Feb
27

Defense Lawyers as "Law Enforcement" Officers

At courthouses throughout the state, the public at large is required to walk through a metal detector to gain entrance. This includes criminal defense lawyers. Prosecutors and cops are waved right through the security measures. Why? They are regarded as “law enforcement.”

The distinction is ridiculous, frankly. Criminal defense lawyers are on the front lines of law enforcement daily, demanding that police and the state respect the rights of the accused. In other words, police and the state are required to obey the law – it is defense lawyers who police the police.

The public at large, no less than the designers of courthouse security, refuse to understand that. Consider the anonymous complaint of a juror after the acquittal of Patrick Whitfield in New Haven.

Whitfield was found not guilty of murder after trial. As jurors were leaving the courthouse, one family member of the dead man told the juror: “‘Go home and look it up. You don’t know the whole story. He (Whitfield) had already shot somebody else.’”

The juror did, and learned things that were not admitted into evidence, such as the fact that Whitfield had told the police he struggled over the murder weapon, a gun, with James Dudley, the homicide victim, in the moments before Dudley was shot and killed, and that he had shot another man, seriously injuring him.

The juror felt betrayed. He said had the jury known the information withheld from them, they would have voted to convict. “The system has to be fixed. ... I want to see justice for this (Dudley) family,” he said.

I hope the juror reads this column: If there were reasons to doubt the state’s case based on the evidence you heard, the system worked just fine. You followed the rules, and acquitted.

Does this mean a killer walked free? Maybe. But let’s not kid ourselves about what goes on in the criminal courts. The rule of law limits what is and is not admissible at trial. In the Whitfield case, the state and the defendant fully and fairly litigated their respective claims. A judge then decided what a jury could hear. The jury then decided the case.

The mundane world of the criminal courts is not a confessional. Doing justice, giving people their “just desserts,” judging them for the lives they have lived is not what goes on in a courtroom. God’s work is not done in the people’s courts.

The statement Whitfield made to the police was not presented to the jury because the trial court, after hearing the testimony of the police officers who took it, concluded they broke the law in obtaining it. The court concluded that the officers were unduly coercive, overbearing the will of a 17-year-old with serious cognitive limitations.

Because the statement was involuntarily made, the trial court concluded it was in obtained violation of Whitfield’s right not to speak. In effect, he was bullied into waiving his right to remain silent by a Hamden police officer who lied to him in an effort to get him speak.

Trial courts rarely grant these kinds of motions, and police officers know it. As a result, officers grow ever more brazen, perfecting the craft of deceit, dissimulation and manipulation. When a trial judge suppresses evidence obtained by these means in the name of the law, officers are deterred from behaving likewise in the next case. That case may very well involve you or a loved one.

As to the claim that Whitfield had shot another man, that was kept out of trial to assure that he received a fair trial in the case for which he stood trial. Unlike God’s judgment, which sheds light on an entire life, a criminal trial is about the state’s proof of discrete allegations involving a particular event. Prosecutors are not free to rely on proof that a person is a bad actor to prove the person committed the crime charge.

These limitations on what evidence can and cannot be offered in a criminal trial are part of our commitment to limited government. We have concluded that there ought to be limits to what the police, an arm of the state, can do.

It is understood that these limitations come at a cost. Sometimes bad men go free. We justify this cost by saying that it is better for ten guilty men to go free than for one innocent man to be convicted. The law’s limits are safeguards upon which the rest of us are entitled to rely.

The distraught juror in the Whitfield case complains now that the dead man’s family has been deprived of justice. It’s hard to make sense of that assertion. What the family has been deprived of is the satisfaction of seeing another man imprisoned as recompense for their loss of a loved one.

An ancient maxim of the common law has it that no one can be a judge in their own case. When our passions, our interests, and our loved one’s lives are involved, we take too short, too narrow a view. Is the disappointed juror prepared to sacrifice the protection offered by the rule of law in exchange for satisfaction to a grief struck and angry family?

Perhaps he is, so long as it is not his rights, or the rights of one his loved one’s, that are sacrificed.

Clarence Darrow, a legendary criminal defense lawyer in the early 20th century, once said: “There is no such thing as justice — in or out of court.”

Of course, he was right.

When you stand accused by the state of a crime, when police officers and prosecutors stand arrayed against you, the law says you are entitled to a defense. Your defense is nothing other than the law’s tools, your defender a law enforcement officer prepared to hold the law accountable.

The system worked in the Whitfield case, no matter how uncomfortable the outcome. Now, if those wing nuts who design courthouse security policies would just recognize the obvious: criminal defense lawyers are law enforcement agents, too.

Related topics: Journal Register Columns
Comments (1)
Posted on February 27, 2015 at 1:40 pm by Chinese Jim
Gods Judgment
You make a good point. God's work is not done in the people's courts. In other words, and I am sure that I am doing a bad job re-phrasing it here, but when weighing up whether a crime is/has/has not been committed it is not a jury's role to weigh up the person's whole life, i.e. whether they are a bad actor or of bad character necessarily. But how do you justify sentencing based on character? Through the use of acquitted conduct or uncharged relevant conduct (both permissible under the US Federal Sentencing Guidelines) or conduct that is not even relevant to the offense of conviction (usually under 3553(a))? I am sure you and many other criminal defense attorneys make the same argument at every sentencing but it doesnt work very often does it?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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