It’s time for me to stroke you, dear reader. Congratulations for exposing yourself to important justice issues, issues that corporate news networks either do not have the time, or intelligence, to report. And, if you need further stroking, simply donate to any popular Hollywood cause–the accompanying “gala” will involve an orgy of “important” folks telling each other how important they are. Yes, the view from the back of a limo is rarely accurate, but often entertaining (especially upon exiting with a short skirt–don’t they see all those cameras out there?). Anyway.
There has been a long standing battle between those in favor of justice, and those who favor procedure. To understand this fight, we’ll use the real life case of Woodbury v. State. 730 So. 2d 354 (Fla. 5th DCA 1999) Woodbury was convicted of a felony drug offense. His criminal defense attorney filed a one page Motion to Suppress, arguing an illegal search of the vehicle in which Woodbury was a passenger. The problem with the defense attorney’s argument was that he left out one important argument; an argument that would have won Woodbury’s case. Ouch. Well, isn’t that why we have appeals courts? Shouldn’t an appeal restore justice? Isn’t that the job of appellate judges?
Here’s the problem. The appellate court may only review arguments made by the initial defense attorney. If the first attorney didn’t make the proper argument, the appeals court will not consider an additional argument–even though they know a costly mistake was made. That’s what happened to Woodbury. The appeals court acknowledged that Woodbury’s search was completely unconstitutional. As such, Woodbury was wrongfully convicted of a felony drug offense. The appellate court’s opinion points out what the defense attorney did wrong on his motion: “the core question here should have been whether a dog alert on a vehicle, in and of itself, authorizes the arrest and search of all the occupants of that vehicle. The answer is no. . . . Unfortunately, the motion to suppress failed to clearly state this reason as a basis for suppression . . . [n]or did counsel ever present argument to the trial court that the search of Woodbury’s person based only on the dog alert on the vehicle was improper.” Id. at 356 [emphasis added]
Did you catch that? Woodbury’s felony conviction must stand–even though we know it is unjust–because his trial attorney initially argued the wrong thing. Woodbury’s defense attorney did not “properly [preserve] his right to raise the issue upon appellate review. Because I conclude that this issue was not properly persevered, I concur with the majority’s decision [upholding his felony conviction]”. Id. TRANSLATION: Yes, Woodbury should not have been convicted, but the issue which would have overturned his conviction was not properly preserved. Rather than giving Woodbury justice, the court complains about the Motion to Suppress filed by Woodbury’s attorney, noting that it “was a bare bones, one-page pleading that failed to clearly articulate the basis for suppression”. Again, another complaint about Woodbury’s criminal defense attorney. What about “justice?”
I rarely single out judges for praise, but 5th District Court of Appeal Judge Charles Harris is a rare breed. Every now and then, a judge comes along who truly understands justice, and our Constitution–he’s that guy. Unfortunately, Judge Harris is retired, but his brilliant and insightful dissenting opinion summed up the issue as follows: “Woodbury is serving a sentence based on a wrongful conviction while we argue the style points of his attorney. We, like Nero who fiddled while Rome burned, seem insensitive to the truly important happening going on around us; the trampling of the Fourth Amendment.”
I could write a whole series of articles on the wisdom of Judge Harris, but for now, let’s take a look at how Judge Harris addresses this issue (after Woodbury) in the case of Hugh v. State, 751 So. 2d 718 (Fla. 5th DCA 2000).
“Once again the State is urging that appellant should not be heard on appeal because the proper argument was not made below. That is the law of this district. . . an issue which might have proved the conviction ‘wrongful’ was not considered because the argument below was insufficiently precise. . . I believe that there are absolutely no circumstances under which a court may knowingly ignore a wrongful conviction (unknowingly is bad enough)”. Id. at 718-719.
If you have time, you should read Judge Harris’ dissent in Hugh, as he breaks down the issue through the characters of Oliver Twist. Interesting read. More wisdom from Judge Harris:
“regardless of how the court learns from the record that a wrongful conviction has occurred, it should grant relief. The court’s primary responsibility, in any appeal, is to the truth. The United States Constitution prohibits one from being deprived of his liberty without due process of law. I submit it is a denial of due process if the appellate court can see from the record that a wrongful conviction has occurred but does nothing about it because some magic words were not uttered below.” Id at 721.
And there you have it. If your attorney doesn’t utter the right “magic words” in the trial court–you’re not going to be able to argue that issue on appeal, and your wrongful conviction will stand.