On behalf of a dear friend who wrote the brief, I argued a Murder appeal last month before the Appellate Division, Second Department.  It was a tough case to argue, as the trial attorney had used a “scorched earth” defense that the defendant had committed no crime whatsoever.  Given the evidence in the case, this was a major stretch.

This was a fairly notorious case, with a fairly high profile, about a murder for hire that had gone wrong, and the wrong person was killed.  It was ugly.  Ugly people involved, doing ugly things for ugly reasons.  It was the kind of case that made you want to shower afterwards.  But there was one solid theory to pursue: The defendant had not intended that the hired gun (with whom she became lovers during the course of this scheme, just to make matters worse) murder her husband, but merely beat him into submission.  Had I tried the case, I would have given up the assault to beat the murder.  Alas, the trial attorney did not, and the defendant went down on Murder 1 and 2.

But I’m not writing this to castigate the theory of the defense.  In fact, I’m willing to bet that the defendant and her family demanded that he concede nothing, leaving him no choice but to go for broke.  I’m writing this to comment on the decision.  It reflects a very sad and difficult trend in the Second Department in particular, and courts in general.

The affirming decision was one page.  It was generic.  It was utterly routine.  The fact that it was an affirmance was no shock.  This was a tough case.  What was a shock that in a case of such high profile, with a person spending the rest of their life in prison, the court could not find it in their collective hearts to write a serious decision.  What happened to specifically addressing the argument with a minimum level of detail to show that the court actually took the case seriously?  In fact, one line, stating that the trial attorney had failed to preserve an objection to hearsay evidence, was simply wrong.  He objected.  He jumped up and down.  He objected again.  And yet the decision says it wasn’t preserved. 

In trying to decipher this decision, it says to me that the appellant raised some very disturbing points.  Too disturbing, perhaps, to be easily dismissed in a real, thoughtful decision.  And the honorable court had no intention of reversing the conviction in a case of this magnitude.  So they punted, with a brief, cursory decision that dismissed the arguments in an off-hand fashion that was designed to trivialize the appeal and foreclose further discussion or review.  In this regard, the decision was quite successful, using the time honored language of “meritless” to ignore what they preferred not to address. 

The thrust of the appellant’s position was that the evidence of assault was overwhelming, but the evidence of intent to commit murder was non-existent.  What did the decision say?  The evidence of guilt of murder was overwhelming.  It was many things, but overwhelming it was not.  Thus, with judicial slight of hand, the argument disappeared into thin air. 

As I said, affirmance did not surprise me.  It’s the lack of intellectual honesty that makes the practice of criminal defense law so hard to explain.  Whether it is best described as a lack of respect, or simply taking the easy way out, it is unacceptable that courts are so cavalier with people’s lives.  I found the decision deeply disturbing.  My dear friend, who wrote the brief, was crushed.  Not because he lost, but because his efforts were deemed unworthy of being taken seriously.  And then, of course, there’s the woman who will spend the rest of her life in prison.