Sixth Circuit Ct. of Appeals Partisanship rewards Prosecutorial Misconduct.

 By LawReader Senior Editor Stan Billingsley

 The Law is full of doctrines.  Doctrines are useful tools in resolving issues of law. 

However, we believe it is apparent that some appellate judges are bringing to the bench doctrinaire philosophies that have little to do with a search for real justice.  Some judges always seen to find a way to uphold a conviction no matter the seriousness of the violations of defendant’s rights.   While this may be a quick way to dispose of cases, it has nothing to do with the search for justice.


This controversy is no where better demonstrated than on the Sixth Circuit Court of Appeals sitting in Cincinnati.


The current Sixth Circuit Court of Appeals is currently made up of 10 Republican appointees and six Democratic appointees.  One Democrat will take Senior Status on Jan. 1, 2009. 


This ideological split is evidenced by the practice of the Republican Judges of using court rules to overrule Democratic rulings by calling for an En Banc panel and then reversing Democratic rulings they don’t like.


In the past five years, initial verdicts by the U.S. Sixth Circuit Court of Appeals panels dominated by Democratic appointees were clearly reversed by Bush’s appointees and other Republican picks 17 times, out of 28 decisions issued by the full court.


In these cases, the majority upheld death sentences, ruled that the courts could rely on evidence that some justices said was tainted, declared that certain prisoners were not entitled to the appointment of counsels, rejected several constitutional claims, upheld a Bush administration regulation, ruled that disability payments were unwarranted, and refused several requests for criminal retrials.


This practice of allowing almost all tainted evidence to be admitted is accompanied by a policy that in the vast majority of cases refuses to sanction prosecutorial misconduct.


CA Judge Jeffrey S. Sutton, who was appointed in 2003 by Geo. W. Bush, has been a leader in imposing an extreme conservative philosophy on the Sixth Circuit. He has been called the intellectual engine behind some of the majority’s more controversial rulings.


Sutton, a former chief solicitor for the state of Ohio, attracted conservative support before his nomination by consistently pressing for states’ rights and challenging enforcement at the federal level of civil rights and disabilities laws.


The court’s majority has demonstrated a pro-conviction bias in criminal cases and liberally use the harmless error doctrine to overrule reversals granted by Democratic panels.  We recognize the importance of the harmless error doctrine as developed in English Common law, but it is increasingly used to forgive serious errors and serious violations of defendant’s rights.  It has been expanded now to include forgiveness of even violations of a defendant’s constitutional rights.


The harmless error recognizes and concedes that an error was made, but these errors are overlooked if the majority of the court feels in their own opinion that the defendant would have been convicted anyway.


That reasoning expresses an extreme confidence in their ability to look into jurors minds and to be able to determine how a jury might have been affected had the error not occurred.  This practice when used unwisely, is an invitation for prosecutorial misconduct.  If the prosecutors are never sanctioned for improper actions such as the withholding of evidence, why should they worry about a reversal.  


We suggest that the harmless error doctrine is increasingly being used as an intellectual excuse for sweeping dust under the rug.


An excellent example of the extremes to which the 6th. Circt. Court of Appeals is going to is found in the Arnold case.


Judge Sutton was the principal author of the 6th Circuit’s final decision in the Arnold case, rejecting the inmate’s appeal for a new trial. Arnold was arrested in 2002 after his girlfriend’s daughter called 911 to say he threatened to shoot her. Arnold, a high school dropout, had spent a good portion of his adult life behind bars after convictions at age 19 for assault, at 22 for grand larceny and at 24 for murder.


His arrest for possessing a handgun — found under the front seat of a car used by Arnold and his girlfriend — occurred four months after he left prison. At trial, however, prosecutors presented no evidence that the gun was his, and the daughter’s hearsay accusations to police were admitted at trial even though she refused to testify.


She told a private investigator that Arnold had no gun, but that recantation was never disclosed to the jury.


Judge Sutton was initially outvoted on a panel when one other Republican appointee and Judge Karen Nelson Moore, a Democratic appointee, said Arnold’s conviction was unjust.


Then the government appealed. Sutton wrote the en banc majority opinion, which in reversing the verdict said the evidentiary issues were not particularly egregious (???) mistakes and did not seriously affect the trial’s fairness. (i.e. harmless error).


“We cannot overturn the jury’s decision merely because it had to draw reasonable inferences” rather than rely on direct proof, Sutton said.


But Judge Moore, a former law professor who once clerked for Supreme Court Justice Harry A. Blackmun, wrote an impassioned dissent that was joined by three other Democratic appointees. They concluded that the jury had an absolute right to know that the daughter withdrew her accusation and that, as a result, Arnold should have been acquitted.

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