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Very odd relationships in criminal cases

It was the fifth game of the 2019 World Series. The Houston Astros’ Michael Brantley was the inning’s first batter. Tanner Rainey of the Washington Nationals was the pitcher. But, more importantly, Lance Barksdale was the umpire.

With a count of two balls and two strikes, Rainey threw a perfect strike. Brantley didn’t swing. Nationals catcher Yan Gomes popped up from his crouch and started to throw the ball around the horn, the usual baseball celebration for a strikeout with the bases empty.

artwork by Nancy Ohanian

But Barksdale didn’t call the strike. In the video of the moment, he can be seen saying something to Gomes. In response, Gomes asks: “Oh, it’s my fault?”

It seems Barksdale felt disrespected that Gomes didn’t wait for a signal before jumping to his feet. Umpires spend a lot of time practicing their strikeout call and Gomes upstaged him.

For the players and fans, the important human relationship on the field was the one between Rainey and Brantley, pitcher and batter. But we really shouldn’t be surprised that, as far as Barksdale was concerned, the more important relationship was one involving himself.

Now imagine Barksdale taking off his mask and chest protector and pulling on a judge’s robe. The Connecticut Court of Appeals in 2013 reversed the murder conviction of a man named Victor Santiago because of the prosecutor’s behavior.

You read that right. The court concluded that the prosecutor “jeopardized the constitutionality of the trial proceedings,” which is a melodramatic way of saying the prosecutor’s conduct created a risk that was averted.

An ordinary citizen might be forgiven for thinking that in a murder trial, the important relationship is the one between the accused and the victim. Was Victor Santiago responsible for Wilfred Morales’ violent death, as the prosecution charged?

But for the judges, that was a secondary concern. Like Lance Barksdale, they thought the more important relationship was the one involving themselves.

The prosecutor had gotten cute in his closing argument, ignoring an earlier ruling by the trial judge. Defense counsel should have objected, but evidently didn’t. (No objection is mentioned in the opinion.) It irritated the appellate judges that the prosecutor had gotten away with it.

Worse, he had gotten away with it in other cases, too. The appellate court had warned him to cool his jets in earlier opinions, but did he listen? The lack of respect was galling.

The judges acknowledged they had no constitutional or statutory authority to reverse a legitimate murder conviction just to dramatize how much they disliked a particular lawyer. So they claimed an “inherent” power to do so, just as Lance Barksdale exercised his inherent power to call a strike a ball.

In February, 2015, the New Mexico Supreme Court enacted something called the “case management pilot program for criminal cases,” in force only in Bernalillo County.

The case management program is an intricate, lengthy set of rules imposing very short deadlines for the prosecution to disclose evidence to the defense. We can accept that the rules addressed a genuine and longstanding problem of delayed disclosure.

The rules authorize judges to dismiss cases or (what often amounts to the same thing) exclude key witnesses if the prosecution fails to meet the very demanding deadlines. This is a big reason why you so often read about charges being dropped shortly after arrest.

Explicitly, then, the case management program places a higher priority on the relationship between defense counsel and prosecutor than on the relationship between perpetrator and victim.

It’s easy to understand why system insiders would think that relationships involving themselves are more important than relationships involving outsiders. We’re all prone to that tendency. Not even major league umpires are immune.

Albuquerque’s crime rate, which had held relatively steady for the previous decade, began skyrocketing in 2015, the year the case management order was imposed. I don’t think the order is the entire explanation. Large-scale social changes always have multiple causes. But I also don’t think the timing was a coincidence.

In Bernalillo County, we’ve constructed a legal system in which a guilty criminal’s punishment depends not only, or even primarily, on his own behavior. It depends largely on factors beyond his control, including the administrative procedures employed by police and prosecutors.

From the criminal’s point of view, getting arrested is a roll of the dice. It’s a high-stakes game, and that’s no joke. A lousy roll can mean years in prison. But a lucky roll means your case will be dismissed. Being caught red-handed is never good, but it’s not necessarily bad, either.

What happens to a society that deliberately reduces the deterrent effect of its criminal law?

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at