342. From the mouths of babes

Not real babies, of course.  They never say anything deserving of scorn.  But recently the Kansas appellate courts have ingenuously revealed things that more worldly-wise judges have learned to cloak in wordy euphemism.  The first case is officially "unpublished" and Kansas is one of those states that continue to hide their unpublished opinions, presumably because their authors have something to hide.

Here's the opening passage:

On December 16, 1994, an information was filed alleging that Downey had sexually abused S.R., a 2-year-old girl, in Reno County, Kansas, during September 1994. This is the fifth appeal. ...

At trial in March 2006, Downey did not deny he had sexually abused S.R. Downey's counsel argued instead that what “Downey did to that little girl was despicable. Absolutely despicable. But it didn't happen in Kansas.”

You can see why a case as complicated as that would take 11+ years to decide.  Downey thought his latest conviction should be overturned on the basis of prosecutorial misconduct, namely an improper argument by one of that tribe of evil trolls:

Downey first complains of the prosecutor's statement during closing arguments that the case was about the “innocence of a little two-year-old girl,” which Downey “stole ... for nothing more than greed, self-gratification, and his personal pleasure.” ..

[T]he effect was to argue the moral turpitude of Downey's actions rather than criminal liability under the elements of the crimes charged. Since trials are conducted to determine criminal liability, prosecutors “should refrain from argument which would divert the jury from its duty to decide the case on the evidence.”

I don't think I've ever before seen a court come right out and say that morality has nothing to do with the criminal law, and that it's wrong to "divert" jurors from their task by reminding them that there's a point to it.  

(Maybe all the court meant was that there wasn't any proof that the 2-year-old was innocent about sex prior to the  moment she found herself alone in Downey's company, so that the prosecutor was arguing facts not in evidence.)

But that's nothing in comparison to what the reliably-fatuous Kansas Supreme Court (see post 284 and post 299) wrote in a recent opinion that more self-aware fatuous judges would have hidden in the convenient "unpublished" file. 

The case concerned a difficult constitutional question: whether a criminal defendant has a right to lie under oath to the jury without fear of contradiction.

The answer, as every lawyer active in the field of criminal law knows, depends on what form the contradiction might take.  If it's, say, in the form of the defendant's own prior words saying exactly the opposite of what he's sworn to from the witness stand, then it's pretty iffy, thanks to a 1964 Supreme Court opinion that outlawed the practice of recording the unguarded things people say even when charges are pending against them. 

(It's unconstitutional to record such unguarded words only if the defendant is represented by a lawyer, so indigent defendants, required to wait for the creaky wheels of the public defender bureaucracy to turn, have a window of vulnerability that those with a lawyer on call need not worry about.  The point, I should hasten to add, isn't that the wealthy are more deserving of protection from the law, but that lawyers have a right to be protected from a client who blows his own case.)

So here's the Kansas Supreme Court explaining why it was wrong to allow a jury to learn that the defendant said something in private that completely contradicted what he said under oath from the witness stand:

Although trial judges are called upon to determine the admissibility of evidence to effectuate the courts' truth-seeking function, there is nothing in our federal or state constitutions that requires us to make truth-seeking the overriding principle that trumps our constitutionally protected rights. ...

The purity of justice under our Sixth Amendment's constitutional right to counsel cannot be polluted by the subversive conduct of deceitful acquisition of evidence.

There you have it.  Truth cannot be allowed to pollute the pure justice that only court-approved lying under oath can achieve. 

Note a couple of other things.  The acquisition of the evidence was "deceitful" only in the sense that the informant allowed the defendant to assume he wasn't an informant, and the police allowed the guy's lawyer to assume they weren't employing the informant.  (Which, under Supreme Court precedent - or, if you prefer, under the sixth amendment - they shouldn't've.)  But any time a judge suppresses evidence, he or she is being deceitful in exactly the same way, by allowing the jury to assume that there isn't any additional relevant evidence to learn about.

And the defendant's much more direct deceit - his outright lying in court - is less polluting to the purity of justice than permitting the jury to learn about it.

The interesting question is: Do you think anyone at the Kansas Supreme Court actually thought about any of these things before publishing the opinion? 

Comments

[Ben Barlyn]

Joel,

You're a national treasure. Keep it up.