5.27.2008

Moral Dilema


Greg Lowery, the current Wise County Attorney and odds on favorite to become the next District Attorney, and I have been having a debate for the last few months over the following issue: Should a prosecutor refuse to pursue a case if the cops obtained the critical evidence in violation of the law.

Today we used this scenario to make this as simple and clean as possible: Say a trooper does not have a reason to stop a car on Highway 287 but does so anyway. Pick any reason you want, he didn't like the way the driver looked, the driver's race, the make of the car, or the color of the car. Pick a reason. It doesn't matter because we'll stipulate it was an illegal stop. He then searches the driver of the car, again without reason, and finds marijuana. The driver readily admits the marijuana is his. So there you have it: (1) No question of an illegal search and seizure by the cop, and (2) No question the driver was in violation of our Possession of Marijuana laws.

We know the following would happen under the above facts (assume, once again, the facts are not in dispute): If the defendant, either alone or through his lawyer, files a Motion to Suppress the marijuana, it will be granted by the judge. Just like a law prohibiting marijuana use, we have another law that says any evidence seized in violation of the law cannot be used and must be suppressed. In a marijuana possession case where such a Motion is granted, there would be nothing left for the prosecutor to do but to dismiss the case.

Now here's the kicker: If the Defendant does not file the Motion to Suppress and never raises the issue at his trial, there is nothing that requires the judge to step in on his own and stop the case. The Defendant must make the Motion or file the appropriate objection. If he doesn't, he has given up or "waived" the issue. If he is convicted either by a guilty plea or even by a jury, he can't even raise it for the first time on appeal. The appellate court will affirm the conviction and hold the issue has been waived.

So here's the issue: We have an obviously guilty Defendant. We have evidence that was unquestionably seized in violation of the law. If you are the prosecutor, whose obligation is "not to convict but to see that justice is done", do you file the case when you see an obvious search and seizure violation? Do you hope the Defendant or his lawyer never raise the issue? Or do you consider your obligation to seek "justice" to mean that an illegal stop and search of a defendant is just as important to condemn as the violation of marijuana possession and kill the case when it comes across your desk?

Have at it folks. (But one request: Try to keep away from negative comments about particular individuals in the Wise County system whether they be prosecutors, cops, judges or lawyers. I have to work with these folks. I'm not that big of a fool.)

62 comments:

Anonymous said...

an officer can stop a car without probable cause just to see if they possess a valid drivers license. they dont do it tho, they usually look for other reasons.

Anonymous said...

huh????????????

Barry Green said...

To keep this on track: (1) No, the cops can't stop someone "just to see" if they have a valid DL. (2) If the "huh????" comment was meant as a joke, it's pretty funny.

Anonymous said...

First I wouldn't be so quick to count out Gerald Hartley my fool ...

The last few years you have worked around Republicans so you have become accustomed to kissing the asses that feed you?

A real Democrat knows the answer ... The Kid walks .. Next Case ...

Anonymous said...

If people didn't carry marijuana in their car, this wouldn't be an issue!

RPM said...

Would'nt this be a case where "in the intrest of justice" the procecutor would drop charges?

If the procecutor were more concerned about their personal view of morality and their conviction rate rather than justice being served they would use the illegal evidence.

What would Henry Wade do?

Anonymous said...

Hartley buys full page ad that lets the public know that Lowrey thinks it is totally fine to prosecute even if the cops violate your civil rights....most people hate cops....Hartley Wins!
Next Case....

lovelit said...

I say the prosecutor should drop the case. One shouldn't be allowed to determine which law is more important than another in any given scenario. That's why it is important for officers to follow proper procedure so blatant evidence won't be dismissed. The justice system works when all involved do their job. So, the guy walks, but he better use his blinker every time.

f'n lee bail you out for 20% said...

