The obscenity of risk of injury
Sep 6th
Connecticut General Statute 53-21 states, in relevant part:
a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child
is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.
The motivation behind the enacting of this statute is noble:
The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.
State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:
We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.
Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.
State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.
But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.
Good enough for government work
Sep 2nd
The Blagojevich trial (and subsequent mistrial) has provided plenty of fodder for discussion among the press, the blogosphere and the nation in general. But it seems as though a bit of the madness that allows him to polish his hair using shoe-polish has seeped into the rest of the world as well. Take this Time article for instance, which uses the fact that the government was unable to convince 0.004% of the population of Chicago, to describe the ill that ails our criminal justice system: hung juries
After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.
So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.
I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?
“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”
Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”
That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.
Close enough for government work.
The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.
How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.
Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.
And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.
It may be close enough for government work, but when it comes to justice, there should be no such thing.
Crime: reality and perception
Aug 24th
Ran across this interesting article in Prospect Magazine from the UK, on the shifting policing and perception of crime, violent and otherwise:
The consequence has been that violent crime—defined as actions which cause injury or serious threats to do so—has fallen steadily for about the last 15 years. The official statistics do not show a fall in violent crime when comparing offences now with those recorded before 2002-03—quite the opposite, in fact. This was because of a foolish agreement which attempted to make recorded crime a perfect representation of reality, so that a crime had to be recorded if reported even if the police officer did not believe it had happened. Moreover, the definition of violent crime was greatly widened, with the result that more than 50 per cent now falls into the category of—wait for it—”assault without injury.” It would be hard to conceive a more perfect weapon for opposition parties to beat a government with—as the then shadow home secretary, Chris Grayling, unhappily showed during the election campaign. This is probably why the new government seems to be casting about for someone other than the home office to be in charge of crime statistics. Perhaps they will even give them back to the police.
In 2008-09, the annual murder rate in England and Wales was 651, lower than at any time in the past decade. Moreover, the number of children under 16 killed by strangers was two. In 2006, UN figures show that England and Wales had 16 murders per million population, far lower than the US at 59 and roughly equal to France, Canada, the Netherlands and Germany. (The figure for Colombia was 611.)
And yet the “broken Britain” mantra remains—not because we have become a more violent society, but because we have become a much more violence-averse society, in which such acts are widely reported and vilified.
It is interesting to see that contradiction exists in other countries besides the US. I know little about the state of television in the UK, but judging by this article it is safe to assume that the strains of the 24 hour news cycle exist there as well, forcing the media to turn every report of crime into a sensationalist warning that crime is on a meteoric rise.
It is also somewhat heartening – deflating? – to see that politicians are politicians the world over, especially when it comes to criminal justice policies.
There are many more interesting themes and points in the article. I recommend reading it all.
CT’s top death prosecutor in federal probe
Aug 10th
I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.
Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.
One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.
According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”
Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.
By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.
[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]
Another state police lab under scrutiny
Aug 9th
North Carolina, step right up:
This series [by the newspaper Newsobserver], the product of months of reporting, reveals problems far beyond blood analysis. It shows an agency that teaches its agents and laboratory analysts to line up with prosecutors’ case theories. In some cases, they ignore or twist key pieces of evidence. In others, rogue agents range far beyond the rules, sometimes with devastating results.
The newspaper plans to “reveal” new stories every few days or so. This should be fun.
Objects in mirror are as pretextual as they appear
Aug 9th
turn left and go directly to jail
Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”
Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”
A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.
Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:
The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.
Fundamental rights cannot be submitted to a vote
Aug 4th
Just an hour or so ago, Judge Vaughn Walker of the United States District Court for the Northern District of California issued this 138 page decision ruling that Proposition 8 (or Art 1, Section 7.5 of the California Constitution) is unconstitutional. The decision is lengthy and says essentially all the right things in forcefully rejecting every argument against same sex marriage. You might be inclined to tl;dr it, but I suggest you don’t.
