Archive for May, 2005
Taking tough on crime too far
May 31st
You know, I have clients that end up spending more time in jail than they should – could be because of a bad deal, changing parole laws… whatever. I also know that everyone is suddenly tough on crime, so inmates are finding it more and more difficult to get lighter sentences and earlier parole release dates. But, this, this is going too far. According to IA,
The Dallas County jail has been plagued by problems since the county began using a new computer system to keep track of inmates. Numerous inmates have been held past their release dates. These include people who pled out and were held past the end of their sentence, people whose cases were dismissed or no-billed by the grand jury, people who posted bond, and people who were arrested and never charged.
The county commissioner responsible for the new system, however,
maintains there have only been minor problems, and is not inclined to
apologize to any of those wrongly incarcerated. I’m guessing if he were
wrongfully held in the jail for months, lost his job, and was evicted
from his housing, he wouldn’t think these were minor problems.
Wowie-wow-wow.
6th, 14th and right to appointed counsel
May 31st
The debate continues. So that you don’t have to click on various links, I’ll reproduce the gist of the debate. After my previous post, Seth commented as follows:
Your reading of the U.S. Constitution seems to imply that the purpose of the Sixth Amendment was to prevent the government from barring attorneys from trials; do you have any textual evidence to support the notion that that
was the fear of the Founding Fathers in 1789? Isn’t the more likely
interpretation of the Sixth Amendment that "right" means "right," as it
does in every other place in the U.S. Constitution? Was the application
of Gideon v. Wainwright to the states judicial
activism, or among the most commonsensical
consistent-with-the-Constitution no-brainers in the history of the
common law? Frankly, I had assumed the latter until I saw your post,
but see nothing whatsoever in your post which would dissuade me from my
view.Finally, given your absolutely remarkable view of the Fourteenth Amendment, do you disagree with the foundational legal principle that (in paraphrase) "the protections of the U.S. Constitution establish the floor for all state constitutions"? By that indisputable principle, the Fourteenth Amendment had to provide state-level defendants with the protections of Gideon v. Wainwright, unless that case had been based on administrative law rather than the Sixth Amendment (which it wasn’t).
What
am I missing here? This seems like a somewhat frivilous dialogue,
frankly. Sure, the states can choose to set their own levels for
"indigence," but a case like Bearden v. Georgia or (in New Hampshire) State v. Fowlie
makes fairly clear that to the extent those administrative regulations
do not reasonably protect the rights of the indigent accused to get an
attorney–a pretty simple calculus, if you think of it: "Does Joe have
enough money to hire the least-expensive criminal defense attorney
available, or not?"–I’m not sure this residual, rather esoteric
question makes this issue anything like a barn-burner.
Tom responds,
Seth: in reference to the purpose of the 6th amendment, and why it was
not until the activist Warren court that it was found to mandate
state-paid attorneys– Amazing as it may seem to us, at common law
there was not even a right to have an attorney if you wanted one, even
in capital cases!Thus, the purpose of the 6th was to guarantee counsel, not to mandate that it be provided by the state. Again,
if it’s a good idea to have the state provide counsel for the indigent,
the decision should be made by the people, not interpreted into the
constitution where it does not exist.As I mentioned before,
even the Warren court knew they could not honestly claim to "find" a
right to state-funded defense attorneys in the 6th amendment. Hence
their use of the 14th, which, just like the 6th, was not intended to be
a blank slate for 5 justices to write their policy preferences on to.As to the 14th, suffice to say, if "incorporation" was intended, it took a long time for the Supremes to figure it out
While I will have to agree superficially with Tom that the words "the state shall provide counsel for indigent defendants" are nowhere explicitly mentioned, I have to agree with Seth that this can be the only reading. While it may be true that there is no legal precedent prior to 1932, that does not mean the preceeding Courts were correct. The following is taking from a publication on the Dept. of State’s Website entitled "Rights of the People – Individual Freedom and the Bill of Rights" – Chapter 8 "Rights of the Accused":
We normally think of a trial by jury as one of the individual rights afforded to persons accused of a crime. It
is also, as we have seen, a right that is institutional as well — one
that belongs to the people as a whole as well as to the individual. But
jury trials, as has been all too evident in dictatorships, can be
meaningless unless that trial is governed by rules that ensure fairness
to the individual.A trial in which the judge allows illegally seized
evidence to be used, or in which the defendant has no access to an
attorney, is forced to testify against himself, or is denied the
ability to bring witnesses favorable to his cause, is not a trial that
meets the standard of due process of law. The men who drafted the Bill
of Rights knew this, not only from their experience during the Colonial
era, but also from the history of Great Britain, which ever since the
signing of the Magna Carta in 1215 had been committed to expanding the
rule of law.
