Archive for August, 2007
Rewind: Is the “broken window” theory itself broken?
Aug 31st
Brr. It sure is freezing in Vladivostok! The vodka’s great, though 
However, seeing some ramshackle buildings here brought to mind this old post from March 2006:
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The Boston Globe had a fascinating article a few weeks ago, that I just ran across (so my apologies if this has scorched its away across the blogosphere and I’ve missed it). Is the “broken window” theory a legitimate theory?
The broken windows theory first came to prominence in 1982, when criminologists George Kelling and James Q. Wilson published a lengthy article on the subject in The Atlantic Monthly. The theory, as they explained it, holds that people are more likely to commit crimes in neighborhoods that appear unwatched and uncared for by residents and local authorities.
The crux of Wilson and Kelling’s argument was that perceptions affect reality-that the appearance of disorder begets actual disorder-and that any visual cues that a neighborhood lacks social control can make a neighborhood a breeding ground for serious crime. As Kelling and Wilson put it in The Atlantic, ”one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”
The remedy for this, as proposed by Wilson and Kelling, was to get tough on the small crime. Small crime begets big crime, the theory posits. So if we nip crime in the bud, as it were, neighborhoods will be safer and more peaceful.
Recently, however, new critics have emerged and old ones have been emboldened by the rising crime rates in Boston and elsewhere. One widely read challenge comes from ”Freakonomics,” the best-selling book by University of Chicago economist Steven D. Levitt and journalist Stephen J. Dubner, which presents a controversial theory claiming that the legalization of abortion in the 1970s was the biggest factor in the crime drop of the 1990s. According to this hypothesis, the decline in the birth of unwanted, often poor and fatherless children in the ’70s, led to a decline in the number of juvenile delinquents in the ’80s and hardened criminals in the ’90s. As for broken windows, Levitt and Dubner write, ”There is frighteningly little evidence that [Bratton's] strategy was the crime panacea that he and the media deemed it.”
I could quote the whole article, but that would be wrong, so please take 5 minutes out of your day to read (if you haven’t already) and then come back to give me your thoughts (if you’d like).
Personally, I don’t think the broken window theory, by itself, is the cure for crime. It strikes me as rather simplistic and ignorant of the underlying rationale for crime: social and economic environment. Maybe this is the defense attorney in me speaking, but I believe (perhaps foolishly), that most tendencies to commit crime can be traced to a disadvantageous socio-economic background.
Rewind: Deal or No Deal?
Aug 29th
Bonjour from Lyons! It’s the middle of the week and Gideon is lazily sitting on the Riviera sipping some shom-pan-ya. While doing so, it occurred to him to pose this question, from February 2007, again (ps: For those might be confused, these posts have been written in advance and scheduled to post in the future):
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Mike at C&F lamented yesterday that plea bargaining
has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system. It has turned lawyers into actuaries . “Is going to trial worth the risk?” is what lawyers ask clients. Innocence has little to do with the decision to take a deal.
Cases that highlight this dilemma abound. Julie Amero, for one. The border agents case is another. So what can be done? The logical suggestion is to leave the state to its burden of proof in each case and take everything to trial.
Windypundit jumps in with some radical ideas for criminal justice of his own. His suggestions:
Reverse Truth-In-Sentencing – if you don’t serve felony time – a full year – it doesn’t count as a felony.Performance Pay for Indigent Defense – pay indigent defense lawyers for their performance.
Punishment in Lieu of Exclusion – If a judge rules that a piece of evidence was obtained illegally, allow the prosecutor to immediately indict the responsible police officers for “improper evidence obtainment,” a newly-created crime with a mandatory minimum sentence of, say, 60 days in jail. If the officers are convicted and sentenced before the main criminal case goes to trial – easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediately – the illegally obtained evidence is allowed back in.
Limited Incarceration Without Trial – This would allow the worst of the worst to be imprisoned even if the cases against them have technical flaws.
No Miranda Warning
While I have not yet given full thought to his suggestions, one not so radical idea did seem to me a way to streamline the process. As several jurisdictions have done, all interrogations should be videotaped. This, in many instances, will eliminate the problem of the forced confession and lead to less Motions to Suppress.
This idea is gaining steam in some sectors, but I’d like to see it implemented nationwide.
Rewind: Should we shorten criminal trials?
Aug 27th
Hello from New Zealand! Hope everyone is doing okay. There’s no jumpstart this morning – the Kiwis don’t like internet. So here’s a post from June 2005, in which I ask if we should do everyone a favor and shorten trials.
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Have opinion, will travel asks if we should put the 6th Amendment up for bid. He talks of a story from England that the Lord Chancellor is cutting down criminal trials in order to save costs.
By having an agreed statement of facts, he explained, lengthy fraud trials could be made much shorter. If cases over-ran, lawyers – rather than taxpayers – would absorb the extra costs.