The court finds not only that the California Constitution violates the Equal Protection Clause of the United States Constitution, but also the Due Process Clause. The court, essentially, answers my question from a few years ago: can the constitution be unconstitutional? Yes, it can. Rejecting anti-gay-marriagers attempts to redefine the question, the court nicely puts the real issue at focus with this paragraph:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Viewed in light of that question – do gays and lesbians have the right to marry? – Prop 8 is analyzed as an infringement of a fundamental right and thus invokes strict scrutiny for a Due Process analysis. To overcome strict scrutiny, there needs to be a compelling governmental interest. An effort to show such an interest in same-sex marriage cases has always been doomed from the start, for there is none. Particularly telling, in this case, is that the State of California chose not to defend Prop 8. If the Government does not wish to articulate that compelling governmental interest, it can mean only one thing: one does not exist.
The analysis under the Equal Protection Clause is even more damning. The court doesn’t even bother determining whether gay couples are a suspect class deserving of strict scrutiny:
As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.
Page 121 onwards.
Look at these attempts to provide a rational basis for Prop 8:
Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting oppositesex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.
The court debunks each one in detail, but this following paragraph can be applied as an appropriate response to each and every one:
The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.
That’s enough quoting. Go read the decision for yourself and have a celebratory drink with me, just as I did two years ago, when gay marriage was legalized here in CT, as we chew on this powerful statement:
That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)
But really, Judge Walker didn’t need to write that long decision. All he needed to do was print this and sign it:
Stop! In the name of the law!
Aug 3rd
I am J. Clarence Gideon. That’s Special Agent Gideon to you. Because you’re so stupid, according to the FBI, that you can’t tell that what I’m displaying is a blog post and not a damn FBI badge. It’s not like psychic paper, you know. All your base are belong to us.
Not fooled? Confused? See here for the story and then go to your blog and show some solidarity.
Legal fictions: a one-way street
Aug 2nd
The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.
Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to breathalyzer until his spoke to his lawyer? Consciousness of guilt.
As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.
Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.
So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.
So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:
One man’s regret is another man’s disparity
Aug 2nd
Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Justice Powell, writing for the majority in McCleskey v. Kemp.
["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.
Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.
Gun-waving cop has right to privacy
Aug 2nd
is that a gun in your hand or are you just happy to see me?
This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:
That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.
Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.
He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.
Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:
Allegedly, Graber is being charged with “interception of an oral communication” under Maryland’s “wiretap” law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to “intercept” with an “electronic device,” in this case the microphone attached to Graber’s prominent helmet camera, an oral communication in private conversation.
But that isn’t what Graber’s really being prosecuted for. He’s being prosecuted for contempt of cop. For embarrassing a cop. A cop, and a department, that richly deserve the embarrassment they’ve gotten, and the embarrassment they’re going to receive.
Because the charge against Graber is utterly unfounded. The definition of “oral communication” under Maryland’s wiretap law requires that the conversation be “private,” which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy. Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996). According to the Maryland Attorney General’s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.
It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:
Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.
I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.
The ideal ideal
Jul 27th
A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”
“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”
It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.
But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.
Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:
‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.
True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’
This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.
I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.
Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.
Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.
Where were you on April 17, 1966?
Jul 22nd
Ask anyone that question and they’ll look at you like you’re crazy (and you might get some interesting responses from those that weren’t born yet). But try it. If you were alive then, think back. Think back to that April day or any other April day that year or the next year or in fact, any day between 1966 and 1972 and tell me where you were specifically between the general periods of any time of day or night.
You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.
In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.
There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.1
Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.
Justice Douglas, quoting Baron Alderson in 1844:
The freakin’ FCC: obscenely indecent
Jul 15th
Two days ago, the Second Circuit on remand from the Supreme Court, struck down the FCC’s policy on “fleeting expletives” (don’t you love how bureaucrats can make anything sound clinical and boring?) as being unconstitutionally vague. Incomprehensible is also a good word to use here. Here’s a choice paragraph. Don’t worry kids, since you’re on a 7-second time lapse, you’ll only see **** where the expletives are:
We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.
From the WSJ:
The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.
Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?
For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.
The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”
Exactly.
What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.
So, ponders Sullum:
What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.
[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]
Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.
But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.
2. This:
Did I say fuck yet? Fuck.
Deterrent? Not Actually
Jul 14th
all your DNA are belong to us
The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.
But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).
Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.
Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database:
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