Can the prosecution prevent you from giving discovery to a defendant?

In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.

As I wrote in January 2010:

Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.

This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.

However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.

In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.

Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.

Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.

Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.

So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.

It is incredibly hard to explain to a person accused of serious crimes by the state that:

  1. You are in possession of witness statements that implicate him and police reports that tie it all together;
  2. But you cannot give it to him.
  3. He can read it in front of you, but he cannot take it with him.
  4. He must rely on his memory in a correctional institution to recall all the details and to become well-versed with his own case, because he is not allowed to have any participation in the defense of his liberty and freedom;
  5. Especially when his cell-mate has 3 boxes of legal materials.

As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.

There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.

If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.

Of course, the question – just as with this scenario – is whether anyone will make that stand or will there always be some compromise worked out?3

It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.

A registry of prosecutorial misconduct

The Center for Prosecutor Integrity (apparently there is such a thing) has just issued this press release, announcing the the receipt of a grant to establish a Registry of Prosecutorial Misconduct.

In it, it states:

The Registry will eventually catalog thousands of cases of prosecutorial misconduct around the country. This information will allow policymakers to pinpoint priorities for reform.

The Registry will report the prosecutor’s jurisdiction, type of crime, type of misconduct, whether the case was referred to an ethics oversight body, whether sanctions were imposed, and other information.

Determinations of misconduct will be based on holdings of trial courts, appellate courts, state supreme courts, and legal disciplinary committees.

Maybe the next step can be to establish buffer zones for repeat offenders: you can’t get within 500 feet of a file without adult supervision.

Electing death

In a death penalty case:

Guided by neither rule nor standard, “free to select or reject as it [sees] fit,”a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.

Witherspoon v. Illinois. The decision to impose the death penalty is a deeply moral and individual determination that each juror must make and come to herself. State v. Ross.

In the 31 states (only 31!) that leave life or death to juries1, 27 have rules stating the the verdict of the jury is absolute and must be enforced. Only 3 permit a judge to override a jury’s verdict of life. No prize for guesses: Alabama, Florida and Delaware2. Out of those 3, only one has consistently been doing so for the last 20 years: Alabama.

In the 1980’s, there were 125 life-to-death overrides: 89 in Florida, 30 in Alabama, and 6 in Indiana.  In the 1990’s, there were 74: 26 in Florida, 44 in Alabama, and 4 in Indiana.3 Since 2000, by contrast, there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.

In 1985, Harris asked SCOTUS to rule this “life override” unconstitutional. In Harris v. Alabama, they refused. On Monday, in Woodward v. Alabama, they were asked once again to rule this arbitrary practice unconstitutional. Mario Woodward was tried for a capital offense. The prosecution wanted death. The jury voted for life 8-4. The judge however, had other ideas. He overruled the jury’s determination and sentenced Woodward to death.

SCOTUS once again declined to even hear the case, just as it did last year in a case challenging the practice of excluding people opposed to the death penalty from even serving on juries. In a blistering dissent [PDF], Justice Sotomayor points out just why it is critical that juries be allowed to make this decision and that their decision be respected:

Because “ ‘capital punishment is an expression of society’s moral outrage at particularly offensive conduct,’ ” Harris v. Alabama, 513 U. S. 504, 518 (1995) (Stevens, J., dissenting), jurors, who “express the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), seem best-positioned to decide whether the need for retribution in a particular case mandates imposition of the death penalty.  See Harris, 513 U. S., at 518 (Stevens, J., dissenting) (“A capital sentence expresses the community’s judgment that no lesser sanction will provide an adequate response to the defendant’s outrageous affront to humanity”).

But what, exactly, makes Alabama so different and why is it so offensive? Alabama is a state where judges are elected. And when judges are elected by “popular” vote, they pander to the lowest common denominator:

The judges are not shy about this fact. A 2000 campaign ad for one said he “has the tough-on-crime record to be chief justice.” Another bragged that he “looked into the eyes of murderers and sentenced them to death.” One judge told The Birmingham News in 2011 that voter reaction does “have some impact, especially in high-profile cases.” Nor is it any more comforting when the judges decide to explain themselves. One judge justified his override of a life sentence for a white defendant because otherwise, he said, “I would have sentenced three black people to death and no white people.”

