Thursday, December 11, 2008

I will be candid with you. I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

While the Third DCA is bashing a juvenile judge, check out this bashing by Justice Souter of a lawyer who was arguing on Tuesday in the High Court. Ouch... You never really want to hear that your argument is "utterly irrational." From Adam Liptak's NYTimes article:

There were flashes of incredulity and anger from justices at the Supreme Court on Tuesday as they considered whether Tennessee prosecutors had committed misconduct in obtaining and defending a death sentence against a man who murdered a Memphis couple in 1980.
Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.

"He buried all his good arguments,” Ms. Smith said of Mr. Cone.

Oh... It was the defense lawyer's fault for burying all those good arguments! Breyer wasn't buying it.

Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”

If we really want to solve the Brady problem, discovery rules in federal criminal cases need to be fixed. To see the absurdity of the federal criminal discovery, one need only compare it to federal civil discovery. The best prosecutors are the ones who say, I'll give you everything -- I have an open file policy. Those prosecutors typically have the strongest cases and get the most pleas from defendants. When non-lawyers hear that you find out the witnesses and exhibits on the first day of a federal criminal trial, they can't believe it. Their jaws drop when they hear that you get the prior statements of witnesses when the witness actually takes the stand. More and more, judges are forcing prosecutors to turn over some material earlier, which is helpful. But there should be more liberal rules about witness statements being disclosed (including summaries of those statements by agents), and witness and exhibit lists being disclosed.


Anonymous said...

David, what exactly was the evidence that the prosecution withheld that tended to support the argument that the defendant was under the influence at the time of his confession.

Anonymous said...

Accd to NPR they had evidence that supported his mitigation defense(drug use and PTSD). He attempted to use the mitigation defense to avoid the death penalty. As former prosecutor, I am shocked! The state, despite the evidence was in the state's files has done everything to prevent a fair hearing. Have a hearing, find out what happened. Give the defendant a real day in court. Not some jerry-rigged version of justice. I know why Lady Justice is Blind. Lawyers like the AG in this case poked her eyes out. How do they sleep?

Anonymous said...

"I will be candid with you. I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

I thoughty this once when I heard Ed Shohat in closing argument. He lost ... as usual.