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Ah, this I haven’t seen in a while. A good old net fight (light-hearted, of course). It started with SHG of Simple Justice responding to a post by Jamie Spencer about (of all things) “expunction” or “expungement” or, as us normal people like to call it, erasure. In that response, he might have called on them to stop whining. Mark Bennett jumped in and lay down the gauntlet. He provides a laundry list of why practicing in Texas is better than practicing in New York. (Edit: Scott has responded with a call to arms) Now, I don’t practice in New York, but I can’t resist getting involved in a good dogfight. So here goes:
But if you’re charged with any crime in Texas, from a traffic ticket on up,
• You are most likely entitled to reasonable bail. Bail can be denied only if the State proves that one of a few exceptions to the constitutional right to bail applies.
Check.
• If you’re accused of a felony, you may get an opportunity to make a presentation to the grand jury, which might result in a dismissal if you’re really really innocent.
No grand juries anymore in Connecticut, but you can challenge probable cause and are entitled to a hearing in probable cause if you’re facing life. Rate of success in both is about the same.
• You probably won’t be treated respectfully by the judge, the prosecutor, or the court staff, but your treatment will be much more respectful than, for example, the treatment David Feige describes citizens accused receiving in the Bronx.
Eh, this really isn’t an “advantage”. It varies from jurisdiction to jurisdiction. I will say that in my experience, I’ve seen only a few judges be harsh to defendants and there only a few prosecutors that exhibit some animus toward defendants.
• If you have funds to hire a lawyer, you can choose a lawyer from the finest criminal defense bar in the world.
Hey, we’ve got some damn good lawyers too and some of them even belong to the private bar! (One blogs) Also, really? In the world?
• You have a right to a jury trial. No ifs or buts.
I had no idea that in some states, you didn’t have the right to a trial by jury.
• Your lawyer gets to actually talk with the jury panel while choosing the jury instead of relying on a judge to do it for him; he’ll certainly do a better job than the judge would and will probably do a better job than the prosecutor.
Yep, same here. In fact, our lawyers get to talk to the prospective jurors one on one. (Yes, we’ve been back on forth on this in past weeks. Couldn’t resist one more shot, though 
)
• If there is a factual dispute over the way the government obtained its evidence against you, you can get a jury to resolve it, and the State must prove beyond a reasonable doubt that the police acted legally.
Now this one is actually interesting. I haven’t really thought about it much, but I can’t dismiss it out of hand.
• If, by some combination of bad luck and bad facts, the jury convicts you, you can have them set punishment.
Which could cut both ways. You also could have to go right to the sentencing hearing, meaning your lawyer doesn’t have time to prepare.
• When the state accuses you of a crime in Texas and can’t prove it beyond a reasonable doubt, you can (eventually) clear your name.
We got that too; it’s called erasure of records. Who do you think we are? New York? 
As for the advantages of practicing in CT, I think they’re pretty obvious: one execution in 40 years, lawyers required to stay awake during trials, appointed judges and the best public defender system in the country.
C’mon folks. Where would you rather be arrested?
[poll=8]
Image courtesy: Kings County College
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You wrote:
Mark Bennett wrote:
Really? You didn’t know that many states provide for jury trials only when the Supreme Court requires them — that is, only in criminal cases with potential sentences longer than six months?
In Texas, you get a jury trial for any criminal offense, even those for which the maximum penalty is a fine. DWI, public intoxication, traffic offenses, spiting on the sidewalk — in Texas you have a right to a jury trial for any of these. You also have the right to counsel and, if you’re indigent, the right to appointed counsel.
I’d take a jury trial with ad hoc appointed counsel over a bench trial with a public defender any day. So, unless I am going to have the right to a jury trial for whatever I might be arrested for in Connecticut, my answer to your poll will have to be “it depends.”
Connecticut General Statute 54-82b states:
Gideon wrote:
Not quite everything, but close enough
I’d like to enter the fray. I live in Texas and have had more than my fair share of firsthand encounters with the Texas Criminal Justice System. I provide the following as just one example.
