Bail me out, bro

For most people who get arrested for anything, big or small, the only thing standing between them and liberty is the amount of bail that will be set. For everyone, the only thing standing between them and the bail amount is the judge or judicial officer who will set that bail. For a significant portion of the people in this country who will be arrested1no one will stand next to them when they face that judicial officer who will determine the bail that will allow them to get freedom.

That’s the warning bell rung by a brand new report from The Constitution Project [PDF], which analyzed the state of pre-trial right to counsel at bail hearings and concluded that very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.

The present system tilts the scales of justice, as state and local prosecutors gain a significant advantage at the outset of prosecution when poor people appear alone, receive unaffordable bail or are remanded into custody, and then wait in jail for assigned counsel to appear. There are countless instances across the country in which a poor defendant languishes in jail, often for a minor offense, and subsequently pleads guilty in exchange for regaining liberty.

And, of course, the study finds that minorities are disproportionately affected:

African Americans and other people of color comprise the majority of the pretrial jail population. Studies reveal that “bail amounts set for black male defendants were 35 percent higher than those set for their white male counterparts.”2

Further, in drug offenses, African American and Latino defendants are 96% and 150% more likely, respectively, to be incarcerated before trial than white defendants. In property crime arrests, African American and Latino defendants are 50% and 61% more likely, respectively, to remain in jail than their white counterparts. Scholars have concluded that African Americans and Latinos are “more likely to be preventively detained, to receive a financial release option, to post a higher bail, and to be unable to post bail to secure their release.”

Racial biases, even if unconscious, may influence judicial officers’ decision-making at pretrial release determinations. “Research on labeling and stereotyping of black male and Hispanic offender reveals that court officials (and society-at-large) often view them as violent-prone, threatening, disrespectful of authority and more criminal in their lifestyles.”

African American detainees spend a longer time in detention, are convicted at higher rates, and receive harsher sentences. Empirical studies show that the longer a defendant spends in jail before trial, the more likely he or she is to be convicted and receive a more severe sentence. Defendants released before trial are likely to obtain more favorable pleas and outcomes.

According to the study, the solution is to ensure that all individuals, when arrested and are facing a judge making a bail determination, should have the assistance of counsel. Connecticut already does that, but apparently it is in the minority of states that do so. And even here we have our problems. In order to be Constitutional, bail amounts must be set no higher than what is necessary to ensure the appearance of the defendant in court. In today’s world, however, the word “excessive” has lost all meaning.


Are there viable solutions for prosecutorial misconduct?

Just last week, I wrote a lengthy column in the Law Tribune outlining the many instances of prosecutorial misconduct occurring over the last month and a half or so, all of which seemingly went unpunished. In it, I didn’t propose any ideas to eliminate the problem. Just that same day, however, news broke of yet another instance of egregious misconduct by a prosecutor in California – a man named Robert Murray – who fabricated two sentences and added them to a defendant’s statement to police:

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Murray called it a “joke”:

The panel found that Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges that carry a life sentence, and distributed it to defense counsel at a time when Murray knew defense counsel was trying to persuade Palacios to settle the case.

The court cited the changes made by Murray in the transcript as follows:

(Detective): “You’re so guilty you child molester.”

(Defendant): “I know. I’m just glad she’s not pregnant like her mother.”

Murray placed the falsified admission of guilt into the English transcript translation of Palacios’ interrogation that was done in Spanish.  For nine days, Murray kept quiet about his fabrication. It was only after defense attorney Ernest Hinman confronted Murray about the altered version. Murray said he meant it only as a joke to be kept between the two men.

His immediate supervisor, Kern County District Attorney Lisa Green said she was disappointed… in the appellate court ruling [PDF]. California AG Kamala Harris’ office appealed the dismissal and continues to defend it.

Instapundit (and Law Prof) Glenn Reynolds picked up on this and my prior post and wrote a powerful column in USA Today excoriating unethical prosecutors. But he too noted the problem with the current idea of sanctions: that prosecutors are immune from civil liability:

Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.

That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.

Indeed we do. Misconduct is an area that gets prosecutors angry and swarming, because it is an allegation of dishonesty and ethical failures. It’s an incendiary topic and well it should be. When a prosecutor commits misconduct, individual defendants aren’t the only ones who lose: the ideal of justice does as well. So while it is a delicate subject, it shouldn’t be taboo. While we must be careful not to accuse every prosecutor we dislike of engaging in misconduct, we should not be afraid to stand up against those who do and demand action against them for it.

