Do appellate courts regularly cheat?

Criminal Justice Ethics

Volumn 16, Issue 2, 1997, Pages 11-19

  Smith, M B E ^a  

^a SMITH COLLEGE   (United States)

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EID: 4043073340     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1997.9992034     Document Type: Article

References (50)

1. Holmes, Jr., The Path of the Law, 10 Harvard. L. R. 457 (1897).
2. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem and Some Possibilities, 4 Am. Bar Foundation Research J. 613, 624-626 (1986)
3. Wilkins, Legal Realism for Lawyers, 104 Harv. L.R. 469, 478-499 (1990).
4. Commonwealth v. Rodriguez, 415 Mass. 447, 614 N.E. 2d 649 (1993).
5. The mandatory minimum punishment for trafficking inover 200 grams of cocaine is fifteen years in state prison. Mass. Gen. L. c. 94C § 32E(b)(4).
6. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)
7. Commonwealth v. Lattimore, 378 Mass. 671-677, 393 N.E.2d. 370 (1979).
8. Mass, R. Crim. P. 25, 378 Mass. 896 (1979).
9. Commonwealth v. Sheline, 319 Mass. 279-283, 461 N.E.2d. 1197, 1201f (1984). If the motion is made at close of the Commonwealth's case, the reviewing Court only considers the defendant's evidence to determine whether its position as to proof deteriorated after it closed its case.''
10. Commonwealth v. Torres, 24 Mass. App. Ct. 317,508 N.E.2d 877 (1987).
11. Objections to trial rulings by either party are governed by Mass. R. Crim. P. 22, 378 Mass 892 (1979)
12. Commonwealth v. Miranda, 22 Mass. App. Ct. 495, 490 N.E.2d 1195 (1986) for discussion of the five rarely-applicable exceptions to the contemporaneous objection requirement. For an arguably draconian insistence in a high-profile case upon the necessity of such objection,
13. Commonwealth v. Amirault, 424 Mass. 618, esp. 645-53, 677 N.E. 2d 652, 670-74 (1997).
14. The last sentence of the unpublished opinion reads, ''Moreover, at the close of all of the evidence the Commonwealth's case was strengthened by the defendant's testimony that he was paid $100 to merely deliver a bag to a person and address unknown to him.'' Technically, however, these admissions count only against the defendant's credibility and were not evidence of his guilt. It is a fundamental principle of the law of evidence that disbelief of testimony does not constitute proof of opposing facts required to sustain a finding. Morse v. Board of Selectmen of Ashland et al., 7 Mass. App. Ct. 739, 401 N.E.2d 379 (1980)
15. This finding forestalled a motion for a new trial based upon ineffective assistance of counsel, since it foreclosed the claim that counsel's error deprived the defendant of an otherwise available, substantial ground of defense.''
16. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974)
17. Massachusetts cases, like those of every other jurisdiction, continually recite this principle.
18. Brown v. Fairhall, 213 Mass. 290, 100 N.E. 556 (1913)
19. Budish v. Daniel, 417 Mass. 574,631 N.E.2d 1009 (1994).
20. This is taken from the unpublished Momorandum and Opinion of the appeals court in Efrain's case, on file with the Institute for Criminal Justice Ethics.
21. Chapman v. California, 386 U.S. 18 (1967).
22. Chapman offered three illustrative examples of constitutional error that required automatic reversal: the positive rights to counsel and to an impartial judge, and the negative right that a defendant's coerced confession not be admitted into evidence against him.
23. Id. at 24 n8.
24. The last right was pared from the list in Arizona v. Fulminante, 499 U.S. 279 (1991)
25. Rose, v. Clark, 475 U.S. 570-579 (1986)
26. Brecht v. Abrahamson, 507 U.S. 619-629f. (1993)
27. Id. at 629.
28. Arizona v. Fulminante, 499 U.S. 279-309 (1991).
29. In Massachusetts, a state agency called the Committee for Public Counsel Services is the public defender. It has two main branches: public counsel (such as Michael), comprising the Committee's staff attorneys, and private counsel (such as myself), who are independent attorneys under contract with the Committee. I do not know Michael, but my experience with public counsel is that they are excellent attorneys who are fiercely devoted to indigent criminal defense.
30. All quotations from George's case are taken from official records on file with the appeals court and in the possesion of the author. The specific sections cited in this article are on file with the Institute for Criminal Justice Ethics.
31. George's mien reminded me most of Melville's Bartleby the Scrivener who, as disasters piled on, kept saying to his would be helper (the narrator of the story), I would prefer not to.''
32. Rose v. Regan, 344 Mass. 223, 229, 181 N.E.2d 796-800 (1962).
33. Accord: Brady v. United States, 397 U.S. 742, 748 (1970)(A waiver of a constitutional right must be voluntary.) To see the ubiquity of this definition of waiver, see its entry in any edition of BLACK'S LAW DICTIONARY.
34. 393 Mass. 801, 475 N.E.2d 1103 (1985)
35. 822 F.2d l66, 174 (1st Cir.1987).
36. 422 U.S. 806 (1975).
37. 389 Mass. 359, 366-67, 450 N.E.2d 1050-1076 (1983)
38. 545 F.2d 273-278 (1st Cir.1976)
39. 393 Mass. at 808, 475 N.E. 2d at 1109. We may call this the Tuitt exception to the doctrine of implied waiver. Note that the exception was not mere dicta, but was essential to the holding of the case. Since Tuitt expressly demanded his right of selfrepresentation, the Court could only escape the conclusion that he was denied it by holding that the right had never clicked in, on the ground that he had never waived the right to counsel.
40. Tuitt v. Fair, 822 F.2d at 174.
41. The argument's formal structure is: If p [George refused to waive his right to counsel] and if p then q [If a defendant refuses to waive counsel, then he has not waived it.], then q [George did not waive counsel].
42. note 18 supra.
43. 17 Mass. App. Ct. 200, 457 N.E.2d 287 (1983).
44. 393 Mass. at 806, 475 N.E. 2d at 1109.
45. S. KADISH & M. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973). For a somewhat similar view,
46. Frederick Schauer's defense of presumptive positivism in his PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION MAKING IN LAW AND IN LIFE, esp. ch. 8 (1991). For argument by a sitting judge that may fairly be read as asserting a right to cheat (as that word is used here) in constitutional cases.
47. R.A. Posner, What am I? A Potted Plant?, in his OVERCOMING LAW, ch. 8 (1995).
48. 124 Eng. Rep. 1006 (C.P. 1670). This case ended the practice of punishing juries that acquit against the law. The jury had found William Penn and William Mead not guilty of unlawful assembly. The trial judge then locked them up without food for two days and fined them for their final verdict. The jurymen's' case was taken up on a petition for habeas corpus; and they were discharged. A wall-plaque in the Old Bailey says inter alia of their case, This plaque commemorates the courage and endurance of the jury.
49. S. KADISH & M. KADISH, supra note 34, at 46n.
50. Smith, Concerning Lawful Illegality, 83 YALE L. J. 1534 (1974)