Professional Responsibility Follow-Up

I'm pleased to follow up on my blog post from last January about the substitute teacher in Connecticut who was convicted on charges of corrupting the morals of children. Via Feministe, I have learned that she will receive a new trial.

You will recall that Julie Amero was a substitute teacher who faced up to 40 years in prison (though a sentence of 40 years was highly unlikely under the circumstances) for allegedly showing pornography to students in her class. There was no dispute that pornographic images were on her computer screen while she was in the classroom with students; the question was how they got there. The prosecution argued that she was browsing porn sites, while the defense contended that the images were in pop-ups generated by malware resident on the computer's harddrive since before Amero began working.

The problem at trial was that Amero's lawyer failed to inform the prosecution of his intent to present a malware-related defense in time for the prosecution to prepare counter-arguments; the whole issue essentially didn't get raised until after the trial started. This led the judge to exclude most of the defense's malware-related evidence, which left Amero with essentially no argument for why the porn appeared on her screen that didn't involve her making an affirmative choice to put it there.

At the time, I predicted an ineffective assistance of counsel argument might prevail on appeal. At the time, I was unaware that ineffective assistance of counsel arguments essentially never succeed on appeal. In theory, this is because appellate courts are loathe to second-guess the decisions of lawyers after-the-fact. It's very easy, in hindsight, to look at a case and say that a defense would have been marginally better if the lawyer had done X but not Y, but courts prefer not to therefore label the lawyer's decision ineffective assistance of counsel. In practice, a large part of the reason ineffective assistance claims fail is because the overburdened public defender system can't provide a great defense to most of its clients, so the bar for effective assistance has to be set very low in order to prevent most cases from being overturned on appeal.

Happily for Amero, though, she received a new trial on the basis of new evidence that had come to light. Specifically, the trial judge on a post-trial motion examined mountains of evidence presented by IP professionals to indicate that the computer had been infested with malware and that this malware may have caused the images to appear on her screen against Amero's wishes. While the judge couldn't overturn the jury's verdict and declare Amero innocent (judges determine the law; it is the task of the jury to determine the facts) the judge could determine that the jury had not been exposed to all of the relevant information at the first trial, and that therefore a new trial was necessary.

Interestingly, there likely won't be a new trial. The local prosecutor's office has refused to comment on the grant of a new trial, and if the Courant's reporting is accurate this indicates that the prosecution is likely to drop the charges. Obviously this is great for Amero, though in a sense it deprives her of a moral victory. If there were a second trial, he could get an acquittal and use that as evidence in her future career that she hadn't done what she was accused of. As it stands, there may remain some doubt about her innocence. Still, given the choice between a time (and possibly money) intensive trial with an uncertain outcome and being able to walk free, I think just walking free is the option that makes the most sense, moral victory aside.

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This page contains a single entry by Zach published on June 7, 2007 7:04 AM.

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