I’ve pondered many solutions for years and Glenn Reynolds lists them in an easy to digest paragraph:

First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.

I’m going to examine some ideas in turn now.

Hold prosecutors accountable to restore faith in the justice system

“Her license remains active and in good standing.” The words rang out at me as I stared at a newspaper article in the Indianapolis Star. It was about the conduct – or misconduct – of a woman named Gillian DePrez Keiffner who is a Deputy Prosecutor there. During trial, she had vouched for the credibility of the complaining witness in a sexual assault case, demeaned and insulted the defense attorney and asked the defendant which of the two 14 year old girls he liked touching better. A few weeks ago, the Indiana Supreme Court reversed the man’s conviction finding that her conduct was improper and deprived him of a fair trial.

Her license remains active and in good standing. It reminded me of Willie Jerome Manning, who this past month, received a new trial thanks to the Mississippi Supreme Court, finding that exculpatory information was not turned over to the defense.

Her license remains active and in good standing. It reminded me of Linda Carty, who is on death row and just a few weeks ago won the right to have a hearing to investigate claims of prosecutorial misconduct. Both a former DEA agent and the only eyewitness to the crime claim that prosecutors threatened them into testifying against Carty.

Her license remains active and in good standing. It reminded me of former federal prosecutor and now Orange County Superior Court Judge Terri Flynn-Peister, who ordered a sheriff’s deputy to only turn over four out of 196 pages of notes about an informant.

Her license remains active and in good standing. It reminded me of Darryl Gumm and codefendant Michael Bies, whose 1992 murder convictions were overturned at the end of January by the Sixth Circuit Court of Appeals because of “flagrant” and “severe” prosecutorial misconduct. Both Gumm and Bies used to be on death row.

Her license remains active and in good standing. It reminded me of R. David Favata, a prosecutor in Delaware whose unprofessional and insulting behavior toward a pro-se defendant and improper vouching for a witness led the Delaware Supreme Court, at the end of January, to reverse a murder conviction and death sentence.

Her license remains active and in good standing. It reminded me of Jennifer Darby, a prosecutor in Colorado Springs. Her “pattern and history of prosecutorial misconduct” including providing false information about a defendant at sentencing, led a trial court judge to enter a dismissal in a third case involving her in the last 6 months.

Her license remains active and in good standing. It reminded me of prosecutors Robert Spira and Paul Vinegrad, the latest objects of Judge Kozinski’s affections. A video of his lambasting of the CA prosecutor trying desperately to salvage the conviction Johnny Baca has gone viral and caused quite an uproar. Kozinski is no stranger to demanding prosecutorial accountability, as I mentioned in my first column for the Law Tribune exactly one year ago. Kozinski’s threats of prosecution for lying prosecutors resulted in California dropping the appeal against Baca, but the viral video cannot be unseen.

Her license remains active and in good standing. Finally, it reminded me of Victor Santiago, who had his conviction reversed because of a “deliberate pattern of improper conduct” by prosecutor Terrance Mariani.

The common theme here seems to be repeated misconduct by select prosecutors with no repercussions beyond new trials for the accused. While that, in of itself, is a just solution, that does nothing to ensure justice across the board. The concerns expressed by Judge Kozinksi and others seem quite valid: without any personal consequences to individual prosecutors, there is no barrier to them repeating their improper conduct in court.

Prosecutors are not the same as defense attorneys. Defense attorneys have one responsibility – and that is to zealous represent the interests of their individual clients. Prosecutors have no individual client and represent the people of the state as a whole. Their responsibility is to ensure justice, whatever that may be. It is not for them to adopt a “win at all costs” mentality. The prosecutorial power should never be a game, with the winner being the one who gets the most convictions. Yet it is precisely that mentality that leads to these unfortunate instances of misconduct which results in injustices in several ways: either innocent individuals get convicted by hook or crook, or guilty individuals go free when courts reverse convictions for due process violations.

Disciplining of prosecutors by ethics boards or internal review committees remains infrequent and elusive. While defense attorneys are routinely “grieved” by disgruntled clients, it is unknown if prosecutors ever are – by anybody – despite demonstrated misconduct. The grievance committee does not see it as their responsibility to initiate an investigation; appellate courts will find prosecutorial impropriety but not refer the individual to the grievance committee and whether the Division of Criminal Justice has an internal review mechanism is known only to them.