Here's your answer, and it's definitive. If the minefield of rules perpetrated by attorneys for the benefit of attorneys is not successfully navigated by a defendant, then said defendant will be run through a giant beaurocratic cash register so that all of the aforementioned attorneys may line their respective pockets regardless of any potential harm the aforementioned defendant may or may not represent as pertains to said citizens societal impact.

Does anybody actually care about whether or not schiat makes sense or is it all about the money?

Methinks the latter.

mzchief said...

If every case is an exercise of the system then the prosecutor should, of their own volition, toss out the case due to the illegal stop and search.

Anonymous said...

The case is dismissed, because the officer did not have proable cause to make the stop make the stop illegal thus making everything found during the stop useless.

Anonymous said...

a)If the judge has no obligation to stop the case, then why are you even whining that the "prosecutor" should have to put themself above the judge, the ultimate authority of the legality of the issue here.

b)The District Attorney is a CRIMINAL prosecutor, therefore they are obliged to PROSECUTE crimes.

c)The problem in this county in the past has not been an over aggressive prosecution, it has been a lack there of, which has not been the answer, especially concerning the drug problem.

d)I would like to thank 9:17 pm for reminding us how a real Democrat will protect and serve the law abiding citizens they would be representing.

e)And Barry, you are guilty of the biased inference that all law enforcement officers are guilty of illegal stops.

f)And , finally, don't tell me that no defense lawyer, including you Barry, has ever justified defending a client that they knew was guilty, or withheld known evidence in an attempt to get a not guilty verdict, because that's what they do, they DEFEND.

g) My opinion, for what it is worth, is that the prosecutor should drop cases like this just as soon as defense lawyers stop defending guilty people.

Anonymous said...

it's not a real dilema until it's spelled correctly (Dilemma)

Anonymous said...

Reality is the DA will make the decision not based on "right or wrong" but on last name, ethnic background, win/loss record for next election, or finally curry favor with some one or some group.

And decision could also be made on What was discovered. Something as simple as mj or componets for a bomb. Two different results based on pragmatisim.

Anonymous said...

Reality is it doesn't matter. The police and judges will do whatever they want and we suck it.

betty boop said...

The case should be refused when it comes across the prosecutor's desk if he sees while he is reviewing the case it is an illegal stop and/or search. If the police officers who are trained in search and seizure do not follow the law, the whole system breaks down. To me, it is a "no brainer". But I guess the definition of justice is broad to any given prosecutor.

Anonymous said...

I have gone to jp court to have a ticket dismissed, due to the partner I was with, made mistakes in which I wasn't comfortable with. I don't see a problem with the right thing being done, regardless of who is doing it. In my opinion, no illegal stop should be made. You could follow any vehicle for less than a mile, and find an infraction for PC. In your scenario as is, I think the prosecuter should kick the case. I would -

Anonymous said...

what if the officer discovers a severed head or the body of a child?

bigfan said...

8:34
The officer had better had PC. It's called "Fruits of the Poisonous tree". If there is an illegal stop, then everything associated with that stop - is not admissable. Don't you watch TV?

Anonymous said...

8:43 has an extremely interesting point.
I am curious if Barry's opinion would change if the officer did find something along those lines...a severed head or the body of a child.

Of course, then you're looking at a felony and no longer a misdemeanor possession of all things ..... marijuana.

Anonymous said...

8:34 is actually posing a scenario that assures bad laws,bad judgement and a sure erosion of your rights. When someone says,"What if it were A child,what if it were YOUR child." you might as well fold that pesky old Constitution up and fuhgeddaboutit. And then reach for your wallet to pay for whatever the ninnies have dreamed up this time to protect the little angels.

bigfan said...

9:01
I'm still looking for the 8:43 post, maybe it will pop up soon - Anyway, it doesn't matter if the classification of the offense is an F1 or a MC. If the stop is made without PC, everything get's kicked out!!!!!

Anonymous said...

