The objection’s on the other foot

An interesting and ironic-chuckle-inducing opinion from the Colorado Court of Appeals (via Volokh), where the trial court granted a mistrial in a criminal case. The defendant had been charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.

As some of these prosecutions go, there was a defense. The defense was basically that the wife was a liar and would do anything to gain leverage in a contentious custody battle involving the couple’s infant son.

At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected – stating “we’re here on a criminal trial not on the divorce case” – but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel “a little bit of latitude” in this area, the court did urge counsel to “cut to the chase.”

Further questioning established that the wife had taken the couple’s son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported? The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

The trial court then granted the prosecutor’s motion for mistrial (yes, I did not type that incorrectly), while “vehemently disagreeing” with defense counsel (seems that this judge has learned from my tips for objections). Since immigration is a “hot button” topic these days, the court concluded that the jury had been irrevocably tainted and that trusty weapon in the court’s armor, the curative instruction, would be useless. In fact, the court went so far as to invoke Xtina Aguilera and claimed that the “genie was out of the bottle”.

The defendant, as he should have, made a motion to bar reprosecution arguing double jeopardy. The court, continuing its line of correct decisions, denied that motion.

As you already know, that decision was reversed. Read the opinion if you want the legal basis.

What I couldn’t get out of my head as I read the decision was how this would never have happened had it been a defense motion for mistrial. That motion would have been roundly (and rightly) denied and the curative instruction would have been sent forth, to encourage the jurors to disregard what was material and relevant evidence of bias.

There’s one thing you learn as a defense attorney over time and that’s that judges are slightly, if not overwhelmingly, pro-prosecution. What’s good for the goose is rarely good for the gander. And when a judge does rule in a legally appropriate manner, tales of that instance are spread far and wide and the judge is hailed as “fair” and “unbiased”. What’s forgotten are the hundreds of instances when that didn’t happen.

The liberal, pro-defendant judge is a myth. A persistent myth perpetuated by the media, prosecutors and – to some extent – defense counsel.

Anyone else think differently?

And because you knew this was coming:

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