When The Judge Says “Meh”

At A Public Defender, Gideon writes yet again about the magically revealing evidence that somehow managed to fall between the cracks of Dejuan Hammond’s life when it was supposed to be disclosed.  The prosecution explains that they are disclosing it now, too late, out of an “abundance of caution.”  Hammond’s lawyer, Ted Shouse, is “furious” that evidence to which he was entitled five years ago is only surfacing now.

Gid does an excellent job of eviscerating the sham of the prosecution’s “oopsy” claims.  The prosecution is required by law to disclose, and to exercise due diligence to be certain that it has managed its file with sufficient competence to satisfy its duty.  Just as it concerns itself with amassing the evidence of guilt sufficient to nail the defendant at trial, the law requires it to show the same concern to disclosing evidence to the defense.

This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law.

The prosecution holds a special place in the system, a combination of low expectations of competence and efficacy, and facile excuses for its neglect and failures.  They are the systems saviors, and while any defendant or defense lawyer would be led out of the courtroom in cuffs if we did a fraction of what the prosecution does regularly, they get a free pass.

Aside: There is at least one pleasant irony that comes from this. Young prosecutors, who come to believe they are brilliant lawyers and beloved by the judges because they can do no wrong in the courtroom, no matter how much wrong they do, find out when they switch sides after their obligation is paid that they are just as wrong, rejected and despised as the rest of us.  I truly love the look on their faces the first time a judge dismisses their argument as worthless or smacks their entitled baby bottoms across the courtroom.  “But, but, but, the judge used to love me.” Yeah, welcome to the club, kid.

But my issue in Hammond, and in pretty much every case where the prosecution fails to abide its duty to disclose, is why judges’ generally don’t give a damn.

Defense lawyer:  Judge, the prosecutor has violated his duty of candor to the court, has lied to you and me, has concealed discovery, Brady, whatever.  The prosecutor has been caught dirty, dead to rights, and it’s staring you in the face.

Judge, what are you going to do about it?

Judge: Meh. Move on.

No, I have never heard a judge actually utter “meh.”  There are a laundry list of issues raised on many levels by discovery violations and the assertions used to rationalize concealment.  In opposition to motions, prosecutors will routinely assert that they have fulfilled their discovery obligations and are aware of their Brady duty.  And that’s where it dies.

When it comes out later that they had in hand discovery the law required them to disclose, and they lied under penalty of perjury that they had done so, the problem isn’t just the deprivation of critical evidence to the defense. There is another level of problem about lying prosecutors, independent of the discovery issues.

Judge: Meh. Move on.

In Hammond, at least some of the concealed evidence was exculpatory.  Who can remember such things?  How can anyone doubt that it just slipped the prosecution’s mind?  But even when the concealment is of the more mundane variety, just stuff the law requires the prosecution to disclose, and even when there isn’t any doubt that the prosecutor just decided that he wasn’t going to disclose it, the reaction is the almost invariably the same.

Judge: Meh. Move on.

We write in the most egregious cases of prosecutorial misconduct about how prosecutors are almost never sanctioned.  Think of what happens in the banal cases, the everyday concealment of the ordinary fare.

Judge: Meh. Move on.

It may be a big deal to the defendant. It may be a bid deal to the defense lawyer. But it’s not a big deal to the person who needs to realize it’s a big deal.  If the judge doesn’t care, then it doesn’t matter. Prosecutors break the law, fail to disclose, lie about it?  But the defendant did it, so who cares.

Judge: Meh. Move on.

Prosecutors would care if judges made them care.  Prosecutors would care if there was a penalty for breaking the law. Prosecutors would care if their ass was on the line, like the defendant’s is. But that’s not how the system happens now.

Judge: Meh. Move on.

And so the games get played, and nobody gives a damn except us.

 

12 comments on “When The Judge Says “Meh”

  1. Matt Haiduk

    “Meh” is almost too neutral. Is there a word to describe “yes, I know he just gave you this important evidence but we’re scheduled for trial tomorrow and YOU are the jerk for making a big deal about this”?

  2. Edward Adamsky

    Does anyone ever report these people to the Bar for ethical violations? Doesn’t the defense attorney have a duty to report the ethical violations to the Bar? If so, does the Bar just let it go too? Or are prosecutors not under the jurisdiction of the bar? If the Judges won’t fix this, isn’t there some other way, other than writing about it online?

    1. SHG Post author

      When the judge says “meh,” so too does disciplinary counsel. Complaints filed by adversary counsel are frowned upon, and when the complaint involves something that occurred before the court, where the judge doesn’t refer it for disciplinary, it’s double frowned upon.

    2. Matt Haiduk

      Prosecutors here don’t even get in trouble for sending innocent men to death row on fabricated evidence (or, at least they didn’t when we had the death penalty). Nobody is going to ever sanction them for something considered common practice.

  3. Thomas R. Griffith

    Sir, good afternoon to all. No questions this time, just some Brady this & Brady that BS for those either bored silly or, living with the Bradyitus Syndrome.

    When SJ was a toddler (way back when I still called it Simple Justice) I would see a posting with ‘Brady’ in the body or, in the SJ comment section and thought it was some kind of code word only youz guyz knew about. With that, every time I saw the word I flew past it and gave it no second thoughts.

