The Wall Street Journal’s Dorothy Rabinowitz has an op-ed today reminding readers of the inglorious role that Martha Coakley played in one of – certainly in my view – the greatest miscarriages of justice of the past twenty years in the United States, the persecution in Massachusetts of the Amirault family on prosecutor-contrived charges of child abuse. (I use the indicative entirely here because I do not believe there is anyone serious left who does not by now believe this was a set of charges trumped up by prosecutors.) (Update: Agreeing with commenter Denver below, I am pulling some of this language as unrelated to the legal ethics question but preserving it below in the comments.)
As it happens, those prosecutors – late in the game, as saner judges were starting to take hold of the process – included the then-Middlesex County prosecutor, Martha Coakley. According to Rabinowitz’s account, before agreeing under great pressure from judges and the public to agree to reduce Cheryl Amirault’s sentence to time served, Coakley
asked the Amiraults’ attorney, James Sultan, to pledge—in exchange—that he would stop representing Gerald and undertake no further legal action on his behalf. She had evidently concluded that with Sultan gone—Sultan, whose mastery of the case was complete—any further effort by Gerald to win freedom would be doomed. Mr. Sultan, of course, refused.
Assume that this account is correct. I am not an expert in legal ethics, not being any kind of litigator, and although I suppose this kind of question is obvious enough that lawyers generally ought to know the required ethical answer, I don’t. Is it ethical under Massachusetts ethics rules for a prosecutor to ask, as a condition of doing something for one defendant (or the same, for that matter), to ask in exchange that the attorney representing a criminal defendant step aside? It seems ethically weird to me that it would be permissible for a prosecutor to seek to affect a criminal defendant’s choice of attorney, more so in exchange for something, and even weirder in exchange for something in relation to another criminal defendant. And, according to Rabinowitz’s account, apparently as a request/offer to the attorney involved (hard to tell if this was meant to be conveyed to the client or not). Can someone knowledgeable explain to me what the situation is under standard legal ethics rules, assuming the facts as expressed above? Assuming these facts, is this okay?
Michelle Dulak Thomson says:
IANAL, but I find it very difficult to believe that this is acceptable practice.
January 16, 2010, 4:26 pmKenneth Anderson says:
Side Note: IANAL – “I am not a Litigator” – I like that, perhaps I should have it on a business card :)
January 16, 2010, 4:29 pmSteven Wechsler says:
The Model Rules, 5.6 provides:
Rule 5.6 Restrictions on Right to Practice
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
5.6(b) seems right on point and I’m pretty sure this was in the old Code as well.
January 16, 2010, 4:40 pmDenver says:
My only quibble is with the characterization of the mass child molestation fad as one instigated by “elites”. This is a gratuitously claim – and an unnecessary one for purposes of the post. These mass molestation cases involved police, investigators, social workers, prosecutors, parents, and juries. These were not members of any “elite”. What about the Washington (Wenatchee I believe) and LA cases? The instigating police and social workers investigating these cases were certainly not elites. Nor were the hysterical parents. Nor were the “believe the children” fanatics who used the craze for political gain. This was outrageous witch hunting that cannot be condoned or justified. Unfortunately Coakley was not the first, nor will she be the last ambitious prosecutor to use oppressive and unethical tactics for personal gain.
January 16, 2010, 4:48 pmRS Milch says:
5.6(b) certainly limits the ability to limit future representation by opposing counsel as part of a settlement on the civil side. This arises, for instance, when settling a putative class action where it becomes clear during the course of the controversy that there are other potential class actions that may be brought. Taking the knowledgeable plaintiffs’ counsel out of the picture might seem prudent, but 5.6(b) limits ones options. IAAL.
January 16, 2010, 4:48 pmRichard Riley says:
Professor, I think IANAL is just “I am not a lawyer” – not quite as finely grained as “not a litigator.”
IAAL, but I don’t know anything about this. Certainly sounds fishy. (IAATaxL.)
January 16, 2010, 4:49 pmKenneth Anderson says:
IANAL – whooops, my mistake.
January 16, 2010, 4:51 pmSoronel Haetir says:
This sort of offer seems well in line with why Mark Bennett, author of http://bennettandbennett.com/blog/ admonishes defense counsel that having two defendant clients in the same case is an automatic conflict of interest regardless of how aligned their interests may appear. And that regardless of whether the attempt to get the attorney off the case was ethically okay.
January 16, 2010, 5:00 pmFlash Gordon says:
Rule 3.8(b) of the Massachusetts Rules of Professional Conduct states:
The prosecutor in a criminal case shall:
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
Coakley’s attempt to force a criminal defendant’s attorney to withdraw as a quid pro quo for something else in the case would seem to violate the spirit if not the letter of this rule. It might be different if the attorney had a conflict of interest that prevented him or her from vigorously presenting the defendant’s case, but here Coakley wanted to get rid of James Sultan because he knew the case so well and was so effective in representing his client. Coakley’s motive was to saddle the defendant with the burden of getting new counsel that would be less effective.
The rule requires the prosecutor to “make reasonable efforts to assure that the accused … has been given reasonable opportunity to obtain counsel.” When the prosecutor’s efforts are aimed at taking away the opportunity for the accused to have effective counsel it sure seems to me that Rule 3.8(b) is violated.
January 16, 2010, 5:00 pmMark Field says:
CA Rule 1-500 provides as follows:
“Rule 1-500. Agreements Restricting a Member’s Practice.
(A) A member shall not be a party to or participate in offering or making an agreement, whether in connection with the settlement of a lawsuit or otherwise, if the agreement restricts the right of a member to practice law, except that this rule shall not prohibit such an agreement which:
(1) Is a part of an employment, shareholders’, or partnership agreement among members provided the restrictive agreement does not survive the termination of the employment, shareholder, or partnership relationship; or
(2) Requires payments to a member upon the member’s retirement from the practice of law.
(3) Is authorized by Business and Professions Code sections 6092.5, subdivision (i) or 6093.
(B) A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules.”
The 2 B&P Sections mentioned in subpart 3 relate to disciplinary proceedings and wouldn’t justify the conduct you describe.
January 16, 2010, 5:01 pmjuris imprudent says:
IANAL also, but even if this were not an ethical breach for a civil attorney (which appears to be likely that it is), I find it utterly outrageous for a servant of the people. If the prosecution can control the right to counsel, what barrier remains to trampling over the rest of a person’s rights?
January 16, 2010, 5:08 pmFlash Gordon says:
Here is the Massachusetts version of Rule 5.6 of the ABA Model Rules;
RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making:
(a) a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy.
Comment
[1] An agreement restricting the right of partners or associates to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.
[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client. The prohibition applies to matters in which the government is a party as well as to purely private disputes.
[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.
This probably has some application to what Coakley tried to do, but it’s obviously aimed at different situations and would have to be stretched a bit to apply to the Coakley matter, IMHO. But see Comment [2]. James Sultan might have been in violation of this had he agreed. What about a prosecutor insisting that defense counsel agree to something that would be unethical?
January 16, 2010, 5:12 pmCrazyTrain says:
In civil litigation at least, this is a big no-no. More than once, my clients who are defendants in a class action or some other case want plaintiffs’ counsel to promise not to sue defendants again on behalf of another client. I was always taught to tell clients that this was not something to even ask for as it violates ethics and third party’s rights to counsel of their choice.
January 16, 2010, 5:12 pmathEIst says:
Assume, apparently, according to, if meant to, assuming, assuming. This was ~25 years ago. What were the facts? I assume you don’t know!
