Thursday, June 20, 2013

Tactics and Misconduct

The Idaho Court of Appeals is a weird group of judges.

Every since Perry, their opinions on prosecutorial misconduct have gotten worse and worse.  I would blame the newbies, particularly Gratton, who I doubt has any criminal experience, but Lansing signs on to these things like it doesn't matter.

The first time Gratton claimed that failure to object to prosecutorial misconduct could be a tactical decision and therefore couldn't be fundamental error I really hoped this would be a blip on the radar.

But low and behold, June 14, Gratton is at it again.  This guy really thinks that a trial can't be unfair if the prosecutor does everything humanly possible to inflame a jury and bring in incompetent evidence so long as the dope in the seat next to the defendant is silent.  Because, you see, that could be a tactic not to draw attention to the bad thing the prosecutor did, so, see, that means the misconduct wasn't fundamental error.

That insane circular logic is what our dear judges are cementing as law.  And naturally I'll have a case on the subject before them soon.

This raises the question: When what you think needs to be done is to just flat tell the judge that he's bonkers, what do you do instead?  Judges are so smug in their robes, you have to basically engage them in intellectual puzzles and force them to realize that what their doing makes no sense whatsoever.

But even then, judges will just go on doing the wrong thing.  You'd like to think they have integrity, but rather than "apply the law," they want results.  Screw your client.  He's just a druggie, like the prosecutor told the jury.

As his attorney, sly as a fox, sat by and did nothing.

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