Friday, July 23, 2010

Zealousness No Defense To Contempt Charge

A finding of criminal contempt based on a defense attorney's questions in violation of court rulings on the admissibility of evidence was affirmed by the Vermont Supreme Court. The attorney was defending a rape case. The conduct occurred during the cross-examination of a police witness and resulted in a mistrial.

The court concluded:

There can be no doubt that counsel here was on notice that evidence concerning the victim’s prior sexual conduct, with the exception of the victim’s reference to an eighteen-year old who allegedly impregnated her in 2008, was barred.  Not only was this evidence expressly prohibited by the plain language of the rape-shield law, but it was also wholly irrelevant, as the court stated before trial.  That the subject of the victim’s prior sexual encounters may have been discussed in the context of her Planned Parenthood records is of no moment.  It was made abundantly clear to counsel that evidence of the victim’s sexual history did not fit within any exceptions to the rape-shield statute and was inadmissible.  Counsel cannot evade the court’s ruling simply because this same information—with additional personal details—was contained within other documents.  The onus was on defense counsel to secure the admission of any specific instances of the victim’s sexual conduct before trial.  If he believed this same information from the detective’s affidavit was outside the court’s ruling, he should have made that argument to the court.  Indeed, the court “clarified” its ruling for [the attorney] numerous times.  If [he] remained confused, his remedy was to approach the bench, not to ask a question in direct defiance of the court’s ruling. 

Counsel’s conduct is particularly egregious given the purpose of the rape-shield law.  The rape-shield law is intended to “screen the rape victim from unnecessary indignities and needless probing into her past sexual history."...This law serves a critical purpose in the prosecution of sexual assault cases: “[b]y excluding worthless evidence, the legislature increased the reliability of the judicial system, increased the number of rapes actually reported and made it less likely that highly inflammatory information with no logical connection to the issues at trial would bring about unwarranted acquittals.”  

Indeed, it is the “peculiarly private” nature of such evidence that “presents great potential danger when placed in evidence in a rape trial.”  As [the attorney] must have been aware, such evidence “raises very real possibilities” that jurors “will find the conduct of a rape victim so alien to their own experience and morals, and so offensive, that they will be unable to comprehend how such a person could be raped.” ...The introduction of such evidence also “runs the risk of turning the trial from an impartial examination of the incident in question to an inflammatory and titillating inquiry into irrelevant pages of the victim’s life, confusing the issues and misleading the jury.”... [The attorney's]conduct wholly undermined the spirit and purpose of this law.  The inevitable result, as the trial court found, was a mistrial.  The court clearly has the discretion to punish such behavior so as to promote the proper and timely administration of justice.  (citations omitted)

The court rejected the claim that the duty of zealous advocacy justified the attorney's actions. The court did not refer the matter for consideration of professional discipline. (Mike Frisch)

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"The court did not refer the matter for consideration of professional discipline." Isn't plain, knowing violation of law a ground for discipline? If the lawyer is worthy of judicial reprimand, why not refer the lawyer for professional discipline? The refusal of judges to cooperate with the bar's efforts to deter bad conduct by disciplining bad actors is at the very least unhelpful. Indeed, it treats professional discipline as unworthy of attention.

Posted by: Dennis Tuchler | Jul 25, 2010 11:35:15 AM

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