Thursday, March 12, 2009

They Got It Right and They Got it Wrong

One of my favorite movies has to be Fiddler on the Roof, Tevye explaining his thought process at every turn, “On the one hand…and on the other…then again…, all the while the camera somehow removes him from the situation visually as if to stop time. In this morning’s Houston Chronicle Mike Tolson has an interesting insight as to how the criminal justice system handles very minute details, Appeals court grants new trial for condemned Houston man .

On the one hand, according to the article, the suspect admitted everything necessary for a conviction and yet; on the other hand, the second part of the process, the punishment phase may or may not have had a significant legal blunder, one which gave the defense and the convicted murderer a chance to “beat the rap”. “If I were a rich man, a divvy, divvy, divvy do; all day long I’d…”

“(District Judge Jim) Wallace and another judge, Lon Harper, split pre-trial duties before the start of Haynes’ 1999 capital murder trial in the death of police Sgt. Kent Kincaid, with Harper presiding over the voir dire process in which potential jurors are questioned individually by prosecutors and defense attorneys.”

The first part of setting up grounds for a retrial, does State law provides for such a split; can one judge hear the pre-trial voir dire process, knowing that a different judge will be in attendance for the rest of the judicial proceedings? I am not given the answer, at least not from previous experience and not entirely through the information in today’s story; however, logic tells me the answer. The State Court of Appeals, mentioned as part of the justice system having heard the appeal, did not toss out the original findings of the District Court. A division of duties between judges, one only hearing voir dire, presumably to insure that important process is handled within the framework of our laws, is within the accepted day to day operations of the justice system.

“But the 5th Circuit panel said there was no way for Wallace or state appeals courts to determine from the printed trial record whether the defense objections had merit. And because Wallace had not witnessed the questioning, his ruling cannot be given the deference it normally would, the panel said.”

“It is clearly established that the cold record cannot accurately reveal the demeanor of live trial participants,” the opinion stated. “We cannot correspondingly apply . . . deference to the state court, because the state courts engaged in pure appellate fact-finding for an issue that turns entirely on demeanor.”

Here’s where the 5th Circuit panel got it right and wrong, both at the same time. In their reasoning they pointed to the “cold record” and correctly state that such a “cold record cannot accurately reveal the demeanor of live trial participants”.

What they neglect to include in their reasoning was how Judge Lon Harper had observed and could reveal the demeanor of live trial participants; the records were not “cold” and therefore should have had no sway in the 5th Circuit order for a retrial. Judge Harper observed and insured equal, impartial and accepted voir dire proceedings as part of his lawful duties; at the first sign of any deviance from accepted lawful proceedings he would have, by law, been required to halt the trial and start the entire process over.

The 5th Circuit has re-written a long established and accepted portion of human conduct within the frame work of the criminal justice system which, at one time provided a reasonable amount of weight for human observation by officers of the court, to include judges, who are well aware of each aspect of their duties. Had the 5th Circuit stated in their review that either judge had not been alert or carried out their individual duties, then and only then would this case have had merit. (Grammar check keeps insisting I put a question mark after the word “merit”; oh well…)

For anyone looking at the old adage, “Better a guilty person be let go than an innocent man be imprisoned”, then look elsewhere. This particular convicted felon never at anytime denied his involvement; he and he alone shot and killed a police officer. The impaneled jury which heard the evidence and determined the penalty phase came up with a verdict based on what they determined to be valid observations. The only issue the defense claimed was worthy of a retrial was a technical issue, an incorrect technical issue at that. Sorry, 5th Circuit, you got it wrong in the long run.

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