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Friday Roundup

Guess he never watches CSI.  While the discovery of eleven bodies, apparently raped and murdered, in Anthony Sowell's house here in Cleveland has generated nationwide attention, local controversy brews over the failure of the police to follow up on an incident in December of 2008, when a woman flagged down officers and claimed that Sowell had beaten and choked her.  Although Sowell was arrested, charges were never pursued against him.  He went on to allegedly kill five more women before he was finally apprehended last month.

Many in the community have suggested that the failure of the police to follow up on the December 2008 incident was due to racism or misogny, rather than simple negligence, since Sowell's purported victims were prostitutes or drug addicts, and the woman who complained was supposedly of similarly dubious pedigree.  The police and prosecutors have exchanged volleys as to who was responsible for the decision not to file charges, with each claiming that the other determined the woman was "not credible," but the latest statements by the police chief didn't do much to help their cause.  Acknowledging that when police went to Sowell's home, they found a tissue containing blood, and saw droplets of blood on the steps and floor inside the open side door,

[Chief] McGrath said charges in 2008 came down to one person's story -- the woman's -- versus another person's story -- Sowell's.

"And there was no collaborating evidence to sway it either way," McGrath said.

He said the blood police saw at the scene could have belonged to either person.

Gosh, what a shame that science hasn't come up with a way to test that sort of thing, huh?

Rules Update.  Last Thursday and Friday, I discussed the newly proposed criminal rules on open discovery, and mentioned some of the problems I foresaw.  One of them was the possibility that the defense might be obligated to turn over statements of witnesses, even if they were inculpatory.  Should have read the not-so-fine print before I came up with that:  (H)(3) specifically states that "nothing in this rule shall be construed to require the defendant to disclose information that would tend to incriminate that defendant."

The other concern I had, that statements of child sex case victims couldn't be used for impeachment, did have some substance.  In fact, that applied to more than just child sex cases; if the prosecutor certified that any items, including witness statements, shouldn't be disclosed, the defense counsel would get to "inspect" them a week before trial, but there was no procedure similar to the present 16(B)(1)(g) for allowing them to be used for impeachment at trial.  I talked to a couple people who've been working on the rules (the defense bar and the county prosecutors' association has been working on this for much of the past two years, and the current proposal is the product of that effort), and they say it just got missed.  It's being changed so that all witness statements, even if the prosecutor certifies that they shouldn't be disclosed in regular discovery, will be given to the defense by the time of trial.

Well, maybe not "Contemptproof."  One of my faithful readers -- their number is legion -- sent me an email the other day with a link to the opinion of the Texas Court of Criminal Appeals affirming the conviction of Austin criminal defense lawyer Adam Reposa for criminal contempt of court.  Reposa's offense?  Apparently, Reposa was trying to tell his client not to plead out, and when the prosecutor complained that Reposa was whispering to his client while the prosecutor attempted to lay out the plea deal on the record...  Well, let's let the trial judge take it from there:

[Reposa] was standing a couple of feet from the front of the bench and, very clearly, I could see his right hand at his - a few inches from his waist and his hand was in sort of a fist and he moved his hand very quickly up and down for maybe five times. And as he did that, his eyes were rolling . . . and he was looking at me.

The judge testified that "she recognized this gesture as a simulated masturbation gesture."  

From my reading of various accounts, Reposa's not exactly in the mainstream of the bar; he identifies himself as "Adam 'Bulletproof' Reposa" on the State Bar of Texas website.  It's certainly easy to laugh about this, and it may be that Reposa got what he deserved.

Maybe not.  What Reposa got was a 90-day jail sentence.  There aren't too many lawyers whose practice can survive a three-month timeout.  A couple of weeks ago, the Supreme Court had arguments in Pottowattamie County v. McGhee, in which the Court is being asked to hold that a prosecutor is immune from civil damages for procuring false testimony during a criminal investigation, and then introducing that testimony against the defendant at trial.  As Justice Ginsberg noted during the argument, the prosecutors had never even been disciplined for their fabrication of the evidence.  Here in Cuyahoga County, former Assistant Prosecutor Carmen Marino had at least half a dozen major convictions reversed for withholding evidence.  That earned him such ignominy that up until last year, the county prosecutor's office was giving an award in his name to the prosecutor who "set the standard for what law enforcement should be."

When a prosecutor faces a jail sentence for engaging in misconduct which results in an innocent man being sent to prison, I won't have a problem with a defense lawyer having his practice ruined for graphically telling another prosecutor he's a jerkoff.  Not until then, though.


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