Tuesday, October 19, 2010

Prosecutors - Some Cheat, Some Don't

So they're going to investigate prosecutors in California.  Probably just one of those west coast things.
Of course, as Brian Tannebaum observes, it's likely just an empty investigation.
Even the Bar's appointed chief trial counsel sounds like he has little hope anything will come of this investigation:
Towery said most of the misconduct is
probably not serious enough to warrant public
reproval, suspension or disbarment.
Still, there's plenty to be said for getting them to do it at all. Brian again:
Although the investigation may end with no formal discipline, the message from the California Bar is received - all lawyers are subject to the rules, even if they are only trying to put someone in jail. 
Well, maybe.  I guess I'm less sanguine than Brian.  After all, if there's no discipline for misconduct, and if it doesn't cost professionally and doesn't end up getting cases reversed . . . .  Does that really show that the rules apply to everyone?
And yet, as I said, there's plenty to be said for getting them to do it at all.  It's just that if they did it right . . . hell, if the courts just did it right and took it seriously. 
I've quoted Cathy Cook's words during oral argument at the Ohio Supreme Court before (here, for instance).  You've got to make them lose to make them learn.
The investigation is something.  But without consequence it might be an empty something?
This morning, Scott Henson at Grits for Breakfast gives us the link to Mary Alice Robbins' story where Killer Keller claims vindication.  Robbins writes.
Breaking her silence after three years, Texas Court of Criminal Appeals Presiding Judge Sharon Keller says she feels "vindicated" by a special court of review's decision to vacate the State Commission on Judicial Conduct's public warning and charges against her.

Although some reporters have written that the three-justice court of review's Oct. 11 decision in In Re: Honorable Sharon Keller was only a technical victory for Keller, she doesn't see it that way.

"I won," Keller says. "People can call it what they want."
Like Cathy Cook said - though Keller may simply be ineducable.
* * * * *
Sometimes, though, you need to give credit where it's due.  Today it's due to Teri R. Daniel and her boss, Charles E. Coulson.  Coulson is the elected prosecutor in Lake County, Ohio.  Daniel is an Assistant Prosecutor.  She was counsel of record for the state in State v. Hitchcock in the Ohio Supreme Court.
In 2000, Hitchcock was convicted of a sex offense.  The court determined that he was in the category of sex offenders unlikely to reoffend and therefore subject to the lowest registration requirements.  In 2008, the attorney general converted his offender status to Tier II, more than doubling the frequency and duration of his registration requirement.  He challenged that decision, lost in the trial court, won in the court of appeals.  The state appealed that decision to the Ohio Supreme Court.
In June this year, in another case, State v. Bodyke, the Ohio Supremes said that it was unconstitutional for the attorney general to change people's registration status.  Two months later, in a single entry and without particular elaboration, the court affirmed and reversed as appropriate a whole bunch of cases based on the decision in Bodyke.  
Except they goofed with Hitchcock.  They should have affirmed the court of appeals but instead they reversed.  His Tier II status, unconstitutional though it was, was reinstated.  Ooopsy.
Here's the thing.  Hitchcock didn't have a lawyer.  He'd done his work by himself, pro se.  There was nobody acting for him.  He'd had help from materials that had been made available to him and others by lawyers from around the state, but he didn't have anyone actually to advise him.
And so it could have stood.
But for the decision of Coulson and Daniel to see that the right thing was done.  They asked the Ohio Supremes to reconsider, fix the mistake, and make them lose.
You'll see that happen about as often as you'll see a black swan.
But it was the right thing to do.  And today the Supremes agreed.  
It's a three paragraph opinion, unsigned and unanimous:
{¶ 1} On August 17, 2010, this court reversed in part the judgment of the
court of appeals in this case on the authority of State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, and remanded the cause to the trial court
for further proceedings. In re Sexual Offender Reclassification Cases, 126 Ohio
St.3d 322, 2010-Ohio-3753, 933 N.E.2d 801, ¶ 34.
{¶ 2} Appellant has filed a motion for reconsideration of the court's
order of August 17, 2010.
{¶ 3} The motion for reconsideration is granted. The portion of the
court’s August 17, 2010 order reversing the judgment of the court of appeals and
remanding the cause to the trial court is vacated, and the judgment of the court of
appeals is affirmed.
Coulson and Daniel won the motion so they lost the case.  As they told the court they should.
It's a mantra we often repeat, mostly to little effect.  The job of the prosecutor is not to seek convictions but to seek justice.  God knows I've said often enough that I'm not sure what justice means, and I don't want to reopen that debate here. But whatever it is, that's what Coulson and Daniel did.  
Good for them.

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