Archive for June, 2007
Glenarlow Wilson turns down ambiguous plea offer
Jun 30th
Glenarlow Wilson [previous coverage here and here] has rejected a plea offer from the State.
The Douglas County man imprisoned for having oral sex with a 15-year-old girl when he was 17, has turned down a plea deal a prosecutor offered in writing this week, his attorney said Friday.
B.J. Bernstein said Genarlow Wilson won’t accept the deal offered by Douglas County District Attorney David McDade because it would require him to plead guilty to a felony with a 15-year sentence and serve five years in prison.
Bernstein pointed out that a Monroe County judge granted her appeal this month, changed Wilson’s conviction to a misdemeanor and ordered him freed from prison. Attorney General Thurbert Baker, however, is appealing that judge’s ruling to the Georgia Supreme Court.
Bernstein is also concerned that Wilson would be forced to register as a sex offender under the deal, despite McDade’s contention that he could plead to an offense that does not normally require registration.
The plea deal itself is a little ambiguous or mysterious, if you prefer:
McDade spelled out his plea deal in a letter to Bernstein’s co-counsel, Rodney Zell, Monday. In the letter, McDade offers to let Wilson plead to a felony “that reflects his criminal actions with the victim in this case.”
McDade, however, does not identify possible charges. But he says Wilson could plead guilty to an offense that does not normally require sex offender registration, which has been one of the main sticking points in the case.
A series of court decisions and legislative actions, however, make it unclear whether Wilson can avoid registering as a sex offender regardless of the plea deal, said Mark Jackson, director of legal services for the Georgia Bureau of Investigation.
McDade said his offer would also let Wilson get credit for the time he has already served in prison and that he would not oppose parole for him.
HT: Audacity
Technorati Tags: glenarlow wilson
Connecticut raises juvenile age
Jun 29th
Along with the budget, the Connecticut legislature passed a bill that raises the age for juvenile jurisdiction to 18. Prior to this bill, 16 and 17 year olds were treated as adults. Now, those very same 16 and 17 year olds will be treated as juveniles for non-violent offenses. Which is a good thing, because according to the latest data [pdf], Connecticut has the largest number of inmates under the age of 18. In Connecticut, as of mid-year 2006, there were 425 inmates under the age of 18. The next closest was Florida with 221.
MN: Sex offenders cannot be forced to admit during treatment
Jun 29th
Ruling on what has been a problematic requirement imposed by Departments of Correction throughout the country, the Minnesota Supreme Court decided Thursday that inmates cannot be threatened with additional jail time if they do not admit to their crimes during treatment. The opinion holds that it is a violation of the Fifth Amendment’s right against self-incrimination.
The court’s 5-2 decision overturned a 1999 ruling in which it found the opposite — that more prison time wasn’t enough to force an inmate to incriminate himself. The current case involved two inmates convicted of sex crimes — Frank Edward Johnson and John William Henderson.
Both refused to participate in sex offender treatment that would have required them to admit to sex offenses and discuss the incidents in detail. Johnson was appealing his conviction, while Henderson argued that he would open himself up to perjury charges if he admitted a crime he had denied during his trial and appeal.
Both men got 45 extra days in prison for not participating in the program.
Chief Justice Russell Anderson, writing for the majority, cited a 2002 opinion from then-U.S. Supreme Court Justice Sandra Day O’Connor saying that the threat of more prison time could be enough to compel a person to reveal information that could lead to incarceration.
“Extension of the inmates’ incarceration time for their refusal to admit sexual offenses in sex offender treatment did rise to the level of compulsion for purposes of their Fifth Amendment privilege against self-incrimination,” his opinion said.
It is a very interesting opinion that engages in a Marks analysis, which was being done in the blogosphere yesterday in the wake of SCOTUS’ school desegregation opinions. On the merits, the court holds:
We agree, and now hold that a convicted individual can claim the privilege against self-incrimination as long as a direct appeal of that conviction is pending, or as long as the time for direct appeal of that conviction has not expired. Because extension of incarceration constitutes compulsion, and because a direct appeal of Johnson’s conviction was pending when he refused to admit the crime of which he was convicted, we affirm the court of appeals’ holding that the Commissioner’s extension of Johnson’s incarceration by 45 days for his refusal to admit his crime in sex offender treatment violated his privilege against self-incrimination.
