When Defense Lawyers Become Prosecutors
Date:  08-11-2016

Truthout exposes the practice of public defense lawyers working with prosecutors to the detriment of their clients
From Truthout August 9, 2016

On January 5, 2015, Randall H. McCants Jr. was not alone when Judge James H. Roberts Jr. of the Sixth Judicial Circuit of the State of Alabama opened his courtroom for a plea hearing. "Mr. McCants is present in court with his attorneys, Jim Gentry and Mike Cartee," he stated. Besides the judge's reference to McCants' court-appointed attorneys by their nicknames, nothing appeared out of the ordinary. Roberts cited McCants' constitutional rights before highlighting his defense attorneys' central task: "Your attorneys are bound to do everything they can honorably and reasonably do to see that you obtain a fair and impartial trial." McCants answered the judge's questions with "yes, sir" and "no, sir." Even to the charge of capital murder and the question of whether he understood that "the range of punishment is life without parole or death," McCants responded, "yes, sir."

According to the nine-page hearing transcript, Roberts knew that McCants had pled not-guilty during his post-arrest arraignment in January 2011. In fact, Roberts acknowledged that McCants' attorneys had only recently "proposed a plea agreement" for the "lesser offence of murder." Yet, at no point during the hearing did Roberts wonder about what prompted McCants' sudden about-face. Did four mysterious years in pretrial detention impact McCants' decision? Could McCants' attorneys have coerced him to plead guilty by invoking fear that a greater punishment awaited him at trial? Whether McCants was mentally competent to grasp legal proceedings or understand that he was assuming full responsibility for the accidental death of a Tuscaloosa resident apparently did not cross Roberts' mind either.

Rather, Judge Roberts proceeded with the plea colloquy by asking prosecutor Jonathan S. Cross to provide "some facts" for the first-degree murder plea. Compliant, Cross stood and delivered some skimpy facts in the most casual and sloppy fashion possible:

“[I]f this case went to trial, the State is prepared to prove that on January 16, 2011, this defendant had a prior altercation with one specific individual, that he and several co-defendants got into it with this individual and another individual and got word these two individuals would be at Branscomb Apartments in Tuscaloosa County, and this defendant along with three co-defendants and a few other individuals went there in vehicles, saw the two individuals he had a beef with. A shooting began. Witnesses would identify this defendant as shooting a gun in the direction of an apartment where someone entirely unrelated to this altercation, Mr. James Hardaway, was shot in the back of the head and killed”

Grammatical errors aside, Cross neither identified the witnesses nor confirmed that they had singled out McCants as Hardaway's sole shooter and killer during a shootout involving seven people. He did not bother to prove whether McCants possessed a firearm and failed to prove that the weapon that killed Hardaway bore any link to McCants. And he saw no need to present evidence rendered factual by ballistic investigation or to explain why the police had found neither shell-casings nor gunpowder in the car that McCants rode in at the time. McCants' intent -- that is, whether McCants had deliberately planned the murder of Hardaway, a man he had never met -- was a non-issue. The lack of evidence explains why Cross finalized his brief remarks in the passive voice: Hardaway "was shot in the back of the head and killed." (Ironically, Cross spoke to the press a day later with the certitude of a demiurge: "Based on the evidence, Mr. McCants was the instigator and primary shooter of this drug-related act of violence.") Read more