this case is an unbelievable story of ineptness and prosecutorial abuse

It's a tale of incompetence by clerks, defense lawyers at the pretrial and trial levels and the trial judge. It's also a tale of vicious abuse and corruption on the part of the prosecution and the trial judge. And it's a tale of corruption on the part of the appellate court in covering it up.

While he won a reversal of the murder conviction, surely the appellate lawyer should have made arrangements for another lawyer to stand in for him at oral argument when his request for a continuance of oral argument due to his illness was denied, instead of allowing the prosecution to make oral argument on appeal with no one present for the defendant.

I surely hope the appellate court vacated the entire judgment of conviction--on the other charges as well as on the murder charge. The "mistake" infected the entire course of the proceedings.

in which a defendant was accidentally convicted

"accidentally" is too charitable.

What's this?

You mean Nifong is not the only dishonest prosecutor in the country?

By the way, and in all seriousness, the prosecutor should be indicted by the federal government for criminal deprivation of a citizen's civil rights. Who's the US Attorney there? Seems like an open-and-shut case. The trial judge too likely committed a criminal deprivation of this citizen's rights under the federal constitution. (And before someone mentions prosecutorial or judicial immunity, those only apply to civil cases, not criminal ones.)

Wow.

(But seriously, why are we wasting time on this case when we should be talking about the duke case?)

I should have said in my last post that I plan to call and ask why they defended the murder conviction, not why they "went forward." (They did have other legitimate issues to respond to on appeal.)

Richard Aubrey:

The Science Fiction version of the story is called "Computers Don't Argue": it can be found here:

http://www.atariarchives.org/bcc2/showpage.php?page=133

I'm having a hard time seeing as how this kind of conduct could be anything but criminal on the part of the D.A.

Or is anything and everything a prosecutor does protected?

My question is to all the readers of this blog who support the death penalty:

Do you understand now how we who think that the system makes too many mistakes come to that conclusion?

I mean, if O.J. can be charged with robbery, robbery with a firearm, threatening people during a robbery, threatening people during a robbery with a firearm, preventing people from leaving a robbery, preventing people from leaving a robbery with a firearm, conspiracy to rob, acting like a robber, robbing in a roblike manner, committing robbery in a district where robbery is illegal, committing robbery within 100 feet of another human being, and being associated with the term 'robber', then we can spare at least one type of "fraud" indictment for a fraudulent prosecution?

Why not file an ethics complaint with the bar?
I have no first-hand facts. Why would I?

TJIT, the problem with the Duke coverage is that the story isn’t focusing in on the broader problem with run away prosecutors. Instead, it’s a story about how the “liberal elite,” the “media,” and a prosecutor acted indefensibly.

If I understand the post correctly, the indictment was dismissed for insufficiency: i.e., in the opinion of the judge, there was not enough evidence to make a prima facie case for conviction.

The jury found that not only was there a prima facie case, but there was evidence was convincing beyond a reasonable doubt.

And since the conviction has been vacated, no jeopardy has attached and the state can retry him. Which is good, because apparently, he did it.

I wonder if that Mario Roberto Flores is the same as this Mario Roberto Flores.

I'm having a hard time seeing as how this kind of conduct could be anything but criminal on the part of the D.A.
Of course what I wrote about arguments the prosecution might have made to try to save the conviction does not in any way excuse the prosecution's failure to bring the dismissal of the charge to the attention of the trial judge and/or the defense lawyer before the trial began. That is indefensible.

Why not file an ethics complaint with the bar?

I have no first-hand facts. Why would I?

Anyone who hears of misconduct by a lawyer, even if their knowledge is second or third hand, may appropriately bring it to the attention of the state bar. The reasons for doing so are obvious. It's then up to the state bar to investigate or not.

I guess I am just not a criminal defense attorney, but I am not so thoroughly outraged as Orin about what happened. While the grand jury's charge against Flores for depraved indifference murder had been dismissed by the first trial judge (why, we don't know, maybe it was because of the NY case described in the Newsday article, which holds you can't charge someone with both types of murder for the same conduct), his indictment for intentional homicide was sufficient. The fact that the lesser included offense was mistakenly submitted to the petite (trial court) jury along with the greater offense is to be sure a screw-up, but not the type of miscarriage of justice that occured in the Nifong/Duke case. Indeed, I find it interesting that the jury convicted Flores of that offense, suggesting there was evidence of his involvement in the homicide. This is not to say that I approve of the DA's decision to not alert the defense counsel or the Court about the mistake, a DA should do the right thing. But, at the end of the day, I am not too troubled by the situation. This is far less egregious than a dissenting 5th Circuit judge's opinion in a murder case that a defense attorney's sleeping through much his client's trial did not constitute ineffective assistance of counsel.

So I'm supposed to be outraged that somebody who killed somebody else almost didn't get away with it on a technicality?

If this had been a death penalty case, wouldn't it be more likely that this would have been scrutinized and found?