Now, admittedly, it does not refer to "indigent defendants", but honestly – if it is described as a right, can it be understood to refer to rich people only and not poor people? (Note: I also recognize that this publication is no tome, but still – it’s published by the Dept. of State.) I think not (or rather, I hope not).
Does the US Constitution require appointed counsel for indigent defendants?
May 27th
In the comments to this post, Tom McKenna submits that the Sixth Amendment does not require mandatory appointment of counsel for indigent defendants.
That "right" had to be invented by the Court by using that famous
refuge of activist judges, the 14th Amendment, which (unbeknownst to
its framers, who thought they were simply guaranteeing that whatever
procedures protected white citizens at law must also protect black
citizens) guarantees due process of law to state citizens. The 14th of
course has been used to "find" all kinds of hitherto unknown rights,
such as "privacy" (contraception/abortion) and sexual expression (sodomy
at least)
He then goes on to explain
the states can choose to vindicate this "right" by providing for
indigent defense in their own constitutions or statutes. It defies
common sense however, to suggest that the sixth amendment mandates
something that apparently no one (least of all its framers) imagined it
mandated until 1963.The framers meant what they said and no
more… that you have a right to counsel and cannot be tried and
convicted if you want to have an attorney; the court cannot deny you
counsel. That is different than saying the court must provide you
counsel. Even the Supremes realized they could not twist the 6th
amendment to include an affirmative duty to provide counsel, so they
had to turn the last refuge of judicial scoundrels, "substantive due
process" under the 14th.
I am no Constitutional Law expert, so bear with me while I do an analysis of Gideon and the cases it relies on.
First, I think one must admit that the Constitution (via the 6th Amd.) does require appointment of counsel in Federal Court. This was held in Johnson v. Zerbst, 304 U.S. 458 (1938). The plain text also leads to this conclusion:
In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.
Mr. Justice Clark writes, concurring in Gideon,
That the Sixth Amendment requires appointment of counsel in "all
criminal prosecutions" is clear, both from the language of the
Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304
U.S. 458
(1938).
Having established that, let us turn to whether the 14th Amendment requires it. Obviously, there is no language in the 14th Amd. that says "the states shall provide counsel to all defendants in criminal prosecutions who cannot afford to hire their own". But to use that to state that the "right" (and I put it in quotes sarcastically) was invented might be incorrect. A plain reading of the 14th Amendment makes it clear that there are very few specifically enumerated rights:
No State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
So essentially, the 14th talks specifically about due process and equal protection. It also imposes these requirements on the various States. The Supreme Court initially considered this, not in ’62 in Gideon, but in 42 in Betts v. Brady. The Court stated that,
while the Sixth Amendment laid down "no rule for
the conduct of the States, the question recurs whether the constraint
laid by the Amendment upon the national courts expresses a rule so
fundamental and essential to a fair trial, and so, to due process of
law, that it is made obligatory upon the States by the Fourteenth
Amendment."
So it was certainly being considered. The Betts court refused to accept the contention that the Sixth Amendment’s guarantee
of counsel for indigent federal defendants was extended to or, in the
words of that Court, "made obligatory upon the States by the Fourteenth
Amendment." The Gideon court concluded
Plainly, had the Court concluded that appointment of counsel for an
indigent criminal defendant was "a fundamental right, essential to a
fair trial." it would have held that the Fourteenth Amendment requires
appointment of counsel in a state court, just as the Sixth Amendment
requires in a federal court.