In order to determine whether the privilege against self-incrimination was available to Henderson, we must determine whether an admission by him could have been incriminating. Because Henderson testified at trial that he had no sexual contact with the victim, an admission to the contrary in the SOTP would have been incriminating, as it might have supported a conviction for perjury. It is well-established in federal courts that the privilege against self-incrimination can properly be invoked based on fear of a perjury prosecution arising out of conflict between statements sought to be compelled and prior sworn testimony. See, e.g., United States v. Lumpkin, 192 F.3d 280, 285-86 (2d Cir. 1999); United States v. Fortin, 685 F.2d 1297, 1298 (11th Cir. 1982). There is no reason the same principle would not be applicable here.
The opinion also contains a very thorough analysis of Fifth Amendment “self-incrimination” jurisprudence. In summary:
The Fifth Amendment does not prohibit all self-incriminating testimony; rather, it prohibits “only self-incrimination obtained by a ‘genuine compulsion of testimony.’” United States v. Washington, 431 U.S. 181, 187 (1977) (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)). The compulsion element of the privilege against self-incrimination is present when the state attaches sufficiently adverse consequences to the choice to remain silent that a person is compelled to speak. “[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment * * * .” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Penalty situations occur when “the assertion of the privilege is penalized so as to ‘foreclos[e] a free choice to remain silent, and * * * compe[l] * * * incriminating testimony.’” Murphy, 465 U.S. at 434 (quoting Garner v. United States, 424 U.S. 648, 661 (1976)). For example, threatening to revoke an individual’s probation for refusing to answer potentially incriminating questions would create a classic penalty situation. Id. at 435.
Just last week, we discussed this very issue (in the context of probation) here.
HT: SOI
Ashby convicted; faces the death penalty
Jun 28th
Yesterday, a Hartford jury convicted Lazale Ashby of the murder of Elizabeth Garcia.
The jury found Ashby guilty of murder, felony murder, capital felony, sexual assault, burglary and three counts of kidnapping in Garcia’s death. Authorities charged that he beat, stabbed and strangled her sometime between 7:30 p.m. on Dec. 1 and 7 a.m. Dec. 2, 2002.
The State is seeking the death penalty and jurors will return in September to commence the penalty phase of the trial.
Drugs played a prominent role in Ashby’s life, authorities say.Sources close to the investigation said Ashby grew up in Hartford’s Asylum Hill neighborhood, mostly on Huntington Street. His mother was a drug addict, and his father was not around to raise him. He was cared for by his grandmother, his only close relative until she died after his trial started.
Part of what sank him was this note [pdf] he passed to another inmate, which was introduced into evidence.
Just sad all around.
Technorati Tags: death penalty, connecticut, lazale ashby
Should we be selective? Part II
Jun 28th
Combining the themes of two of my posts this week, Anita Witness has this post (OOPS! Just realized this post is from January, but it is still pertinent and she says it way better than I do anyway) about the ability of private sector criminal defense attorneys to select the types of cases they take on. She writes:
When you work in a public defender’s office, you don’t have the opportunity to be selective about the cases you work on. In the private sector, however, you can make the choice to avoid certain kinds of cases. For instance, there are a number of investigators and attorneys who choose not to do death penalty cases because they find them to be too stressful. It’s good to know your limits.
It seems like the most common kind of case that defense- minded people seek to avoid are those that involve crimes against children. A former co-worker of mine used to say that he simply would not do cases that involved crimes against children once he was a father. At the time, I wondered how I would feel once I had children, especially as a woman, since these cases have a tendency to come knocking at your door as a female investigator. Now that I have a kid, I can say that I have no problem taking a case that involves crimes against children, anymore than I have a problem taking a case involving exclusively adults.
For defendants charged with crimes against children, the battle to get a fair trial can be steep and rough. They are often villified in the press and given three part names. A criminal defense investigator may be more likely to encounter animosity in the process of doing your job, like being questioned by witnesses as to one’s personal motivation in representing an accused child (fill in the blank here)-er.
Which is part of the reason why I am unsure of statements like: “I don’t represent snitches” or “I won’t take child molester cases”. As Miranda and I were discussing yesterday, I could understand if there is a case with a particular set of circumstances that hits close to home and does, indeed, affect the attorneys ability to provide an adequate defense and the attorney chooses not to represent that client. However, I don’t think that equates to not trying all cases where the defendant was charged with a certain offense.
Are lawyers emotional wrecks?
Jun 27th
Asks this WSJ law blog post.