January 16, 2010, 5:12 pmSuperSkeptic says:
It has always bothered me that prosecutors could move to dismiss a defendant’s attorney – for any reason. What with there being a right merely to “effective” counsel and not “counsel of your choice” and all that…
January 16, 2010, 5:24 pmKenneth Anderson says:
Agreeing with Denver that it is unrelated to the post, I’m pulling some language from the OP, but preserving it here:
I’ll take that up another day; for now, sticking with the legal ethics question – thanks to our IAAL commenters for the help.
January 16, 2010, 5:24 pmKenneth Anderson says:
Atheist: Actually, I know quite a lot about the facts of this case and others of the same period, as I was a member of an ACLU committee concerned about the civil liberties implications of all this when these cases and others were unfolding. I can’t vouch for Rabinowitz’s specific claim here, hence the assumption. However, as someone who followed this closely in those years, Rabinowitz’s reporting in the 80s and 90s set the standard for accounts of the prosecutorial abuses of those years.
January 16, 2010, 5:28 pmGringo says:
The WSJ article demonstrates that what is being discussed- a proposed deal that involved an attorney’s no longer representing another client- occurred not 25 years ago,but around 10 years ago.
Follow the WSJ link at the beginning of the article and do the math.
January 16, 2010, 5:32 pmzuch says:
While I think that many sexual abuse cases have indeed been like witch trials with mass hysteria, I can only marvel at the new-found concern by the RW for manufactured evidence and innocent people getting railroaded … and their sudden hyper-ventilating that a prosecutor that was not on the case when the conviction was obtained might not want to revisit the case later (gee, that never happens in Texas, you know…)
Cheers,
January 16, 2010, 5:38 pmzuch says:
… where “effective” is defined as “client convicted”? And as seems to be the prevailing view, “client wrongfully convicted”?
Cheers,
January 16, 2010, 5:42 pmDave N. says:
zuch,
As Kenneth Anderson noted, Dorothy Rabinowitz has been reporting on this issue for a very long time for that very embodiment of the conservative establishment, The Wall Street Journal.
And your sneer appears to be out of place since it was Martha Coakley, great liberal though she may be, who apparently acted in an unethical manner.
January 16, 2010, 5:53 pmKenneth Anderson says:
Could I ask everyone to pull back a bit and focus on my legal ethics question? One thing I don’t understand, for example, is Superskeptic’s comment about prosecutors being able to ask for removal of a defense lawyer – effective assistance rather than choice of counsel. Could someone explain this for me and how it relates to other ethics issues here? Assume – more assumptions! – that I suffered a car crash and everything I learned in legal ethics for the ethics exam got wiped from my brain. Please clarify this for me, I really don’t know the answers here, but am quite curious because, as I said, I followed this back when it was unfolding.
January 16, 2010, 6:04 pmSuperSkeptic says:
Professor Anderson,
I was thinking broadly about “Wheat motions” to disqualify a defense attorney when the government decides that there is a conflict of interest between the co-defendants represented by the same attorney – even where they’ve expressly waived any conflicts. See Wheat v. United States, 486 U.S. 153 (1988). That this can happen generally bothers me, let alone under the more egregious circumstances, as here. Like you say, “[i]t seems ethically weird to me that it would be permissible for a prosecutor to seek to affect a criminal defendant’s choice of attorney, more so in exchange for something, and even weirder in exchange for something in relation to another criminal defendant.” I agree.
January 16, 2010, 6:17 pmSuperSkeptic says:
I may have taken the “effective” counsel not “choice of counsel” language from Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989). This is another case where prosecutors are permitted “to seek to affect a criminal defendant’s choice of attorney” in the context of a forfeiture statute. The dissent characterizes the majority’s holding as anathema to the “core insight” that it is “unseemly and unjust for the Government to beggar those it prosecutes in order to disable their defense at trial.”
My point is simply that it is most certainly technically/legally “ethical” for prosecutors “to seek to affect a criminal defendant’s choice of attorney” under some circumstances. I do not particularly care for this outcome, but one thing it does serve to do is make cases like Mrs. Coakley’s here appear borderline, which it isn’t – assuming all the facts as we have, of course.
January 16, 2010, 6:31 pmzuch says:
The WSJ news is far more respected than its editorial board.
But you’re missing the point. It’s conservatives (even in the juriciary) that seem to think that “finality” and some nominal version of “due process” trumps actual innocence. IIRC, I think that Scalia has opined that actual innocence makes no difference as long as the judicial process has followed some modicum of regularity. A jury convicted Amirault, what more can you say?… And then there’s all the DAs (primarily in southern states) that have resisted as hard as they can introduction of new evidence (generally on a procedural/timeliness basis) and refused DNA testing….
Why don’t you address this? Has Rabinowitz done anything near as much as the Innocence Project?
Cheers,
January 16, 2010, 6:41 pmmethodact says:
Compare the witch hunt today. World Sex News links today to this story over would-be porno sex crime.
January 16, 2010, 6:51 pmElliot says:
Well, would there have been any way for Coakley to enforce the agreement? Could she appear before a judge and demand the lawyer in question be barred from the case because of his agreement with her?
January 16, 2010, 7:17 pmthe federal white collar criminal says:
Sultan would have violated MRPC 5.6(b) (explained in earlier comments) if he had agreed. Coakley violated MRPC 8.6(a) when she tried to trade something of value for Sultan violating 5.6:
January 16, 2010, 7:45 pmRedlands says:
If true, whether there is a MA ethics rule directly applicable is irrelevant. Doesn’t pass the simple smell test. In 28 years of crim law litigation I’ve never heard of anything close to it.
January 16, 2010, 8:13 pmBruce Hayden says:
Except that I was under the impression that the CA courts had effectively eviscerated this rule.
I ran into this 6 or so years ago, when I was talking with a CA firm for contract patent work. They required signing what was essentially a non-compete clause (it didn’t actually forbid the representation, rather, I would just have to pay them all the monies I received from such). I balked for the reasons being discussed here. They sent me some CA cases that essentially found the clauses just fine. I passed on the opportunity because I was not licensed in CA, but CO and AZ where such were still considered unethical. I told them that I wasn’t opposed to a non-solicit clause, but my view of the ethics laws binding me was that I could not refuse representing a client that came to me on the grounds that I had agreed not through contract with that firm.
January 16, 2010, 8:30 pmBruce Hayden says:
Would have been interesting. The other attorney might have been guilty of an ethical breach by breaching the agreement, but she would likely have been in worse shape by putting him in that position. If this made it to the ethics committee (or whatever they have in MA), he might get a slight slap on the wrist, and she a bit more.
Reminds me of a case maybe 15 years ago in CO. Someone working for the DA enticed a criminal defense attorney into trading illegal guns for legal services. The criminal record for the operative had been dummied up to look like he had a criminal past. Both lawyers involved were hammered. The defense attorney was, I believe, disbarred, and the DA was hit almost as hard. (The enticement and the dummied up criminal record were considered fraudulent acts done under his supervision).
Getting back to Coakley, there are several ethical rules that prevent lawyers from putting other lawyers into such a position, as she did there. I am thinking of the general ones, esp. the various parts of 8.4:
January 16, 2010, 8:46 pmmariner says:
I found Coakley’s conduct in this case appalling, whether or not she actually violated ethical rules. (What difference would that really make anyway? How often are prosecutors actually disciplined, let alone disbarred, for misconduct of ANY kind?)
But zuch reminds us of another outrage in all these cases — juries convicted these people by the carload, all over the country.
I hope to God I never need to trust that a jury of my “peers” even understands why they’re there.
