Flowers Bloom in the Garden State

In Texas they used to have (and maybe still do, but I don't stay up on its procedure since I moved away and let my license to practice there go inactive) a rule that unpublished opinions couldn't be cited.  Sometimes lawyers would file motions to publish opinions just so they could cite them.  Sometimes they'd engage in verbal gymnastics, trying to direct a court's attention to an opinion they couldn't actually cite.

Ohio's rules for unpublished opinions were different.  (We actually no longer have unpublished opinions in the Buckeye State, though we have ones that aren't "print-published" for which the rules are the same as for any other opinion, which is why I'm putting the Ohio stuff in the past tense.  Don't worry, this is all introductory folderol you can skip over with no loss.) Unpublished opinions could be cited anytime, they just weren't binding except on the parties and had precedential value only insofar as they were convincing.

The feds changed their rules regarding unpublished opinions a few years ago, declaring that if they were issued after January 1, 2007, they can be cited.

Your state's rules are whatever they are.  I don't know.  Which is certainly true of the rules in New Jersey, which might or might not be too bad for lawyers in the Garden State* who want to cite last week's decision in State v. Morgan. 

This is apparently Morgan's third trip up the appellate ladder.  He was tried "in absentia" (don't know why and haven't rooted around in an effort to figure out why) convicted of drug charges and sentenced to 20 years.  He appealed and lost.  Then he applied for state post-conviction relief claiming that his trial lawyer was constitutionally ineffective for objecting to the State's suggestion that a detective employed by the local prosecutor's office should be removed from the jury.

As I've explained repeatedly, the constitutional measure of effectiveness is absurdly low.  To succeed on an ineffective assistance claim, first you have to show that the lawyer's performance was objectively deficient and not any sort of even marginally comprehensible strategy.  Then you have to show that the deficiency might reasonably be thought to have made a difference.  (The amazing thing is that we sometimes make those showings for our clients, which will tell you just how bad some lawyering is.  But I digress.)

The trial judge blew Morgan off.  Maybe the judge thought that his lawyer could do whatever she wanted in jury selection.  Maybe he just relied on the apparently undisputed fact that the evidence was overwhelming.  Either way, Morgan lost without a hearing.  And the court of appeals reversed, sent the case back for the judge to find out what the lawyer's reason was for keeping the detective on the jury.  So the judge held the hearing, got the answer, and said some variation on 

Close enough for government work and anyway the evidence is overwhelming, the guy had 15 bags of heroin, who gives a shit.

Morgan, of course, appealed.  Which is what brings me to this post.  Because last week, in an unpublished opinion (see how I cleverly swing back to where I began), the court of appeals said  - wait, you need more plot.  Specifically, you need to know the lawyer's explanation. (Which I'm mostly about to summarize, not quote except for the part in quotation marks - duh.)

She believed in the jury system.  She figured it would be OK.  She'd kept law enforcement folks on juries before (though she didn't really know how that had worked out for her clients), and she hoped he would tell the other jurors this was a trivial case so they would ignore the evidence.  And - wait for it - she figured it would throw the prosecutor "for a loop that I left a prosecutor's investigator on the jury."

To which, as I said, the trial court responded with some variation on 

Close enough for government work and anyway the evidence is overwhelming, the guy had 15 bags of heroin, who gives a shit.

And the court of appeals said to the trial court a far more elegant version of 

No fucking way.

Specifically, the court said,

In our view, trial counsel's testimony did not establish an actual strategy justifying an employee of the Essex County Prosecutor's Office, the prosecuting entity, remaining on the jury panel. . . . Trial strategy must consist of more than belief in the soundness of the jury system, the presumed benefits of puzzling one's adversary, and the hope of communicating the concept of jury nullification to jurors. . . . This is one of those rare instances where the decision made by counsel was "`of such magnitude as to thwart the fundamental guarantee of a fair trial.'"

Which is extraordinary.  Fairness counts and is relevant to the outcome even when the evidence is overwhelming.

Even in a case such as this one, however, where the charge is a possessory offense and the State's proofs are overwhelming, we must still have "confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52. As we previously said:

a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes, but instead is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome. In examining the parties' contentions, we must remain mindful that "[p]ost-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)).

Justice Scalia, of course, would disapprove, fairness being a thing to be avoided in his view.  Nino wasn't on the panel, though.

So Morgan gets a new trial.  Fairness blossoms in the Garden State.

The question, though, is whether anyone can cite the unpublished opinion there.  Or are the flowers visible only in a secret garden?




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*Normally, I'd just put in the link here to the page on state nicknames that includes New Jersey and how it came to be called the "Garden State" (the page is here) but the story, well, read it yourself.

A distinguished citizen of Camden, Hon. Abraham Browning , stirred the pride of Jerseymen by telling them, at the Centennial Exhibition in Philadelphia, on New Jersey Day, August 24, 1876, that our “Garden State” is like a huge barrel, with both ends open, one of which is plucked by New York and the other by Pennsylvania.

Got that? Browning "stirred pride" by explaining that New Jersey was a barrel open at both ends and "plucked at." No wonder the Soprano's choose to call it home. Certainly makes me want to hang out there and be a pluckee.  Or maybe one of those folks in the middle who just muddle along, watching the wormy north and south being snatched away to feed the nestlings in the Big Apple and the City of Brotherly Love.