Bad Case Law

This post is rather incongruous with the previous posts, but it's something I've been ruminating on over the past few weeks. I was talking with a friend who had won some trial motions and the State was considering appealing those motions. One consideration for the State is whether the appeal would make bad law for them, which would obviously be good case law for the defense bar.

I have not really dealt with appeals a great deal in my career, focusing more on trials, but it seems that when it comes to appeals, the DAs have in one sense a big advantage over the defense. You might be thinking that I'm really smoking something because they obviously cannot appeal an acquittal, but that's not what I'm talking about.

Take a drug case where the court grants the defense motion to suppress. If the decision is a close one, the State may well decide to not appeal to prevent a court of appeals decision that limits police authority to conduct a search. Defense appeals, though, are ethically made in a vacuum. If I have a case where the court denies my motion to suppress, I have to do what the client wants and I cannot consider whether this decision will give the police more authority in the future. I do not think that too many clients would take it too well if I told them that they should just suck up the trial court's ruling because their case would make bad case law for other defendants. Also, and maybe I'm wrong, but despite de novo review, I think judges give other judges a great deal of latitude (I know - big surprise).

So what does this mean? This means that the State winds up appealing cases where they think that the trial court was so clearly wrong that the decision will be reversed or when the case means so much to them that they are willing to take a chance. On the flip side, it means that the defense winds up appealing a lot of cases that will make bad law for the defense. The net effect of this is to create a structural bias in the law in favor of the State. Forget judicial philosophy, although that figures into it to some degree. No, the appellate system is designed to strengthen the position of the State.

There is, I think, a potential remedy. I know that Howard Bashman would not like the answer, but I think it should apply in criminal cases given the constitutional rights at stake. I think that a defense lawyer should be able to designate whether a decision should be published or not. This would protect the client's right to appeal but it would also limit potentially bad law by making the decision non-precedent. In a state as small as this one, even unpublished decisions can have a quasi-precedental value in trial courts. But they have no value as precedent in appellate courts. Lawyers could then designate cases for publication when they could be distinguished.

This does not mean, of course, that under this system appellate courts would automatically start making more defense-oriented decisions. What it does do is level the playing field where both sides have the opportunity to consider the possibility of making bad case law rather than just the State having that option.

Comments

[Nerdgirl]

I hadn't thought of this. It's a ver interesting idea, that you have here.

[theDonnybrook]

This is an interesting proposition, as Nerdgirl so aptly points out. It seems that the constant struggle is between the due process rights of citizens and the power of government. Oddly, the power of government leads back to the due process rights of citizens. What bothers me about your point out, is somewhere in the whole mess of the adversarial process, we lost the ideals of enumerated rights. Its simply become one side against another. My boss at one of my summer jobs last summer told me that prosecutors hold an enormous amount of power, the power to take away a person's freedom. I wonder if your porposition isn't dead on, that defendants should be able to request decisoins be unpublished. At the same time, I wonder if defense attorneys will take advantage of this as a possiblity. What if the judges are left the descretion to decide. The human element never ceases to play a part in the equation, but the states are the laboratories of democracy, so why not try, and we can see what happens.

[Dan]

I've got a big problem with only the defense atty "designat[ing]" the case for publishing or not. Along the same lines of that I believe that ALL cases should be published and citeable (sic?) because it keeps the appellate courts (especially here in AK) on the same track. Rather than have unpublished opinions that favor the defense but the published ones favoring the State, all should be published. The case tracking an atty can do in crafting a motion or opp would be easier and the trial courts would have more law to rely upon rather than the (usually) incoherent ramblings of us trial attys. Attys who are WAY too busy to usually do motion work properly.

That's just my $0.02 and doesn't (of course) reflect the opinion of my very gracious and magnanimous employer.

[la lawyer]

I agree with the others, interesting idea. Fortunately, or not, clients in my line of work are repeat players, and often are aware that automatically appealing a trial decision that did not go in their favor could result in bad precedent. We also often discuss that the bad facts make for bad law.

California does not permit citation to unpublished cases, even at the trial court level. However, I wonder if that might change if the federal court decision to allow citation to such cases becomes final (http://www.law.com/jsp/article.jsp?id=1144845716431)

[riderz67]

Your assertion that the judicial system is "designed" to favor the state is plain wrong. The state's burden of proving guilt beyond a reasonable doubt is anything but favorable. The appellate process does not favor either side, but rather the side that prevailed below.

Your claim that the appellate system has a structural bias in favor of the state is also misleading. A defendant's decision to appeal is usually motivated solely by self-interest. The state, on the other hand, generally considers the broader policy implications of an appeal. Any bias inherent in this arrangement is a result of the diverse interests of parties, not the structure of the system.

[aLs]

Oh wow, an Alaskan Law Blawg! I thought I was the only one!

[anon]

Rider, How long have you been practicing for? How many people have you counseled regarding whether to spend the next 20 years in jail or risk their lives in jail for a crime that nobody is sure whether they committed or not? How many innocent people have you watched sentenced to live in prison? How many clients have appealed genuine legal issues and received snarky opinions back from the courts?

[riderz67]

anon: 15 years in crim law. You really didn't respond to my comments.

Honestly, in this state, Alaska,the cops for the most part do a good job, the courts are honest, and the juries don't take any bullshit, so I doubt there are many innocent people in jail, particularly for serious crimes. Defts who appeal "genuine legal issues" get relief if the law is in their favor and the fact support them. I know a lot of public defenders and have never heard one complain that an "innocent" client has been convicted.

[fishbane]

riderz isn't really responding to the structural argument being made.

Any bias inherent in this arrangement is a result of the diverse interests of parties, not the structure of the system.

The thesis is that were it structured to represent a true alignment of opposition, the bias would go away, and thus, a structural problem.

Your statement seems akin to an argument that the door is grinding a grove in the floor, but that isn't a structural problem, it is just that the door doesn't stay parallel to the floor when you open it.