Wednesday, March 25, 2009

Runnin' With The Devil

A recent two day post conviction relief hearing concluded with me not in attendance, more's the pity, but the press of daily affairs, including filing documents in Marshall County, took me away from the Des Moines area. It was a futile effort, and an appeal may follow but nevermind.

I'm referring, of course, to the recently concluded post conviction relief hearings in David Flores v. State, in which Flores, among other things, was allowed to present his views on the legal process wherein he lost his direct appeal as of right, and in which he fulminated about his appellate attorney's incompetence and Joe Weeg's attempts to, as he said, "trap him."

Well, that's what people like Joe Weeg do. They trap liars, or, more accurately, they go about the business of helping liars to trap themselves. People who tell the truth rarely have a problem with such matters because they're never trapped by the truth-they're trapped when they try to skirt the edges of uncomfortable or damaging truths.

See for yourself.

Dean Wigmore once famously observed, "Cross examination is the greatest legal engine ever invented for discovery of the truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross examination if he is skillful enough not to impale his own cause on it."

That knowledge in itself probably was enough to cause Flores to invoke his fifth amendment privilege with respect to actual substantive testimony in a way that would have made a New Jersey mobster proud.

Of course, he's promised to tell all if, and only if, only he gets a new trial.

Don't count on it happening, folks.

The procedure was somewhat irregular to allow introduction of supplemental pro se arguments and briefs when, as we've already seen, Flores was ably represented by his counsel, but I suspicion that was to introduce an argument into the record that could not have been done by his counsel.

Distilled to its essentials, Flores argues that his counsel on direct appeal was ineffective because he did not raise arguments that Flores now presents as a pro se litigant, which automatically become a due process violation requiring reversal. At least that's what I think he said.
He also argued that ineffective assistance of counsel on direct appeal entitles him to a new trial, but concedes that this would be a case of first impression in Iowa.

I still think that the issue of the Brady evidence-the Gaines interview and whether John Wellman knew or should have known about it is central to whether Flores will get a new trial.

The law's pretty clear on withholding of potentially exculpatory evidence-it does not have to be intentional or even knowing, it just has to happen.

And that's the part of the testimony I missed.

Judge Nickerson expects to rule sometime this summer, and I think that he was being very careful with this case and the handling thereof.


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