Posted on 10/12/2008 6:18:46 PM PDT by Born Conservative
WILKES-BARRE – Prosecutors who are appealing Luzerne County Senior Judge Michael T. Conahan’s ruling that deemed George Banks incompetent to be executed say the opinion the judge entered supporting his decision was actually authored by Banks’ defense attorneys.
Conahan
The judge’s “wholesale” adoption of the document submitted by the defense is one of two issues Deputy Attorney General Jennifer Buck cites in asking the state Supreme Court to overturn the decision.
At issue is a document titled “determination of competency” that the defense submitted following a three-day competency hearing held in August at the state Correctional Institution at Graterford. Buck and Luzerne County Assistant District Attorney Scott Gartley represented the state.
The hearing was held to determine whether Banks is too mentally ill to understand he is facing execution for the 1982 shooting deaths of 13 people, including seven children, in Wilkes-Barre and Jenkins Township.
Conahan ruled on Sept. 8 that Banks is not competent and issued a 21-page opinion that was a verbatim recitation of the “determination of competency” submitted by the defense.
The opinion served as a stinging rebuke to the prosecution’s case, describing Banks as being “grossly delusional” and opining that executing someone in his state would be a “grave injustice.”
It also took aim at the prosecution’s psychiatric experts, saying they were not credible. It was particularly critical of one of the experts, Dr. Timothy Michals, accusing him of being an “evasive and dishonest witness” who harbored a bias towards Banks
Buck contends the evidence did not support Conahan’s decision, and the judge erred by adopting the defense document as his opinion rather than writing his own.
But Al Flora Jr., one of Banks’ attorneys, said Conahan was well within his rights to adopt the opinion of either the prosecution or defense, as long as the opinion was supported by the evidence. He does not believe there is any legal basis upon which prosecutors can challenge the decision based on that issue.
“She seems to suggest either the judge did not read the proposed findings or any other memorandum, or the judge somehow abrogated his responsibility,” Flora said. “Trial court judges routinely adopt verbatim proposed findings of fact and conclusions of law submitted by one side or the other.”
Gartley and Buck said they could not comment on the case because the appeal is pending.
Bruce Castor, immediate past president of the Pennsylvania District Attorneys Association, said judges sometimes adopt in total the opinion of one side or the other. He found it unusual that Conahan would do so in a competency hearing involving a death penalty case.
“By signing the proposed findings of facts, he adopted the defense’s position lock, stock and barrel, significantly hindering the prosecution’s chance of prevailing on appeal,” Castor said.
That doesn’t mean the judge did anything wrong or that he made a legal error, Castor said.
“The judge could very well have concluded everything the defense said was correct and everything the prosecution said was wrong, so why re-invent the wheel?” Castor said.
Castor agreed with Flora’s assessment that it will be difficult for the prosecution to prevail in overturning the decision on that issue, assuming there is evidence in the record to support the finding. It will be of no consequence whose words were used in the opinion, he said.
“It’s a matter of the strength of the evidence submitted. Is there enough that the judge could rely on the opinion submitted by the defense as his own? If yes, the decision will be upheld,” Castor said.
Flora said he believes that’s clearly the case here. Conahan, he said, had a plethora of evidence to consider and did not simply “rubber stamp” the defense’s position, he said.
“Judge Conahan sat through all the testimony. He was very familiar with all this. It’s not like he was sitting in an ivory tower and didn’t hear the evidence first hand,” Flora said.
Defense attorneys will have an opportunity to file a response to the prosecution’s appeal. The Supreme Court will then take the matter under advisement.
After years of a youth misspent as an attorney and law school professor, let me say this is not that unusual. I saw courts in more than one state, at every level of the system from trial courts to State Supreme Courts, adopt language directly from briefs for the defense and the prosecution. This isn’t news, it’s a prosecutor venting over losing a point in the case.
ping
It’s laziness, pure and simple. I’d be pleased to see my appellate argument in an opinion if it was quoted as my argument. Seeing it in the opinion as the work of the court just pisses me off. It’s Biden-style plagiarism.
Colonel, USAFR
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