19 April 2018

You Can Lose An Appeal Even When A Court Admits You Are Right

In People v. Butcher, a restitution award of $113,605 was entered against a defendant for securities fraud against two at risk adults. 

There was a $7,500-$15,000 error in the interest calculation on the award, which was not preserved at trial, but which the Court admits was "plain error" which is subject to review. But, the Court declined to modify the award on appeal because: "the trial court’s single obvious error — accruing post-judgment interest from the date of conviction rather than from the date of the operative restitution order — does not seriously affect the fairness, integrity, or public reputation of judicial proceedings." This was done pursuant to Colorado Rule of Criminal Procedure 52(b) and an interpretation that is a matter of first impression.

In my view ignoring an obvious error with a mathematically certain resolution which requires no new evidence to resolve, does "seriously affect the fairness, integrity, or public reputation of the judicial proceedings."

Screwing over a defendant, even when you admit that he is in the right and that you know exactly what went wrong, just because you don't feel like correcting the error, is a gross abrogation of the spirit of unbiased justice on the part of the appellate panel with no legitimate justification. It is practically the definition of bias.

The criminal defense lawyer's failure to preserve the interest objection is also very likely malpractice on the part of the lawyer, both as to the portion of the mistake that was "plain error" and as to the portion of the mistake that was not. It isn't entirely clear, however, how the statute of limitations on a malpractice claim would work in this case.

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