From Gideon at A Public Defender, the Attorney General of the Great State of Utah has decided that it’s not enough to just argue an appeal, but he’s had enough of lawyers raising arguments he doesn’t like and he’s trying to make them pay.  From KUTV :

The Utah Attorney General’s Office has asked for the sanctions, claiming that about a third of the 120 claims made by defense attorneys Edward K. Brass and Lynn Donaldson on behalf of Michael Anthony Archuleta were already decided by an earlier appeal or not supported by either factual evidence or law.

Assistant Attorney General Thomas Brunker said the misstep — a violation of Rule 11 — was pointed out to Brass and Donaldson in January 2004, but the attorneys failed to correct it within the 21-day time period allowed.

There are ethical proscriptions that apply to the defendant with regard to raising arguments where there is adverse precedent, so that the court is not deceived, the obligation is to alert the court to the existing precedent and then argue that it should be reversed or distinguished.  The mere fact that an issue has already been decided against you does not mean that it can’t be challenged again.

Brass and attorney Richard Mauro, who represents Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for Archuleta.

The issue was argued before the Utah Supreme Court on appeal Thursday. A 4th District Court judge already held a daylong hearing and ruled that Brass and Donaldson made no deliberate attempt to deceive the court.

Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”

But what does the AG care when he’s got a lesson to teach.  After all, you can’t have those darn defense lawyers raising every issue under the sun and making the state work harder than it should have to.  After all, throw enough against the wall and something might stick.

This effort raises two independent issues.  As Gideon notes:

Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.

Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.

The last thing you want to see happen is to have a major reversal in the law, and find yourself precluded from benefiting because of waiver by failure to raise the issue.  As Heller made clear last term, even the most long-standing precedent is subject to change, and it would be a nightmare to miss that train.

And as noted by the attorneys in the case, the AG isn’t going after the message, but the messengers.

After the hearing, Mauro said the state’s actions against Brass and Donaldson are part of an effort to dissuade defense attorneys from taking death penalty appeals cases.

“This is a personal attack on lawyers who do this work,” Mauro said. “That’s what our big concern is with this filing. The state now is not attacking the message (the appeal). They’re attacking the messenger and that is the lawyer.”

The trend toward putting the lawyer at personal and professional risk for doing his job too well is a potent weapon in the hands of the state.  After all, if the state can get the lawyers to run scared, it’s far, far easier for the government to maintain control.  Lawyers are just a huge annoyance to the state, getting in the way all the time.

Brunker doesn’t deny the Brass/Donaldson case addresses a larger concern about post-conviction appeals that typically include the filing of massive petitions.

“We want to use it to curb abusive litigation and filing of these mega petitions, he said. It’s just slowing it down and we’re trying to stop that. That is our motive.”

Of course, if the state thinks the “massive petitions” are abusive and frivolous, why not just ignore them and leave it up to the court to decide?

Hopefully, the Utah Supreme Court will turn the tables on the AG, sanctioning the state for its effort to interfere with the defendants’ 6th Amendment right to counsel.  But that might be a bit much to expect of Utah.