The First Thing We Do is Kill All the Lawyers

The First Thing We Do is Kill All the Lawyers

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The First Thing We Do is Kill All the Lawyers: So, you’re imaging a world without lawyers, huh? Well, consider this: Defendant is arrested and charged with a serious crime in federal court. Stop right there: Regardless of the defendant’s guilt or innocence, he should get a fair trial, right? Is there anyone here who thinks that these defendants shouldn’t get a fair trial? No?

Ok, so the defendant is charged with a serious crime and is entitled to a fair trial. There is a witness who will testify along the lines of “I was there and the defendant didn’t do it.” This type of evidence is called exculpatory evidence because it tends to prove the defendant is not guilty. Now, suppose this witness is an illegal alien. And, this being federal court, the United States government is in charge of both prosecuting the defendant AND in charge of deporting the illegal alien. And suppose the government does, in fact, deport this illegal alien along the lines of “well, if he ain’t here, then he can’t testify.” And suppose the defendant is convicted, without the jury ever hearing this exculpatory evidence. Query: Is this fair?

Everyone thinks “kill all the lawyers” means “lawyers are so annoying and useless we should just kill them all.” But that’s not what Dick meant in Henry the Sixth when he delivered this line. The context of the discussion was, actually, how to overthrow the existing government and install a dictator as king. How could one do that successfully? Answer: First step, kill anyone who could oppose us. Nay, kill all the lawyers! Why? Who stands in court and argues for freedom?

All this brings me to the hypothetical, which is, in fact, a true story. The L.A. Times reported that the 9th Circuit Court of Appeals issued an opinion

whereby it warned the federal government not to make deport aliens who can provide exulpatory testimony on behalf of a defendant accused of a crime.

The case involves a defendant who was ultimately convicted of the crime of alien smuggling. There were four immigrants that were potential witnesses. Three of the four were willing to testify in favor of the prosecution (government) were permitted to remain in the United States. The one immigrant whose testimony contained exculpatory evidence was deported.

Judge Alex Kozinski issued the following decision:

May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has ever been appointed? We believe the answer is self-evidence, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated the defendant.

And …

We had assumed … that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the [U.S. Attorney] for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.
The 9th Circuit reversed the conviction and remanded the case back to the lower court to decide whether to dismiss charges with prejudice as a consequence of the Government’s misconduct.

So, remind me again . . . who stood up for this defendant and argued for his freedom? Who appealed the case when the jury convicted the defendant? Who will now represent the defendant when the case is remanded back to the district court?

Well, what sayeth thou?

Posted in Constitutional Law, Criminal Defense, Insur

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