January 16, 2010, 8:49 pmerp says:
When Janet Reno, AG under Clinton, was the Dade Co state attorney, she was involved in a similar sordid child molestation case in Miami in which lives were destroyed before innocence was determined some years later.
January 16, 2010, 9:00 pmMark Field says:
Could be. I’m at home and I remembered the rule but didn’t check the case law under it.
January 16, 2010, 9:13 pmDavid Nieporent says:
You don’t RC. Scalia has stated that actual innocence is not a constitutional claim; he has never said it “makes no difference.”
January 16, 2010, 9:19 pmSuperSkeptic says:
Precisely. It is sometimes within the Prosecutor’s legitimate power to intentionally deprive a defendant of his attorney. Prosecutors bargain off of their power. The lines when this is acceptable and when it is not can therefore become fuzzy. It makes sense that someone might cross the line of “acceptability” in this arena because they are sometimes allowed to do it at all. Therefore, the sole truly ethical question(s) here should be: “did/does she have a good-faith belief in his guilt such that she should have opposed his clemency (or, btw, the initial trial) AND/OR are her actions motivated by a desire to do good by the public or herself?”
January 16, 2010, 9:42 pmjccamp says:
erp –
Just an FYI: I’m no fan of Reno’s – just the opposite, in fact – and there were serious (and typical) issues with the Country Walk case, but there was substantial and factual evidence against the male defendant, who remains in prison. There has never been anything like “innocence was determined…” There’s a lot of talk about the defendant’s supposed innocence, but he remains in prison, serving life with no parole, so thus far, every court approached has remained unconvinced of either faulty process or Constitutional error.
January 16, 2010, 10:14 pmerp says:
jc, thanks for the heads up, but I definitely recall that either a policeman or some other official was found innocent after many years in jail. I don’t want to spend the time looking for story, especially since so many links are “unavailable.” Reno was a disgrace, but the current AG makes her look almost competent.
January 16, 2010, 10:30 pmjccamp says:
I agree re: Reno. The Justice Department’s loss (Reno as AG) was Dade County’s gain.
And I’m sure there were other cases. I just happen to remember this one. It may still happen (a retrial), but as of now, Francisco Fuster (the defendant) is still in prison. They did that whole “repressed memory” thing and other now-discredited procedures, especially with the juvenile victims. Unlike many of the cases, however, there was physical evidence of abuse on some of the children, plus the defendant had a history of child abuse conviction and mental illness. He may belong in a mental institution instead of prison, but he was probably guilty of some degree of child abuse. He actually admitted to some of the allegations, although he couched the admissions in terms of accidental contact. Time has muddled so much of the case evidence and testimony, so that it’s hard to sort the truth anymore.
But your point that Reno presided over miscarriage of justice is, in my belief, completely correct.
January 16, 2010, 10:52 pmzuch says:
OIC. Not a “constitutional claim”, eh? What kind of claim do they have then? A fifteen minute interview on The Daily Show? As I alluded (notice I didn’t use quote marks), Scalia thinks that “due process” means essentially what I said above. And it’s about the only challenge you can make to a cooked conviction. And therefore, actual innocence … to Scalia … “makes no difference” (and those are my words).
Try and defend Scalia’s views if you want, but I find them abhorrent.
Cheers,
January 16, 2010, 11:41 pmMorituri de Salutant says:
Those who are about to die (and as a bonus, Cameron Todd Willingham) salute you. And your sense of perspective.
January 16, 2010, 11:55 pmjccamp says:
R Schweitzer -
“…acknowledged injustice to one individual.”
I presume you’re referring to Leonel Herrera, the petitioner in the case in which Scalia said in his concurring opinion “…that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief.”
Scalia’s well-taken point was that Federal appellate courts typically did not consider questions or claims of guilt and innocence, but rather questions of Constitutional issues and import, and that to require otherwise would mean, in effect, transferring the trier of fact from the court of primary jurisdiction to the Federal appellate system. Scalia asserts that this is not an original thought from Scalia, but has in fact been the philosophy in practice for 200 years.
Herrera’s alleged new evidence of innocence consisted entirely of one felon’s second hand statements, quoting Herrera’s now (conveniently) deceased brother as claiming the brother and not the defendant actually committed the multiple homicides. Herrera was convicted by a jury of his peers upon evidence including multiple eyewitness identification, physical and circumstantial evidence, and a letter from Herrera confessing to the crimes.
Herrera has since been executed for the murders.
If you were speaking in generalities, I do not think Scalia ever acknowledged that an injustice would survive the usual review process, and that this additional obligation for a factual review was necessary or proper.
January 17, 2010, 12:34 amjccamp says:
…and zuch’s post was a mis-quote, which changed the meaning and text of Scalia’s opinion. Here’s more of the original language from Scalia’s opinion:
“…later alleges that newly discovered evidence shows him to be “actually innocent.”
Scalia never said that ‘actual innocence” made no difference. He very clearly referred to an (unproven) allegation of ‘actual innocence.’
“…it is perfectly clear what the answer is: there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
That’s an accurate statement. Herrera v Collins broke new ground in making some consideration of claims of newly discovered evidence – absent a claim of Constitutional issue – now within the purview of the Federal appellate courts. (my emphasis)
The follow-up post was “And therefore, actual innocence … to Scalia … “makes no difference” (and those are my words).”
That’s a serious misrepresentation of Scalia’s position. You know, a smear.
January 17, 2010, 12:51 amzuch says:
Yes. Then they say, “he got his day in court, tough titties….” No new trial even with new evidence. And that includes DNA evidence if the time limit for introducing is passed … in states such as Texas (which leads the nation in capital convictions, parenthetically). Doesn’t matter how convincing the evidence is, what matters is that it it “timely” … even if that was essentially impossible.
Cheers,
January 17, 2010, 1:04 amzuch says:
… no, we just have hundreds of people shown to be innocent despite convictions and multiple rounds of appeal….
Cheers,
January 17, 2010, 1:10 amSebastian the Ibis says:
Have you seen Judge Gold’s 50 page sanctions order in Ali Shaygan, against the USA, for trumping up witness tampering charges in an attempt to disqualify the defense attorney:
http://www.flsd.uscourts.gov/viewer/viewer.asp?file=/cases/pressDocs/108cr20112_315.pdf
January 17, 2010, 1:10 am
zuch says:
… as I was saying, I find this new-found RW concern for innocent people being convicted has a very limited shelf life. I suspect it will abate somewhere around next Wednesday.
Cheers,
January 17, 2010, 1:12 amzuch says:
He never said what it was that would get a new trial (outside of the good graces and indulgence of the prosecutors and trial judges [or a pardon: see, e.g., “Texas”). If they don’t feel like it, you’re SOL. And isn’t that precisely what we’re talking about here?
Cheers,
January 17, 2010, 1:15 amjccamp says:
zuch –
As I’m sure you well know, Scalia was drawing the distinction between state courts and Federal courts reviewing state court convictions. A Federal habeas writ requires (or required) some Constitutional issue to be considered. An allegation of innocence was not within the purview of Federal review. That’s all Scalia said. You twisted his words to make it seem as though he suggested actual innocence was no bar to execution of sentence.
And this all started because? If Scalia said “Let them eat cake” then Coakley gets a free pass? Or we conservatives are not allowed to bring it up because we don’t really care?
Get real. Coakley’s attitude in the cited case is a legitimate item for consideration. She flunked a character test. It was a long time ago. Maybe she’s learned something since then. Maybe not.