If I saw a group of lawyers,cops and judges discussing things like right and wrong confidence is very high I would be getting a tasing when I mocked them in my best mockumental guffaw. I mean really,come on it's not like you got out of law school yesterday. You can't believe in anything anymore.
Is there a such thing in this world where you are doing your job well if you don't push your limits?
If I were involved in the legal system in anyway, I would just wallow in the filth and push it for all it's worth. There would be no debating ethical issues. Why bother? We'd all just be scum. And I'd throw scum parties.
I would also go back in time and marry Jennifer Tilly. Have you seen her lately? She is in her 50s and looks as good as ever. I'm pretty sure she made a deal with the devil so she'd understand me I think.
The End

Anonymous said...

(1) It's sad to read the cynical anti-lawyer comments. Makes me wonder whether they actually got unfairly burned by the system (which happens), or are just resentful because the "justice" worked upon them was not in their favor. In any case, they obviously don't know the lawyers I know - and yes, I am one. And yes, I've met some bad ones. But most of the lawyers I've met care more, and think more, about the "rights and wrongs" of life ... and try to "get there from here" harder .... than most of the clients who have passed through my doors. Good lawyers - which is most of them - don't have the luxury of just condemning their opposition as "scum". Because to do our job properly, we really have to understand all sides. That may condemn us to an unpleasant comprehension of just how "gray" the world really is, granted. It is unfortunate that it also seems to condemn us to perception as "scum" by those to whom the world is an easy "black and white."

(2) For the record, I generally ocnsider myself a political "moderate." That said, I'm afraid, Barry, that I do not believe that it is the prosecutor's job to represent the defendant. After all, in the vast majority of cases the defendant WILL have an attorney who will recognize the illegal search and file the appropriate motion. If he doesn't, then that is ultimately his problem. Given your facts, this defendant is - after all - ultimately "guilty". And a prosecutor's primary duty is to convict the guilty. That said, any prosecutor with a grain of judgment will be prepared to dismiss this case the moment the proper objection/motion is raised by the defense. But until that occurs, there is no reason for a prosecutor not to permit this "guilty" defendant to hang himself through his own waiver of rights.

My own problem with many prosecutors is that they don't seem willing to recognize improper police conduce such as this, even when it is obvious. Making excuses to try to justify illegal stops and searches does not serve justice. And law enforcement officers who behave as though they think that the prosecutor's job is to ignore or excuse their own misconduct need to be yanked up by the ears and re-taught - or removed from - their profession.

That said, please know that it is also my opinion that the vast majority of law enforcement officers are also good and decent people doing very difficult work.

There are bad lawyers, yes; and there are bad cops. But there are corrupting pitfalls in every walk of life.

Anonymous said...

Cop’s perspective- We cops are people subject to making mistakes and dumb decisions just like you. Do we mess up on purpose? I should hope not! I certainly agree that we should be accountable for our mistakes and if that means having a BS case thrown then so be it. Unfortunately though we seldom learn from our mistakes because we just don’t get feedback from our prosecutors about why our cases aren’t prosecuted. With that being said if one makes a mistakes and never learns he in error and the process repeats then how does one fix the error of his ways? I’m not saying the prosecutors don’t give us feedback because I don’t know. I only know that if they do give us feedback on our errors we never receive the feedback.

Secondly, every one of us is out there to do a job most of you wouldn't. Nearly every situation we’re called to arise from some negative action or event. How can anyone deal with so much negativity and not be affected by it? How can we go from call to call and see all that negativity and not become callous or grouchy? We’re expected to be Superman and just take it all in yet we’re still expected always use sound judgment, make ‘correct’ decisions and not make mistakes. Sound realistic?

My point is not to bash non-cops rather it is to point out that being a cop is difficult. Whether your experience with us causes you to agree with me (or not) each of us cares about doing the best job that we can do to help make Wise County a better place for all. Wise County has the finest group of men and women we’ve ever had. None of us is out to violate your civil rights, harass you or make bad arrests to ‘pad’ our stats.

