Objection! Withdrawn.

When movies and television portray slick lawyers, they often have a scene in which the lawyer makes a clearly outrageous statement and then withdraws it immediately when challenged. One of the more ridiculous versions of this meme is from the television show, Community, shown above. The idea is that a scheming lawyer will be able to taint the minds of the jury with an inflammatory statement. If challenged, the lawyer can simply shrug it off. The judge may instruct the jury to ignore the statement, but the damage has been done and the seed has been planted in the jurors’ minds.

Well, as it happens, lawyers actually try this in real life. Last week, the Utah Court of Appeals issued an opinion in State v. Akok that deals with this kind of situation. Mr. Akok was on trial for rape, along with a codefendant who was being charged with other related crimes. At the very last moment of the trial, just before the jury left to deliberate, the prosecutor said this:

“They took advantage of a very vulnerable victim. Don’t let them take advantage of it again. Thank you.” ¶ 14.

This of course, is not nearly as inflammatory as some television lawyers, but it’s still very improper. The Court of Appeals had no trouble deciding that “the prosecutor’s statement was improper and called the jurors’ attention to matters they were not justified in considering in reaching their verdict.” ¶ 16.

The defense attorney moved for a mistrial, and the court denied it. Then the defense attorney asked for a curative instruction to let the jury know that they should ignore the prosecutor’s final statement. Of course, the prosecutor did not put up a fight. People who drop bombs rarely concern themselves with the clean up.

The judge, however, refused to give a specific instruction about the improper statement. Instead, the judge reminded the jury of the general instructions that they already had. ¶ 9. But if the general jury instructions are sufficient to cure prosecutorial misconduct, then prosecutors could essentially say whatever they want. If there is an objection, they could just shrug and say, “Well the jury should know not to listen to that.”

Fortunately, the Court of Appeals determined that this was an error that hurt Mr. Akok’s defense and reversed. “[W]hen the prosecutor’s statement is considered in conjunction with the conflicting evidence of Defendant’s guilt, defense counsel’s inability to address the prosecutor’s improper statement, and the court’s nonspecific curative admonition, our confidence in the verdict is undermined.” ¶ 30. Mr. Akok will now have a new trial, and hopefully Utah lawyers will be less inclined to attempt this trick in the future.

The Worst Possible Sentence

David Dominguez, Executive Director of Stride On.

The recent Utah Supreme Court decision in State v. Houston, which upheld a sentence of life in prison without parole for a juvenile who murdered a young woman, did not seem to get a lot of attention despite the implications that it has for our society. Because I was not done thinking about it, I decided to interview Professor David Dominguez, who recently retired from the BYU Law School where he taught criminal law and community lawyering.

Professor Dominguez’s community lawyering class at BYU was incredibly popular, and I had the privilege of taking it. The goal of the class was to work closely with children in pre-trial detention, detention staff, and parents to empower the children to represent their own interests in the justice system and in life. For many BYU law students it was a life-changing experience. Professor Dominguez retired from BYU to pursue this work full time as the executive director of Stride On, an organization that teaches law and life skills in the juvenile jailhouse.

Because of his extensive work with juveniles, I asked him what he thought about the decision in State v. Houston.

“To me, they completely flubbed it,” he said. “They told Houston, essentially, ‘You will die in slow motion. We’re executing you because we’re giving you no chance whatsoever to live a normal life again.’”

Dominguez explained that sentencing a child to life in prison without parole is much worse then sentencing an adult to life in prison without parole. “It’s the worst possible sentence because nobody but a minor can serve the whole adult life-in-prison sentence and then serve more time,” he said. “To punish a kid even more harshly than we would an adult for the same crime, to me that is cruel and unusual punishment.”

The majority of the Utah Supreme Court, however, reasoned that the sentence did not violate the Eighth Amendment. To their credit, however, they did express their hope that life in prison without parole for juvenile offenders would be rare. ¶ 67. Their unease is warranted considering that the law they were upholding did not just affect Houston, but our society as a whole.

“Even though we know it’s obvious that the defendant is on trial, what’s not so obvious is that the law is on trial. And because the law represents the people, it means we are on trial, too,” Dominguez said. “Is this law fair? I think most people will look at this and say, ‘This is simply not fair.’”

For his part, Dominguez hopes that his efforts with Stride On can help to prevent the circumstances that led to the decision in State v. Houston. By getting to juvenile offenders early and incorporating many different key players from the community, he hopes to provide them with better life skills and ultimately a better path. “The word is starting to spread in the community that technology and these key players are going to be able to help in ways that they never helped before,” he said. “The parents and the kids are equipped and empowered to offer an alternative [to detention].”

It is too late for Houston and many other juveniles. However, Dominguez is always looking for lawyer and non-lawyer volunteers who are willing to pitch in and make our society more just. Go to www.strideon.com for more information.

Sentencing children to death-in-prison

The Utah Supreme Court ruled this week that it was constitutional to sentence a child to life in prison without parole. The majority’s reasoning in State v. Houston, 2015 UT 36, is sound, but I still can’t help but feel that the result is incorrect.

The story of Robert Cameron Houston is as heartbreaking as it is violent and horrifying. He was born with a deformed ear that left him partially deaf and made it hard for him to learn to talk. He was bullied because of his ear and his weight, and his father abused him physically and verbally. When he was only eight years old, Robert tried to commit suicide for the first time. At age twelve, his brother’s friend sexually abused him for several months. ¶ 5.

Then, at age fourteen, a shift occurred in Robert’s life. Instead of being the one who was bullied, abused, and raped, he became the aggressor. He attempted to rape his stepsister. The next year he attempted to rape his aunt. He pled guilty in both cases and was placed in a treatment facility for juvenile sex offenders, where he attempted to rape a staff worker. ¶ 6.