This is anathema to the function of the jury and the to belief system of America itself. Some Americans love their death penalties, but even they, to a person, will admit that they love the freedom to choose more. They love the freedom to do whatever the hell they want, government be damned.

To legally constitute a jury, to give it the power to decide life and death – to choose – and then to take it away because a judge felt political pressure to kill another human being is obscene and absurd.

For more, read Andrew Cohen at The Atlantic.

Update: Also read Scott’s take, in which he focuses on the Sixth Amendment “jury must determine punishment” jurisprudence and calls out Scalia for his hypocrisy.

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Post-racial America: where we can all go to Grosse-Pointe and love the coloreds

They say America is in a post-racial state. What this means, apparently, is that we are past racism, because look at black people doing white people things and acting totally normal OMG. I mean, how can America be racist if there’s a Black President?

This is how:

Grosse Pointe Park police officers are capturing humiliating photos and videos of black men and texting them to friends and family, the Motor City Muckraker has found.

One of the main culprits is Officer Mike Najm, who texted a picture of a black man in the back of a trailer and typed, “Gotta love the coloreds.” In one video, Najm can be heard telling a mentally ill black man to sing.

Most of the videos are shot from squad cars while African American men are told to sing or “dance like a chimp.” Some of the subjects are even in the back of police cars.

Sorry, I wish this was an Onion parody. If you click on that link above, there are two videos posted. The site claims to have many more. This apparently occurred in a rich1 neighborhood and is pretty routine, according to the report.

Grosse Pointe Park borders Detroit’s East Side, but the stark contrasts between the two cities’ populations and wealth have been widely noted. Grosse Pointe Park, a suburb of about 11,500 residents, is 85 percent white, according to the latest census, and 49 percent of households have an income of $100,000 or more. In comparison, Detroit, with a population of 701,475, is almost 83 percent black, and the median household income is $27,862.

The police, after initial skepticism, have opened an investigation because, really:

I'm not racist! I love the coloreds!

I’m not racist! I love the coloreds!

H/T: Reason.

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Don’t start nothing won’t be nothing

Connecticut has a very dubious and troubled relationship with our breach of peace statute. Its broad language gives license to turn perfectly legal acts into a crime.

So whether you’re someone who is legally carrying a gun in Connecticut, or a college student who returns home in his Halloween costume, society’s irresponsible overreaction is your responsibility.

I’m sure you’ve heard of David Kyem, the Central CT State U (such a fucking long name – hereinafter CCSU) student who walked back onto campus on a Monday wearing his ninja Halloween costume.

A guy, who allegedly went to that school, so someone must’ve known him, walking to his dorm room with a fake sword was cause to bring the SWAT team and 62 – yes, I said sixty-fucking-two – police officers to the campus. It caused a three hour lockdown and Kyem was arrested for breach of the peace.

Here’s a video of him dangerously getting into an elevator after which he dangerously presses the button to his floor and dangerously walks through a common room not in the least bit looking tired:

So how did this all come to light? Apparently someone who sat next to him on a bus (!) notified police:

Kaylie Washburn, a senior at CCSU who said she rode the bus with the suspicious person and called police. She said she was grateful for the quick police response and called 911 to “help prevent an incident like at Virginia Tech from happening at Central.”

More:

Jordan Governale, a 20-year-old junior from Farmington, said he walked by a man carrying a backpack and with a sword and sheath strapped to his back Monday morning. The man was wearing a mask, camouflage pants, knee pads and a vest resembling body armor, Governale said.

A minute later, he said, he saw police.  “At first I thought it was a Halloween costume. But after I saw the cops I thought it was some sort of threat,” he said. “It’s pretty scary. It’s pretty strange, unexpected.”

Yes, it’s unexpected, because it was a fucking Halloween costume to begin with. If we didn’t have such a disproportional response to guns, we might be able to have an intelligent conversation about them.1

Do you see that all it takes for you to be guilty of a crime is for someone to have their limbic system go in overdrive?

Thankfully for David Kyem, despite the charge, he is still not guilty of Breach of Peace:

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

(b) Breach of the peace in the second degree is a class B misdemeanor.

One might argue that subsection (6) applies, but one would be wrong. He is clearly licensed and privileged to walk through the campus of his school to his dorm room wearing a halloween costume carrying a fake gun and sword. I mean, he must’ve left campus with those things, right?

As if that wasn’t enough, they order him to leave campus. He returns the next day and is arrested for trespassing.

