Sunday, April 26, 2009

District Attorney Misfires In Poplawski's Case, But Benefits From Luck Of The Judicial Draw

Dimitri Vassilaros was castigating Richard Poplawski's public defender, Lisa Middleman (left), by radiowave the other day for objecting to publicized comments (some by the district attorney, others by members of the victim's families) that, Ms. Middleman argued, violated a "gag order" designed to preserve a jury pool.

If I recall the broadcast correctly, Mr. Vassilaros approvingly quoted the district attorney's office labeling as "nonsense" Ms. Middleman's motion, which objected to this public statement from the D.A.s office:

"Our investigation of both the evidence and the background of the defendant has produced several compelling, aggravating circumstances with respect to seeking the death penalty," Mr. Manko said. "As of now, there are no mitigating circumstances. Consequently, our office will be seeking the death penalty."
I agree with Mr. Vassilaros' contention that Ms. Middleman's jab at victims' family members was a stretch (although I doubt his prediction that it will disadvantage Mr. Poplawski at trial), but not with his condemnation of the attempt to keep the D.A. in line.

Deputy D.A. Mark Tranquilli mocked the motion, claiming "it doesn't take a brain surgeon to figure out that the circumstances in this case are compelling."

Speaking of brain surgeons, the D.A.'s office might benefit from consulting someone with a medical degree, because the law degrees in that office apparently could use some help. Next time, the D.A.'s office might not catch a couple of lucky breaks in the courtroom, and might even be held accountable for imprudent conduct.

D.A. Stephen Zappala's first mistake was to authorize the statement concerning his conclusions with respect to aggravating and mitigating factors. His second mistake was to send a deputy to the sanctions hearing. He skated on both mistakes, which I ascribe primarily to the schedule of Judge Jeffrey Manning, who was unavailable for the hearing (vacation, I hear). Instead, the parties drew Judge David Cashman.

Judge Cashman's demeanor -- easy-going conciliator -- differs from the more confrontational nature of Judge Manning, whose background was in the more binary world of criminal law ("ding 'em or fling 'em").

Judge Manning, as author of the order, also might have felt more secure footing in gauging and enforcing the contours of the order's intent -- such as whether an attorney involved with the Poplawski prosecution should "discuss the broader public safety issues rather than the particulars of the case."

I would have expected Judge Manning to handle at least two aspects of the hearing differently. First, when he observed that D.A. Zappala had sent an underling to the hearing, Judge Manning likely would have ordered the D.A. to appear before the bench in person and in minutes. Second, I doubt Judge Manning would have waved off the D.A.'s public statements concerning strength and nature of evidence so breezily as did Judge Cashman ("I think the statements . . . do nothing more than describe the structure of the case").

Judge Cashman ruled within the bounds of reason, but his involvement appears to have magnified substantially the home field advantage the D.A. possesses in essentially every court proceeding. The D.A.'s office should consider itself more lucky than vindicated.

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