I represent an octogenarian cancer patient who is who is likely to die as a direct result of the actions of the State of Arizona.
She isn’t on death row or anything like that. She isn’t even a defendant. She isn’t just a witness either, though she may end up one if the state has its way and gets to do what’s likely to kill her. That’s what I’m trying to stop.
She’s actually an alleged victim. She’s one of a few victims in a single case, and she’s the only victim of a misdemeanor offense. The other counts are felonies with different named victims.
She doesn’t want the case to proceed. She doesn’t want to participate. She can’t participate.
Her doctor has said she is in no condition to go to court. She can barely make it to my office. She can’t drive and struggles to get there as a passenger in a car. Being all but carried to my suite from the parking lot, it takes everything she has to walk a few feet to my office. The pain in her face is hard to bear. I hate seeing her anguish. It’s nothing compared to the pain in her face when she has to think about the case. She couldn’t testify if it was going to be easy. Reality is worse.
At first, she claimed one thing. Let’s call that “Thing A.” Later, she recanted. Let’s call what she now claims “Thing B.” The prosecutor wants to have her to testify because Thing A is really bad for the defendant and might be hearsay or at the very least less effective for the state unless she testifies to the contrary and he gets to impeach her with it. If called to testify, she would testify to Thing B because she says it is the truth.
If she testifies, she will be called a liar. The arrogant little prosecutor will dance around it to sugarcoat his despicable message, but have no doubt he will do it. They always do. She will sit on the stand, cancer-ridden, weak, and terrified, and he will self-righteously torment her to death in the name of justice. He’s so hopelessly ignorant that he’ll go home and feel like a hero. My client will spend her remaining days or weeks or months or years tortured by what he did to her.
When I told the prosecutor that he was killing her, he said it was the defendant’s fault. I told him that my client didn’t believe the defendant was to blame for anything and that even if she did, what he did is done and the only thing hurting her now was the state’s case.
The prosecutor was insulted I would even suggest he wasn’t her knight in shining armor. He was downright sullen when he realized I was seriously not impressed with his willingness to sacrifice an ill old woman for some fake justice that any mildly intelligent child could see was nothing more than thinly-veiled cruelty. My proposal that he dismiss the one little misdemeanor count to save a life turned him downright petulant, swaying side-to-side and trying his damnedest to look like a big boy and not pout away.
The judge has yet to rule on whether physical suffering or death from testimony constitute an undue burden or whether a witness called by the state can even get out of testifying on such grounds. He hasn’t ruled on whether a confused and thoroughly-bullied cancer patient suffering through a horrible disease and extreme side effects is competent to testify. I suspect he’ll have no problem letting the state have its way with my poor client, unfortunately.
I filed a motion citing every ground I could find to further my client’s interests, and the prosecutor ignored it. He didn’t return my calls too. He ignored his obligation to inform me, the victim’s representative, about court dates.
Instead, he sent police to her home, and they proceeded to invade her privacy, rifling through her private things and yelling at her. He sent her threatening letters demanding she call him. It wasn’t until I brought Ethics Rule 4.2 to his attention that he started communicating with me, and he still sent me the wrong date for the only hearing that mattered. He’s failed to tell me about numerous other court dates since.
He keeps winning, of course, because prosecutors are supposed to win no matter how important to fairness, justice, and everything else good in the world it is that they lose. He never responded to my motion, but the court was fine with that. “I’m not going to preclude him from responding,” the judge said. I’ve lost count of how many defense motions I’ve seen precluded as untimely. Things are different when it’s the state missing deadlines, I suppose.
My motion, the one the prosecutor ignored, raised issues about immunity being inadequate. Months later, the prosecutor filed a motion for immunity using exactly the language I argued was inadequate. At oral argument on the motion, a setting for which neither the court nor the prosecutor apparently thought I might want to receive notice, the judge treated all of my arguments as unreasonable. I thought it was notable that months after my motion and weeks after the denial of my motion for a ruling on my motion that the court set oral argument not on anything I did but on the state’s immunity motion, which was filed several weeks later and covered the exact same material as my motion.
The immunity order the state wanted was based on the applicable statute, which gives immunity when the prosecutor wants it but not for perjury and some related offenses. Its lack of fairness should be obvious considering that a defendant has no ability to give immunity to a witness it needs while the state can give out immunity like candy, but another more important unfairness is even more obvious considering how it worked in my client’s case.
The order said she had immunity except from perjury, yet the only thing she was worried about was perjury. The state is ruining her life and presumably the defendant’s life because it believes Thing A. The state therefore believes without a doubt that Thing B is untrue. Thing B, what she swears is the truth and would say under oath, would result in her being charged with perjury. The court’s order would only protect her from perjury in the event she lied and said Thing A.
When I explained that the order would only coerce her into saying what the state wants for fear of perjury charges, the judge showed his hand:
You want me to grant your client immunity from perjury?
I went through every step as clearly as I could again:
My client wants immunity because she is going to say something the state believes is false. It is the truth, though. If she says the truth, the state will charge her with perjury. The order the state wants is an order that she say what the state wants, even if that means she does in fact commit perjury.
The judge’s response:
So you want me to grant your client immunity from perjury?
The judge denied my motion, and I had to explain my client how she had immunity as long as she didn’t say what the prosecutor thought was false, and that the prosecutor thought the truth was false. I didn’t take the time to tell my client, who was struggling to breathe and stay focused during our conversation, about the little fist-pump the prosecutor did when he won another little victory at her expense. He sure looked smug when I walked out of the courtroom. I bet he can taste the blood already.
My job requires that I deal with monsters, and I see them almost every day. They aren’t the monsters I was expecting when I first decided to practice criminal defense, though. The real monsters I see are prosecutors who would murder an innocent woman in pursuit of some childish idea of justice and courts that would condone it. They’re everywhere, and they’re winning. It turns out C.S. Lewis is probably right:
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
The rule of law is the rule of people who use it to beat down defendants and victims alike. It’s an insatiable monster, and the monsters on the evening news can’t hold a candle to it. As long as we put our faith in a system and rules like the one we have, we’re sacrificing people like my client. I hope you have a little tougher time coping with that than the prosecutor and the court do.