According to Wikipedia:

After running on a platform of merit-based hiring, Rice immediately hired sister-in-law Cheryl Rice (at a starting salary of $95,000 a year) to handle the scheduling, reports and correspondence for the office. Cheryl Rice's salary will be $5,000 a year more than the woman who held the job under former District Attorney Dillon, according to 2004 records.

During her tenure as district attorney, she also neglected to renew her license to practice law in New York.

Rice dismissed Fred Klein, a 27-year veteran of the District Attorney's Office. Klein was dismissed because he "did not see eye to eye" with Rice on how to prosecute major cases.

Rice graduated from Touro (a Tier 4 law school). Here is her picture. Notice her CND peace symbol pendant.

A number of the comments misapprehend New York law and procedure. First, attorney discipline is not handled by the state bar association, but by the Appellate Divisions (of which there are 4 Departments), each of which has a disciplinary committee. Note, in this instance, it would be the same Appellate Division, Second Department, that rendered the decision. So for all of those posting about notifying the disciplinary authority, they already know by definition. Whether they are or will do anything is a private matter until such time as a determination is made, and then will only become public if a public sanction (public censure or disbarment) is imposed. I wouldn't hope for much.

As to the depraved/intention murder, they are both subset theories of Murder in the Second Degree. During the pendency of this case, the Court of Appeals (New York's highest court) decided People v. Payne, which disapproved of the common practice of charging both murder theories in every case, the deprave indifference theory as a fall back to intentional. The position was that an intentional murder could not be a depraved indifference, both of which reflected mental states rather than external circumstances, making them mutually exclusive. When the prosecution moved to not submit the depraved count to the jury following Payne, Judge Jeffrey Brown refused. This is yet another error in the case, but unrelated to the far more serious systemic screw up.

And finally, when the case was tried, the District Attorney was Dennis Dillon, who subsequently lost an election to Kathlees Rice. DA Rice is responsible for the appeal, and it was her office that chose to pursue a position seeking affirmance of the conviction.

And finally, Flores is hardly a heroic figure. But this really isn't about Flores, but about a failure of the system compounded by an appellate court that swept the failure under the rug.

Did I read the blog to say that the blind attorney didn't go or send anyone to oral argument?

Although clearly a massive screw-up on the part of everyone, this is not a deprivation of a federal constitutional right. The 5th Amendment right to be tried only upon indictment of a grand jury is one of the few rights NOT incorporated against the states. In a state trial, all that is required is notice of what the charges are. (Indeed, many states do not have a grand jury system, although NY does.)

Here a grand jury did indict, although one trial judge thought that was insufficient. Nevertheless, with notice of those charges, the trial proceeded and the defendant was found guilty beyond a reasonable doubt by a jury of his peers.

So while the charges should have been dismissed and the conviction was properly vacated on appeal, this is hardly a great miscarriage of justice.

Robert,

Well, I certainly can't speak for everyone on this. But your solution seems a weak fit to the problem for several reasons; it doesn't actually answer anything or free any innocent people from prison, but rather just adds years of delay to every case. Isn't a more direct solution to give very close scrutiny of all death penalty cases, especially in the rare set of circumstances when there is an actual innocence claim?

Orin

A dismissal is now a technicality? And here I've been wrong about the respect for the rule of law all along.

Given that he done the deed, yes, it's a technicality. I agree with Bored Lawyer immediately above, this was a massive screwup (the same kind that leads to things like gas main explosions, because at several different junctures folks didn't realize that essential safety checks were missing) and both kinds should remind us to use the checklists in our chosen professions. And I agree that this was the proper outcome -- preserving the rule of law in general is more important than punishing every guilty person.

Unlike the explosion or an execution, somebody did catch the error, and there was absolutely no irreversible harm (aside from transactional costs.) Flores would have been serving the serious time for the other charges, and now, because the system did eventually grind slow and fine, he is getting away with murder.

I don't understand People v. Payne -- I thought the first thing law students had beaten into them was that it is fine to pursue alternative theories, even if they are mutually exclusive. (As my friend said "It isn't broken, I didn't break it, and it was like that when I borrowed it." [Or something like that - B &C aren't mutually exclusive, in his maxim they were.])

I would sooner shed tears most of the folks Radley Balko reminds us of, the falsely accused, those caught up in drug conspiracy charges and mandatory minumums for prescribed drugs or for having the wrong boyfriend or for selling light bulbs, non-violent old ladies who were jailed for being too rich or too poor, even dirty-handed low-level mobsters who were framed by the FBI and even for lacrosse players than for this guy.

Put yourself in the defendant's shoes. It's enough to drive anyone insane.

Orin, I think you may want to amend your entry a little since it's a bit misleading. By stating "the defendant was accidentally convicted of murder and then sentenced for murder even though the murder charge had already been dismissed" it makes it sound as if he shouldn't been on trial for murder at all, when in actuality he still should have been on trial for intentional murder, but not depraved indifference murder. Not that I'm suggesting this wasn't a ludicrous mistake, just not nearly as bad as if the prosecutor moved forward in a murder case when all murder charge were dismissed.