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Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"

I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.

MICHIGAN v. BRYANT - TESTIMONY FROM BEYOND

Posted By KMB on Mar 4, 2011 4:11pm PST

Justice Antonin Scalia

In Michigan v. Bryant 09-150 (February 28, 2011), a majority of the United States Supreme Court recently held a statement given to law enforcement by a wounded victim identifying the person who shot him can be admitted as evidence at trial if the victim dies and is therefore unavailable to testify. The Court held that because the primary purpose of the police questioning was to enable police to deal with an ongoing emergency, the resulting statements were not testimonial and therefore do not violation the Confrontation Clause to the United States Constitution.

The case arose from a tragic shooting in Detroit in 2001. The victim Anthony Covington was questioned by law enforcement in a gas station parking lot while he was bleeding from his abdomen. He apparently stated that he had been shot by the defendant Richard P. Bryant. Mr. Covington died a few hours later. At trial the Police officers told the jury what Mr. Covington told them and Mr. Bryant was convicted of murder.

The decision to allow such testimony without the ability of the defendant to

cross-examine the speaker reverses a Supreme Court trend since the 2004 case of

Crawford v. Washington requiring that a defendant have the right to confront witnesses

in order for their testimony to be admissible.

The Court was divided 6-2 with Justice Sotomayor writing the Opinion for the

majority. Justice Kagan was forced to recuse herself because of prior involvement in the

case before she took the bench. A scathing dissent was written by Justice Scalia (pictured above), who authored the Crawford Opinion. Justice Scalia stated:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken

away from him has been taken away from us all.

The attorneys at Kaye, McLane, & Bednarski, LLP. endeavor to stay on the cutting edge of criminal jurisprudence, including cases like Michigan v. Bryant, so we can effectively represent our criminal clients. To find out more please visit here.

Categories: Criminal Defense

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Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, and Bednarski, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane & Bednarski, Click Here.

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