He Was Screwed No Matter What

In a recent Supreme Court of Arizona case, State v. Duran, the defendant tried to plead guilty but the trial court rejected his plea. The trial court then royally messed up by saying the prosecutor could use statements Duran made in connection with his change of plea if he testified inconsistently with them at trial.

It’s important here to keep in mind the fact the trial court was wrong. Duran’s statements never, ever should have been used against him. The trial court made a mistake, and as a result, the defendant was confronted with the dilemma of testifying and bearing the disastrous brunt of the court’s mistake or not testifying and probably making the best of a really bad situation. A conviction would pretty much be guaranteed had he testified and been wrongfully impeached with the fact he said at the change of plea that he was an accomplice.

I can’t imagine how much it must suck being in that situation. Had Duran tried to file a special action, Arizona’s emergency appeal of sorts, the court of appeals probably would’ve declined jurisdiction without explanation before his lawyer even served the petition on the prosecutor. Although the trial court was obviously wrong, appellate courts in Arizona seem unwilling to accept jurisdiction and correct even the most egregious trial court errors on special action, and the first rule of special actions says they “shall not be available where there is an equally plain, speedy, and adequate remedy by appeal.”

It’s almost comical that the court in the opinion would suggest the option of a special action, and it’s quite telling they cite only one case where they didn’t deny jurisdiction for special-action review of a denial of a similar motion in limine, a case involving a situation where the state filed the special action after being prevented from using convictions for impeachment. They denied relief there, at least, but in poor Duran’s case they surely would’ve said he’d just have to appeal the erroneous ruling. He’d have to go through with trial and sentencing, likely while stuck in jail, and then he’d have to get shipped to prison as the painfully slow appeal process limped along. In Duran’s case, over two and a half years went by between charges and appeal. Arizona courts more or less ignore how inadequate an appeal is for most defendants.

Duran’s only two real options were either testifying at a trial he was guaranteed to lose and then rotting in custody for months or years appealing, or not testifying and making the best of his situation. The first option almost seems like a joke to begin with, but it’s made even less appealing because of appellate courts’ favorite thing in the world, harmless-error review. The rule here is that “[e]rror, be it constitutional or otherwise, is harmless if [the court] can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict.” Had he testified and been confronted with damning, erroneously-admitted evidence, he’d probably still lose on appeal due to the fact the court of appeals would figure the verdict wasn’t affected because they thought beyond a reasonable doubt it was obvious he did it anyway.

The only logical thing someone in Duran’s situation could have done would be to not testify and maximize the chances of a not guilty verdict at trial. However, the court made it very clear that’s not an option unless you’re willing to give up the ability to complain about system’s undisputed errors:

We therefore hold that when a defendant objects to a trial court’s ruling permitting the use of impeachment evidence, he must testify to preserve the objection for appellate review. Because Duran chose not to testify, he did not preserve the issue for appeal, and we therefore do not consider it on the merits.

But don’t worry. The court claims it reaffirms and applies that unfair bright-line rule “mindful of its impact on some defendants.” It explains:

Broadly requiring a defendant to testify in order to preserve the impeachment issue for appeal might adversely affect some defendants who decide not to testify based solely on a trial court’s erroneous ruling. But our rule appropriately avoids the need for conjecture in many, if not most, cases in which a court would have to speculate on a host of variables, including whatever motivational factors might have influenced a defendant’s decision to not testify.

How nice. The bad rulings and blatant violations of constitutional rights likely to result from the court’s decision are bad and “might adversely affect some defendants,” but requiring conjecture for courts is way worse. Poor judges. I don’t know if I should be angry or feel bad for them seeing how they’re apparently unable to figure out why a defendant who would be confronted with a confession should he testify might choose not to do so.

The court’s claim that “assessing the impact of the trial court’s error would be inherently speculative, as we would have to assume that Duran would have testified absent the error, that the trial court would have adhered to its initial ruling, and that the State would in fact have impeached him with his plea-related statements” is simply absurd. Can the five presumably intelligent lawyers on the court really ignore the power of a confession and say with a straight face that the trial court might’ve just changed its mind on a ruling for no reason or the state might’ve just decided against using the best piece of evidence they had?

I would love to think that the highest court in this state isn’t just another rubber stamp for unfair convictions, but opinions like State v. Duran sure aren’t making it easy to keep the faith. Poor Duran was screwed from the moment the trial court messed up, and the trial court or any one of the reviewing courts could’ve fixed it any time. Not one of them did. Instead, they made it so everyone in the same situation won’t have a chance.