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Things to Consider Before Litigating

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An article by Jacqueline Goodman titled "There oughta be a law for that" was published in the November 18, 2013 edition of the Los Angeles Daily Journal. In that article, Ms. Goodman raised some very important points regarding the current state of the criminal justice system in the United States of America. While this may seem unrelated to family law and other types of litigation, I promise that there is a connection.

The following is an excerpt from Ms. Goodman's article:

Michael Morton has his own Wikipedia page. It begins (as of the writing of this article), in its ironically authoritative way, 'Michael Morton is an American who was wrongfully convicted in 1987 in Williamson County, Texas court of the 1986 murder of his wife Christine Morton. He spent nearly 25 years in prison before he was exonerated by DNA evidence.' The wording is striking. He is an American who was wrongfully convicted. Turns out there are a lot of them.



Ken Anderson, the [former] prosecutor-cum-[defrocked] judge whose withholding of exculpatory evidence resulted in Morton's wrongful imprisonment for a quarter century, turned himself in last week for his 10-day jail sentence...



A civilized society, in my not-so-humble estimation, can have no legitimate interest in the pursuit of retribution. Proportional sentencing is a shell game. A unicorn. Nothing will bring those years back to Michael Morton or his family. And a civilized society should have no interest in attempting to inflict equivalent pain for the sake of some rudimentary notion of justice. That is vengeance, and it is barbaric...



Nondisclosure of exculpatory evidence as in Morton's case is in fact the most common type of prosecutorial misconduct, yet it is the least susceptible to discovery and involves conduct that leads, more than any other type of misconduct, to the conviction of the innocent...



Withholding material, exculpatory evidence is rampant, and it's no wonder because it contradicts the natural pull of the criminal adversary system. The prosecutor is at once encouraged to be a zealous advocate charged with winning convictions, and simultaneously expected to be a neutral arbiter, providing the defendant with the very evidence that might win him an acquittal. This widespread problem is multi-faceted. Less experienced prosecutors tend to see criminal trials as competitions with minimal consequences...



After all was said and done, the embattled, disgraced and disbarred Anderson said, 'I want to formally apologize for the system's failure to Mr. Morton.'

As Ms. Goodman so clearly stated, many people are wrongfully convicted in this country. On November 17, 2013, I was watching an episode of Dateline NBC about Bill Macumber. He was convicted of murdering two people and spent 38 years in prison for a crime he didn't commit. It turned out that his conviction was based upon false evidence that his wife, who worked for the Sheriff's Department, had planted in the evidence files. In fact, the person who had apparently committed the crime confessed to an attorney who was representing him in a completely unrelated matter. Due to the attorney/client privilege, the attorney was not ethically permitted to share that information with anyone, at least not until his client's death. Although the clemency board unanimously recommended that Mr. Macumber be released from prison in order to "correct a miscarriage of justice", the governor refused to release him unless he pleaded no contest to two counts of second-degree murder, which he did. As disheartening as I found this story, I was outraged to hear the prosecutor state that he believed Mr. Macumber should still be in prison because it was a proper conviction based upon the admissible evidence.

Yet another recent example of wrongful convictions involved Ryan Ferguson. In 2005, he had been convicted of murdering of Columbia Daily Tribune sports editor Kent Heithol and had been prison since 2001. As in Michael Morton's case, the prosecutor failed to share exonerating evidence with Ferguson's defense team. Moreover, two key witnesses later admitted that they had lied when they testified against him. His wrongful conviction was overturned and he was released from prison on November 12, 2013.

These individuals and many others have been wrongfully convicted of crimes they didn't commit. Moreover, the burden of proof for a criminal prosecution is "guilty beyond a reasonable doubt." In family law and other civil cases, that standard is "by a preponderance of the evidence", or "it is more likely than not." How do you think the lower burden of proof in such cases impacts the likelihood of the "wrong" result occurring? I would say that the impact is significant. By the way, I realize that there is also the "clear and convincing" standard, but the distinction is more perception than reality. The judge merely says that they applied the higher standard, but did nothing differently than apply the preponderance of the evidence standard and state otherwise.

Many wrongful convictions result from the failure to disclose evidence. Does anyone seriously believe that the withholding of evidence is limited to criminal cases? Of course, some of these convictions resulted from the legal exclusion of otherwise material evidence because it was deemed inadmissible under the rules of evidence. By the same token, some guilty people are set free because judges and juries are prevented from considering or even seeing certain evidence.

For example, did you know that George Zimmerman's violent past was legally excluded from evidence in the Trayvon Martin case? "In July 2005, Zimmerman was arrested and accused of resisting an officer with violence. In August 2005, Zimmerman's former fiancee filed for a restraining order against him, alleging domestic violence." In July 2013, Zimmerman was found not guilty with regard to the death of Trayvon Martin because it was unclear which of them initiated the conflict that led to Martin's death. "In September 2013, Zimmerman's estranged wife, Shellie, dials 911 and tells a police dispatcher that he punched her father and threatened her with a gun." On November 19, 2013, Zimmerman was arrested and charged with aggravated assault and criminal domestic violence against his girlfriend. People are consistent. Now that we know about Zimmerman's violent past prior to the incident with Martin and his apparent subsequent violent behavior, doesn't it seem far more likely that he had initiated the conflict that led to Martin's death? As I keep saying, what happens in court is more about perception than reality.

As you can see, decisions rendered in court are not based on all of the evidence -- just all of the legally admissible evidence. The distinction between "evidence" and "legally admissible evidence" is significant and should not be ignored. Would any of you care to spend 38 years in prison for a crime you didn't commit? It happens because of the exclusion (legal or otherwise) of key evidence. When the legal standard is reduced to a "preponderance of the evidence" (it is more likely than not), how do you think that plays out? The bottom line is that there is a big difference between "justice" and "legal justice" and it is a grave mistake to forget this reality.

Do you think that "the pursuit of retribution" or attempts to "inflict pain for the sake of some rudimentary notion of justice" only occurs in criminal court? Moreover, as I keep saying, emotional injustice cannot be righted by legal justice. Instead, "the situation becomes 'no holds barred.' This means that it is 'free from the usual limits or rules,' at least in the minds of the participants." As Ms. Goodman so eloquently stated, the use of the legal system for vengeance is barbaric. Interestingly enough, an article of mine titled "Why the US Family Law System is Barbaric" was published by the Los Angeles Daily Journal on April 13, 2011.

We have seen how competition to "win" plays out when it comes to criminal matters. Does anyone seriously believe that lack of fair play in order to "win" is somehow limited to criminal law? If so, I would like to remind you that all litigation is adversarial in nature. Does anyone honestly believe that litigating family law matters is somehow different?

Ms. Goodman has explained to us how some "prosecutors tend to see criminal trials as competitions with minimal consequences..." I would hardly say that taking away an innocent person's liberty by having them convicted of a crime they did not commit is of "minimal consequences." That being said, since other areas of law do not involve the potential to take away a person's liberty, aren't the consequences of such a competition even more minimal? If so, isn't that even less of a disincentive for bad behavior? In other words, do lawyers really comprehend the long-term implications of their actions?

Clearly, there are serious negative consequences to litigating disputes of all types. Before insisting on having your "day in court," I strongly advise that you consider this information.