In 2006, when Robert was seventeen years old, a staff worker at the treatment center broke protocol to give him a ride the independent living home where he was staying. When they got inside, Robert raped and killed her. The details are highly disturbing, and the Utah Supreme Court does not flinch in its summary of the events. ¶¶ 8–9.

After reading the background section of the opinion I was struck with two seemingly contradictory conclusions: Robert was a monster, but he was also a child. Part of him was able to commit a brutal rape and murder, but another part of him seems to be genuinely horrified by the screaming of his victim.

The question I’m left with is, what do we do when a child is so dangerous that we can’t let him be free?

The majority’s opinion carefully analyzes all of Robert’s constitutional challenges and other claims. There is also an excellent examination of rule 22(e) of the Utah Rules of Criminal Procedure, which states that the “court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” ¶¶ 18–28. The part of the opinion that gives me pause, however, is the determination that sentencing a juvenile to life in prison without parole is not cruel and unusual and does not violate the Utah or federal constitutions. ¶ 67. Justice Durham wrote a fantastic dissent in which she stated, “In my view, the diminished culpability of juveniles, combined with the exceeding harshness and irreversible nature of [life in prison without parole], makes this sentence unconstitutionally disproportionate and inconsistent with the ‘evolving standards of decency that mark the progress of a maturing society.’” ¶ 213 quoting Trop v. Dulles, 365 U.S. 86, 101 (1958).

This is still an unsettled area of constitutional law, and the majority does a fine job describing the current contours. But taking a longer view of this, I think the reasoning in Justice Durham’s dissent will eventually win the day. She makes the following lucid points, to which I will add my thoughts:

1. Children’s brains are not fully developed. ¶ 259.

The U.S. Supreme Court has recognized the overwhelming scientific evidence that children often make horrible decisions because their brains are not fully developed. I find it ironic that one of the justifications for trying children as adults is that their crimes were so serious. When a child commits a serious crime it is only further evidence that the child’s reasoning capabilities are diminished. The more heinous the crime, the more evidence that the child’s mind in underdeveloped. In the case of Robert, the senselessness of the violence he committed is further evidence that he was operating with the mind of a child. Sentencing him in the same way that we sentence an adult is disproportionate.

2. Children are more vulnerable to negative influences. ¶ 261.

I think this is particularly true in Robert’s case. Through the rape and abuse that he suffered, his young mind was molded into seeing the world from that perspective. While his crimes are abhorrent and unjustifiable under any circumstances, it is possible to understand why he felt the compulsion to rape and murder. The fact that his young mind was clearly exhibiting the negative influences in his life is further evidence that his sentence was disproportionate.

3. A child’s character is less fixed than an adult. ¶ 262.

Children still have time to change. Part of what is wonderful about children is their vast potential and the hopes that we have for them. This, however, brings me back to my original question, what do we do when a child is so dangerous that we can’t let them be free? What happens when we don’t have any hope that a child can change?

I don’t know what the answer is, but it certainly isn’t life in prison without parole. When we, as a society do this, we are stating that we are absolutely confident that the child will never be able to change. But if we are so certain that the child will never change, then why don’t we just execute the child? Life in prison without parole is, in effect, death by incarceration. Bryan Stevenson, the author of Just Mercy and founder of the Equal Justice Initiative, has referred to it as a death-in-prison sentence.

I don’t think anyone can be that confident, even when the crimes are as horrific and frightening as the rape and murder that Robert committed. So, while I understand and appreciate the reasoning of the majority in State v. Houston, I think Justice Durham makes the better argument. This case makes my heart break—for Robert, for his victim, and for our society that has not yet learned how to properly address these kinds of tragedies.

Why I'm Doing What I'm Doing

Since I started Thompson Appeals, I have found that some clients are confused about why I’m doing what I’m doing. I provide a full range of appellate services geared toward low-income and middle-income clients in Utah. To do this effectively, I usually charge a rate that is much lower than the standard rate. To the skeptic who’s wondering what I’m getting out of it, let me explain.

I spent the last year clerking at the Utah Court of Appeals. When I say I was a clerk, people often think that I was a clerk in the sense of the movie Clerks. Clerking for a court, however, is much more like being an assistant for a judge. Based on the judge’s guidance, you get to write the first draft of the opinions. You also get to read a lot of briefs and see a lot of cases move through the appellate process.

Doing this, I couldn’t help but notice that there was a wide range in the quality of representation. If the clients were indigent, they could often get help from Utah Legal Services or from the Legal Defender Association, both of which have a lot of experience and do a consistently good job representing their clients on appeal. If the clients were wealthy, they could afford top-tier appellate representation.  Many of the clients in the middle, however, were braving the appellate courts without an attorney who understood the appeals process or without an attorney at all.

To put it in the cold, hard terms of American capitalism, I saw an underserved demographic and decided to make that my niche in the marketplace. My rate is reduced to make it accessible to my target demographic, bit it’s still enough to cover my overhead and make a reasonable profit. I think that providing quality appellate services at an affordable rate is an inevitable market disruption, and I want to be ahead of the curve.

To put it in the bleeding-heart terms of American idealism, I saw an underserved population that was not always getting the justice it deserved. I wanted to help make the legal system more just, and I wanted to help people who didn’t have any other options.

I also love working with important legal issues. I love nerding out about the minutia of the law and obsessing over the subtleties of statutory language.

So, what’s in it for me? I get to establish a niche in a competitive marketplace. I get to help people. And I get to work with important legal issues. In return, my clients get quality appellate services at an affordable rate. Sounds like a good deal to me.