I was at the county courthouse to examine some court records. It was a little before 8:00am. Even though the District Clerk’s Office itself wasn’t yet open, the courthouse building was. While I was in the 1st floor lobby waiting for the elevator to take me to the District Clerk’s third floor offices, a county deputy sheriff confronted me.
DEPUTY: May I help you?
ME: I know where I’m going. Thanks for your offer of assistance.
DEPUTY: No. I’m a deputy sheriff and I want to know who you are. I want to know what you’re doing in this building. I want to know what business you have in this building.
ME: Well, since you put it that way, I assert my Fifth Amendment right to remain silent, applicable to you under the 14th Amendment.
DEPUTY: That’s not the way it’s going to work. You’re going to tell me everything I want to know or I’m going to arrest you.
ME: I assert my Fifth Amendment right to remain silent. I’m not going to answer your questions.
At this time the elevator arrived. I got in and pressed the button to go to the third floor. The deputy got on the elevator with me. In the elevator the deputy made a cell phone call for backup: “Meet me on the third floor.”
It was still a little before 8:00am and the District Clerk’s Offices weren’t open. More to myself then to the deputy, I said “The District Clerk’s Office isn’t open yet. I’ll come back later.”
DEPUTY: You’re not free to leave. Stay here.
ME: Now I assert my 4th Amendment rights, applicable to you under the 14th Amendment. What probable cause or reasonable suspicion do you have to justify my lawful detention?
DEPUTY: That’s not the way it’s going to work. You’re going to tell me everything I want to know or I’m going to arrest you.
ME: Now I assert my 5th and 6th Amendment right to have my lawyer present before this interrogation continues.
At this time backup arrived. Two other deputies arrived on the 3rd floor lobby. The original deputy briefly explained that I was not cooperating. I briefly explained that I was asserting my Constitutional rights.
DEPUTY: Give me your driver’s license or I’m going to arrest you.
ME: I’m not driving a car here in the 3rd floor lobby of the courthouse. You don’t have any authority to demand me to give you my driver’s license.
DEPUTY: This is the last time. Give me your driver’s license or I’m going to arrest you.
ME: What crime have I committed? What articulatable probable cause do you have sufficient to justify my unwarranted arrest?
DEPUTY: I’m going to arrest you for Failure to Identify.
ME: I’m familiar with Failure to Identify. It’s Section 38.02 of the Texas Penal Code. Under no circumstance does Failure to Identify allow you to demand me to give you my driver’s license. I suggest that you read the statute.
NOTE: Failure to Identify is simply a mechanism for criminal booking procedures. Once a person is lawfully arrested, it’s reasonable that the police have a means to establish that person’s true identity and correct residence. Similarly, Failure to Identify prohibits potential witnesses from giving the police a false name or false residence. The most important element of Failure to Identify (at least as it was being applied to me) was that I already needed to be lawfully under arrest. I wasn’t.
DEPUTY: That’s not the way it’s going to work. I’m not going to read the statute. Either give me your driver’s license or you’re under arrest.
ME: Let’s go talk to someone in the District Attorney’s Office. Any one attorneys there will be able to explain to you that I haven’t committed the crime of Failure to Identify.
DEPUTY: That’s not the way it’s going to work. I’m not going to talk with anyone in the District Attorney’s Office. Give me your driver’s license or you’re under arrest.
As much as I wanted to fight this – that is, accept the arrest, have it dismissed at arraignment, and then file a civil false arrest lawsuit — I was at the courthouse that day on far more important business. I couldn’t afford to spend even one day in jail. I was at the courthouse to look at the court records of a man set to be executed by the State of Texas in a couple of weeks. I was desperately hoping that I could find something to stop this man’s execution.
Amazingly I did find something. Within 10 minutes I found the co-defendant’s confession. The basic facts of the crime – as reprehensible the crime was – were undisputed. One gun was at the scene. One shot was fired. One man was tragically murdered.