As if that isn’t enough, he’s no longer a student of the school: forced out or left because he didn’t want to be around morons is unclear.

At that point, the best thing for everyone would be to just let it go: the school and police massively overreacted, a student lost his education and is facing criminal charges and everyone had to go buy new pairs of underwear.

But no. This Police State USA, so the New Britain police department has made the almost laughable request that they be reimbursed $13,000 by Kyem and his family.

Kyem, the only guy who probably didn’t do anything wrong in this whole fiasco is being asked to foot the bill of our collective freakout.

In a way, we all have to foot this bill and already do. Because taxes.

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The Harmless Writ: whether you get due process depends on how guilty you are

In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ [of habeas corpus] “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.” The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights.

The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which, if withdrawn, “risk[s] injury to an important interest in human liberty.”

Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty.”

Taken, once again, from this law review article [PDF]. To those who don’t know, a petition for writ of habeas corpus is a post-conviction1 avenue to challenge the legality of their incarceration.

As the legendary Judge Weinstein quoted in his report on 500 habeas corpus cases:

The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

Because, at one point in time, in this country and this legal system, we valued the process as much as the outcome. We placed emphasis on doing things correctly, because we possibly recognized that we all weren’t so blissfully immune from the powerful crosshairs of a runaway government. To that end, judges across the various states and in the federal system were given broad authority to hear these “habeas petitions” challenging the legality of convictions.

Concomitantly, they were given broad powers to fashion remedies, because the harm caused by a violation of a Constitutional right must be made whole as completely as possible.

In Hilton v. Braunskill, Chief Justice Rehnquist wrote

Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

So, for example:

Riggs v. Fairman, 399 F.3d 1179 (9th Cir.2005), a district court has considerable discretion in fashioning a remedy tailored to the injury suffered from the constitutional violation, and a court must consider the unique facts and circumstances of a particular case; Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla.2002), a court granting a writ of habeas corpus may also issue an injunction in aid of the writ; Gall v. Parker, 231 F.3d 265 (6th Cir.2000), a habeas court has broad discretion in fashioning habeas relief; Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992), a district court may exercise its broad authority in habeas cases to grant any relief it deems necessary, including 638*638 permanent discharge of a successful habeas petitioner; Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), federal courts have largest power to control and direct the form of judgment entered in cases brought up on habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.1981), where appropriate, a habeas court may grant injunctive, declaratory and mandatory relief; Hobson v. Murray, 485 F.Supp. 1340 (E.D.Va.1980), federal courts are not narrowly restricted in fashioning an appropriate remedy on granting petition for writ of federal habeas corpus relief but instead, the court is charged to dispose of the matter as law and justice require; U.S. ex. rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3rd Cir.1973), immediate and unconditional release is not the only remedy available in a habeas corpus proceeding.

Gentry v. Deuth. In Connecticut, this power, which derives from the habeas corpus court being a “court of equity” is identical to the power of the federal court. There are a set of statutes in this state, duly enacted by the legislature, that create special “habeas corpus courts”2 In CT, the legislature deemed it efficient to consolidate all these petitions in one courthouse in Rockville and assign 2-3 judges there to hear and dispose of all these cases. When I say “habeas court”, I’m referring to a judge assigned to sit as a habeas judge by the administration of the judicial branch. Once a judge has been administratively assigned to assume that role for a period of 2 or 3 years3, the judge takes on the duties, responsibilities and powers of the habeas corpus court which are given to it either by the common law (all the quotes above) or by statute, which states:

(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require.

Emphasis added by me. Because as of today, that bolded portion is functionally excised from the law books and placed in the metaphorical trash heap which the CT Supreme Court is doing a fine job of filling with your and my individual rights and liberties.

In a decision today [PDF] in H.P.T. v. Commissioner that is one in a long line of utterly confused and confusing decisions about what, exactly, one must do in order to correct a Constitutional wrong when it comes to bad advice given by an individual’s lawyer, the court effectively divests these “habeas corpus” courts of their long-standing and inherent power to fashion the appropriate remedy.

This supreme court, for some reason, has gotten it into its head for over a decade now, that impartial habeas courts whose job is to determine whether a person has been “accorded due process”, not to sit and once again decide “whether he is guilty” are the wrong jurists to determine just what is to be done once they have decided that there was no due process.

