State v. Diaz (CA2 5/26/09)

This is a supplement to an opinion issued in the same case on April 7. We didn’t review that one for reasons alluded to in our FAQ; this one we can comment on.

Diaz was tried for burglary. The jury that convicted him was polled; the transcript of the poll mentions only eleven jurors. Diaz appealed his conviction, arguing that he had a right to have twelve jurors consider his guilt but got only eleven. His counsel had not pointed this out at trial – because, the State argued, there really were twelve jurors and the reference to eleven was a mistake – but the court ruled that it was fundamental error. Because Diaz had a statutory right to twelve and the transcript showed that only eleven had deliberated, the court reversed the conviction.

After that opinion was issued, the State called the court reporter. She checked her notes and prepared a corrected transcript showing that there had been twelve jurors, after all. The State moved to correct the transcript and for reconsideration.

In this supplemental opinion, the court denied both motions. It cited a number of cases for the proposition that if you think that the record is wrong, you have to have it corrected before the appellate court rules.

That, after all, is basic common sense. If you can nip an opponent’s appeal in the bud by simply correcting the record, why put yourself and everybody else through an appeal? Isn’t calling the court reporter the first thing you do, not the last? The court asked the State’s counsel that sort of question; the answers were so dismal that the court quotes them in the supplemental opinion and signals a gentle but enormous displeasure.

But the real problem, of course, is that waiting until after you’ve lost to reveal a “corrected” transcript raises entirely too many questions about how that transcript came about. The sanctity of the record is essential to our legal system. Although neither this opinion nor the original talks much about that, we trust that the court had it in mind.

Judge Howard, who had dissented from the original ruling,  filed a brief dissent. “We now have conclusive proof that the legal principle on which the original opinion in this matter is based is erroneous and should be reconsidered,” says his new dissent. Actually, though, what the corrected transcript purported to show was that the facts were wrong, not that the law was. Its true that whether the error was fundamental is the key here. But whether it was or not, the idea that Diaz shouldn’t have been allowed to raise the argument because we now know he was wrong puts the cart before the horse.