    After SJ lost its babyblog teeth, I took time to check into this Brady thang and (“damn-it-to-hell”, something my dad would blurt out) of all things, Brady and / or the ignoring of its existence in 1984, had roots in a false arrest on a non-existent OTW that was allowed to morph into a wrongful aggravated robbery conviction via: the Texas TapOut, simply for being on probation at the time of arrest “despite a Guilty or Not verdict”. All of that hinges on, if not sharing a copy of the police incident report & live show-up procedure including the Three Stooges used as fillers (and being allowed to substitute a .38 for a .22) with the defense ‘qualifies’ as a violation or not.

    Due to the Art of – Cherry Picking for Justice being perpetrated in a ruse by: the Texas Board of Pardons & Paroles, H.C. Conviction Integrity Unit, so-called Innocence Projects and those that simply mirrored their: follow-the-DNA, Death Row & Open/Active money only claims program, I was forced to let it go & live with it or, simply prove ‘It’ myself. Sadly, non-money claims don’t qualify as official wrongful convictions due to some ass-hole lawyers in Austin, TX. making it so. Even sadder, is when you can and have proven that Brady either didn’t exist back then or, was simply snubbed by the: ADA of Record, the CDL of Record & the presiding Judge. In a perfect world, “And so the games get played…”, should be – we the real CDLs are going to stop playing these damn games with people lives, starting now by placing objections on the records and filing frowned upon complaints in mass by defense associations. And, pledging to stand by clients on the back end when they are screwed over by rogue ADAs and their enablers on the front end vs. shredding clients case files and moving on. The wronged can dream can’t they. I’m working on a Declaration of Reformation in direct response to this nightmare and just might need a few brave folks to step up and sign it one day.

    *One would assume that one of three cogs in the rigged system would take time to actually read the entire Police Incident Report ‘prior’ to filing the first “Ready for Trial” notice (surely by the third or fourth notice) ‘if’ Brady was on the books in Texas. But as I learned the hard way folks, you’d be wrong and wrongfully convicted when the judge turns out to be nothing more than a hypocrite, a former ADA, and an enabler. Thanks. and meh, go F&*K yourself Brady you worthless piece of crap. When I see ‘Meh’, I think of the “Penguin” with a cigarette holder.

  4. John Barleycorn

    null

    What is it about Tuesdays around here anyway? Do you balance your literal and figurative accounts on Monday evenings after a day of drafting and stamping rejection letters for idealistic pro bono work or what?

    Whatever it is, it works… The messed up dreams on Monday nights must somehow sharpen your Tuesday morning inter-web prose while zen-zoning your topic selection and preferred ordinance alignments.

    You should have let the Judge simmer in the juices of the vitriol being huffed, puffed, and spat his way as none that I have read this far have had any digestives enzymes in them that will or in any way could pierce his armor.

    Besides you leave yourself exposed to be ridiculed by Batman and Robin puns if the timing is not right. Not to mention missing out on the extra flavor potential that stirring the pot at the right time can produce.

    So, you get a fail for not letting the Meh effect slowly sink in via the Judge telling the Nine to STFU. You should have waited and when no one was expecting it a few Tuesdays from now you could have slung a few arrows from your quiver to disembowel his critics on this point without any need for the “F” word just as the gaggle of Nines ass-crack-dew was drying on their noses.

    ~~~Until we’re ready to tear down the institutions, we need them. We just need them to do better, but we need them. If we fail to respect the institution, then the institution ceases to matter. We need the institutions to matter, as bad as they may be, as they’re all that stands between us and brute force.~~~

    That there comment you left in retort to a comment that you left in today’s Nebraska grain and livestock report post Should Have Been In This Post! If that is in fact how you see things while the wipers on your truck attempt to keep up with the mud the ruts continue foist upon the windshield. I think you phrased it this way here at this post:

    ~~~And so the games get played, and nobody gives a damn except us.~~~

    You are a CDL and the last time I checked you hadn’t started wearing a flag pen or a Chavez T-shirt in a feeble attempt to join the pro bono circus and sign up for the political crusades correct?

    Don’t worry be happy esteemed one the “meh effect” is nearing the magic place where the physics of “legitimacy” are no longer able to ignore the mirrors bring held up. Last time I checked part of the CDL job description is to hold up mirrors and shine stadium lights on them mirrors to better allow judges to read what is in those law books.

    Thankless job indeed but someone has to do eh?

    Or is it, that you can’t tear something down if it doesn’t exist anymore esteemed one?

    As per your fears of mythological brute force, might I suggest you spend more time pondering the peaceful potential and power of decentralization. Fuck revolution give defunding and bankruptcy and chance. Call it reform if you like but the train has already left the station.

    Take a look around brute force has run its course and is the milk of institutionalization itself. Relax it is just getting fanciful and fitful as it settles in and makes friends just as a baby yearns for its mothers breasts.

    Judges ignoring discovery you say? Holly shit burglars! Tell us it isn’t so, and please, please, please make it go away before the children get frightened…

    Yes, brute force and violence in all its forms will continue along for awhile fitfully attempting to consolidate power for the sake of suckling the “greater good” while incarcerating the guilty looking ones but sooner or later the trajectory itself insist that even the beast must at long last feed itself or cease to exist.

    Keep holding up those mirrors to legitimacy esteemed one perhaps the new LED stadium lights will allow a few more judges to see clearly while making up their minds as to what train they want to be standing on for the next leg of the journey.

    Besides it is interesting to see the different expressions under the Meh-gag. Some refuse to wait and simply rip the gag off just as others do their best to hold it in place and or pretend the meh-gag isn’t even there. Either way the meh-gags adhesive tape can only last so long.

    Hegel theorized it and Einstein proved it up. Now it’s time to figure out WTF is up with Tuesdays here at SJ.

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