Before
trial, you are presumed innocent. After
conviction, you are presumed guilty. And
it’s a tough presumption to overcome.
I first learned
of this seeming asymmetry while representing a child molester. I was in private practice and this was a partner’s
client, handed off to me for appeal.
I made the
best argument I could. The defendant had
been convicted of sexually assaulting his step-daughter, who suffered from
Down’s Syndrome. The defendant was drunk
at the time and wandered into the step-daughter’s bedroom at night. The girl’s
mother heard some kind of commotion and emerged into the hallway to find
defendant coming out of the girl’s room.
As he exited, the girl threw his T-shirt at him.
As I
recall, subsequent conversations with the girl disclosed that the defendant had
been “messing with her” for awhile. I
don’t remember whether prosecutors alleged rape or sexual assault. But the facts were pretty hard to spin.
“The most
the state has proven is that my client took a wrong turn on the way back from
the bathroom.”
That was
the best I could spin it. It wasn’t
surprising when the Court of Appeals affirmed the conviction. Although I was a
little surprised when the Utah Supreme Court granted cert and agreed to review
the Court of Appeals’ decision. The
client wanted me off the case. After
all, I had lost, so this time the defendant was insisting on the big guns.
So, when
the case went before the Supreme Court, I attended the oral argument and ran
into the assistant attorney general who had whupped me in the Court of Appeals
and was, as it turned, about to whup the partner who was now representing the child
molester. After the argument, I spoke
briefly with the assistant AG. She asked
me why I hadn’t argued the case.
“Well, I lost,” I told her. “The
client wanted the partner to handle the argument.”
She shook her head. “But defendant’s always lose on appeal,” she
said. “And you would have done a much better job anyway. The partner argued it like a trial attorney.
Appellate work is so different.”
This
shouldn’t have been news to me. As I
would later learn, criminal convictions are almost always upheld on appeal. The
law is designed to produce a result. For
that reason, there are presumptions in favor or against litigants in almost
every legally significant matter. The
presumptions embody certain values, of course, but they ultimately make it
almost certain that any legal conflict will be resolved.
And the
presumptions do not always guarantee a certain result. Despite the presumption
of innocence, most people charged with crimes end up being convicted or
pleading guilty.
The
presumption of guilt, however, is tough to overcome after a conviction. As stated last week in State v. Hernandez, 2016 UT App 251, “We review sentencing
decisions for an abuse of discretion.”
Abuse of discretion is hard to prove.
Abuse of discretion means that the judge’s decision was so out of bounds
that no reasonable person could have ruled as the judge did.
Hernandez
was arrested after he attempted to flee police in a stolen car. He pleaded guilty to attempted theft,
possession of a controlled substance, aggravated assault, and failure to respond
to an officer’s signal to stop.
Because he pled guilty, the
criminal rules prohibit him from challenging his conviction. He could only challenge his sentence. He
believed the judge abused his discretion by imposing prison rather than
probation. Hernandez contended that the court failed to “adequately consider
his character, attitude and rehabilitative needs before denying him the
opportunity for a non-prison sentence.”
The Court of Appeals gave short
shrift to that argument, deciding to affirm in a Memorandum Decision, a ruling
that is generally shorter and less formal because the three members of the
court find the outcome obvious and the alleged errors trivial.
Noting the violence of Hernandez’s
current offense—which included ramming police vehicles in his escape
attempt—the court ruled that he also had an extensive criminal history, mainly
drug offenses, some of which were committed while he was on probation from a
previous offense.
“Given the violent nature of
Hernandez’s crimes and the risk of injury involved, as well as Hernandez’s
history of criminal activity while on probation, the court’s decision to sentence
him to prison was not ‘so inherently unfair as to constitute an abuse of
discretion.’” (citation omitted).
Hernandez, like my child molester,
is still behind bars. And that’s where
they’ll stay until they’ve served their sentences.
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