January 17, 2010, 1:41 amJohn R. Mayne says:
I am a prosecutor, and I’ve moved to have an attorney removed. Had I not done so, I would have done a four-month trial that could have been reversed for defense attorney conflict. It would have been negligent of me not to file the motion. (In my case, everyone got new attorneys to advise them and they all waived the conflict, and the defense attorney stayed on the case.)
That strikes me as very different from making a deal to have a defense attorney represent or not represent someone. I’d suspect that sort of thing would be (or has been) found unenforceable as against public policy in California, but I haven’t looked it up.
January 17, 2010, 2:17 amA. Zarkov says:
Acting under a request from the prosecution, federal judge Leo Glasser disqualified Bruce Cutler and two co-counsel from representing John Gotti in a 1991 trial held in Brooklyn NY. The prosecution said they wanted to call Cutler as a witness because he appeared secret recordings. See here. As I recall, the prosecution never did call Gotti as witness. It appears to have been a ploy to get him off the case. Cutler had won three cases against Gotti, but stood accused of jury tampering in one of them.
So here is another case where the defendant did not get the counsel he wanted.
January 17, 2010, 2:55 amFederal Farmer says:
Smear troll and redundant.
January 17, 2010, 3:00 amA. Zarkov says:
That’s the system. In general Appellate courts don’t reweigh evidence. There are various cures in the light new exculpatory evidence, but a constitutional remedy is not one of them according to Scalia. I don’t understand your problem. Do you want review courts to reverse juries?
January 17, 2010, 3:01 amNorton says:
I have a question about legal ethics: Where did they go? In an age of countless frivolous lawsuits and outrageously high jury awards when will the government finally get around to reform our justice system’s tort laws?
January 17, 2010, 4:41 amHarry Eagar says:
Schweitzer sez: ‘the words were to the effect that the need for finality in judicial procedings was paramount to the cure for acknowledged injustice to one individual.’
Sorry, Capitaine Dreyfus, the adjudication is final.
Sheesh.
January 17, 2010, 5:07 amAmiable Dorsai says:
Well, yes, if the jury obviously got it wrong. Why would that not be a good thing?
January 17, 2010, 6:19 amPaul says:
Not being a lawyer – In civil litigation a “sealed” settlement can be reached. Presumably this also includes sealing information that came out during discovery. Can a lawyer use the knowledge of the existance of this information (knowing they can discover it again) in a future case or would this violate the deal? How about the same in a criminal case? Is there any way a “sealed” settlement can be reached? On the surface it would seem the answer is no – under no circumstances – but never is just waiting for an exception.
January 17, 2010, 7:18 amalkali says:
Respectfully, having read a number of columns by Dorothy Rabinowitz about similar cases is not an adequate substitute for familiarity with the actual record of this case. This case did not involve allegations of satanic or ritual abuse or claims of repressed memory. There was physical evidence of abuse. A number of the alleged victims, who are now adults living in Massachusetts, have publicly reaffirmed their testimony.
Was the physical evidence misconstrued? Are the memories of the adult victims unreliable because of the interrogation techniques used at the time? Possibly. But I wouldn’t let Gerald Amirault within a mile of my kids. I guess that means I’m not “serious.”
January 17, 2010, 7:43 amPersonFromPorlock says:
Zuch, I’m in some sympathy with your depiction of RW jurists as viewing ‘going through-the-motions’ as ‘due’ process. But since Coakley seems to have taken the same position, it can hardly be said to be exclusively the product of RW thought.
The thing is that positivist courts cannot distinguish right from wrong because they will not. It’s hardly to be wondered at if this sometimes results in insane decisions.
January 17, 2010, 8:14 amMartinned says:
Leave it to (American) lawyers to turn something that is by definition not law into a system of law.
January 17, 2010, 9:05 amMark says:
Fascinating posts. First time in awhile I’ve read that many comments and they stayed on the subject. Gerald Amirault was on a Boston radio station last week being interviewed. FWIW, his insurance company paid out over 20 million dollars in settlements to the ‘victims.’ Perhaps the insurance underwriters saw where this was going. Dropped insuring daycares, thus slowing the willingness of those who would benefit financially from pursuing such cases. One needs to always follow the money…Seems to be a fairly large topic of discussion in Boston these days.
January 17, 2010, 9:08 amtfkw says:
I’m not even pretending this isn’t a tangent:
Sometimes I wonder about the actual ideological breakdown of The Volokh Conspiracy’s readership. Specifically, it seems like there are libertarians who don’t think of themselves as conservatives, libertarians who call themselves conservatives but aren’t really, and people on the left who just lump everyone else under the “conservative” label. It’s a cliche that people on the left don’t know what run-of-the-mill people on the right actually believe (and, I suppose, vice-versa), but really, sometimes I wonder if anybody reading this blog is qualified to say what a conservative is.
Reading these comments makes me wonder what beliefs I am mistakenly attributing to people (lots, probably, but at least I admit it). So, even trolls are doing a good deed if they make you not want to be like them.
January 17, 2010, 9:31 amJohn Steele says:
Just to recap, and as noted in various posts above, 5.6(b) seems to cover the situation, but one would want to read Massachusetts case law to nail down their interpretation. Second, if we credit the Rabinowitz account of Coakley’s acts and motives, Coakley violated the admittedly vague language of rule 3.8 (cmt. [1]: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”). Third you would also want to research Massachusetts case law on the ways that prosecutors should not interfere with the defense counsel function. Finally, as a matter of commonsense, the Rabinowitz account describes a prosecutor “striking foul blows rather than hard blows” outside the lines of decency. But I’d like to hear Coakley’s account of the incident before deciding what ethical rules may have been broken.
January 17, 2010, 10:13 amR. Richard Schweitzer says:
JCCAMP
H Eagar
The decision to which I refer is that of the Supreme Judicial Court of Massachusetts, written by Associate Justice Charles Freid, to the effect acknowledging that defendants’ constitutional rights had been violated, and grave injustice occurred, the need for finality of process outweiged the need for justice.
It had nothing to do with Scalia’s viewpoints; tho’ it may be comparable (for other reasons) to the Dreyfus Affair.
What the decision says is that the operation of a legal system takes precedence
January 17, 2010, 10:31 amjccamp says:
R Schweitzer -
Sorry I misunderstood. Do you happen to have the case title?
January 17, 2010, 10:36 amR. Richard Schweitzer says:
JCCAMP
H Eagar
My comment had nothing to do with the views of Scalia.
I refer to the decision of the Supreme Judicial Court of Massachussetts written by Associate Justice Charles Freid, acknowledging that defendants’ constitutional rights had been violated and injustice incurred, but that the operation of the judicial system took precedence over the reason for its existence.
January 17, 2010, 10:38 amSeamus says:
You haven’t been reading much by, say, Paul Craig Roberts, have you? (I might also point out that there are plenty on the right wing who were all over the sex abuse hysteria back when it was happening. You might want to go back and read what National Review and The American Spectator were saying at the time about Fells Acres, McMartin Preschool, Kelly Michaels, Wenatchie, Country Walk, etc.)
January 17, 2010, 10:51 amPJens says:
In my lay opinion, it was not “okay” for Coakley to ask for what we assume she did. I applaud James Sultan for not accepting the deal.
I ask though, shouldn’t Mr. Sultan have reported the incident to the Bar or some other authorities? Maybe he did and that is how the incident came to light. One big problem I see with self regulating organizations is the reluctance for professionals to report colleagues on violations of rules. If a person commits an ethical violation, witnesses within the same profession also have an ethical obligation to report it.
