GA Court Of Appeals: It’s Bad Faith, Because The Defendant Did It

July 22, 2016 (Fault Lines) – Appellate courts in criminal cases serve an important function. Their typical goal is to make sure that defendants go to jail and stay there for as long as possible. At the same time, they protect the prosecution from accountability, because everybody makes mistakes, right?

The Georgia Court of Appeals served its role well earlier this month in Moceri v. State. In a no longer surprising display of the double standard applied to defendants, the Court had no problem suppressing Moceri’s defense, because the prosecution didn’t get a chance to properly evaluate it. And a criminal trial is all about the prosecution, of course.

Dominic Moceri was charged with first-degree homicide. That sounds pretty bad. Must be a heartless murderer. Or a guy who got into a car wreck. Or something in between. If only there was some kind of explanation for the crash…

Moceri was on a date with Brenna Garrison back in 2007 when he wrecked his car. According to police, he was driving erratically and suspected of drunk driving. The Court of Appeals opinion described the erratic driving:

On November 4, 2007, Officer Baird, a uniformed police officer employed by the Athens-Clarke County Police Department was on patrol in his marked police vehicle at 1:20 a.m. when he observed a BMW automobile traveling about 46 miles per hour in a 35 miles per hour speed zone while drifting from side to side within the traffic lane. As the car went through a curve in the road, the officer observed the car drift in one direction and then correct in the other direction with a “quick jerk.”

Ten miles an hour over the speed limit. And in case you don’t know, “drifting from side to side within the traffic lane” is cop-code for “I want to pull this guy over and he isn’t weaving”. So you claim he is weaving in his lane, which is perfectly legal, until it’s not. The car accelerated, hit a utility pole, and violently crashed.

In old Soviet Russia, we could just take Moceri down to the concrete basement and shoot him or send him to Siberia. But, alas, since this is America, we have to give him a fair trial and all those other things the constitution demands. Or at least the illusion of it.

Moceri claimed his 1995 BMW M3 was subject to a recall for a problem with its acceleration, which could result in a crash. Sounds like nonsense. Except it’s not. There was a recall, and it was for exactly that; a problem with the car’s throttle.

Whether or not you like the fact that a defendant gets to defend himself in a criminal case, that’s the way it is the way it’s supposed to be. Moceri’s case is a good example of the stacked.

According to the Georgia Court of Appeals, Moceri’s lawyer did a pretty crappy job of preserving the car so the prosecution could look at it. And because of that, Moceri gets no defense.

Under Georgia law, a defendant can elect to have his discovery process governed by statute. This imposes a number of deadlines. The defense has to turn over witnesses and evidence to the state. In Moceri’s case, the lawyer blew it.

The opinion’s description of what happened to the car is a little confusing. At some point, the defendant’s father sold the car to an associate. That associate owned a garage, and the car remained there for quite some time. Shortly before the prosecution got around to scheduling an expert inspection of the car, it went missing. The garage owner had bought it for a friend. The friend removed the engine and crushed the car.

The trial court suppressed the evidence, claiming the defense had destroyed evidence in bad faith. The Georgia Court of Appeals agreed, after going to great lengths to make this whole situation as unfair as possible.

The July 7 opinion makes it sound like Moceri hid this defense from the prosecutors until he was able to successfully destroy the car and prevent them from looking at it.

In March 2009, the defendant’s father (who owned the car at the time) and Sicheron (a mechanic who had worked with the defendant) inspected the throttle and cruise control assembly on the car, and collaborated with a defense investigator to help establish the defendant’s mechanical malfunction claim… The defendant (acting through defense counsel) delayed providing court-ordered discovery to the state about the mechanical malfunction claim. When the defendant eventually revealed the malfunction claim, 16 and the court ordered the defendant to preserve the car for inspection by the state, defense counsel misinformed the court that the car was owned by the defendant’s father and was being preserved for the purpose of inspection.

Only an appellate court in a criminal case could make “collaborated” sound like some sort of sinister conspiracy. The Georgia Court of Appeals also makes it sound like this defense was an ambush sprung on the unsuspected prosecutors at the last minute. But the Court must have forgotten this case was in front of it once before.

Back in November of 2012, the Court of Appeals considered an interlocutory appeal in Moceri’s case.* A concurring opinion by one of the judges discussed the trial court’s order, though the issue wasn’t decided.

The manufacturer had issued a recall stating that cars of the make and model of Moceri’s should be inspected for possible problems that could cause them to not decelerate properly on release of the gas pedal. Moceri’s car had not been inspected for that problem. The state was aware of the recall and had the car in its possession for nearly a year after the collision. But the state confined its investigation to a single conversation with a dealer, after which it chose to accept at face value the dealer’s representation that the recall did not apply to Moceri’s car.

The prosecutors had the car, they just didn’t feel like doing anything with it. Seems like this critical evidence, that the prosecutors were desperate to see, was taken a lot more seriously as a grounds for exclusion than a trial defense.

As to prejudice to the state, it is true that the state is now unable to examine the car; but any harm is tempered by the fact that the state failed to conduct such investigation during the year that it had possession of it. And, even after the trial court ordered that the car be made available to the state for inspection, the state did not arrange for such an inspection to occur until months later.

When it was a defense the prosecutors must have thought was stupid, they didn’t do anything to address it. Of course, when the opportunity arose to use it as a way to destroy the defendant’s trial theory, it becomes the most important evidence in the world.

Fair is fair, so the defendant in this case is getting treated just like the prosecutors would if they destroyed evidence, right? Of course not. Judge McFadden’s concurring opinion points out the difference between this situation and the state doing the same thing.

Indeed, in the converse situation involving the loss of evidence by the state due to mistake or negligence, such action has been found not to rise to the level of bad faith.

Judge McFadden goes on to point out numerous cases where the state has done the exact same thing Moceri’s lawyer did. The lawyer didn’t get rid of the car, a third party did. Then the state elected to wait a few months to even attempt a test.

That’s only bad faith because the defense did it. In Brannon v. State, the Georgia Supreme Court considered a death penalty case where a vehicle was lost because a tow yard under contract with law enforcement released it before the defense could inspect it. No problem. The court referred to it as a “misunderstanding.”

The cases go on and on. Important telephone records subpoenaed by the state and then destroyed before the defense could look at them? No bad faith. Didn’t move quickly enough to test drugs before they were destroyed? Too bad for you.

It’s almost a joke how differently a defendant and the state are treated in criminal courts. Prosecutors are almost never acting in bad faith. Defendants almost always are. The Georgia appellate courts can repeatedly excuse prosecutors’ destruction of evidence for almost any reason. But when the defense does it, the standard becomes far stricter.

The Moceri opinion is bad. It results in a defendant going to jail for 15 years without a jury having listened to his defense. But more importantly, it damages the credibility of the Georgia Court of Appeals. When a court bends over backwards to excuse prosecutors’ destruction of evidence, and then bends over backwards to make sure a defendant has no excuse for doing the exact same, it’s not acting like a court. It’s acting like a shill for the prosecution.

* Interlocutory is a fancy way for saying an appeal that happened in the middle of the case, instead of at the end of the case.

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