Thursday, December 6, 2007

Sorting Through The Garbage

The Oregon Supeme Court reversed a criminal conviction of a defendant for sexual abuse of a minor child. The issue: "defendant challenges a trial court's decision to allow the jury to hear a recording of defendant making disparaging comments about his attorney and threatening to "sign [his] kids over to the state" if his mother did not retain a different attorney for him. Defendant contends that his comments about his attorney were inadmissible under the evidence code and that allowing the jury to hear them violated his constitutional right to counsel. The Court of Appeals decision affirmed the trial court's judgment. State v. Knight, 209 Or App 562, 149 P3d 164 (2006). We allowed defendant's petition for review and now agree with his argument that admission of his recorded comments was error and grounds for reversal. "

The transcript of the defendant's remarks--rather graphic stuff-- is in the opinion. The recording was offered to impeach the defendant's testimony "about his love and concern for his children..." The court majority concluded that "defendant's persistent references to trial counsel as 'this fucking attorney' and 'this motherfucker' undoubtedly focused the jury's attention on defendant's personal and professional conflict with trial counsel--a conflict that had no relevance to any issue before the jury."

The dissent notes that trial counsel did not offer redaction of the offending statements as a solution: "The majority...makes it the trial court's responsibility to sort through the garbage and decide what is admissible and what is not. That traditionally has not been, and should not be, a trial court's responsibility."

As a former public defender and court-appointed private lawyer, I am thankful that I never had to make a closing argument in the face of evidence like this. If my clients ever felt this way, at least it wasn't memorialized on tape. (Mike Frisch)

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