidence the defense wants. Reversal rates on appeal are really low. Even when the appellate court acknowledges error, they generally say the error was harmless. It's pretty appalling, in my view, some of the things that courts will overlook. (Like finding out that half the jury was snorting up coke during bathroom breaks or that the state didn't disclose the plea agreement with the snitch.) And of course trial courts then keep committing the same errors because the appellate courts keep telling them they won't get reversed for it.

So, no, I don't think our court system has gone too far in the direction of the defendant. I think it has gone way, way, way too far in the direction of the state.

DBB said...

It is amazing that despite the system being so heavily rigged against defendants and in favor of corrupt cops and prosecutors, people still think the system is exactly the opposite, in favor of defendants.

That's why I liked Raising the Bar on TNT (now sadly cancelled) - it at least made some attempt to show just how much the system screws the little people.

I wonder what can be done to get public awareness on par with reality on this.

I repeatedly saw at the Court of Appeals criminal cases get affirmed as "harmless" errors that were quite egregious. And evidentiary rulings were also ridiculously pro-prosecution. I saw in the same case one rationale used to keep in evidence the prosecutor wanted, then other evidence, which by the same exact rationale should also come in, was excluded, for reasons that were clearly at odds with the first ruling. The COA noted this, said that the evidence SHOUD have come in for the defense, but of course, so sorry, its harmless. Conviction affirmed. Ugh.

Anonymous said...

What a breath of fresh air. Stick to your guns S. With prosecutorial misconduct rampant there is a desperate need for defense attys like you the believe in the rule of law. Some like Kohl in the Blackwater case, the Broadcom group of miscreants, Jason Ferguson in the Shelnutt case in Georgia have had their hands slapped but that's all and those are just the tip of the iceberg. I set up a Google Alert on prosecutor misconduct but there were so many hits I had to cancel it. Too bad SCOTUS didn't get to rule on Pottawattamie vs McGhee leaving the convict by any means method alive and well.

S said...

Yes, I would have enjoyed seeing a good ruling out of Pottawatomie, but after reading the transcript of that particular oral argument, it might not be a bad thing SCOTUS didn't issue an opinion.

Anonymous Feb 13, 7:12 PM said...

"but after reading the transcript of that particular oral argument, it might not be a bad thing SCOTUS didn't issue an opinion".

S, would you expand on this please. I know that many considered it a crap shoot as to the way SCOTUS would rule but the fact that they agreed to hear the case at all seems to indicate that they were leaning toward the plantiffs. I would be interested in your take. The most blatant comment IMHO was by the defense who said "There is no Constitutional right not to be framed". Maybe not in those exact words but there has to be something in the basic premise of the right to life, liberty, etc that precludes the very guardians of our justice system from using it against "We the People" for their own corrupt benefit

S said...

My sense of the oral argument was that they were over-thinking it and would have come up with an overly-complicated rule instead of just a simple, straightforward rule of, "if you fabricate evidence, you have no immunity." At least from the transcript, several of the justices seemed pretty concerned about the idea that allowing any suits against prosecutors could have a chilling effect on prosecutors, said as if that would be a bad thing. Keep in mind it only takes 4 justices to grant cert, so we can't assume that a majority of justices want to alter the status quo. (A lesson we all learned from Briscoe.)

Anonymous February 16, 7:04 PM said...

Thanks S for the additional info. You are probably right. A straight forward rule of,"if you fabricate evidence, you have no immunity" was probably to much too hope for. And the games go on.

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