Utah Court of Appeals

Objection! Withdrawn.

When movies and television portray slick lawyers, they often have a scene in which the lawyer makes a clearly outrageous statement and then withdraws it immediately when challenged. One of the more ridiculous versions of this meme is from the television show, Community, shown above. The idea is that a scheming lawyer will be able to taint the minds of the jury with an inflammatory statement. If challenged, the lawyer can simply shrug it off. The judge may instruct the jury to ignore the statement, but the damage has been done and the seed has been planted in the jurors’ minds.

Well, as it happens, lawyers actually try this in real life. Last week, the Utah Court of Appeals issued an opinion in State v. Akok that deals with this kind of situation. Mr. Akok was on trial for rape, along with a codefendant who was being charged with other related crimes. At the very last moment of the trial, just before the jury left to deliberate, the prosecutor said this:

“They took advantage of a very vulnerable victim. Don’t let them take advantage of it again. Thank you.” ¶ 14.

This of course, is not nearly as inflammatory as some television lawyers, but it’s still very improper. The Court of Appeals had no trouble deciding that “the prosecutor’s statement was improper and called the jurors’ attention to matters they were not justified in considering in reaching their verdict.” ¶ 16.

The defense attorney moved for a mistrial, and the court denied it. Then the defense attorney asked for a curative instruction to let the jury know that they should ignore the prosecutor’s final statement. Of course, the prosecutor did not put up a fight. People who drop bombs rarely concern themselves with the clean up.

The judge, however, refused to give a specific instruction about the improper statement. Instead, the judge reminded the jury of the general instructions that they already had. ¶ 9. But if the general jury instructions are sufficient to cure prosecutorial misconduct, then prosecutors could essentially say whatever they want. If there is an objection, they could just shrug and say, “Well the jury should know not to listen to that.”

Fortunately, the Court of Appeals determined that this was an error that hurt Mr. Akok’s defense and reversed. “[W]hen the prosecutor’s statement is considered in conjunction with the conflicting evidence of Defendant’s guilt, defense counsel’s inability to address the prosecutor’s improper statement, and the court’s nonspecific curative admonition, our confidence in the verdict is undermined.” ¶ 30. Mr. Akok will now have a new trial, and hopefully Utah lawyers will be less inclined to attempt this trick in the future.

Why I'm Doing What I'm Doing

Since I started Thompson Appeals, I have found that some clients are confused about why I’m doing what I’m doing. I provide a full range of appellate services geared toward low-income and middle-income clients in Utah. To do this effectively, I usually charge a rate that is much lower than the standard rate. To the skeptic who’s wondering what I’m getting out of it, let me explain.

I spent the last year clerking at the Utah Court of Appeals. When I say I was a clerk, people often think that I was a clerk in the sense of the movie Clerks. Clerking for a court, however, is much more like being an assistant for a judge. Based on the judge’s guidance, you get to write the first draft of the opinions. You also get to read a lot of briefs and see a lot of cases move through the appellate process.

Doing this, I couldn’t help but notice that there was a wide range in the quality of representation. If the clients were indigent, they could often get help from Utah Legal Services or from the Legal Defender Association, both of which have a lot of experience and do a consistently good job representing their clients on appeal. If the clients were wealthy, they could afford top-tier appellate representation.  Many of the clients in the middle, however, were braving the appellate courts without an attorney who understood the appeals process or without an attorney at all.

To put it in the cold, hard terms of American capitalism, I saw an underserved demographic and decided to make that my niche in the marketplace. My rate is reduced to make it accessible to my target demographic, bit it’s still enough to cover my overhead and make a reasonable profit. I think that providing quality appellate services at an affordable rate is an inevitable market disruption, and I want to be ahead of the curve.

To put it in the bleeding-heart terms of American idealism, I saw an underserved population that was not always getting the justice it deserved. I wanted to help make the legal system more just, and I wanted to help people who didn’t have any other options.

I also love working with important legal issues. I love nerding out about the minutia of the law and obsessing over the subtleties of statutory language.

So, what’s in it for me? I get to establish a niche in a competitive marketplace. I get to help people. And I get to work with important legal issues. In return, my clients get quality appellate services at an affordable rate. Sounds like a good deal to me.