A habeas court, generally, decides three things:

  1. Was there a Constitutional violation?
  2. Was there harm to the individual?
  3. How do we fix it?

There is absolutely no precedent whatsoever for questions 1 & 2 to be decided by one court and question 3 to be answered by another court altogether. And yet here we are in CT where this is precisely what has happened.

Here’s what the court wrote:

the proper remedy remains the same in most cases, namely, remanding the case to the trial court, which is vested with the discretion to [return the individual to pre-harm status]

Except, as we have seen just above, it is the habeas court, not the trial court that is “vested with the discretion”.

In order for its proposition, this opinion in H.P.T. cites only two cases4. One is its own opinion from last year in Ebron v. Commissioner, which is based primarily on a (deliberate?) misreading of Lafler and Frye and Lafler itself. The problem is that the SCOTUS cases of Lafler and Frye deal with setups where the trial court and the habeas court are one and the same, which is clearly not the scenario here in Connecticut.

So, in this opinion today, the CT Supreme Court has, without being asked to or without any due consideration, effectively repealed a statute duly passed by the State legislature. It has done so for one reason and one reason only:

In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court.

In other words, because the trial judge will know if he’s a really bad guy who needs to be locked up. The beauty of having an independent court not only evaluate the harm, but then also direct the remedy is that by virtue of being independent, the court has no stake in the game. It is not being asked to second guess or explain its own decision making.

Remember that the trial judge is the one that presided over the case when it was initially pending. This is the judge who may have ruled on discovery requests and, more importantly, conveyed plea bargain offers to the individual’s lawyer. This is the judge who was informed of the vagaries of the case and the strength of the evidence of guilt, or lack thereof. This is a judge who has formed an opinion of the individual’s guilt.

The supreme court says today, in stark contrast to centuries of habeas corpus jurisprudence, that guilt is relevant to determining whether an individual should be afforded the protection of the Constitution against illegal convictions.

The court affirms that as long as someone is guilty, it doesn’t matter how that conviction was obtained.

A Constitutional harm is being weighed not against the principle that was violated or the actual harm caused to an individual, but against the character of that person.

What this decision today does, is give rise to a scenario where questions 1 and 2 above may be answered in the affirmative and question 3 may be answered by a judge with an emotional stake in the outcome who might proffer a middle finger by way of remedy.

We may end up with a situation with absolutely no relief for a proven Constitutional violation. A harm without a remedy is no harm at all.

This court has managed to take the “best and only sufficient defense of personal freedom” and turn it into a harmless piece of paper.

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The petulance of power

petulant

Let’s lay it out there: who here doesn’t believe that anyone arrested for a crime is automatically guilty of it? Who here doesn’t believe that there is a very good reason someone’s been arrested: they must’ve done something. Who here doesn’t believe that the system is a necessary inconvenience; a rigmarole we must go through before we arrive at the “truth” that everyone’s known about since the time of arrest.

The legal system – and the criminal justice system in particular – is increasingly viewed as an annoying detour on what should be a very short road from arrest to incarceration. If an arrestee is later found guilty by a jury, well then, I told you so. If an arrestee turns into an acquittee, it doesn’t mean he didn’t do it, just that the State couldn’t prove it. What has come before me, I do not know1.

And while it may be excusable for the masses to believe that the system is a technicality, it is exceptionally shameful for those educated in the law and charged with its conveyance to similarly believe so.

While this desire to dispense with the due process of law because we know better is foul when it emanates from law professors2, it is particularly odious when it extrudes from the pores of our own Champions of Justice: a terrible habit that seems to routinely recur.

Prosecutors can’t seem to keep their hands out of the misconduct jar. And when they engage in this misconduct, they do it over and over again, and indignantly soBecause they know better. Because they know how the system really works and how defense attorneys and the “constitution” are just impediments and tricks that prevent them from doing real justice: putting people who they’ve decided are rapists and murderers behind bars.

They have the power to decide who is a criminal and who is not and by God they’ve decided that long before they start to pick a jury.

Take Sharmese Hodge. A prosecutor in Danbury, Connecticut, who prosecuted a man named Michael Maguire. Hodge alleged that Maguire had sexually assaulted an eight-year old. In fact Hodge was so sure Maguire was guilty of this hyenous3 crime that she said the following4 [PDF] to the jury:

Defense counsel concluded his argument by stating: “I don’t ask you for pity. I don’t ask you for mercy. I ask you for justice. I ask you to set [the defendant] free.”

