A Judge’s Lament: Not Good Enough

The judge found the “cover-up worse than the crime,” which would seem to lead to the inexorable conclusion that if one had to be punished to be deterred, she would pick the cover-up.  And that’s where Louisville, Kentucky Judge  Audra Eckerle seemed to be heading.

In a sometimes blistering ruling Tuesday, Jefferson Circuit Court Judge Audra Eckerle accused a prosecutor of intentionally withholding evidence and “secretly” trying to hide his tracks.

In her ruling, Eckerle maintained that the Commonwealth’s Attorney’s office excluded documents from evidence turned over to the defense, “secretly” shelved the subpoena saying how they had obtained the records and prejudiced Sandoval.

And Eckerle said while withholding the documents was bad enough, “the intentional dismantling of evidence and extraction of other documents that would have shown it was hiding other documents is even worse than the concealment of the medical records.”

Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment.  The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment.  That’s a step too far, and the surest way to seize defeat from the jaws of victory.

But not here, where Judge Eckerle appeared to take that final giant step.  And, poof, the prosecutor was gone.

Also this week, the prosecutor involved, Jamhal Woolridge, resigned, though it is unclear if the resignation had anything to do with the allegations of wrongdoing in May.

In a resignation letter on Monday, Woolridge said he was resigning immediately “due to the unforeseen circumstances I have experienced within the last three months.”

Commonwealth’s Attorney Tom Wine said Woolridge “did not elaborate on his resignation. I wished him well.”

Not that he manned up to his deed, or that his boss, Wine, told him not to let the door hit him in his ass on the way out for bringing disgrace on the office, but he was gone.

On its surface, this would seem to be a good thing, ridding the prosecutor’s office of a “bad apple,” as is invariably the claim when someone gets caught doing the dirty.  But it didn’t play out that way for Judge Eckerle, who

ruled Tuesday that the behavior of the Jefferson Commonwealth’s Attorney’s office in a felony case she had dismissed for prosecutorial misconduct was “lamentable,” but she gave them the opportunity to bring the case back to court.

But Eckerle ruled that “the cover-up was worse than the crime” and the defendant now had all of the evidence and could still get a fair trial.

Lamentable? You think? But a judge’s harsh word is hardly the equivalent of a hard deterrent to intentional unlawful conduct by a prosecutor.  The point, made over and over again, is that prosecutors do wrong, but that there is no ultimate penalty for it.  By returning the case to the status quo ante, it provides an incentive to violate the law and see if you can get away with it. What’s the worst that can happen, you are forced to do what you should have done in the first place? Ouch, harsh.

Yet, Judge Eckerle, having already dismissed the case, ordered that the dismissal be “without prejudice,” meaning that the prosecution was free to recharge and start anew.  There’s a punishment for you.

And the official rationalization came back to the successful and zealous efforts of the defense. By ferreting out the concealment by Woolridge, the defense lawyer, Rob Eggert screwed himself.

That ruling came, at least in part, because Sandoval’s attorney, Rob Eggert, figured out that the prosecution was withholding evidence and made sure it was turned over before trial, Eckerle wrote.

“The court does not believe that the prosecuting attorney’s action irrevocably tainted the evidence,” Eckerle ruled.

Tainting the evidence?  That phrase has no business being included in the rationale.  The reason for dismissal with prejudice isn’t because the “evidence is tainted,” or the defense, having found it, now has it and thus isn’t prejudiced any longer by its concealment. The reason is deterrence.  The same reason we lock people away forever, to put others on notice that society frowns upon the commission of crimes, and if they commit them, bad things will happen.

The legal system is supposed to frown upon the unlawful conduct of prosecutors too.  And that’s why.

But the piece omitted from the judge’s rationalization is that Jamhal Woolridge quit his job as an assistant.  The bad prosecutor is out. Is that not enough? Is that not punishment?  Has the message not been sent?

It’s not that the prosecution couldn’t cobble together an excuse for what happened. Much as they demand integrity from the defense, they give themselves slightly more latitude.

But prosecutors argue that Eggert never indicated his client would be claiming self-defense and the medical records in question were from an unrelated 2011 incident, more than two years before the current case.

In her ruling this week, Eckerle ruled that the commonwealth doesn’t have the authority to decide which evidence needs to be turned over, and accused the office of playing “cat and mouse” games.

But with this evidence in hand, there remains the constant in all criminal prosecutions “tainted” by prosecutorial wrongdoing: the defendant may still be a bad dude, and nobody wants to let a bad dude walk if they can prevent it.

Now that Woolridge was smacked, and crawled out of the office on his belly, it was back to business in Louisville, making sure the streets were safe and the criminals were prosecuted.  No harm, no foul, no dismissal with prejudice.  Lamentable, indeed.

22 thoughts on “A Judge’s Lament: Not Good Enough

  1. Jeff K

    “not has it and thus isn’t prejudiced any longer by its concealment.”
    The “not” should be “now.”

