Friday, July 25, 2014

Even When They WIN

Readers know I'm no fan of the SAPD, Idaho's bizarre appellate attorneys for poor felons branch.

Yesterday, they produced a pretty cool win.

But did they?

Really, it was the work of the trial attorney, who made enough of a record to properly preserve the errors in jury selection.

It's been said a million times, but the fact is, the most important part of a trial is jury selection, and then the opening statement.  The rest of it is a lot more fun, but comes pretty easily if you're meant to be a trial attorney at all.

Jury selection is a lot harder.  Idaho is a great state, we get to question the jurors and we can do so forever.  Days on end.  And a good attorney can probably get rid of jury panel after jury panel.  But you don't do that, because either you're not that good or you know eventually the judge will shut you down and you may wind up with something very ugly, so you play a delicate balancing game.

It's the most gambling-related thing that happens.  Kind of like a really goofy shell game where you never got to see what was under the shell in the first place, but you can ask the dealer questions and he can lie all he wants (yes jurors are under oath but... that's bullshit).

Anyway, Ornelas's attorney did a Batson challenge (among other challenges less properly preserved) and lost, thereby creating some damn good law in Idaho.

I say that because the SAPD did NOTHING to create good law.  Per the Court:

We are now faced with an issue of first impression in Idaho: whether a court proceeds to the third step of Batson or ends its analysis after an impermissible reason along with permissible reasons are proffered in the second step of Batson. Ornelas generally contends that “Juror Number 24 was removed because of his gender and, therefore, the district court made a clearly erroneous finding that the prosecutor did not engage in purposeful gender discrimination.” With this contention, Ornelas seeks for us to vacate the judgment of conviction and remand his case for a new trial. However, Ornelas cites no authority for the relief he seeks. The State, meanwhile, quotes excerpts of a Seventh Circuit case that does not directly address the issue at hand. Other courts around the country have addressed this issue, and there is a split of authority among the federal circuit courts of appeal as well as the states. The United States Supreme Court has not yet specifically addressed this issue on review. As we describe below, most states have adopted what is the referred to as the per se approach, some states and most federal circuits have adopted a mixed-motives analysis, and the Ninth Circuit has adopted its own approach.

The Court then proceeds for SEVEN PAGES to do its own fucking research and THANK THE GODS comes out in favor of the substantial part test instead of the mixed motives test (based largely on work other attorneys did in the Ninth Circuit, bless them).

The SAPD.  Seriously, if you allow your client's appeal to go to them, you're committing malpractice.

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