I want to make it clear that I am not suggesting that all prosecutors are unethical or engage in misconduct or are caught up in winning rather than ensuring justice. Far from it. Most are honest, hard-working, ethical and reasonable. But there are those who are not, unfortunately, in this State and elsewhere. Whether they are motivated by zeal or a desire to win or a plain dislike for defendants, I do not know.

But justice is not served – the community is not served – when prosecutors are permitted to repeatedly engage in misconduct without any consequences whatsoever. There is a national discussion brewing on how best to ensure that prosecutorial improprieties are minimized and eliminated. I do not subscribe to Judge Kozinski’s view of prosecuting prosecutors, but I do think there needs to be accountability when there has been a finding of impropriety. Every incidence of misconduct – particularly when it results in a reversal of a conviction – undermines confidence in the criminal justice system itself. The system needs to police itself and hold accountable errant prosecutors so we can respect the authority of the system itself. One need look no further than Ferguson and its aftermath to see how dangerous it is when when our faith in figures of authority is lost.

The Judiciary Committee of the state legislature has before it a bill or a proposal for oversight of the Division of Criminal Justice. From what I can tell the bill seems to be nothing more than a title – an idea or a concept. There is no language attached to it and I cannot think of what language might be suitable.

But it is the prompt for a discussion. A discussion that everyone needs to have, however unpleasant and difficult it might be: what is to be done, if anything, to prosecutors who repeatedly violate the law and engage in misconduct?

Here’s the video in case you haven’t seen it:

[This is my latest column for the CT Law Tribune.]

CT: Miller applies to non-mandatory LWOP

In a long awaited decision, the CT Supreme Court last Friday ruled that Miller v. Alabama applies to all youth sentenced to the functional equivalent of life without parole, even though such a sentence was not required to be imposed by the trial judge.

In State v. Riley [PDF], Ackeem Riley – 17 at the time of the offense – was sentenced to 100 years in jail, without the possibility of parole1. He argued that Miller prohibits the imposition of such a sentence without a hearing on the particularized vagaries of youth and his attendant circumstances. He also argued that any functional life without parole sentence violates Graham v. Florida and he must be permitted to show that he has been rehabilitated and earn a chance at release. The Court, in typical Land-Of-Whoa-Whoa-Lets-Slow-This-Down fashion, ruled on the first claim and not on the second:

We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offender is subject to a potential life sentence.

We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller.

Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.

We’ve been down this legislative road before: twice in two years has the legislature considered Miller/Graham bills and twice the legislature has failed to vote on it. This year, however, will be different. We promise. Two bills are on the public hearing agenda, scheduled to be heard on Wednesday. They’re good bills, as the last two were. They’ve got support, as the last two had. But this is a legislature and soft on crime still is a phrase that no one wants to hear. Will it pass this time? Will the CT Supreme Court have to take this up again in 2 or 3 years because the legislature doesn’t have the will to do the right thing? I hope not, but this is CT. We don’t like to be on the forefront of social justice.

How to keep your liberty intact at DUI checkpoints – one man’s theory

An attorney in Florida – and former candidate for NY Governor – has posted his method for avoiding getting arrested at DUI checkpoints (which are legal). It’s called the “talk to the hand coz the face don’t wanna talk no mo” method.

Essentially, he says to hang a clear plastic holder over the side of the window with all the pertinent information in it.

Attached to the door is a flyer that Redlich says spells out his rights: I WILL REMAIN SILENT/I WANT MY LAWYER/NO SEARCHES, it begins. The flyer also contains his valid registration and insurance information along with a clear pocket for his driver’s license.

Redlich says it is important not to open the window, because then the police can say they smell alcohol or drugs. He also says it’s important to remain silent, because otherwise the police can claim your speech is slurred. Even if you’re innocent, Redlich says, it makes it more difficult for an attorney to mount a defense at a trial.

He also made a video to explain to those of you who might be drunk while reading this:

He has a website where you can download flyers for your own state – they’re state specific – and try this at your own risk. I present this merely for entertainment purposes. If you want to try it that’s on you. You may end up getting arrested anyway. Remember, if you do get arrested, demand a lawyer.

 

Beyond a Reasonable Doubt 2: Reason Harder

A couple of weeks ago, I wrote this post attempting to make sense out of the incomprehensible landscape of reasonable doubt and the different ways in which judges define – or refuse to – those terms to jurors. I wanted to make a new instruction that would be easy to follow and correct and accurate. Based on conversations in the comments and in emails I received, I decided to come up with a second new instruction. Both are reproduced below and I want to hear from you guys. Is one better than the other? Can either be further tweaked?

