Letters, April 14, 2016 

It's Hard Enough to Maintain Trust and Errors Delay Justice

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It's Hard Enough to Maintain Trust
Your story, "Above the Law," [April 7, City Weekly] examines the case of Adolphus Nickleberry, who faces federal prosecution for possessing a firearm as a restricted person.

In a written decision, federal Judge Jill Parrish cautions the U.S. Attorney's Office for pointing to non-controlling legal authority and for failing to disclose controlling authority in its briefing on the case.

I grew up in a law-enforcement family, have held several law enforcement and legal support positions, and have a very pro-police, pro-prosecution bent as a result.

Judge Parrish cautions Jacob Strain, who drafted the documents for the U.S. Attorney's office which cited non-controlling authority as well as failing to disclose controlling authority adverse to the government's position. Law students and those with similar training (much less members of the bar) are exposed very early in the process to the differences between controlling and non-controlling authority, such as case law.

Further, professional ethics require lawyers to disclose to judges controlling authority known to be adverse to their position. Strain's boss, David Backman, asked Judge Parrish to revise her written criticism of Strain so as to avoid having to report that criticism to the federal Office of Professional Responsibility, which oversees federal prosecutors' conduct.

There's already an overabundance of public distrust of law enforcement, of prosecutors, of defense attorneys and of judges. There's the notion of the "courtroom working group," in which, rather than each side being zealously represented, all the parties collude for the sake of such objectives as "efficiency."

It's hard enough to maintain trust in such a system as it is. Conduct such as that of Strain and Backman simply exacerbates the problem. Improving training and oversight of attorneys beforehand is a far better solution to it than is asking judges to revise their rulings afterward.
Ken K. Gourdin
Pleasant Grove

Errors Delay Justice
Two additional points should be made about the United States v. Nickleberry case, the subject of Stephen Dark's story "Above the Law," [April 7, City Weekly].

First, the case was dismissed by the U.S. District Court for the District of Utah because the arresting officers failed to comply with the Fourth Amendment of the U.S. Constitution. It is beyond surprising, then, that the Utah Attorney General's Office has elected to re-prosecute the matter in state court, allegedly for the purpose of seeking "clarity on its implications for law enforcement." As the Constitution remains the supreme law of the land, any determination by a federal court that the defendant's Fourth Amendment rights were violated will be applicable to the state prosecution, and the state's case is all but certain to be dismissed on that ground.

Second, neither party in the federal case cited the controlling precedent of United States v. Sanders, and the court was thus forced to discover that case on its own. Worse, the government actually admitted it had reviewed the case but made the decision not to cite it because of alleged factual differences from the Nickleberry case. As the court rightly pointed out, the United States nevertheless had a duty to bring the case to the court's attention.

Kudos to Judge Parrish for discovering these errors. Brickbats to the parties for failing to address them properly. Condolences to Mr. Nickleberry, whose case will likely linger on before a state court for many months before it, too, is finally dismissed.
Thomas N. Thompson
Salt Lake City

Correction: Alice Walker's recent poetry readings were hosted by the Tanner Center for Nonviolent Human Rights Advocacy. A "More Essentials" in the April 14 issue of City Weekly indicated an incorrect sponsoring organization.

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