January 17, 2010, 10:58 amR. Richard Schweitzer says:
I believe the citation is: SJC -07529
January 17, 2010, 11:02 amR. Richard Schweitzer says:
Title: Probably :
Commonwealth v Cheryl Amirault LeFave
January 17, 2010, 11:04 amJohn Steele says:
Massachusetts has a mandatory reporting rule for incidents that raise a “substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” Practical realities often dictate how that rule plays out. Some lawyers think that the rule mostly applies to other lawyers who are thieves or who suborn perjury, and not to mere “sharp practice.” Sometimes lawyers think it doesn’t apply to off-hand, unsuccessful attempts to violate ethics rules—particularly when it would lead to a “he said; she said” dispute. So even if Sultan didn’t report anything, I wouldn’t jump to conclusions either way. We just don’t know any of the context.
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January 17, 2010, 11:37 amjccamp says:
RRS -
Thanks.
January 17, 2010, 11:41 amDavid McCourt says:
Zuch, You claim that conservatives have ginned up outrage over the Amirault child abuse witch hunt only in recent days and only as a weapon to use against Martha Coakley’s Senate bid. Well, I’m a conservative, and I wrote the following to the Wall Street journal in 2004 about Martha Coakley and the Amiraults, when she was running for nothing:
January 17, 2010, 11:57 ampublic_defender says:
I would never bargain one client’s interests for another. Even entertaining such a request would create a conflict of interest.
This case also shows another common perception about the criminal justice system–that Democrats are more defense friendly. I find that the opposite is true. Elected Democratic judges are afraid of being Willie Hortanized. Democrats who appoint judges are afraid of the same thing. On several key issues, Breyer is more conservative than Scalia and Thomas. And on the right of the State to conduct trial by affidavit, many in the defense community fear that ex-prosecutor Sotomayor will prove more conservative than Souter. That said, Roberts and Alito are reliable pro-government votes in most criminal cases. “The prosecutor says that the crime lab did everything correctly and honestly, so why should anyone question that?” “Hey, the counselor working for the cop said that the kid said that the defendant is guilty, why should anyone question that?”
But back to my point, like Nixon and China, sometimes only a conservative Republican can grant that new trial to the person convicted of child molestation or murder. And Democratic prosecutors too often feel they have to prove how “tough” they are.
January 17, 2010, 11:59 amDavid McCourt says:
alkali,
You say “there was physical evidence of abuse” of the children in the Amirault prosecutions. Massachusetts Lawyer’s Weekly, in a 1999 editorial, disagreed, saying: “the Amirault indictments were based entirely on child testimony. There was no physical evidence, other than some ambiguous medical testimony regarding relatively minor injuries to a few of the children.”
January 17, 2010, 12:05 pmMark S says:
Professor Anderson, this is an ill-timed discussion, I should think.
There is no evidence brought forward by that editorial to support the anti-Coakley claims, and the timing of its claims are politically quite suspect. Given that there is an election on Tuesday.
The question (is it ethical to force counsel to make promises against another client to bargain for a first client) seems quite unethical – and many of the comments cover that. Besides, to this non-lawyer, being unethical on its face.
But I do think that using Coakley as a hypothetical, this close to an election, is also unethical. I may feel so because I plan to vote for her (holding my nose as I do so: I had preferred another primary candidate.)
Doesn’t the legal question that you pose seem worth discussing at a less polarizing time, and with a less polarizing hypothetical? Or a more fully supported actual?
(I make no claim as to guilt or innocence here for Coakley or Amiraults. I honestly don’t know what really happened.)
January 17, 2010, 1:26 pmDave N. says:
Mark S,
Except that Dorothy Rabinowitz wrote about it last week. Or do you think all posts questioning the actions of Democratic polticians should be avoided because they might be politically inconvenient?
January 17, 2010, 1:59 pmfda says:
The case where Reno was involved was Grant Snowden who was a policeman in Miami, Florida. He was later released when the 11th Circuit threw out the convictions. Rabinowitz (on the WSJ editorial page) also documented this prosecutorial abuse.
http://opinionjournal.com/editorial/feature.html?id=80000393
January 17, 2010, 2:46 pmzuch says:
But what about other types of cases? When it’s being shown — nay, proved — day after day that the mainstay of convictions, eyewitness testimony, is just as unreliable as it is believable by juries, why aren’t the RW folks up in arms asking for change? “Recovered memory” type cases is just the tip of the iceberg.
Cheers,
January 17, 2010, 2:56 pmMark Field says:
Obviously not avoided, but acknowledging the partisan implications seems appropriate.
January 17, 2010, 3:08 pmMark S says:
Dave N, you wrote in part:
The byline on the linked story says “JANUARY 14, 2010, 10:35 P.M. ET”. That would have been after the newspaper deadline for most other papers. It would have appeared in Friday’s WSJ. That would leave one business day to react and have the major press pick up the story and analyze it. While that may be “last week”, it’s still something of a late-breaking story. I think the timing of an editorial of that sort (not a researched story, but an editorial) is quite suspicious. I do wish there was more fact behind the claim. You can claim “last week”, but we’ve seen both parties use last minute Parthian shots like this. I certainly do not KNOW that this is a piece of dirty political trickery – but the timing doesn’t detract, and neither do the circumstances.
Of course not. Not for either party. Political inconvenience is not really a factor.
My personal hope is that the level of filth that some bring to the political process could be avoided by those of us who abhor it, regardless of party or persuasion. I suggest to Professor Anderson, whose post it was, that perhaps this hypothetical legal question (while a good one) is merely ill-timed.
I am not a Party-Man. I do tend to vote more along the lines of the Democratic Party, but I’m one of those unenrolled voters about whom so much fuss is made. I pulled a Democratic Ballot for the primary election, and voted for someone else than Coakley. I’m no partisan for her, nor the party, is what I am saying.
But I do have a savage dislike for the game of cloak and dagger that accompanies modern political elections. In the case of this Op-Ed piece, I feel it is worth asking: is this a verifiable bit of political knowledge, or is it extremist monkey-feces? I suspect the latter.
Real information should come forward, even though it will surely discommode someone.
January 17, 2010, 3:18 pmBrian G. says:
Talk about last-minute smear jobs. Where is the proof for these baseless and slanderous allegations?
Coakley is much better suited to serve in the Senate than that radical right-winger, who has blatantly promised to stall desperately needed health care reform. Brown would have rape victims turned away at hospitals just to keep the Religious Right happy. Brown is owned by Big Oil, the insurance companies, and Wall Street, and the voters will reject him on Tuesday soundly, depsite what the current push polling says.
January 17, 2010, 3:37 pmDave N. says:
Mark S,
Considering that Dorothy Rabinowitz received a Pulitzer Prize in 2001 for her coverage of child sex abuse cases, including the Amirault case, her allegations against Martha Coakley are not new.
I found a similar Op-Ed, in a different publication, but making the same allegations that Rabinowitz did, from last September. The September piece mentioned that Rabinowitz first wrote about the Amiraults and her take on the case in 1995.
You might question the timing of her Op-Ed, but it is hardly “monkey feces.”
January 17, 2010, 3:39 pmDave N. says:
Gee, Brian G., project much?
I could tear each of your various allegations apart, piece-by-piece, but I won’t bother. It is just safe to say you are a rabid partisan. Now scurry back to Kos before they miss you.
January 17, 2010, 3:42 pmjccamp says:
fda -
Thanks. I had forgotten about that case. The ‘expert’ questioners in the Snowden case were the same (in part) as in the Country Walk case. I do think that there was some physical & circumstantial evidence in the latter which existed independent of the children’s allegations, unlike the former. Snowden’s conviction was reversed and he was freed after 12 years in prison.
