Judge orders defense lawyer to apologize for "impugning cop's integrity"
More on courts attempting to chill effective advocacy: In Minnesota, District Judge Gregory Galler has ordered defense attorney David McCormick to give a written apology to a police officer for suggesting that the officer was less than truthful during cross-examination in a DUI trial.
Galler ordered McCormick to write an apology to the officer for "impugning the officer's integrity," according to court documents.McCormick refused, missing Galler's original deadline, which passed Tuesday. On Wednesday, Galler indefinitely extended the deadline and notified McCormick through his lawyer, John Brink, whom McCormick hired in case the judge held him in contempt of court.
McCormick said he's preparing to file a motion seeking to have a new hearing on his client's drunken driving case, with a new judge. McCormick claims Galler was "biased in favor of the police witness" and must recuse himself.
Reached in his Stillwater chambers, Galler confirmed that he "might have" ordered the apology and asked, "How has that become a story?" When told the demand seemed unusual, Galler said, "Not really." He declined to comment further.
The first thing, for those not familiar with the obligations of defense counsel, is that it is the defense lawyer's job to question the integrity of witnesses during cross examination. My experience, contrary to what the public wants to believe, is that police officers will lie on the stand. If I am calling him or her a liar in front of the jury, odds are I may be right. But what if the officer is being completely truthful? Consider the words of Justice White in U.S. v. Wade (1967):
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