  2. Bartleby the Scrivener

    If that’s not a felony, it should be…and it should be a serious felony, at that.

    It seems to me if the only penalty for this is that they have re-file the charges and try again, it’s not just failing to act as a significant deterrent…it’s actually encouraging them to do so this kind of thing. I mean, how often are they caught doing this versus how often it’s done?

    1. Bartleby the Scrivener

      Whoops! I put a disclaimer in my text noting that I’m not a lawyer, but I think it was stripped as an HTML tag.

      Sorry! I didn’t mean to misrepresent myself!

  3. mb

    I haven’t read up on the cases, but I notice that 42 U.S.C. 1983 Doesn’t say anything about having to prove you would have gotten a different result.

    1. Bill O'Brien

      but what would the damages be if the outcome of the criminal case would have been the same?

      1. mb

        Just make something up, like anguish at the loss of faith in the justice system or how about however much it takes so they never do it again, or however much they’ll pay to not have to go to court over it. 1983 doesn’t say that you can only recover for specific, monetary loss. (again, there’s probably a case that says I don’t know what I’m talking about, because I don’t know what I’m talking about)

        1. SHG Post author

          I think Bill’s point is that 1983 is far less useful a tool than most suspect. The first problem is that it’s remarkably hard to prevail for a variety of really poor reasons, while the second problem is that it offers little benefit for most constitutional deprivations. While attorneys fees are available, they benefit the lawyer, not the aggrieved, and without hard damages, it’s mostly a toothless tiger. I know, it doesn’t seem as if it should be, but it is.

          1. mb

            They don’t benefit the aggrieved individually, but they could benefit them as a class . . . that doesn’t really matter, though. Now that I think about it, I suppose you’d have to get a little creative about the damages for almost any 1983 suit arising from criminal prosecution. I guess if I’d taken remedies instead of Harry Potter and the law I’d be working for the government instead of Dairy Queen.

            1. SHG Post author

              You raise an interesting problem. One of the greatest utilities of dedicated orgs is their willingness to take on a cause that holds no promise of money on the back side. The cause matters, but individuals (and lawyers) can’t afford to dedicate their lives to causes when they still have to eat. A lot of really good causes go away for the lack of damages, and it is really a societal loss.

            2. mb

              Yeah, that much I have seen first hand. And if I didn’t have to eat, my state’s open records law would, I think, be an unending source of satisfaction for me.

            3. Bill O'Brien

              i guess the main problem would be that there was a conviction anyway (i think) and if its not been reversed a you’d have a hard time getting a constitutional violation. that’s what the courts say (Heck is one case), but i don’t think that’s what congress had in mind when they passed the Ku Klux Klan act in 1871.

            4. mb

              Yeah, you probably can’t get the civil court to rule that the criminal process failed to adequately protect citizens. You’d need some actual damages. I don’t think, though, that Congress intended to insulate from liability, any action that a criminal court deemed to be resolved.

              This raises the question of what you would think about a system that imposed serious criminal and civil penalties for Constitutional violations in lieu of exclusion.

            5. Bill O'Brien

              mb- pretending that thru some kind of grand bargain we could give up the exclusionary rule in exchange for a system that somehow deterred the police from searching without probable cause, etc. by civil and criminal sanctions against the offending cops…. well, i guess if that would work i might be ok with it. but i don’t think it would.

              ..anyway i think that the perceived “cost” of the exclusionary rule is less because so many cases are drug cases. ..ok or dui’s.

            6. mb

              I would bring up the “cost” of having the general public view criminal defense as a lot of mumbo jumbo exploitation of meaningless technicalities for evil bastards to get rich protecting rapists and murderers from the just consequences of their actions, but I would guess that Scott prefers that they see him that way.

            7. SHG Post author

              Nah. I think your discussion is kinda silly, but that’s okay. You guys can have a silly discussion all you like.

  4. John Barleycorn

    But it is fun to take a magnet to a compass.

    I dunno, it seems this overgrown deterrence trail you speak of is going to need more than hand tools and persistence if you aim to reach the alpine meadows.

    https://youtu.be/hrJqHZC-VKg

  5. Dan

    ‘But with this evidence in hand, there remains the constant in all criminal prosecutions “tainted” by prosecutorial wrongdoing…’

    Maybe this is where Ken from Popehat came up with “snort my taint”?

  6. Tice with a J

    From the real cop who is virtually never indicted for crimes (let alone convicted) to the fictional vigilante who “doesn’t play by the rules”, there is this pervasive idea in our culture that those who enforce the law must not be bound by law, or that our safety depends on not constraining our protectors with checks and balances. As long as this idea persists, I fear, this stupidity will continue.

    I wonder how we can fight this foolishness. Perhaps the answer lies in making defense attorneys seem more heroic?

      1. Tice with a J

        You’re right. If I want to change the dominant culture, I’ve got to do my part to change people’s hearts and minds. It’s time to spread the message. Phoenix Wright/Atticus Finch crossover fanfic, here I come!

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