“Depression, stress, career issues and addictions . . . we understand what it’s like to face personal problems within the profession.” That’s the caption on an advertisement run by a Beantown-based organization called Lawyers Concerned for Lawyers (LCL). LCL was founded nearly 30 years ago mostly as a support group for lawyers with drinking problems. But over the years, as the stress level of practicing law has spiked, lawyers seek its services for different reasons.
Today, attorneys contact LCL mainly for help battling depression. According to the Globe, the shift mirrors reinforces studies showing that lawyers are more depressed than those in any other occupation. Work life, especially at big firms, can be emotionally draining. “Intense deadlines, staggering billable-hour requirements, and grinding hours are routine. Even veteran lawyers often find themselves disillusioned by the increasingly business-like practice of law.”
Other issues reportedly contribute to the practice’s toll. The conflict-driven nature of the profession plays a role. And the personality type frequently drawn to the law — perfectionist, high-achieving — is particularly vulnerable to becoming depressed, the article says.
The post then invites comments and boy, comments there are! We lawyers sure do love to talk. 86 comments as of the time of writing this post. Some of them are extremely entertaining; some sensible. So. Are you an emotional wreck? Are you?
[poll=9]
The little state that could
Jun 27th
Rhode Island’s legislature voted to remove mandatory-minimums.
The General Assembly has approved legislation that rolls back mandatory minimum sentences for drug crimes, a move that proponents hope will cut costs, ease overcrowding at the state prison and give judges more discretion in meting out punishment.
The vote, in the waning hours of the legislative session that concluded early Saturday, comes as the prison grapples with a rising inmate population and adds Rhode Island to a growing list of states where lawmakers have mulled changes to their sentencing policies.
The legislation repeals minimum sentences imposed for drug crimes and also reduces the maximum punishment an offender can receive. Under the bill, for instance, a defendant convicted of possessing more than one kilogram of heroin, or more than five kilograms of marijuana, would no longer face a mandatory minimum sentence of 20 years in prison.
“It would give the judges discretion,” Metts said. “Certainly in the late teens, early 20s, people do make mistakes. It shouldn’t mean that your life is over.”
It’s not clear how much impact the bill would have on the inmate population — which surged earlier this month to a record-high of 3,889 — since most drug offenders in Rhode Island already receive relatively short prison sentences. In 2006, the average sentence for a drug offense was 20 months, with only 6 inmates getting sentences of 10 years or more, according to data provided by the state Department of Corrections.
Criticisms of mandatory-minimum sentences have been voiced for a number of years now, so it is great to see a state taking this step to address head on the problems of prison overcrowding. Whether this has any actual impact remains to be seen. According to the linked article, Michigan is apparently the only other state in the country that has taken the step of eliminating min-mans for drug offenses.
I’ve got a bone to pick with you
Jun 26th
What is it about our job that attracts some terrible lawyers? I mean, some of them are just unbelievably awful. You know the type – promise the moon, don’t even deliver some cheese. “Take this deal; I’ll get you out tomorrow.” “Don’t worry, they won’t convict you”. “If you take this offer, I can’t help you.” “I don’t represent snitches.” “Give me more money or I won’t go to court for you.”
The false promises part really pisses me off. You know there are attorneys who make them but then when the client gets screwed, will swear up and down that they would never, ever say something like that. Bullshit. Half the inmate population can’t be lying. Maybe they didn’t say it exactly as the client said they did, but they made some ridiculous promise. Why do they do it? Prestige? Wanting the client to like you? Why is it so damn difficult for attorneys to say: “Sorry, I couldn’t do any better” or “Man, I screwed up.”
Be honest with the client. Please. It’s about them, not you.
Connecticut civil union statistics
Jun 25th
The Office of Legislative Research publishes interesting reports every month. This one, published in May, was about the following:
You asked for statistics on the number of civil unions performed in Connecticut by town.
The table below displays information provided by the Department of Public Health showing the number of civil unions by town, from October 1, 2005, when the law authorizing civil unions took effect, through the end of March 2007.
The long and short of it is that there are several towns where there hasn’t been a single one (Barkhamstead, Deep River, Franklin, Hartland, Harwinton, Ledyard, North Canaan, Scotland, Sherman, Sprague, Union and West Haven) and the leaders are the major cities and towns (Hartford, Bristol, New Haven, Danbury, Enfield, Groton, Greenwich, Guilford, Hamden, Manchester, Stamford, West Hartford, Branford and Bridgeport).
