Daily Archives: September 8, 2008

Stare decisis ad infinitum (updated)

So seems to be the State of Utah’s motto. In the midst of a capital case, the A.G. is seeking sanctions against defense lawyers because, get this, they argue that a third of the claims have already been decided by other cases.

[Defense attorney] Brass and attorney Richard Mauro, who represents [the other defense attorney] Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for [defendant] Archuleta.

Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”

Makes a lot of sense. You raise every avenue of challenge, even if previous cases have decided the issue. Maybe they’ve been decided by state courts, but not by Federal courts. In all post-conviction cases, especially capital cases, it is all about preservation of issues.

But this is not surprising. Since AEDPA, State prosecutors have been on a crusade to curtail post-conviction avenues and rights of criminal defendants. Claims of “abuse” are pretty frequent. Given that courts throughout the country have repeatedly held that habeas corpus petitions are the appropriate venue for challenging trial counsel’s performance (and raising other Constitutional deficiencies), I would sincerely hope that they suggest a viable alternative or let it go.

But back to the curiosity here. What the prosecutors are, in essence, saying is that once a point of law has been decided a certain way, it can never be changed. Not only is this not what stare decisis means, but if such were indeed the case, then almost all issues would have been decided decades ago and we might as well disband all appellate courts.

Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.

Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.

I also wonder if the Utah A.G. practices what it preaches. I suspect the A.G. has not rolled over on any cases where there is “caselaw on point”. I bet they still defend post-conviction challenges and other criminal prosecutions. They may do so even in cases where the law is squarely against them. I’ve seen it happen here. It’s annoying, but it’s the way it is. It doesn’t mean that lawyers should be subject to sanctions for merely advocating strongly on behalf of their client and preserving all legal claims. Sanctions are serious – they should be thrown about willy-nilly when defendants do something that irk prosecutors. Sanctions should be reserved for the worst violators of the rules of conduct.

What this disturbing litigation has also caused, perhaps intentionally, is a declining desire on the part of Utah criminal defense lawyers to take on capital cases.

Mauro said the state’s case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they’ll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.

It’s not only those that are wrongfully convicted – those that have been convicted with the assistance of some Constitutional defect. Post-conviction isn’t about getting another shot at the apple; rather it is about making sure that when the State convicts an individual and takes away his/her liberty, it does so in a Constitutionally sufficient manner.

That is of paramount importance – and the A.G. doesn’t seem to care.

Update: The A.G. seems to be in the news for something else as well. This time, the A.G. doesn’t seem to care about the presumption of innocence. The A.G. redesigned his website and launched it anew with a video of the arrest of a sex assault suspect. [He also has a blog.]

Legal Blog Watch reports:

The video shows the Utah Internet Crimes Against Children Task Force assisting local police as they arrest a 26-year-old man suspected of arranging to have sex with an underage girl he met online. Actually all it shows is two men escorting a man in handcuffs through a parking lot. That is followed by the comments of a local sheriff’s detective, who says, “If I was someone who had a daughter, I’d be very scared about what’s going on,” and of a local police officer, who says, “It’s crazy that we have guys like this that would do this type of thing.”

No reason to let the presumption of innocence get in the way of good TV. But the local chapter of the ACLU sees it otherwise. ACLU lawyers showed up at Shurtleff’s press conference announcing the site to register their protest. “We are concerned that by posting the arrest video of an unconvicted person, the attorney general is more interested in political grandstanding than protecting the public,” ACLU lawyer Marina Lowe told the Deseret News. Added ACLU attorney William Carlson, “Guilty before charged.”