January 17, 2010, 3:59 pmalkali says:
@David McCourt: You say “there was physical evidence of abuse” of the children in the Amirault prosecutions. Massachusetts Lawyer’s Weekly, in a 1999 editorial, disagreed, saying: “the Amirault indictments were based entirely on child testimony. There was no physical evidence, other than some ambiguous medical testimony regarding relatively minor injuries to a few of the children.”
That acknowledges that there was testimony regarding injuries to children, which is in fact physical evidence. Not surprisingly, the Amiraults dispute whether the injuries are evidence of abuse. I have not reviewed the record myself.
I would add that the fact that the prosecution was based primarily on child testimony does not show that the prosecution was improper. I agree that people who hysterically demand that children always be believed are irrational. At the same time, testimony from child witnesses can be very credible. Again, I have not reviewed the record.
January 17, 2010, 5:10 pmPintler says:
One reason is that ‘A man knocked me down and stole my purse, and the defendant is that man’ has at least a basis in fact: in general, the woman was mugged (and, indeed, insert a generous dollop of Loftus here).
The claims of the recovered memory cases (at least the local ones) were far more outlandish: ‘dozens of adults wearing robes molested me in hours long satanic rituals that I totally forgot until years of therapy’ just runs the incredulity meter up several notches past the mugging.
January 17, 2010, 5:36 pmNickM says:
Martinned – in many states, ethical rules have the force of law. I can’t speak to Massachusetts particularly, but California, for example, has the following sections in its Business & Professions Code:
Nick
January 17, 2010, 5:43 pmerp says:
fda -
Thanks from me too. As soon I as I saw the name, it all came back to me.
January 17, 2010, 5:56 pmzuch says:
The question is whether substantive due process requires the recognition post-trial of competent evidence of actual innocence. As I said, Scalia et al. don’t think much of such; doesn’t matter if we kill innocents as long as we do so with a procedurally ‘regular’ process, even if we know it utterly failed in their case.
Cheers,
January 17, 2010, 6:14 pmzuch says:
But that’s basically what he said. That’s the result….
Cheers,
January 17, 2010, 6:16 pmzuch says:
Never said it was. All I commented on was the sudden interest in unfair prosecutions of people who may be actually innocent….
As I said, I’ve also been against the sexual abuse hysteria. There was a great series on PBS on this quite a while back, IIRC.
Cheers,
January 17, 2010, 6:23 pmzuch says:
No. I take issue with the use of the word “only” here. I never said that.
Cheers,
January 17, 2010, 6:25 pmConnie says:
Actually, she has been opining on this case for a very long time. It was never clear why her articles were published on the opinion page of the WSJ, and not as a news story.
January 17, 2010, 6:50 pmjccamp says:
zuch –
“But that’s basically what he said.”
Only because I have seen your ability in other threads, I suspect you are being deliberately obtuse in this matter. Scalia was referring to remedies available to a state prisoner when petitioning for Federal habeas. He did not suggest a cut-off of remedy, only that Federal intervention in state court matters must have a trigger based upon Federal Constitutional subject matter.
For instance, considering the cited case in the OP, the Massachusetts courts can consider circumstances described roughly as “causing a miscarriage of justice” or words to that effect. A prisoner alleging newly-found evidence indicative of innocence can petition based on this catch-all within the state court appellate ladder. All Scalia was saying is that there is no such phrase or right described within the U S Constitution, or within legal theory or tradition regarding the Constitution for Federal intervention.
As for due process, I think it pretty settled that claims of newly discovered evidence have a very high hurdle, as the people have the right to expect some finality to justice. The trial judge, or a surrogate if the original is not available, normally has wide discretion in questions of new evidence claims in which appellate courts are loathe to intervene. Again, we are not discussing closing off all avenues to a prisoner, merely limiting the likelihood of an appellate court inserting itself into the discussion.
Whether or not you agree with the underlying philosophy, would you agree with the description of the issue?
January 17, 2010, 7:01 pmEdward A. Hoffman says:
I haven’t read all the comments, so please forgive me if someone else has already made this point.
The rules which govern attorneys’ conduct in Massachusetts may have changed significantly over the past 25 years. We should look at the rules that were in effect at the time, not the ones that are in effect now.
FWIW, IAAL
January 17, 2010, 7:06 pmsien says:
law and ethic are different things
January 17, 2010, 7:12 pmlazlo toth says:
I’m a civil non-litigating lawyer but it seems to me that “settlement of a controversy” encompasses criminal matters and that the prosecutor who seeks to cause counsel not to represent the defendant is – if not participating in the agreement (because it was turned down) – certainly OFFERING it as part of the agreement not to prosecute further. I don’t think I’m pushing the language very hard here since the offer to drop further prosecution was part of an overall package that included the restriction on future representation of Amirault (in both criminal and civil proceedings if Rabinowitz’s broadly-worded description of the proposed restriction is accurate). The more I think about it, I don’t think I’m pushing the language at all. I think Coakley violated the spirit AND the letter of the rule by seeking to deny counsel that she believed was at the time highly effective.
January 17, 2010, 7:22 pmDave N. says:
Connie,
Dorothy Rabinowitz has been both writing about and opining about purported child-sex-abuse cases for quite a long time. That was my major point.
But my point was that Rabinowitz’s criticism of Coakley is not new, even if her first criticism of Coakley this year occurred the Friday before the election.
January 17, 2010, 7:50 pmMark S says:
Dave N, when you wrote:
I think you are sliding away a bit from the facts in this long comment string, or your original posted opinion.
In fact, at least with the citations you provide, the allegation of unethical misconduct that is the heart of this discussion, is brand new and late-breaking. It is this new allegation that remains unproven, and whose discussion I think is ill-timed here.
You might note, Dave, that I am not questioning the truth of the matter of the Gerard Amirault case. I don’t know that truth.
In fact, I think it is fair to say that while Rabinowitz takes the firm and unyielding stance that there was no sexual abuse at all, and perhaps you feel the same way, we cannot know to a certainty one way or the other. We can only know that there is an adversarial judicial system and that it is the role of the defense to defend, and the prosecution to prosecute. That it is the ordinary way of the judicial system, once judgment is rendered, not to question the facts but only the process. And it is not poor performance of a district attorney to continue to work in the role of the prosecution in our adversarial system.
That may not be the best of all possible systems, but it is unquestioningly the one we have. To pillory a prosecutor for being a prosecutor is the right of every writer who chooses, but it is opinion: not fact. It is simply not a fact that Amirault is innocent, nor it is a fact that he is guilty. It is a fact that he was convicted by actors in the process.
That you can find old opinion that, by presuming innocence of Amirault, calls any prosecutor ever associated with the case as guilty? That’s just opinion. It might even be right, but I don’t know.
But to claim ethical lapse by a candidate, suddenly and for the first time on the last business day before an election, as an opinion without supporting facts – perhaps monkey feces is not the right term. What sort of political act might it be?
What is your actual defense of firing off this sort of unsupported opinion at this time in a political race, that would allow us to separate an accurate claim by Rabinowitz from a political attack? I do not see the ability to distinguish the two here – what is your mechanism for telling which sort of act this is? I say it seems like a malicious political act. I continue to wish that our host in this blog had waited to ask the legal question as more of a hypothetical at a less politically charged time, or that he had done so without the need to discuss his opinion of that particular case.
January 17, 2010, 10:46 pmDave N. says:
Mark S.,
I thought about this a great deal and you do have a good point. The hypothetical could have waited until Wednesday — and the WSJ should not have waited until the Friday before election day before running the piece (Rabinowitz’s Op-Ed should have run earlier in the week).