In all, there were 649 unions in 2005, 722 in 2006 and 78 this year, for a total of 1449.
Study shows public defenders are better
Jun 25th
Or at least the results they achieve are better for clients as compared to those represented by CJA attorneys in Federal Court. The study is entitled “An Analysis of the Performance of Federal Indigent Defense Counsel” and is available here [pdf]. The abstract states:
In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.
The study reaches many interesting conclusions. Among them, the impact of this disparity on minorities:
Since the poor in the U.S. are disproportionately from minority communities, inequities in systems that disadvantage them have the unintended consequence of perpetuating discriminatory practices on the basis of race. The use of lower-performing CJA panel attorneys impacts minority communities in several ways. First, as Table 1 illustrates, over 30 percent of indigent defendants are of African-American descent while they constitute only 13 percent of the U.S. population. Furthermore, only 19 percent of defendants who can afford to retain their own counsel are African-Americans. About 4000 cases per year involve minority defendants who are randomly assigned CJA panel attorney. Given the large fraction of defendants of African-American descent, it becomes obvious that poor quality representation may disproportionately affect them.Second, districts with high minority and immigrant populations have a higher fraction of their cases covered by CJA panel attorneys. A simple correlation between the fraction of cases covered by CJA panel attorneys and the fraction black defendants yields a correlation factor of 0.77. This correlation may be due to district specific factors such as cases per year, prevalence of urban centers, and other factors related to local geography and culture.
Third, in districts that do not randomly assign, blacks are significantly more likely to be assigned a CJA panel attorney than whites. Immigrants are also slightly more likely to be assigned CJA attorneys (although this difference is only significant at the 0.10 level).In part this difference is due to selection of cases based on crime type (the inclusion of crime fixed effects explains about 1/3 of the difference in the probability of assignment to a CJA panel attorney between blacks and whites).
The performance gap between CJA panel attorneys and public defenders is larger among non-randomly assigning districts than among randomly assigning districts. This could be due to case selection decisions on the part of the attorneys (i.e. CJA panel attorneys are assigned cases which are more likely to end in conviction).
However, because it is unclear how much of the gap is due to performance, the higher fraction of blacks assigned to CJA panel attorneys raises questions about whether race affects the quality of the representation indigent defendants are assigned. Thus, an initial decision to create a two-tiered system without racial consideration can percolate through the system to have racially-linked negative consequences.
HT: C & F
Monday Morning jumpstart
Jun 25th
It’s nice to have a weekend off, but looks like I’ve missed some fun things. Here they are:
- CDW’s weekly e-mail edition
- Should “Public Servants” care about their pay? [C & F]
- Are brain scans all the rage? [C & C]
- Cross-species lineups and Forensic Facial ID experts [EyeID]
- Punishing little kids as if they were adults [A & C]
- lolcopz [MT Crim Law]
- Setting fees for criminal cases [The Defense Perspective]
Some CT prison population fun facts
Jun 21st
Via the Office of Policy and Management‘s “Comprehensive Plan For the Connecticut Criminal Justice System 2007 [pdf]“:
- Connecticut’s Rate of Incarceration per 100,000 of population is the highest in the Northeast at 373.
- The average for the Northeast is 298 per 100K
- Connecticut’s Rate of Incarceration is 28th in the country, however.
- The top offense among the incarcerated population is Violation of Probation, accounting for 13.57% of all inmates
- Second on the list is Sale of a Narcotic substance, accounting for 11.12%.
- The rest are all under 5.32%
- 92% of the prison population is male.
- Parole is granted in 82% of cases that make it to a full panel or administrative review.
- There are 1663 crimes in the State of Connecticut for which incarceration is a possible sentence.
There is also a 2007 Recidivism Study, which reveals the following information:
- The overall reconviction rate was 39%.
- The overall resentenced to prison rate was 22%.
- Not shockingly, inmates released from prison with no community supervision were most likely to be reconvicted and resentenced to prison for a new offense.
- Inmates convicted of property offenses have the highest recidivism rates.
- Recidivism rates for sexual offenses was the lowest (22%), even lower than motor vehicle offenses (31%) [Full chart on page 6]
There is so much more in these reports. I will continue to sift through the information and present it.
Technorati Tags: connecticut, prison population, statistics, recidivism
What’s in a word?
