Saturday, November 2, 2013

WRONG and the SAPD

Idaho has quirkily set up a single office for appeals for the poor.  For felony matters.  It is known as the SAPD.

On the one hand, a PD in Idaho doing felonies does not generally have the time to handle all of his own appeals.  On the other, neither does the PD doing misdemeanors.  Or Child Protection.  Or contempt cases for failure to pay child support.  Or any of the other things that get you counsel.

Still, you'd think you'd be pretty happy that you don't have to work on everything.  You'd be mostly right.

The problem, as I and others have experienced it, is that the SAPD kind of sucks.

I do not know the SAPD folks particularly well.  I do know they operate in Boise and like to talk a big game at trainings.  I've heard that they pick and choose what to argue on appeal based on what they think the current court is likely to do.

Which is what some people would want them to do.  Don't make bad law!  Don't fight unwinnable battles!

Except.. you're the SAPD.  It's your job to work for your client.  Not "the law" as some weird amorphous subject.  Your client could really care less that you don't think it will work.  He wants you to fight for him.

And worse, you are insulating the appellate courts of Idaho from entire areas of argument because... what?  You're afraid that if you keep raising these points that the AG and the Governor will push for the destruction of your office and you'll have to come work with us?

Add to this that once the SAPD is through, the Post-Conviction Relief (PCR) returns to us.  And so you get opinions like this one.  

Gould has a shitty trial.  He appeals.  The SAPD gets it.  And they don't want to do anything with it, so they file their blanket "the sentence was excessive" appeal which is ALWAYS denied.  And we file on post conviction that those sons of bitches are cowardly shits not deserving of their titles.  And this happens:

Appellate counsel, in his testimony, stated that he read the entire trial record and 
transcripts and found no error in the district court’s rulings on either the motion for mistrial or in
ruling on the impeachment evidence under Rule 403. Appellate counsel believed that the district court crafted the appropriate remedy in that the defense was free to cross-examine the mother about her testimony on the status of the marriage, but in doing so would open the door to evidence that may have been prejudicial to Gould. He further testified that in deciding which issues to appeal, he first looks for possible error by the district court and then argues that error on appeal, but having found no error in how the district court ruled, in his professional judgment, the motion for mistrial was not an issue to raise on appeal.  

Gould has failed to show that appellate counsel was deficient for failing to raise the denial of the motion for a mistrial or the evidentiary ruling on appeal. While these may have been nonfrivolous arguments to make, appellate counsel is not required to raise all nonfrivolous arguments that the defendant wishes to pursue. Gould’s appellate counsel had been representing clients on appeal for several years, and in his judgment, there was no error by the district court in the court’s decisions regarding those issues. Appellate counsel raised the issue of an excessive sentence because, as he testified, a defendant can always argue that the district court abused its sentencing discretion. There is no evidence that appellate counsel’s performance fell below an objective standard of reasonableness, and therefore, the district court did not err in determining that Gould failed to show that appellate counsel was deficient. 

See what happened?  They fucked the guy, and the Court pats them on the head.  It's ok.  So what if you didn't appeal a nonfrivolous issue.  So what if you instead raised a totally frivolous issue.  You did what you're meant to do.  Keep us from being bugged.

PTSO for the SAPD: If the Court of Appeals thinks you done right, you're not doing your job.

You may read this and think, "well, I kind of get this poor SAPD's point."  But don't forget that the Court of Appeals twists the facts as it sees fit.  Frankly, we can't know what this case looked like without access to the PCR.  And even if the SAPD was right- YOU FIGHT THE BATTLE ANYWAY.  Just like we did when we fought it in PCR.  Where we KNEW we'd lose.  Because that, ladies and gents, is the job.

I don't mind that private counsel isn't arguing this stuff.  One thing the poor has that the rich don't is the ability to litigate every legal issue to death for free.  I get a kick out of telling a magistrate that while they cannot rule in my favor, I would like an opinion telling the higher courts that they are wrong.  Magistrates blanch and get flustered.  A normal person doesn't have the money to wage an appeal, much less an almost certainly pointless one.

BUT WE DO.  And it is astounding to me how every time a poor prisoner files a request to overturn decades of law and it is granted by the Supremes all attorneys go "well.. gosh.  Maybe we should file these things?  I don't know."  

A friend of mine says I think like a habeus attorney for death row inmates.  Uh.  Thanks?

I see my clients's lives destroyed by misdemeanors.  Doors and windows of opportunity slam shut forever. I take all cases seriously.  All abuses of law, unfair trials, and bad judgments need to be litigated.  

I don't really know how I'd last in this job without it.  Most of the work is triaging folks who have no hope of beating their charges, trying to set up a plausible probation scenario for sentencing.  I'm a lawyer, damn it.  I didn't go to law school hoping to be a social worker.

Look, moral of my rant today is- it's ok to be told you're wrong while you do right.  In fact, that's kind of the whole point of being a criminal defense attorney.  If you're uncomfortable telling a court that it is wrong, that's ok, too.  Just quietly put in your resignation letter, and leave the law alone.  I won't tell anyone.

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