January 18, 2010, 11:15 amzuch says:
I’ve discussed that above. If substantive due process (akin to garlic to the likes of Scalia) doesn’t offer a remedy or guarantee, these people are SOL. As you may know, in places like Texas, there’s a strict time limit for introduction of new evidence (as well as strict limits on what types of “new evidence” may be introduced). The states offer no recourse (which is why these cases end up in federal court; there are no more avenues of state relief). If they have to rely on such as the texas BPP, you know how that goes….
If Scalia is right that there is no such federal remedy, I suggest the criminal justice system is fundamentally broken (which may not be far from the truth for some states).
I find it interesting that, in order to convict someone, you have to have enough evidence for juries (applying standards that are generally not subject to review) to convict “beyond a reasonable doubt”, but in order to get a new trial, you have to prove innocence to a judge with irrefutable evidence in most cases, if even that suffices.
In Connecticut, the Connecticut Supreme Court addressed this problem a while back. There was a person convicted of committing a rape, where the (alleged) victim was able to describe the defendant’s car in extreme detail, and to identify him as the rapist. Only problem was: DNA evidence presented showed that he could not have been the rapist. The jury believed the ‘compelling’ eyewitness testimony, and disregarded the DNA evidence. The case reached the Connecticut Supreme Court, who had to twist themselves into legal pretzels in order to reverse the conviction; such is the power of witness testimony, and the vagaries of jurors … and the lack of recourse to those that have been wrongly convicted. This may be the case: It is incumbent on those that think this ought to continue to be the case to explain why. “Finality” hardly begins to explain it. And “efficiency” brings to mind other historical “efficiencies”.
Cheers,
January 18, 2010, 12:13 pmHarryEagar says:
alkali sez: ‘Again, I have not reviewed the record.’
Me neither, but I read Rabinowitz’s WSJ stories at the time, and while I do not have them before me, some of the child testimony alleged incidents that, if they occurred, could not have failed to leave horrible physical evidence.
To say that ‘satanic’ rituals were not involved is disingenuous. The child testimony was not about satanic rituals but about torture.
Connie, your use of ‘opining’ is a distinction (almost) without a difference. She was doing original reporting, when no one else was. But rather than interviewing participants (not easy to do in a situation like this), she was combing the transcripts and the judicial opinions and orders.
By golly, VC has discussed torture enough, so I almost hesitate to use the word, but what was alleged was way worse than waterboarding.
January 18, 2010, 12:45 pmMichelle Dulak Thomson says:
zuch,
The difficulty with devaluing eyewitness testimony as such is that sometimes the eyewitness really is accurately describing what she saw. And, frankly, people will not stand for a legal system in which a competent adult’s testimony of having seen a crime committed is inadmissible. I’m all for making juries understand that IDs based on a single glimpse of the perp are very shaky. But sometimes, y’know, someone actually saw something, accurately.
Oh, regarding your comment above, are you saying with your “(alleged) victim” that you do not believe she was raped?
January 18, 2010, 12:56 pmDave N. says:
Michelle,
I didn’t know what zuch meant by “(alleged) victim” either.
Not knowing the facts of the Connecticut case, I can only speculate as to what the evidence showed. I do know that in sexual assault cases, DNA is not always probative — the victim may have a consentual sexual partner prior to the attack and THAT partner’s semen may provide the non-matching DNA.
I also do not know where the DNA evidence in the Connecticut case came from. I was assuming above that it came from a vaginal swab. If it came from a hair found at the crime scene, on the other hand, its probative value would be close to zero in any event.
(DNA found in that circumstance would only have probative value if a) it was a stranger sexual assault; and b) the perpetrator claimed never to have been in the locale where the assault took place)
January 18, 2010, 1:26 pmjccamp says:
zuch –
As almost always, I might see the details in a different light.
For instance, in the Connecticut case you cite (State v Hammond, 1990), the prisoner, who was able to successfully appeal within the state courts, was acquitted at a second trial. He had no need of Federal intervention. In reviewing the available on-line documents, a possibility you didn’t consider is that the victim had consensual sex with another person prior to the assault, and then lied about that consensual sex only for reasons which had nothing to do with the crime. She accurately described minute details concerning the defendant’s automobile where the assault took place, and identified him several times. The defendant lied about his alibi. The body fluid specimens were explained away to the jury in the first trial as “contamination.” The suspect and the boyfriend were both eliminated as the donor of the specimen. Here’s a link with more from the NIJ.
This does not seem like the poster-child of cases to represent your point. It’s more like a presumably guilty rapist who escaped justice because the rape victim was also guilty of infidelity and perjury to hide same from family and friends. (I will grant that without some of the more specific details of the testimony it’s hard to say for sure whether the rapist was likely to have left body fluids behind. This is certainly ‘reasonable doubt’ as described with no other details.)
As for time limits on the presentation of new evidence, I obviously cannot speak to such requirements everywhere within the criminal justice system, but I think it more accurate to say there are limits on how long may pass until such evidence may no longer be presented once it has been discovered (or should have been discovered) by the defense. This is only to prevent defense counsel from, years later, resurrecting evidence considered and rejected at the time of original trial simply as a delaying tactic. The evidence must truly be “newly discovered.”
Finally, given the state of affairs now, I don’t think it is incumbent upon anyone to explain why the status quo should not be maintained. More, it should be your burden to demonstrate why 200 years of practice suddenly require a change.
As for the motion to seek a new trial based on “newly discovered evidence,” I believe that the original trial judge is normally the first decision maker, the rationale being that he/she would have first hand knowledge of the factual circumstances surrounding the original conviction, more so than one (new to the case) might get from the reading of a dry court record. The burden of overturning a jury verdict is, of necessity and rightly so, quite high.
Eyewitness testimony can be unreliable, inaccurate, even biased. Fortunately or unfortunately, it’s also sometimes all that there is. Presumably, a vigorous and professional defense will find the flaws in such eyewitness testimony. In any event, there will never come a time when a victim will not be allowed to stand and point and say “That’s the bastard right over there.” Which is as it should be…
So, I’m sure you won’t be astonished that I remain unconvinced by your arguments.
January 18, 2010, 1:56 pmzuch says:
But what is clear is that, while sometimes the most competent and accurate evidence, such should not be exalted. And this is likely to change (and I think the legal system has to take this into account) as forensic science becomes more and more accurate (and also as we develop more and more ways to monitor what happens where).
In the old days, when forensic evidence more or less didn’t exist, we (meaning humankind) exalted eyewitness testimony, and in fact required conviction only on the basis of eyewitness accounts (sometimes requiring more than one), or on the basis of confession (see, e.g., the evidentiary standards for treason). This led in turn to the use of torture to produce the required confessions when no eyewitness was available…. We still see vestiges of this primacy of the witness in requiring that (most) forensic and documentary evidence be introduced by a witness (also, how do you “cross-examine” an inanimate object?). Perhaps this primacy of eyewitness testimony needs to change, as we learn more and more about the sufficiency of eyewitness accounts, and develop more and more alternatives to such….
I really don’t know. She claimed such. She may have had a grudge against the defendant, I don’t know, and somehow was familiar with his car. What is clear is that the DNA evidence ruled out the defendant raping her. If the DNA was from someone else, who knows whether that was through rape or otherwise.
