Category Archives: Justice

Jail is for poor people, home detention is for…

While waiting in court today to argue a motion, I saw something that just didn’t sit right with me. The state was moving to revoke a defendant’s bond. What caught my attention was the prosecutor’s statement that the defendant didn’t accept the plea offer. Maybe she misspoke. Maybe I heard it wrong. Who knows? I do know this. Whether or not someone turned down a plea offer should never be mentioned in connection with a bond revocation hearing.

Turns out there was more to the story. The defendant was on home detention, with GPS monitoring. The grounds for the revocation? He was behind on his home detention payments. You see, it costs about $70.00 a week to be on home detention.

Jail is for poor people. Home detention may not necessarily be for rich people, but it certainly is hard for the indigent.

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Does anyone think Tom Robinson was really guilty?

Of course not. No reasonable person thinks that Tom Robinson was really guilty.

To Kill a Mockingbird was published 50 years ago today. Happy anniversary to the Pulitzer Prize winning novel written by Harper Lee. There will be much written about it today in celebration and rightly so.  It’s an American classic. It’s a story of racism, innocence and redemption.

Like all great stories, this one has its fair share of memorable quotations. There are far too many for me to list all of them here but I must mention a few. I think the most popular quote is the line about people: I think there’s just one kind of folks. Folks. The other quote is: Jean Louise, stand up your father‘s passing. Everyone remembers those lines, but this is the line that I like:

I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them.

Unfortunately, most people don’t remember that one. It is a classic. It is as good today as it was then. It describes the essence of a criminal defense lawyer.  It’s what we do. It is equally unfortunate that criminal defense lawyers are as loathed by town folks today as Atticus Finch was then.

A jury convicted Tom Robinson on weak and unconvincing evidence. That verdict was based on ignorance, prejudice and racism. It was needed for the story to work.  And it did work.  Anyone who read the book or saw the movie walked away knowing there was injustice in the world and in the courtroom. There still is.

I would like to think that if this trial took place today that there would be a different result. Surely the prosecutor would not go forward with such flimsy evidence. Surely the judge would dismiss the charge. Surely the jury would find the defendant not guilty. I’m not so sure any of those things would happen though because that’s the way the system works. It’s just too easy to turn a blind eye to justice and vote to convict.

It’s commendable that a person would become outraged that an innocent Tom Anderson was convicted. It’s disturbing that today that same person would be willing to convict someone on the same evidence.

This novel is the reason some folks went to law school. They will celebrate its anniversary in their own way. My tribute to this great story will be twofold. I will continue to ask the question and tonight I will read the book again. I hope more people do the same.

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Judge dismisses case due to Government’s Misconduct

From the White Collar Crime Prof Blog:

It is rare that a judge uses supervisory powers to correct an injustice, but sometimes it is the right action – especially when there has been government misconduct. The Hon. Cormac J. Carney used his supervisory powers to dismiss the case against former Broadcom’s Henry Nicholas III, and former CFO William Ruehle, stating:

“Based on the complete record now before me, I find that the Government has intimated and improperly influenced the three witnesses critical to Mr. Ruehle’s defense.  The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.”

The judge ended by stating that “I sincerely regret that the government did not heed the righteous words of the Supreme Court” referring to the Berger case. I read the opinion and this is the language from Berger:

“The United States attorney is the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and a very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocent suffer.

He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.  It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Righteous words indeed. This case will surely make the rounds for everyone to provide commentary and analysis and opinion and so forth. I think the analysis is simple. The government’s misconduct made the case unfair and as a result, the judge dismissed it. That seems fair to me.

The question that remains, however, is whether or not the prosecutors will take this opportunity as a teaching moment. I doubt it. The misconduct described in this case is outrageous. There are other examples that are not as outrageous, but have the same result: an unfair trial.

Judges surely can’t dismiss every case. They do, however, have other remedies available to ensure a fair trial.  Not too long ago, a local judge found a police officer in contempt for not turning over discovery. That should have been the shot fired over the bow. Maybe it wasn’t heard because today I saw a defense lawyer’s motion to compel discovery because the prosecutor refused to reveal it. Maybe it is time for a case to be dismissed in Horry County. Maybe that will be the teaching moment.

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County Attorney files Charges against Arizona Judge

I can’t even begin to comprehend the politics of Maricopa County Arizona. I wrote a post last month about the officer who stole a document out of a lawyer’s file in open court. I thought it was outrageous and left it alone after that.

However, I have been following the wild west stories and trying to figure out what the hell is wrong. It appears that there are too many things happening on the streets there with the burning and meltdown. Maybe a help wanted sign could fix Maricopamania. Maybe the federal government could help.

I was thinking that it seems as though the situation will only get worse before it gets better. Then I read Judge Donahue charged with three felony counts. I can’t imagine what’s next.

For now I’ll just keep reading Mark Bennett, Scott Greenfield, Jeff Gamso, Bobby Frederick and Matt Brown for great updates on what’s happening and what should happen.

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Husband Cleared of Murder Charge – The Elk Did It

Swedish police decide wife was probably killed by elk and clear husband of suspicion of murder charge.

From the BBC News:

Ingemar Westlund, aged 68, found the dead body of his wife Agneta, 63, by a lake close to the village of Loftahammer in September 2008. He was immediately arrested and held in police custody for 10 days.

No matter how improbable the denial, sometimes when the defendant says he did not do it, he really did not do it.

The European elk, or moose, is usually considered to be shy and will normally run away from humans. But Swedish Radio International says the animals can become aggressive after eating fermented fallen apples in gardens.

Westlund was cleared after forensic analysis determined hair and saliva on his wife’s clothes was Elk.

This is all I know about the story. I do not know if Mr. Westlund had a lawyer. I don’t know if he did the forensic analysis independently. I do not know if, perhaps, it all worked out fine due simply to good police work.

I do know that ten days in jail and the obvious pain that this must have put Mr. Westlund and his family through must have been devastating.

There are several posts on the internet now about a criminal defense lawyer’s duty when it comes to justice. My answer is that the duty is to the client. To act within the bounds of the law and to defend the client zealously sounds good. To explore all options and defenses under fact and law sounds better. To allow any perceptions of guilt or what others may call “justice” to get in the way of the defense is not an option.

After all, that defendant that everyone says is guilty might just be innocent.

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