This is an outstanding -- and simultaneously disturbing -- opinion by Justice Hollenhorst.
The outstanding part is that the opinion itself is excellent. The opinion is easy to read, contains excellent (and common sense) analysis, and expresses (in my mind) precisely the proper amount of outrage -- not too much, not too little. It's a fantastic opinion that's definitely worth a read. Indeed, my only problem with the opinion is that there's a parenthesis at the end of footnote 3 that shouldn't be there. Apart from removing this typo, I can't think of a way to make the opinion any better.
The disturbing part is what transpired in the underlying case. Basically you have a prosecutor -- Kelton Tobler -- who committed a plethora of fairly extreme ethical violations and then "creatively testified" about what he had previously done. So much so that both the trial court and the Court of Appeal found parts of the prosecutor's testimony entirely uncredible; for example, the prosecutor's testimony that when he called the defendant as a witness in the unrelated murder trial, the prosecutor had "no idea" that defense counsel would try to cross-examine defendant about his prior criminal records and conduct. Yeah, right. (As the trial court spontaneously exclaimed when the prosecutor made this assertion, "How could it not occur to you that it wouldn’t come up? I mean, that’s just -- that’s Defense Counsel 1A, for crying out loud.") Kelton: Is this really what they taught you to do at BYU, and then at BYU Law School?! Come on.
It won't do justice to Justice Hollenhorst's opinion to attempt to summarize it, so I'll just strongly encourage you to read it yourself. To give you a tenor of the discussion, here's a quote from page 20: "The prosecutor’s casual, if not cavalier, disregard of defendant’s right to representation during a discussion of potential concessions and then calling defendant as a key witness at a preliminary hearing without the resence of his counsel is highly disturbing, as is the prosecutor’s failure to recognize any impropriety in such discussions."
Finally, I very much concurred in the remedy adopted by Justice Hollenhorst. Defendant was sentenced to 25 to life under the "Three Strikes" law for directing an undercover officer to where he could buy a $40 rock of crack. Based upon what the prosecutor did, the defendant wanted this offense dismissed. Justice Hollenhorst refused to do so, but nonetheless remanded, stating that the proper remedy would be a "creative" one -- and I agree -- that would give the defendant the benefit of the bargain he would have received but for the unethical (and unconstitutional) conduct of the prosecutor. So if, in return for his testimony, the defendant would have received, for example, a plea that would have reduced his sentence to 10 years, that's what should happen. Seems right to me.
Great opinion, Justice Hollenhorst. (Now amend it and remove that typo.) :-)
