Udpate: Trial one: Criminal case, sexual abuse in the first degree alleging “sexual contact” (touching outside the clothes) between a 28 year old and a 12.9 year old daughter of my guy’s meth supplier. Defense is denial. Never happened, and we have witnesses for 98% of the time it allegedly happened. She had also been told to quit her flirting with my guy by his girlfriend because she was generally inappropriate. In a DHS intake report is a throw away line of the alleged victim’s mother saying she “heard” my guy had a similar complaint involving a 15 year old that never went anywhere. At the Monday pretrial, the trial judge grants my motion in limine they can’t go there: (1) no proof there ever was an investigation, (2) my guy never heard of such an investigation [so he sure couldn’t lie about it], (3) more prejudicial than relevant under 403, and (4) no 404(b) notice of this alleged investigation. State concedes Monday they won’t bring it up.
Eight questions into cross, the state asks about it. Only once before in my life have I moved for a mistrial [and that was granted]. I come out of my chair shouting and pointing at the state: “I move for a mistrial! This is in bad faith and beyond the pale. You already ruled this out because there is no evidence of it.” My tone of voice, I’m sure, was complete anger, all in front of the jury, and I never get angry in front of a jury.
The judge told us to approach, and he was staring at the prosecutor with the “if looks could kill” look as we came up. They said my guy opened the door by denying this crime by the way he did it. I said his denial of this crime did not open the door, and even if it did, it still violated the pretrial order because he has no knowledge of an investigation to lie about it and there is no good faith basis to ask and no 404(b) notice because they have no good faith basis. No admonition can cure this taint.
The jury was sent out, and we listen to the audio of the last five minutes of direct. We make argument again, and I put in the report with the one sentence. Direct violation of the order on the motion in limine; no 404(b) notice, no nothing; more prejudicial than relevant; no cure possible; this was not just negligent because they agreed not to ask about it on the motion in limine, and they had no evidence of such an investigation and no good faith basis for even asking about it because all they would get is a denial, but the taint is there. Most importantly, the prosecutor now concedes defendant did not open the door, and this was just a good faith mistake on his part.
Mistrial granted at 6:30 pm. When we empaneled the jury, they were warned we’d be there past 8 pm. We were already going to go to 9, probably. And we were doing well in this trial, but getting f’ed over in front of the jury like that was like the 404(b) kiss of death in trial.
Next will come the motion under Oregon v. Kennedy, actually under the state court opinion on remand which is better, that this prosecutor caused mistrial is a double jeopardy bar.
As I have said before, “A trial is a series of unanticipated events.”
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