People are grateful to our military for their service to our country, for ‘protecting us from terrorism’, but seldom do people realize this community experiences a greater impact from local law enforcement. There are no magnetic fish banners to ‘support our local cops’. There are no people on the radio wishing ‘Godspeed and God Bless’ to the locals police. Yet people are quick to offer their criticism when we make a boo-boo. Hello, our folks in the armed forces make bad decisions every day, but because it doesn’t affect you or violate your civil rights it okay? I’m not trying to pass the buck here, and I appreciate the men and women of the armed forces, but a little understanding and appreciation go a long way folks. Next time you see a cop say, “Thank you for making our community a better place”.

Anonymous said...

Prosecutor should tell Defense Attorney to have the suppression hearing, only way to educate police without hearing "F******" Prosecutor, won't prosecute" puts the burden of professionalism where it needs to be, and causes the entire spectrum of the system to work as designed. Courtroom exposure provides the best experience.

Atticus said...

The whole idea behind the exclusionary rule is to keep Officers honest and make law enforcement better. If our County Attorney takes the position that the police can make traffic stops without probable cause and he will file their case because just maybe no one will notice, he is doing not only the public a disservice but the police officers as well. Good police officers make good cases by following the law, writing good reports, and being prepared when they go to Court. If the prosecutor takes a case that he knows should be dismissed by the Judge, if the proper motion is filed, then he sends a message to the officer that it is okay to fudge and not do a good job. He or she also is not doing their job because they are passing the buck to the judge. So Greg if you want good cases that will stand up in court, demand that your officers learn the law and set high standards for themselves. In this way, the public and law enforcement will both benefits in the long run. It is like a parent telling their children no, and the child saying: "but everyone else is doing it, so it must be okay!" The good parents reply is that the standards in this family are obviously higher than what everyone else is doing in school. So Mr. County Attorney, remember you don't get elected by the police and you do not work for the police. You are the Wise County Attorney. Your job is not to convict, but to see that justice is done. If you want good cases, demand no less than good police work!

Anonymous said...

Here's a clue to help y'all sort this out. IT DOESN'T MATTER!!!!!

AnObiter said...

Thank you, 5:57 -- I was trapped in my own "dilema" over that one.

Anonymous said...

Barry, I would'nt be so quick to count the independent candidate, Clint Phillips, out for District Attorney just yet. Lowery may be the good 'ol boy, Wise county native but he had'nt won it yet!

Anonymous said...

I like to see that people jump to conclusions about who is representing which side of the arguement. Barry prefaced the story by stating it has been an ongoing debate and it has yet to be acknowledged that there is a possibility that Barry maybe playing the devils advocate. I personally think that this debate indicates alot about the people involved and illustrates that they are extremely prideful in their knowledge and profession. It shows that they care about the people it effects. JMO

And to the local cop who wants the same credit as the troops fighting a war. Your attitude is the reason a majority of people quickly become disgusted with local police. You chose the profession but yet you want accolades for doing the job and doing it right above and beyond your paycheck.

wordkyle said...

A layman's opinion: The "justice" system is not about justice. It is a game between two sides, with the emphasis on winning. Some attorneys play nice, others play rough, but they are all intent on winning. Sometimes winning is defined as getting the case processed as quickly as possible because of a huge caseload.

The courts are supposed to follow constitutional law. In the example given, everything that ensued after an illegal stop should be considered inadmissible. If we think the law should be ignored because the guy's guilty....well, the term "slippery slope" is applicable here. (Note: In real life, wouldn't the cop say the defendant wasn't wearing a seatbelt, the tag was expired, he had a broken taillight, or something like that? To provide a reason for the stop?)

The crazy inefficient system we have means that in such a case even a murderer could get away on a technicality. It's the flip side of all those "innocent" people on death row that BG always headlines.

My .02

Anonymous said...

File the case, in this case I would assume that it would be a plea if they bring the issue up then it gets dismissed. However I would also like them to file against the cop as well. He too broke the law....