The co-defendant agreed to a plea bargain. In return for his testimony at the other man’s capital murder case and a plea of guilty to aggravated robbery in his own case, the co-defendant was sentenced to 8 years in prison. However, in the co-defendant’s judicial confession, he swore that he was the shooter. Not surprisingly, the co-defendant testified at the capital murder trial that the other guy was the shooter.
Reprehensibly, neither of the court-appointed attorneys in the capital murder trial bothered to look at the co-defendant’s case file. Neither of the court-appointed attorneys in the capital murder trial knew that the co-defendant had already sworn under oath that he was the shooter. Just as reprehensibly, none of the appellate attorneys in this capital murder case bothered to look at the co-defendant’s case file. None of the appellate attorneys – until I told them – knew that the co-defendant had confessed to the murder.
Most reprehensible was that the prosecution knew all along that the co-defendant had already sworn that he was the shooter. Yet the prosecution allowed the co-defendant to lie on the witnesses stand during the capital murder trial.
But back to my original encounter with this Deputy. I capitulated. I gave the deputy my driver’s license. I knew that I wasn’t going to be any help to the guy on Texas Death Row if I was in jail.
This deputy took my driver’s license and left me on the 3rd floor lobby with one of his backup officers. About 15 minutes later he returned, handed me my driver’s license and said that I was free to go. At least he didn’t have the audacity to say (as other police officers in similar circumstances have told me) “See how easy it would have been if you had cooperated from the beginning.”
After the death penalty issues were resolved — a stay was granted to investigate claims of ineffective assistance of counsel and prosecutorial misconduct — I complained to everyone I thought could do something about.
I complained to the Sheriff (“that deputy acted exactly as I want my deputies to act”), the District Attorney (“if you don’t leave here immediately, then I’ll put you under arrest myself”), the county legislature (each member stood mute), the ACLU (no response), and the National Lawyers’ Guild (no response).
I haven’t lived in Connecticut since I was in first grade, but it’s got to be better than Texas. Regarding the Texas Criminal Justice system versus Connecticut’s my personal opinion is that Mark Bennett is being more than disingenuous by saying anything kind about Texas.
There is an extremely good reason why Texas executes so many individuals. Due Process is barren.
Mr. Larkin,
First, if there is a state without cops (and sheriffs and prosecutors) who act like the law gives them more power than it technically does, I don’t know where it is. I suspect that if Connecticut were that state Gideon would be out of a job.
This police attitud persists because the only way to teach the cops that “they can’t do that” would be to accrue damages and sue them. But when cops bully people like they bullied you, the people almost always have something better to do than get arrested, go to jail, beat the case, and sue the cops. So for all practical purposes they can “do that.”
There can be no good system for destroying people’s lives. Some are less bad than others overall, and some are less bad in certain particulars. I didn’t compare Texas’s to Connecticut’s, and I’m not in the least disingenuous when I point out that there are protections built into Texas’s system that don’t exist everywhere. But this is from the perspective of a hired defender who stays well-trained, doesn’t overextend himself, and fights for his clients.
The guy who’s arrested and can’t afford to choose a lawyer might never see that things could be worse. And to the innocent man sent to death row, none of the “good” things about the system matter.
Without a doubt, there are huge problems with the Texas criminal “justice” system. One step would go a long way toward correcting many of them: replacing the current prevailing system of ad hoc appointed counsel with offices of full-time public defenders.
Take the very narrow example of the problem you’ve identified here with the undiscovered confession in Michael Johnson’s case (I know there were other problems with that case as well). Johnson’s trial lawyers, if they had collected every piece of paper related to every witness against their client, would have found David Vest’s confession (a public record) in March 1996. You wouldn’t have needed to find it seven years later. Such a document collection effort is ordinary diligence in capital cases, and would be office policy in the office of any public defender handling such cases.