The Hans Gruber instruction:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt1. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: The evidence must fully and firmly convince2 you of the defendant’s guilt before you may return a verdict of guilty.The evidence must cause your state of mind to be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude3 in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty4.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture5.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

The Colonel Stuart6 instruction:

Remember that every person is presumed not guilty when arrested. This presumption and status of being not guilty can only be overturned if the evidence presented creates a high degree of certainty by firmly convincing you that the correct person has been arrested [has committed?] for the correct crime. The high degree of certainty is not mathematical absolute certainty but it is also not a possibility, or a probability, or a likelihood that the accused is guilty. What prevents a juror from being firmly convinced to a high degree of certainty is what we call a reasonable doubt. If you have a realistic doubt, you cannot overturn the presumption that the accused is not guilty and you must vote accordingly.A realistic doubt can form based on the evidence presented in court or evidence that could have or should have been presented by the prosecution but was not.

Thus, only if you are firmly convinced to a high degree of certainty that the accused did, in fact, commit the charged crimes, can you overturn the status of being not guilty. If you do not reach that level of certainty, you must keep that status of not guilty in place and render a verdict accordingly.

Let ‘er rip, and just because:


Who is a reasonable man?

The law is so very concerned with reason and reasonableness. The Fourth Amendment doesn’t apply if a search is “reasonable”. Actions of parties suing others are judged by what a “reasonable person” would do. Prosecutions have to be proven beyond a “reasonable” doubt.

If you read my post on the latter, you will no doubt have learned that “reasonable”, in the law, is an undefinable term. When you tell a person that “reasonable doubt” means “doubt for which you can assign a reason”, you are telling them the same thing, just backwards and it does nothing to further illuminate this elusive meaning.

The application of reasonableness in Fourth Amendment law is gaining traction in recent years and this demands that we ask the question: who on the Supreme Court is reasonable? Cristian Farias, writing at Slate, points out that when the Chief Justice of the Supreme Court of the United States has never, ever, ever in his life been so much as pulled over by a cop for the measliest of traffic violations, how will he be qualified to decide if a police officer unreasonably lengthened an encounter in order to expand an illegal search?

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

This lack of experience with something so frequent and routine as a traffic stop has already affected the way he has ruled in other car search cases:

Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided [PDF] that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.

“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”

Scott Greenfield, following up on a conversation Cristian had with Orin Kerr, fabled lawprof and Fourth Amendment scholar, answers the question: what experience, then, is necessary? In order to decide a ruling in a murder case, judges need not be murderers.

What experience does Chief Justice Roberts bring to our table? From government lawyer to judge, it’s not the experience that the rest of us have, yet this informs his sense of reasonableness. If we were all Supreme Court justices, maybe this would suffice, but we’re not.

There may be no perfect experience for a justice to possess to decide every case before him, but it’s fair to say his experience ought to be better than the experience of watching reruns of CHiPs or Adam 12.  It’s hardly unreasonable to expect some real-world experience from the folks who will decide that our lives are expendable. After all, it’s our time, our lives, at stake here, and the person who will tell us what’s reasonable ought to have a clue how it affects us.

The greatest complaint among defense lawyers when it comes to the appointment of judges has been that politicians routinely nominate those who’ve never worked a day in the real world, instead picking among life-long law professors or government policy lawyers. Those who operate in a world entirely unlike the one whose interactions they will have to adjudicate. The universe from which judges are selected is one where there is little diversity of background and life experience and that background comprises only a small percentage of that of the American population as a whole.

Meanwhile, judges are quite quick to assume certain truths about the difficulties of policing in America and the dangers faced by officers. Their opinions seem to place great weight on ensuring that officer safety is protected and that their decisions enhance the crime solving function instead of hindering it. In other words, they come from a rather strong law-and-order perspective. Their assumptions seem to be that police are almost always in the right and that any interaction that a lay person has with law enforcement is the subject’s fault and tinged with some indicia of guilt.

I’ve written before why it’s easy for people in their position to feel that way and how powerful and addictive a drug living in a cocoon of moral superiority and ignorance is.

If I were to come to your house and tell you what a reasonable temperature is for cooking a steak, would you listen to me, knowing full well that I’ve never eaten, much less cooked steak in my life?

Why should we, then, trust Justice Roberts to tell us whether it is reasonable for a police officer to detain me for 5 or 10 or 20 minutes on the side of the road, while that number just happens to correspond to however long it takes a drug sniffing dog to arrive to ferret out the drugs in my car?

To me, that sounds completely unreasonable.