So it wasn’t that this specific right wasn’t provided for in the 14th, but rather that this right wasn’t a "fundamental" right, rights which are provided for in the 14th. The Gideon court concluded it’s analysis by stating:
We accept Betts v. Brady’s assumption, based as it was on our prior
cases, that a provision of the Bill of Rights which is "fundamental and
essential to a fair trial" is made obligatory upon the States by the
Fourteenth Amendment. We think the Court in Betts was wrong, however,
in concluding that the Sixth Amendment’s guarantee of counsel is not
one of these fundamental rights.
In concluding this, the Court relied on Powell v. Alabama, decided 10 years before Betts.
Governments, both state and federal, quite properly spend vast sums of
money to establish machinery to try defendants accused of crime.
Lawyers to prosecute are everywhere deemed essential to protect the
public’s interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That
government hires lawyers to prosecute and defendants who have the money
hire lawyers to defend are the strongest indications of the widespread
belief that lawyers in criminal courts are necessities, not luxuries.The right of one charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries, but it is
in ours. From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law.
Knowing the jurisprudence of the Constitution, one cannot reasonably conclude that while it mandated certain protections be afforded citizens from Federal Governmental action, it affirmatively declined to extend those same protections against actions by an individual state.
I would love to hear your views on this topic, including things I might have missed.
Was Judge Chatigny unethical?
May 26th
That is the question raised in this article. Apparently, in 1992, Judge Chatigny (still in private practice) filed permission to appear as amicus in the Michael Ross appeal before the Supreme Court. Leave was granted, but no brief was filed.
Says Rep. Robert Ward (R – North Branford),
"I find it outrageous that a judge would participate in a case as an
impartial judge when he participated in a portion of that same case as
a litigant," Ward said. "It seems to me a clear ethical violation for a
judge not to disclose his prior involvement in a case.""I can
understand a lawyer not remembering details of a case he was involved
in 10 or 12 years ago," said Ward, who has been a lawyer for 26 years.
"But there aren’t many Michael Ross cases. His name is on the petition
to the state Supreme Court. … He clearly had an agenda in this case."
Didn’t Justice Scalia refuse to recuse himself in cases that he, or his son, was previously involved in? I can’t remember the exact scenario – maybe someone can remind me.
Either way, I don’t see this as a conflict of interest. Judge Chatigny wasn’t a party to the appeal; he didn’t even file a brief. Maybe I’m wrong, feel free to correct me.
Runaway Bride jurisdiction
May 26th
They lie, do they testify?
May 26th
UPDATE: Seth responds thoughtfully to my questions here and in the comments to this post here.
Seth opines on Bill O’Spineilly’s view that clients that admit their guilt should not, in essence, receive a zealous defense.
"[I]f an attorney knows for certain that his or her client is guilty,
then that attorney must advise the client to enter a guilty
plea….once the lawyer knows the client is guilty, then any attempt to
deny that fact to the jury is deception,"
says O’Farty. But then, later on in the same article he says:
"[a] good defense attorney never asks an accused criminal about guilt."
So Seth wonders
So, if a person’s guilty of a crime, and they lie to their attorney
about committing the act, they "deserve…the best" defense possible
from that self-same attorney.If a person’s guilty of a crime, and they tell their attorney the truth
about their guilt, they deserve no defense at all, and should either
"enter a guilty plea" or (presumably) proceed without the benefit of
the self-same attorney to which they spoke the truth, and represent
themselves at trial.That is, the Sixth Amendment applies only to liars; honest men are ineligible for the protections of the Constitution.
I do not like Bill O’Wiley, so I’m not going to waste my time talking about him. What I do want to talk about is the ethical implications raised by this scenario.
Say a client "tells" you, or you "discover" that he has, indeed, committed the crime with which he has been charged. Very obviously, then, you cannot put him on the stand. Allowing perjury = no-no. So that takes care of that. What if, however, the client "tells" you that he did it, but the girlfriend provides an alibi for the offense date. Do you put her on the stand? Do you investigate further?
