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Court of Appeals Judge Out of Line

Posted by Benjamin Goldberg | Apr 14, 2016 | 0 Comments

A recent conviction reversed by the Court of Appeals of Georgia contained a concurring opinion by one of the newly-appointed judges, a former district attorney. Therein, the judge went out of his way to criticize defense attorneys who provide ineffective assistance of counsel, saying that there should be some repercussions for such. I have seen this argument similarly made by prosecutors over the years, who are incredulous whenever a defense lawyer makes a mistake that leads to the reversal of a conviction.

The argument advanced by the Court of Appeals' judge and some prosecutors is filled with hypocrisy. Anyone that handles criminal appeals knows that convictions are very rarely reversed on the basis of ineffective assistance. Anyone that handles appeals also knows that a significant number of reversals result from something the prosecutor him or herself did. 

Some quick research would reveal a large number of cases reversed because the prosecutor introduced evidence that was obtained in violation of the Fourth or Fifth Amendments to the United States Constitution: contraband obtained as a result of an illegal search, confessions obtained as a result of an illegal interrogation, evidence concerning a defendant's right to remain silent, to name a few. There may be times when a green prosecutor, not learned in all the nuances of admissible evidence, unintentionally introduces such evidence. But, most of the time, the evidence is introduced intentionally and in spite of what the Constitution is designed to protect.  

On the other hand, most, if not all, cases reversed due to ineffective assistance result not from the intentional actions of a defense attorney. Instead, they are the product of oversight, a misunderstanding of the law or, in a State where the public defender system is tragically and grossly underfunded, overwork and exhaustion. 

Everyone, and every lawyer, makes mistakes; it is human nature. If a defense lawyer intentionally makes a mistake that causes their client to be convicted, that lawyer should be punished. But shouldn't the same standard apply to the prosecutor who intentionally introduces evidence that he or she knows is inadmissible, and which leads to the reversal of a conviction or a mistrial? 

About the Author

Benjamin Goldberg

Ben has known since college that he wanted to become a criminal defense attorney. At Northeastern University in Boston, Massachusetts, Ben majored in criminal justice with a focus on pre-law. This helped prepare him for law school, when he returned home to Atlanta, Georgia and attended Georgia State University. While in law school, Ben gained valuable experience during externships with the Georgia Innocence Project, the Federal Defender Program and the Georgia Public Defender Standards Council.

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