Anonymous said...

So Barry tell us what a good case look like!

Anonymous said...

The world would be better without cops, judges and attorneys. Right?

Anonymous said...

This is so embarassing. I got pulled over (my van above) and now it's on the Internet. BTW this officer let me go with a warning.

Anonymous said...

Barry NEVER posts comments. There is an imposter among us.

Anonymous said...

In the facts, the defendant is guilty, we would all say he is guilty. The CA is not the defendant's attorney so he has done his job convicted a criminal.

Furthermore, if it is such a ender to not be illegally searched how is it that you have to raise your objection to the illegal stop during the original court proceeding and cannot do it for the first time on appeal.

Thems the breaks!!

Anonymous said...

"If you are the prosecutor, whose obligation is "not to convict but to see that justice is done", do you file the case when you see an obvious search and seizure violation?"

I think the answer to this question speaks to one's moral character. If you KNOW their was a S&S violation, a prosecutor of character will not file charges. The prosecutor that DOES file charges, is the type that gives lawyers and the legal profession in general, a bad name.

Double Fake Leon Jaworski

Jarhead said...

What if, what if, what if??

What if my aunt had a dick? She'd be my uncle!

What if butterflies had machine guns? Crows wouldn't f*$k with 'em!

What if?

What if?

What if?

Just the facts, ma'am.

Anonymous said...

I think the prosecutor should throw the case out when he sees that it was an illegal search. It should not go any further. Prosecutors need to do more of seeing that justice is done rather than trying to win cases by any means to make themself a name.

2. Don't count Gerald Hartley out. You may be surprised and I hope you will be.

Anonymous said...

Hartley run this about Lowrey and you my friend are the next DA of Wise County!

Anonymous said...

Ain't none of you could possibly think all this gum bumping could mean anything to anybody.

Anonymous said...

I was never good at word problems.

R. Hardy

Anonymous said...

The first post Barry has put up here that I have nothing to say about.

Anonymous said...

Lawyers,judges and cops discussing a moral issue? Watch for exploding heads. I know mine did even at the thought.

Anonymous said...

This is a trick question. Two lawyers debating the "right thing to do". Everyone knows lawyers never concern them selves with doing the right thing. As a matter of fact if lawyers are involved you can be assure that the "right" thing will not be done.

Anonymous said...

Some things are pointless to discuss. For example, no one knew Sarah Jessica Parker was distractingly ugly until Maxim Magazine pointed it out? You couldn't see her? I had assumed it was an Eleanor Roosevelt kind of thing and she was loved in spite of an uglirific appearance through the years. I didn't know it SHOCKED people to learn she was uggly.
To talk about our legal system as if it weren't broke and failing at every turn and to think it would help anything and we could make a difference by solving this pedantic little riddle is like failing to see SJP's big ugly head. Honestly, don't even act like it works.
I could go on about what it might mean that these men have to engage in a debate with such clear cut answers but I'll stop.

Anonymous said...

WOW! Can you people not appreciate a good debate. Barry never said that it was happening one way or the other ---- just that this was an ongoing debate. I don't think that either prosecutor files every case that is submitted to their office -- if that is how it is supposed to happen, there would be no need for a "prosecutor". The cop could do it himself -- he'd just be considered "right" all the time.

Jarhead said...

SJP is a man.

Anonymous said...

11:55AM - "Barry maybe playing the devils advocate".

Barry almost always plays devil's advocate. Didn't you know?

Hey Wordbyle! How's it going? Have you read Scott McClellan's book yet? Like you would. Not. Have you watched HBO's "Recount" yet? Like you would. Not. But, on the slim chance you have read or seen anything about either, I would enjoy reading your blabberings. I'll be watching your blogsite - in fact, I'll bookmark it.

The liberals among us should watch "Recount". It's a sad reminder of how we got where we are right now in the first place.

bigfan said...

