I spend about as much time in civil court as I do in criminal court, so I am reasonably adept at both criminal and civil procedure. The simple fact is, I have far more tools at my disposal to defend someone of a tort than I do to defend a person facing life behind bars. There is something wrong with that.
For the past week of so, I have been picking jurors in a brutal gunpoint kidnaping and gang rape case. My client is accused of being one of the principals -- at least I think he is. In the criminal court the state can pursue a case based on sloppy pleadings. My client faces six counts of rape. Why six charges, I asked at argument in support of my motion for a Bill of Particulars the other day. The state doesn't really know who what happened, was the prosecutor's response.
In a civil court such a case would be dumped. You can't shoot at fish in a barrel and call it justice when seeking insurance company money. Why do we tolerate so much less in criminal court?
But things get worser and worser, as Alice might say.
We are midway through a suppression hearing. Things are going pretty well for me. Looks like my client may well have been deprived of his right to counsel and that he was subject to an illegal search in the manner in which a DNA sample was seized from him. The state's response? Late Thursday it filed a motion to take new DNA tests.
Say what? New tests on the eve of trial? What good cause justifies this? Getting caught with its pants down on the eve of trial? Violate the law on Monday, and on Tuesday file a new motion to legally obtain what was taken in unlawfully the day before?
Civil practitioners rightly scoff at such 11th hours attempts at discovery. The fact is that without the DNA evidence, the state's case is in serious jeopardy.
The suppression hearing resumes today, but will not end this week. Lots of cross examination to come and a record to build. I don't know whether we will argue the new DNA motion today.
A sinking feeling based on having observed a few too many rapes of the Bill of Rights tells me the trial court will grant the state's motion, making moot my motion to suppress. Another victory for the heinous crimes exception to the Bill of Rights.
