When I hear a judge allocute a defendant, I always cringe.  Allocution is what New York lawyers call the spiel given to a defendant before taking a plea.  It is a speech, with the occasional “yes” from the defendant, about all the rights afforded him or her by our laws and Constitution, diligently protected by our courts. It starts with the right not to be convicted unless 12 people agree to the right to present a defense, and all the rights in between.  Standing there, it sounds like a lot of rights.

I cringe because the allocution makes it sound like it’s impossible to lose.  Seriously, when I hear the judge run down the laundry list of rights, it sounds so overwhelmingly one-sided that I never understand why a defendant cops a plea after hearing it.  If it were me, I would say, “Whoa, ya Hona, I changed my mind.  I want all them rights.  Ain’t nobody gonna convict me with all those rights on my side.”  Of course, it doesn’t quite work out that way most of the time.

With this same sense of wonder, I read  this note (pdf) in the Georgetown Law Review by 3L Martin A. Hewitt.  The gist of it is about compulsory process and its relationship with Crawford v. Washington.  In the introduction, Hewitt runs through the gamut of constitutional protections that are due each defendant.

It is an excellent brief, appropriately notated, recitation of the basic rights afforded by the Constitution.  Pity poor Mr. Hewitt, who apparently believes too much.  And people tell me that I’m too negative about law reviews.

For instance, evidence obtained through an unconstitutional search and seizure may not be admitted against him; he may not be forced to testify against himself; the government must disclose to him favorable material evidence prior to trial; and certain statements may not be admitted against him unless he has an opportunity to cross-examine the speaker.

Well, those are the rules, right?  I certainly can’t fault Mr. Hewitt for his correct statement of the defendant’s rights.  Except that his statement of the black letter law omits a few of the exceptions, and the common problems that seem to invariably get in the way of things working out as clearly as he would have it.

But the point of his note is to raise compulsory process as an underused right in the Constitution.  Specifically, Mr. Hewitt points out that it is not merely the right to subpoena witnesses, but part of the right to present a defense.  It is a constitutional entitlement to the defense “that relevant evidence should generally be admissible absent strong reasons for its exclusion.“

I get the sense that Mr. Hewitt has never had the pleasure of walking up 17 flights in a public housing project where the elevators haven’t worked since the blackout of ’77, each landing smeared with urine and feces, to find a man known only by his nickname, “El Gordo,” who sometimes stays at his baby-mama’s apartment, also used as a stash house. 

What does Mr. Hewitt believe runs through the mind of El Gordo when you explain to him that coming forward to tell the truth about his “business” will allow your innocent client to go free?  Noting the glock in his belt, does Mr. Hewitt recognize the impact of a single piece of paper with the word “subpoena” on it on El Gordo?  Will he be sufficiently afraid of possible contempt adjudication, plus a $50 fine?

So when you the judge asks if the defense has any witnesses, who will you call before the jury?  Inexplicably, El Gordo has not made it down to court.  We have our defendant, grasping our arm so hard it hurts, and whispering that they are liars.  Liars!  But our client has 3 prior felonies, and the judge has already ruled that the prosecution can question him about them since “he has placed his own interests above that of society,” even though they have no bearing on credibility per se. 

But let’s indulge Mr. Hewitt’s notion that compulsory process is a powerful right afforded the defense.  El Gordo is in custody, and he’s produced at our trial.  We’ve got him there in the holding pens.  We can put him on the stand.  But do we?

What does El Gordo have to say?  That he’s a bad dude and our client is an angel?  What are the chances that El Gordo is going to take the fall, admit to new crimes to save our client from conviction?  El Gordo’s not talking to us.  His lawyer won’t let him.  Why should he?  Nothing good will come of it for El Gordo, who’s already in enough trouble trying to fight his own case. 

But he’s an unavailable witness, you say?  This allows us to put into evidence statements taken from El Gordo, right?  And who took those statements?  Well, the only person who could force El Gordo to talk was the cop who nabbed him.  Remarkably, there’s nothing exculpatory for our client in his carefully typewritten notes.  The original hand-written notes can’t be found.  No matter, since the cop says that they are exactly the same.  The cop says so.  Can you prove otherwise?

There is a reason, Mr. Hewitt, why compulsory process is an underused right.  It offers nothing of practical value in the trenches.  And there’s a reason why all those other rights sound so darn good yet do so darn little to save a criminal defendant.  The harsh reality is that they are observed in the breach.  There are a zillion exceptions that swallow every rule.  There is a judge who need only say, “nah”, and the right disappears. 

The trick to being a good lawyer is realizing when a gap appears, the kind that allows a right to actually be used to the defendant’s benefit.  It happens, and with surprising frequency if you’ve got your eyes open and know what you’re looking for.  But I wouldn’t counsel anyone to go to trial because he has the right to compulsory process.  El Gordo just isn’t that reliable.

It’s not that Mr. Hewitt didn’t write a fine note in a top-notch law review.  It just doesn’t have any practical application in the trenches.  If only courts would function the way law schools would have them function, law reviews would have relevance.  Unfortunately, they don’t.