The distinction is that in one case you know and in one case you have doubts. If a client "lies" to you and tells you that he didn’t do it – but you merely suspect it – you still have to put him on the stand if he so wishes. Because you don’t have absolute proof.
What if you know for sure. What sort of defense case-in-chief are we obligated to put on then? Any witness that would tend to provide an alibi, would ofcourse be perjuring him/herself (or maybe not, correct me if I’m wrong). What, besides doing your best to create reasonable doubt in the state’s case, can you do?
So in that case – what would be so wrong with actively pursuing a favorable plea agreement? Ofcourse, it isn’t mandated, as Billy O suggests, but perhaps it might be the prudent route to pursue (driven by individual circumstances, ofcourse). I don’t think B.O.R is suggesting that if a client informs his attorney of his guilt, the attorney automatically recuse himself and that individual be afforded no representation whatsoever (again, I could be wrong – feel free to tell me I’m an idiot). What I think he’s suggesting is that in cases where an attorney knows of his client’s guilt, it is not advisable for the attorney to present affirmative defenses. I’m with him (take a deep breath) only as far as presenting alibi evidence is concerned.
No, I would not tell my clients goodbye if they ever told me they actually committed a crime. Heh. All my clients are already convicted. Cutting through Bill O’s BS, though, points to a valid ethical concern.
Just how and what do we do?
Opinions, comments are being actively solicited for this post.
The most pointless prosecution of the next ten years
May 25th
Felony charge of false statement and misdemeanor charge of false report.
As if the $10,000 already spent wasn’t enough.
Update on yesterday’s immigration demonstration
May 25th
Yesterday’s meeting held by the CT Citizens for Immigration Control [commentary here] went off without too much incident despite 150 protesters at the scene. Mary Long, one of the speakers and organizers, felt that a third public meeting might not be worthwhile.
Yep. Neither is alienating the immigrant community.
I’ve said this before – under the Federal Code, illegal immigration is a crime, so that’s certainly not an issue. What is an issue – is how these opponents of illegal immigration are turning it into some form of crusade against all immigrants (see: Danbury’s ridiculous volleyball ban and references to 9/11). Let’s keep the issue strictly to enforcing US law and all will be good.
Which, by the way, anyone practising criminal defense – either state or federal – will tell you is happening. There are plenty of people being deported all the time, that too after serving their sentences here.
Immigration battle spreads to the rest of the State
May 24th
After previous pro and anti immigrant demonstrations in Danbury, the CT Citizens for Immigration Control will hold a rally in West Hartford tonight. The original meeting in Danbury was held soon after Danbury Mayor Boughton asked AG Blumenthal to consider deputizing state troopers as immigration agents.
Darien resident Paul Streitz, one of the group’s founders, said
Connecticut is ripe for the positions his group is pushing. He said
undocumented immigrants are taking more and more jobs in the state,
particularly from low-income workers.The group also says tighter immigration controls are needed as the country adjusts to the realities of a post 9/11 world. "It’s a problem that has to be fixed," Streitz said. "You can’t have a
country that doesn’t have borders and you don’t control who comes in."
Interestingly, Streitz had participated in the failed Minutemen project in Arizona a few months ago.
To counter this meeting, pro immigrant groups are also planning a protest march tonight.
Soon after [CT Citizens for Immigration Control] announced it would come to West Hartford, more
than a dozen organizations, including unions, religious groups and
immigration advocates, formed the Ad Hoc Committee for Immigrant Rights.The group will hold a demonstration tonight, meeting at Shields Plaza
on New Britain Avenue at 5:30, then marching to the Elmwood Community
Center to picket the meeting."We felt the need, as people who live in the area and are strong
supporters of immigration rights, to go there and let them know," said
West Hartford resident Peter Goselin, of the state chapter of the
National Lawyers Guild.
AG Blumenthal still hasn’t issued an opinion on Mayor Boughton’s request.
I don’t know about you, but this is starting to make me uneasy.
I’ll take a pay cut, I’m Indian!
