Copes v. State

Justice King lays out one of a defense attorney’s biggest problems today in his dissent in Copes v. State, decided today at the Mississippi Supreme Court.

In Copes v. State, Justice King, in his dissent, perfectly encapsulates a dilemma criminal defense attorneys are faced with in just about every trial they have.

“The majority maintains that this is not robust representation, but rather disrespect to the court and notes that a dissatisfaction with the court’s rulings on issues presented to it is why we have appellate courts.  Maj.  Op.  &  14. Yet appellate courts apply a procedural bar to arguments on appeal when  sufficient objections are not made or when a party concedes an issue.  The majority illustrates this  conundrum for criminal defense attorneys perfectly by finding repeat arguments that were invited and  allowed by the trial court to be disrespectful while also finding that Pavlinic  Aadmitted lack of knowledge  of how to provide oral statements and confirm that he had not provided summaries of oral statements. Maj. Op. & 14. Contrary to the majority’s assertion that Pavlinic confirmed that summaries of oral statements were not provided, Pavlinic pointed out that they had provided summaries of Kara’s testimony; the trial court, acknowledging that they had indeed provided the  summaries, simply opined that the summary was not sufficiently thorough and was Abare bones. Rand, not Pavlinic, argued with the trial  court that they did not disclose certain aspects because they consisted of activities, not statements.    Rand, not Pavlinic, further argued that the testimony was not an oral statement they took from Kara, but  their questions of her would consist of whether a fact existed or did not. Pavlinic then argued that the  detail the trial court was requiring in a summary of  Kara’s testimony, which could potentially include  specific conversations with multiple witnesses over a period of seven years, would require an extremely  lengthy document. He  stated, it’s probably my mistake. I never interpreted it a Rule to that breath. The  parties then continued discussing with the trial court how to remedy the issue. Because Pavlinic stopped  arguing and yet explained why he still disagreed with the court regarding the alleged discovery violations,  the majority deems him to concede the accusation. When Pavlinic argues, invited by the trial court, and  in a stated attempt to preserve the appellate record and avoid a procedural bar, the majority deems him  disrespectful to the trial court.”

Justice King also says the quiet part out loud. “This Court should not have separate and stricter standards  for defense lawyers than it does for prosecutors, particularly since the presence of criminal defense lawyers is generally a constitutional requirement.”

Invariably, when the State fails to disclose evidence, even when it is mandatory, it is deemed a harmless error and almost nothing is ever done about it. When a defense attorney does it, every possible sanction is on the table.