Brown & Little, P.L.C. » Arizona Cases, Prosecutors, Search and Seizure » Making Bad Law

Making Bad Law

I recently had an interesting talk with a prosecutor. I litigated a case against him a little while back, and I thought it had decent facts for a motion to suppress. The officer’s report clearly stated that he had completed the traffic stop, issued a warning, and told the occupants they were free to go before re-initiating contact and asking them, “hey, do you mind if I take a look in the car?”

There’s an Arizona court of appeals case from last year called State v. Sweeney. In it, the court held that, after a traffic stop has concluded, an officer must have reasonable cause to initiate a second detention of a suspect. Based on the totality of the circumstances, the officer in my case didn’t have reasonable suspicion of anything that would allow him to continue the detention by asking to search. It was a routine traffic stop in every conceivable way, yet the officer chose to detain the occupants again after the stop had already concluded.

The prosecutor claimed that my client, unlike the defendant in Sweeney, eventually consented to the search and wasn’t forced to wait for a drug drug. He thought the reasoning in Sweeney shouldn’t apply. He thought not only that those facts made the detention after the termination of the initial stop de minimis, a factor considered in Sweeney, but also that consent by itself should change the analysis. He got that from the part in Sweeney discussing State v. Box, which discussed de miminimus intrusions in greater depth. He didn’t think differences in the facts between my case and Box changed the analysis at all.

In the end, the suppression issue turned out to be moot, and speaking with the prosecutor long after the fact, he seemed to think that was good for me because I would’ve ended up “making bad law” for defendants. He thought an appellate court would severely narrow the ruling in Sweeney. He thought a case with bad facts, a description he used for my case, would lead an appellate court to make the de minimis exception swallow the rule or to broadly remove cases involving a consensual search from line of cases including Sweeney. What was most interesting to me was that he viewed all of that as a problem not just in the context of the case we had together. He seemed to think that I had a duty as a defense attorney to avoid creating case law that would limit the rights of defendants.

I was fascinated that he viewed my role as extending past the specific client I’m representing. He’s wrong, of course. I could have the worst facts in the world, the kind that would make the Supreme Court of the United States reconsider the exclusionary rule altogether, but if I thought they gave rise to a motion to suppress, especially one with enough merit to make it that far, I should probably file it. Sitting on a motion that’s worthy of appellate review almost sounds like malpractice. The most harm I can imagine any valid motion to suppress doing is to make the plea go away. Even then, a good motion results in a better plea more often than not, and when it does make the prosecutor pull the plea, it’s usually because the defense attorney is filing it because the case isn’t going to plead anyway.

Even more fascinating was the fact that the prosecutor thought the possibility of making bad law was anything more than wild speculation. Our court of appeals doesn’t have to issue published opinions. They can simply write a memorandum decision that cannot be cited, and if our supreme court denies the petition for review, nothing binding or even worthy of citation has occurred. Even if I had two clients with the same issue and one had a case facts that could lead an appellate court to change case law in a way that could theoretically affect the client in the other, I’d still file both unless there was some better reason not to do it. The odds of the worse case ever making it far enough to affect the other are slim to none. Speculative prejudice based on the speculative rulings of courts that don’t have to create precedent anyway sounds a lot like the kind of dubious “trial strategy” stuff lazy lawyers often say to justify their laziness during ineffective assistance of counsel proceedings. I’m not buying it in this context.

It’s strange that a smart, experienced prosecutor would so obviously misunderstand my duty as a criminal defense lawyer. It’s even more confusing to me that he would do it because of concerns about something that occurs only in the most unusual of cases. It confirms my skepticism towards prosecutors-turned-defense-lawyers. Assuming the issue has merit, I have no obligation to make good law or to avoid making bad law. My only obligations are to the person I represent, the one on the other side of the “V” from the state.

Filed under: Arizona Cases, Prosecutors, Search and Seizure · Tags: , , , , , , ,

5 Responses to "Making Bad Law"

  1. shg says:

    Your experience, going from brilliant lawyer as prosecutor to incompetent moron as defense lawyer, is one that I’ve long enjoyed as I watched arrogant young prosecutors learn that it’s really not because they are as smart and beloved as they think they are.

    One of my personal favs is when the brand new CDL informs me that a particular judge “loves him” based on his experiences from the DAs office. And when he first appears, and the judge doesn’t have a clue who he is, he walks out of the well bewildered and dazed.

    It never gets old.

  2. AH says:

    I used to be a prosecutor.

    He was trying to bluff you to get you take the deal and just made up whatever in order to sell you. He didn’t ever really think it through.

    Andrew (the other one): Good point. When I was a prosecutor I used to constantly win. I remember winning 14 juries in a row once. I thought of myself as a damn good trial lawyer. I then went into private practice criminal defense and, to my shock, started to lose. That’s when I came to appreciate that what you said is true.

  3. Andrew (the other one) says:

    “It’s strange that a smart, experienced prosecutor would so obviously misunderstand my duty as a criminal defense lawyer.”

    Not really. I think about it this way:

    Imagine a competition where the rules are heavily tilted toward competitor A. The judges of the competition are biased towards A. The resources of those who organize the competition are devoted to making sure A wins. Much of the time, as long as A shows up and makes any effort, no matter how slight, they will win. For competitor B, though, the rules are heavily skewed against them. The judges don’t like them. The only way B can win is by being in excellent form and having some luck as well.

    I don’t find it all that surprising that A grossly overestimates their own talents and understanding of the game and thinks they can tell B how to perform better.

  4. Andrew Becke says:

    Well, you also have to remember that a career prosecutor gets used to only representing one client in his entire career.

  5. Jeff Gamso says:

    Pretty much every lawyer who does any significant amount of appellate work (civil or criminal) will make bad, even terrible law sometime. It’s not a happy feeling, but it goes with the territory since, as you recognize, our duty is to this client today.

    Of course, sometimes we get to make good law, too.

    I’ve been on both sides of that law-making process. Making good law is far more fun.

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