May 24th
UPDATE: Please read the comments for Scheherazade’s response and
clarification. Ofcourse, I should have realized that she was talking
about Indians living abroad. But I’ve really had it up to here with the
"you’re stealing our jobs" crap, so I lost my intelligence a little
bit. My apologies.
Original Post: Stay of Execution has a post entitled "Legal Lies", in which she(?) "exposes" the truths about law school and the legal industry. Not a bad read. Here’s what really got my attention, though:
** We permit young associates to believe that they are somehow worth $125,000 a year, without knowing any law, even though there are smart, experienced, well-trained Indians who can do the same work, better, for far less.
I’m sorry. What’s that again? So Indians, who go to the same law schools, incur the same debt, would be willing to work for less than any other associate at a law school? Why? Because they’re Indian? Right. The call-center thing. Which is just the same as graduating from a law school with a professional degree.
So I should take a pay cut because I’m Indian. Gov. Rell, let me give you back some of my hard-earned income.
Despicable.
Hat tip: Amb Imb.
No rides for you!
May 23rd
Blondie comments on this WaPo article that Six Flags is now attempting to exclude sex offenders from their parks by including the following language on the back of their tickets:
the amusement park reserves the right to refuse entry to anyone
convicted of a sex crime or required to register as a sex offender.
What? After Miami’s asinine ordinances and Florida’s proposed legislation, this shouldn’t strike anyone as surprising, but it is just plain ridiculous. Blondie explores Six Flag’s idea in detail. She writes:
This brings so many thoughts to mind. First, how to they plan to
enforce this ban? It is unlikely that Six Flags will be conducting
background checks at the gates. Most likely, the only guests that Six
Flags will be check are season ticket applicants (since these
applicants have to supply their name and it may be possible to do a
background check in the time it takes to complete the season pass
application process, which typically includes a photograph and other
identity verification). But, would it be possible to do background
checks at the gates? Possibly. This would require asking every guest
for identification, and using their name (and possibly other
identifying information such as address or social security number) to
log onto the state’s sex offender registry or call into the registry.
This would still allow some people who have been convicted of sex
offenses or sex offenders entry since (1) the person may be registered
in another state or not currently registered or (2) the person may have
been convicted of a "sex crime" but not required to register or not
required to register at a level that makes his or her name available on
the internet or by phone.
So who else should do this? Who else should ban sex offenders?
In the meantime, who else could (or should) ban sex offenders ban? The
most obvious idea that comes to mind is internet service providers.
They’d have the means to do a check because subscribers give their
names and credit info, they could easily add language to their terms of
service that makes it a violation to allow a sex offender to use your
account, and I cannot think of a better advertisement for an ISP than
"Now Sex Offender Free!" But, who else? Let’s think of the non-obvious.
What about car dealerships selling vans? Shouldn’t they ban the sale of
vans to sex offenders (since, according to the nightly news, this is
what sex offenders so often use to pick up their victims)? Come to
think of it, that might also be a good defendant to add for all of
those victims’ parents filing lawsuits against the police and their
city…
I will refrain from writing anything myself, because it will only descend into cursing, name-calling and general destructive mayhem.
Suffice it to say that I am extremely annoyed and generally frustrated at these lame efforts made at the wrong end of the problem.
Written Consent bill moves forward
May 23rd
Via Injustice Anywhere (by way of Grits for Breakfast), comes this report that Texas’ written consent for traffic searches bill is still on track. More about this bill here, here and here.
The Suburban Ecstasies
May 23rd
I came across this new PD blog from a multitude of sources. He already has several well written posts about the criminal justice system and answers to questions asked of criminal defense attorneys. Check it out – The Suburban Ecstasies.
The most pointless prosecution in the last 10 years
May 21st
was that of Mary Kay Letourneau, who despite serving 7 years in prison for "rape", married her longtime boyfriend.
Seriously, what was the point of sending her to jail?
Mike passes the bar
May 21st
Mike, over at Crime & Federalism, has passed the bar exam – the 3 day CA bar, no less. Go over and congratulate him; we all know what a relief it is to finally have those results.
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