On a Stacked Deck

There is a perception amongst the general public that the criminal justice system is tipped in favor of criminal defendants. For example, there's the old saying that it's better for 10 guilty men to go free than for one innocent person to go to prison. Or there's reference to a defendant getting off on a "technicality" by invoking one of the rights guaranteed by the Constitution. Regardless, the reality of criminal justice is completely different - the deck is stacked in favor of conviction at almost every turn. Two recent decisions from the Fourth Circuit demonstrate that phenomenon.

Yesterday, the court handed down the McNeill decision. In McNeill, the defendant won a motion to suppress a statement he gave implicating himself in two bank robberies because the district court found that his initial arrest was illegal. The Government, as you might expect, pursued an interlocutory appeal, meaning it sought to appeal the decision before the rest of the case is resolved. The US Code requires the Government, in such cases, to file a certification with the district court attesting to several things, mostly to ensure that the appeal at that time is really necessary and would not be frivolous or taken for the purposes of delay. The Government's certification was filed six months late and with the appellate court, rather than the district court. McNeill moved the appellate court to dismiss the appeal because of the Government's failure.

This was not an isolated incident. As the court notes in the opinion, this case was the third time since 2004 that the Government had similarly underperformed (and one more case where it happened is pending). One of those cases, Hatfield, was mine and so I'm somewhat tuned in to the issue. In Hatfield and a subsequent case, the court talked sternly about the Government's failure to follow the procedural law, but ultimately decided that dismissal was too harsh a remedy. The tone of the opinions was clear - don't let it happen again. Yet, here it is, three years later and it has happened again - twice. The Government attorneys involved even apparently admitted that they had no "personal knowledge" of Hatfield and the other case.

"[T]he government's failures," the court wrote, "are shameful lapses in professionalism." So one would think it was time to bring the hammer down, right? Dismiss the appeal and teach the Government a lesson by creating some tangible negative impact upon the Government. Alas, you'd be wrong. The court in McNeill bent itself over backward to keep the appeal alive and, in the end, rule for the Government.

Contrast that result with the outcome in the McClung case. This, in the interest of full disclosure, is one of my cases. It involves a former state education official who funneled business to a friend in return for money. He pleaded guilty and went to sentencing with a maximum Sentencing Guideline sentence of 63 months. Without notifying either of the parties of its intent to do so, the district court varied from those Guidelines and imposed a sentence of 84 months. On appeal, McClung argued that he should be resentenced because of the district court's lack of notice and allowed to make an argument about sentencing knowing what the district court has in mind.

One problem - McClung's lawyers at sentencing (nobody in my office, FWIW) failed to object to the sentence being imposed without notice. As a result, review in the Fourth Circuit was under "plain error" review. In order to prevail in such a case, the defendant much show (1) that there was an error, (2) that the error was plain, and (3) that his substantial rights were affected. Even if those three criteria are met, the appellate court can choose not to recognize the error if it does not "seriously affect[] the fairness, integrity, or public reputation of judicial proceedings." In other words, even if a defendant's rights were violated and it made a difference, the court can simply choose to ignore it.

Sound like a stacked deck to you? Here's how it worked in McClung - the first two prongs were easily met. The third, that substantial rights were affected was not. Why? Because McClung could not convince the court that he would have gotten a lower sentence from the district court, even though he had no chance to try and convince the district court otherwise. In other words, not only do you get a diabolical standard of review on appeal, but because prior counsel failed to put evidence in the record to justify a lower sentence (not knowing he had to) you can't convince the court anything prejudicial took place.

The bottom line is this - the appealing parties in both McNeill and McClung screwed up procedurally before the briefs got filed. When it's the Government that screws up, it gets the benefit of the doubt, even after repeated similar failures. When the defendant screws up - defendant's counsel, really - there is no similar benefit given. That's particularly repugnant when you consider that the party that suffers the most in the equation is the one who had nothing to do with the screw ups!

Indeed. The criminal justice system appears to be stacked, but not in favor of a defendant.

Over at Decision of the Day, Bob has some similar thoughts.