I think we need more "debates" like this. It may either open some eyes, or just make fools out of the idiots who post immature comments. Let's have another one!!!

wordkyle said...

725 - Look here for what I wrote over a year ago about the dead nag of Florida 2000. No interest in Hollywood's interpretation. (Plus, I don't have HBO.)

I'm too busy with my own writing right now to read non-reference books. From what I hear, McClellan -- in his book -- was all upset about goings-on in the Bush administration. But for all the time he was a part of the administration, no one remembers hearing him express any of his displeasure either publicly or privately. But I'm sure he's being invited to lots of Washington cocktail parties now.

Jarhead said...

7:25 can't wait till Oliver Stone's movie about Bush (starring Barbara Streisand's stepson in the lead role and ultra knee-jerk Dicky Dreyfuss as Cheney ~ you know he was punching his clown over that role ~) comes out so he can see what's REALLY going on in the administration. Sheesh.

What a sad commentary that someone gets their "facts" from an HBO movie and a book by an obviously disgruntled former press secretary.

Have you read any books by the conservatives that you so obviously loathe? No. Why would you? You might learn something.

Until then, keep on believing everything you see on TV and in movies. And good luck with that.

In the meantime, "I'll be watching your blogsite - in fact, I'll bookmark it."

Oh wait... never mind. Just another anonymous troll.

Good day to you, sir!

Anonymous said...

The records dept. at the WCSO, and other agency's get a disposition sheet stating why the case is a No File, at least from the DA's office. Perhaps the officers should check records their agency receives. If they are interested in learning something. If it is a bad stop then quit waisting your time,our tax dollars, their time off work, defendants gas, filing the case. Let's see some investigations instead of just traffic stops that aren't even legal.

Anonymous said...

Penal Code 21.2012 says that all persons living on or about December 21 2012 will find themselves SOL on December 22 2012

Anonymous said...

Add this to your pickle and smoke it. What if the accused had an IQ of 60 and no legal representation. Also, they can not read or write. So, they can't
1. Find out the rules themselves.
or
2. Have someone, who is interested in their defense, tell them to hire a lawyer or file the motions.

As a morally justificated prosecutorial pontificator, what do you do then?

Selective prosecution occurs, and Mr. Green, Esquire's example is probably a good time to use it.

But, if you got to worry about conviction stats then the decision is easy to make. Always got to pad those conviction stats for election time.

I guess it all really depends on if the accused makes the paper.

Anonymous said...

I think Marilyn Manson said it best when he said,"I Don't like the drugs but,the drugs like me."

Anonymous said...

Having Employed Mr Hartley for numerous reasons. I will have to say there has never been another attorney who goes that extra mile that I have found in him. Excellent Man!! and Superior Attorney!!!!!

rov said...

To you 11:55am....Cops, Deputies, Troopers...go out each night to protect and serve and they risk their lives, just like the military! The people in the military, THEY TOO chose that "profession." My husband is in the law enforcement field and once served in the military....your crap comment about accolades above and beyond a paycheck...He loves what he does, the pay is not all that, but we do get by!!! JUST LIKE THE MILITARY FOLKS! Do you think the military men & women go out on the "frontlines" thinking, "boy when I go home, I better have a parade!" NO DUMB ASS....IT'S CALLED RESPECT!!!!! And response to this comment (Your attitude is the reason a majority of people quickly become disgusted with local police.) People USUALLY get "disgusted" ONLY because they have done something and can NOT accept responsibility for their actions!!!

a cop said...

A cop that turned in that kind of case is an idiot. Any prosecutor should recognize that the defense is going to pick up on it. Throw it out. Although, why should the prosecutor do your job for you. If you know your client is guilty, would you make him confess?

Anonymous said...

That is what makes the judicial system such a joke because you have to give $300 per hour to a lawyer so you know all the tricks. The courts have very very little to do with right, wrong or justice. The only honest thing that Johnny Cochran ever said "the color of justice in America is green"