The prosecutor began her rebuttal closing argument as follows: “Ladies and gentlemen, that’s not what he’s asking you for. What he’s asking you for is to condone child abuse. What he’s asking you for is to allow a world in which a forty-one year old man sticks his hand down the front of an eight year old’s pants, claims to tickle her . . . [t]akes his hand out, smells it while his erect penis is sticking out of his pants, and, because he did that to an eight year old child, because he did it in a room where no one else was present, because he did in it in a house where mom and dad were separated and there was a woman staying the night . . . you can’t find him guilty. That’s what defense [counsel and the defendant want] you to believe. That’s what they want you to do. They want you to condone child abuse in this courtroom. They don’t want you to look at that little girl that sat on the stand and testified before you . . . . They don’t want you to look at her testimony. . . . They want you to say, hey, guess what? Because she’s eight [years old] and it was just her [testimony alone, you should find the defendant not guilty].”

After asserting that defense counsel had “lied to [the victim]” when he told her that his questions were not intended to trick her, the prosecutor returned to her earlier theme, stating: “So when [defense counsel] sits here and says to you today, we’re not here to condone child abuse or we’re not trying to beat up . . . on the [victim], listen to that. . . . Is he telling you the truth . . . when he says that?”

Finally, the prosecutor made the following argument with respect to the defendant’s own testimony: “I would assume what you wanted to hear was the truth, not a bunch of excuses, not . . . a big cloud of smoke and mirrors . . . . You wanted to hear the truth. That’s not what you heard. You heard a . . . coached conversation between a defense attorney and his client.” The prosecutor further argued: “[I]t’s not a secret that child abuse is a crime. But what counsel’s asking you to do is to say that . . . child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty . . . .”

In addition, during the trial, Hodge and the defense attorney Norm Pattis had agreed that the interview of the complainant should be edited to remove portions that did not deal with the current allegations5. Pattis asked the interviewer if he had asked the complainant about inconsistencies in the story (he had not). Hodge then argued in front of the jury that the interviewer indeed had asked about those inconsistencies, but it was in the redacted portion of the interview that the jury was not allowed to see.

Which is not a misrepresentation but a blatant lie.

Why, if you must ask yourself, would a prosecutor argue to a jury that the defendant is asking them to condone child abuse? Why would the prosecutor make an argument so beyond the pale?

Because she believes it. Because she believes it and also believes that juries aren’t to be trusted. Because she knows that her best bet at “winning” is getting people angry. Because emotion is the surest way to a conviction. Because she has decided that Maguire has done wrong and she’ll be damned if she lets due process get in the way of a conviction.

Fortunately, this time our supreme court intervened6:

We agree with the defendant that the prosecutor’s repeated assertions, during her rebuttal closing argument, that the defendant and defense counsel were asking the jury to “condone child abuse” and to find “that . . . child abuse that happens in secret is legal,” and, further, that defense counsel was lying when he stated otherwise, were highly improper and intended not only to appeal to the jurors’ emotions but also to demean the defendant and defense counsel in the eyes of the jurors. In characterizing the defense theory of the case as she did, the prosecutor sought to demonstrate, unfairly, and without a factual basis, that the defense was illegitimate and wholly unworthy of consideration, for no juror reasonably could be expected to credit a defense predicated on condonation or approval of child sexual abuse.

While Mr. Maguire gets a new trial7. it seems that there are no consequences for Ms. Hodge, who appears free to repeat her questionable behavior.

This prosecutorial hubris is not an isolated incident. Defendants and defense counsel are not immune to the petulance of prosecutors. As a jurist, if you stray too far outside the line, you may find yourself banished to traffic court – a tactic seemingly only employed by prosecutors in San Diego8 – or the subject of a 2-year long inquiry into your impartiality. All because you rule in favor of defendants. Another way of saying that is ‘you rule in favor of individual rights and the rule of law.’ But no one says that. You’re partial and need to be banished if you rule for defendants and prosecutors will spend countless hours writing 70-page complaints against you9.

If none of this bothers you, ask yourself why. Even if you are that convinced of the infallibility of individuals who are given this extreme power, doesn’t their petulance and arrogance at being questioned give you pause?

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