Jun 21st
A legal conclusion, perhaps. So thought a judge in Nebraska, who banned the use of the words rape, assailant, sexual assault rape kit, victim and sexual assault from a trial. This has Dahlia Lithwick of Slate unhappy. Corey Yung of Sex Crimes is also unsure of it.
Barring a slippery-slope argument (which may be a strong one), I don’t see what the hubbub is all about [NOT from an emotional point of view; simply a legal one].
Replace:
“Did he rape you?”
with
“Did he attempt to have sex with you?”
“Did you consent to having sex with him?”
Rape becomes non-consensual sex. In some cases, the jury is called upon to decide whether the “victim” was indeed “raped”. To continually refer to the act as “rape” (which is a fact for the jury to decide), might subconsciously “poison” the minds of the jury.
In CT, a 2005 Supreme Court decision left standing an Appellate Court decision [State v. Cortes (pdf)]which held that the use of the word “victim” by the court (76 times) deprived the defendant of a fair trial.
In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term ‘‘victim’’ is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term ‘‘victim’’ has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.
We agree with the defendant that given the particular circumstances of this case, as well as the fact that the complainant’s credibility was a critical issue, the better practice would have been for the court to refer to the complainant by some term other than ‘‘victim.’’ We conclude that the court’s instructions constituted reversible error.
Now, the slippery-slope argument that Dahlia Lithwick makes is a valid one, but perhaps not fatal to this judge’s position. How many times, in a trial, does a prosecutor ask of a witness: “Is the defendant the man that murdered the victim?” Not many. It is more likely that the question posed is: “Did you see the defendant shoot the victim?” “Is the defendant the man that killed the victim”?
Shoot; kill – not legal conclusions. Murder, probably.
However, despite this lengthy post, I could be convinced to change my position. Have at it!
Live Blog With Judiciary Committee co-chair
Jun 21st
It’s not really live, since it was last night, but State Rep and Judiciary Committee co-chair Mike Lawlor stopped by CT Local Politics to participate in a live blog and answer questions from anyone who wanted to participate. I posed some questions, the answers to which I will get to in a second, but near the end of the chat, he dropped this:
Oh, and I should point out that all conviction information, for everyone, will be on line soon at both the judicial and department of public safety websites. Everything from sex offenses to shoplifting will be there. I support full disclosure of criminal conviction information.
He further clarified:
The list of all criminal conviction information is already available from the state police. This will now be online. Thats a bit different than the sex offender website, which contains a lot more information. If you want to check someone’s record, here is how to do it now…
It has now been 11 hours since that and I still don’t know how I feel about it. It is a public record, but will this fuel mass hysteria and cause people to start spying on one another? (Not in the clandestine sense, but in the “I’m going to watch you more closely and see if what you’re doing is dangerous or illegal” sense) How will this affect prospective employees? Landlords? Liquor stores? Or is this necessary and useful? Will this cause people to be more careful and aware? What do you guys think?
Anyway, on to the questions. I asked and he replied (to question #1):
Gideon asks:
Second, SB 1458, which creates a “tender years” exception to hearsay. Were you not concerned about the Constitutionality of this legislation in light of Crawford v. Washington? Thank you for your time.
The final language of the bill was agreed upon by the judges’ rules committee, the prosecutors and public defenders. It was changed substantially from the original proposal to meet the concerns expressed, especially from the defense bar. Many other states have adopted similar rules post Crawford.
My second question (and his response):
Rep. Lawlor,
You mentioned that you were on the sentencing commission and the risk assessment board. As part of the sentencing commission, what will you be looking at and what steps do you think the State should take to deal with prison overcrowding?
…
Hey, sorry for missing this one. The Commission should have its own website up by now, and I will check into why its not available. In the meantime, check out the great, and recent, OPM reports on justice trends and stats in CT.
I’ll be looking for that website, but the one he provided a link for does have some interesting reports. I plan on sifting through it later.
The rest of the questions were about politics, gay marriage and the budget.
All in all, I have to say that it was an excellent example of the good that can come of the blogosphere.
Time to beat ‘em Texans into the ground
Jun 20th
Since we haven’t had enough fun mocking the plight of Texan lawyers, go on over to Simple Justice and vote in the poll there. If CT voters outnumber voters from other states, there’s a special prize!*
*Sorry, no prize. That’s called “tricking-you-into-doing-something-you-probably-would-have-done-but-needed-a-
little-prodding”.
recent comments