Cheers,
January 18, 2010, 4:09 pmzuch says:
True. He was able to get state court relief. But had the Connecticut Supreme Court not engaged in some rather interesting adjudicating, he would have been SOL; the jury having considered the evidence and reached their verdict, there would be no relief. If they had taken this road, would this be a miscarriage of justice? Some like Scalia would seem to think not. The Connecticut Supes were of a different opinion, fortunately for the defendant. FWIW, I learned of this from Dr. Henry Lee, the (in)famous head forensic scientist for the state of CT (he’s known for testifying in the William Kennedy Smith and O.J. Simpson trials, but also is the prosecution’s best weapon in CT criminal cases). He’s quite the interesting speaker if you get a chance to hear him.
Cheers,
January 18, 2010, 4:19 pmzuch says:
What makes you think this?
Cheers,
January 18, 2010, 4:22 pmzuch says:
… which brings us back in the vicinity of the subject of this thread…. ;-)
So, should Cheryl Amirault have been a new trial? Or sentence reduction?
Cheers,
January 18, 2010, 4:30 pmzuch says:
Some states have strict timeliness requirements for “new evidence”. From your link:
Good thing Dubya wasn’t governor there, eh?
Cheers,
January 18, 2010, 4:43 pmjccamp says:
That’s what I get for not reading my own material through to a conclusion…
January 18, 2010, 5:04 pmjccamp says:
“What makes you think this?”
Personal experience mostly. The victim in the cited case provided rather extraordinary detail, the suspect’s actions were not consistent with innocence, but the forensics tests provided unexpected results. Without a trial record of testimony, it’s difficult to estimate whether the rapist – whoever that might have been – would have predictably left a specimen. Assume for the moment the woman told the truth about the attack, then there would be little doubt about the source of the unidentified fluids.
Bolstering this view is that the prosecutors proceeded (with trial), knowing that the lab could not identify the suspect’s DNA. I think prosecutors generally try to get it right. Excluding contamination, which we now know is true, I return to the only other plausible source, which also fits the known facts…a third person having consensual sex with the victim. Otherwise, we would have to believe the existence of two identical autos, right down to the scratches and personal property within, etc.
But without more, this is the veritable definition of reasonable doubt.
As to the Amiraults, they clearly were victimized by sham science and some lynch mob mentality. A new trial should have been the proper remedy, I would think, so the factual issues might have been resolved. Aside from the imperfections of the trials, suppose for one minute that a child or children were molested during that time by someone. The failure to properly investigate and prosecute have denied those children – now adults – their day in court. The wrongdoing in this case was prolonged by a series of prosecutors and state AG’s who insisted on the validity of the original convictions, even long after the absolute ridiculous nature (of the original trial, etc) had been exposed. But that was the thrust of the OP, I think, albeit tied to the election tomorrow.
I would add this, though: More and more, scientific evidence is under serious attack within the courts. What previously had been accepted as gospel, such as fingerprint identification and firearms/projectile matching, is receiving harsh scrutiny. Hair matching and bite mark analysis are pretty much discredited completely. Even DNA evidence can be relegated to insignificance, due to poor handling, erroneous statistical sampling methods, and frankly, double talk within the courtroom to unsophisticated juries.
Henry Lee is a perfect example, a hired gun who will couch his scientific conclusions in terms sounding more favorable to whomever pays the bill.
January 18, 2010, 5:28 pmjccamp says:
BTW, the Virginia laws have now been changed to specifically allow the post-conviction DNA testing of evidentiary material.
January 18, 2010, 5:45 pmzuch says:
You missed my point. What makes you think that I had not considered what you claimed I didn’t consider?
Cheers,
January 18, 2010, 6:48 pmzuch says:
Speaking of not considering things, another possibility is that she did know (or had at least an acquaintance with) the defendant (or his car), and maybe had it out for him for some reason. Which seems to be the case, seeing as further DNA testing showed he could not have been the rapist.
Cheers,
January 18, 2010, 6:54 pmzuch says:
There are people that think that such type interviews with children produce valid and reliable evidence. I am not one of them, FWIW, but they are not obviously wrong (or even if wrong, not necessarily dishonest or evil-minded in thinking so).
Cheers,
January 18, 2010, 6:57 pmzuch says:
So is evolution. Some things never change. But I’m of the opinion that science itself is getting better, not worse. True, there’s “hired guns” and such, but that’s hardly a new phenomenon. OTOH, there is a tendency amongst some political persuasions to try and discount scientific evidence nowadays, and to keep insisting, the more we find out, that “we really don’t know…..” anything (and therefore, coincidentally, can’t make the policy choices that might recommend themselves based on that evidence). I disagree.
Cheers,
January 18, 2010, 7:02 pmzuch says:
Cites?
Hair-matching is being supplanted by DNA matching. If you have the hair, with today’s techniques, you can usually get DNA.
I thought Lee’s testimony in the O.J. case uncontroversial. How did he slant it?
The police/prosecution screwed up big time in the “chain-of-custody” (and sh*tty lab practises) and gave the defence something to hang their “reasonable doubt” hat on.
Cheers,
January 18, 2010, 7:07 pmjccamp says:
Zuch -
Without access to court transcripts, we’ll never know, but there is nothing in the on-line docs to suggest she was anything but a good faith victim. If she, in fact, withheld info that had nothing to do with the rape, that would explain the DNA fail. If she had testified in bad faith, I believe we would have seen some indication.
Interviews of children can be done in a non-suggestive fashion. That was not the case in many (most?) of the more lurid child abuse cases referred to here.
“Cites?”
There’s a ton of stuff available, but perhaps the most noteworthy is the National Academy of the Sciences report to Congress back in February, 2009 (link), which suggests that most of the scientific evidence typically accepted as bedrock has never been subjected to peer-review scrutiny. For instance, how do we really know that no two fingerprints are the same? Etc.
As a BTW, hair produces DNA readily only when the root is attached, as when the hair is plucked, and then includes skin and/or white blood cells. If all one has is a broken hair, then you have to go for mitochrondrial DNA, which is more difficult to harvest and does not give a clean match absent other (anthropological) factors.
As for Lee, I think that had he been testifying for the government, he would have said something like “Despite all the poor record-keeping, the odds are that the suspect contributed the DNA specimens to some nth degree of certainty.” Instead, he said, to the effect, “Who knows?” It’s easy to do that when you are testifying from your expertise and opinion, not about some scientific fact…especially when you’re being paid several years’ salary to say so.
January 18, 2010, 8:14 pmreadery says:
It was Scalia’s dissent in Maryland v. Craig , that galvanized the idea that conservative interpretations of the constitution protect rights and prevent miscarriages of justice. Justice Scalia clarified how interpreting the constitution loosely — as being vague phrases that could be shaped to mean whatever judges would like them to mean by balancing various interests results in the complete loss of liberty. Only by interpreting constitutional provisions as representing firm guarantees that have to be abided by even when they lead to results one may not like can liberty or justice be protected. The dissent began “Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.”
Justice Scalia wrote:
Scalia carefully discussed the importance of confrontation in the context of child sex abuse cases of exactly this type:
January 18, 2010, 9:08 pmLessinSF says:
DAs all over the country were atrocious in their behavior. In Nevada, a conviction was obtained where the child claimed the day care providers killed an elephant and buried it the yard.
“Almost all of the events described in Susan’s testimony as occurring at Felix’s day care center were false or incredible. The undisputed medical evidence established that most of the assaults Susan alleged could not have happened. Her testimony that animals and people were killed and buried at the day care center is incredible, as was her testimony of being hung by her neck in a closet for hours and being forced to drink gasoline and dog urine.
Felix v. State 109 Nev. 151, 849 P.2d 220 (1993).
January 19, 2010, 2:58 pmv says:
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January 19, 2010, 10:13 pm