So the question is: would this work in the U.S.?
A couple of things jump to mind – one is that the state has to prove every element beyond a reasonable doubt. If parties in a criminal trial were to stipulate to certain facts, that would eat into that hallowed principle. It then leads into issues of due process and equal protection that I’m just not willing to discuss on a Sunday.
The other thing that pops into mind is that if the lawyers are going to be forced to pick up the tab for lengthy trials, there will be greater incentive to pressure their clients into taking deals that might not be favorable. The state would have the incentive to be hard-lined about their offers and defense attorneys, knowing that they’d have to pony up money, would perhaps not go all the way.
It must be noted that it seems that in England, trials last far longer than they do here, so perhaps the motivation might not be as strong in the U.S. A standard trial here could last anywhere from one day to three weeks. You’d be hard-pressed to find a trial that goes on for over a year. The percentage of cases going to trial is also minute as compared to cases that end up in pleas.
Also, Ken explores the question of indigent defense by contract.
Thoughts?
Rewind: Did you have a public defender or a lawyer?
Aug 25th
While the blog is vacationing in Bora-Bora, this is as good a time as any to remind my readership that if you wonder whether public defenders are lawyers, you are not alone. Here’s a post from March 2005:
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So says State Senator Newton, during a public hearing held on January 31, 2005 on the Anti-Death Penalty Bill. The question was posed to Lawrence Adams, a man from Massachusetts, who spent 32 years in prison (roughly 9 of them on death row) before he was exonerated and released. He came to CT to testify against the death penalty. The transcript reads as follows:
SEN. NEWTON: Thank you. I want to thank you for coming to Connecticut to give your testimony. When was it that they found the DNA, after how many years?
LAWRENCE ADAMS: It wasn’t DNA. It was exculpatory evidence. It took 31 years.
SEN. NEWTON: Thirty-one years?
LAWRENCE ADAMS: Yes.
SEN. NEWTON: Did you have a public defender?
LAWRENCE ADAMS: Excuse me?
SEN. NEWTON: Did you have a public defender or a lawyer?
LAWRENCE ADAMS: In the beginning, I had a public defender.
[CHAIRMAN OF THE JUD. COMMITTEE] SEN. MCDONALD: All right. Senator, I really don’t even know how to address that.
SEN. NEWTON: The point I’m trying to get at, and you all laugh, but this is very serious, is that in some cases, it’s been proven that those who can afford attorneys have a better chance. I’m not saying anything bad about public defenders, but in some incidents, you know, cases have been proven.
If you have a high-price lawyer, you stay out of jail. You know, that is the point I was trying to get to, not to disparage anything about our public defenders throughout this country. When you have your own lawyer, it seems that he might be able to collect that evidence, as you said. You know, that was the only point that I was making.
LAWRENCE ADAMS: It has been my experience, right, that I would say that I was unique in the fact that my lawyer, Mr. John Battarac, did work that I don’t think anybody else could have done. I was fortunate to that extent.
SEN. MCDONALD: Thank you very much. I should just note for the record that actually the Chief Public Defender’s Office has probably the greatest breadth of information in history on the defense of capital cases than any other group of attorneys in the state. Are there other questions? Senator Handley followed by Senator Cappiello.
Then the hearing continues.
Amazing, just amazing. Not like we don’t get crap from our clients anyway, now we have a state Senator who doesn’t acknowledge that public defenders are lawyers. Not once did the Senator make the distinction in terms of public defenders as opposed to private attorneys. He kept referring to private attorneys simply as “attorneys”.
In any event, if you have time time, read as much of the transcript as you can – it’s pretty powerful, moving stuff.
It’s alway sunny in…..
Aug 24th
This blog is going on vacation! (well, not the blog itself, but I am.) Fear not, however. I have entrusted the job of sporadically updating the blog to Miranda and taking a cue from Anne, I have some old posts lined up for republication. Hopefully, everything goes well and there will be plenty for you to read.
Also, you can always find something interesting by clicking on one of the links in the sidebar.
See you in September!
SOL eliminated for sex crimes with DNA evidence
Aug 23rd
Another important criminal justice bill [text of bill - Ctrl+F and search for "DNA"] signed into law by Governor Rell is this one that eliminates the statute of limitations for certain sexual assault crimes. There are two provisions however:
- The crime must have been reported within 5 years of its occurrence
- DNA must identify the perpetrator.
These are two very important restrictions. It is imperative when, years later, an individual is accused of a crime that the State be certain to a high degree that the individual is indeed the one who committed the crime. Imagine the severe hurdles if the SOL for all sex crimes was eliminated. It would be impossible to defend against.
Judge Downey withdraws nomination
Aug 22nd
After his nomination hearing was abruptly ended yesterday, Judge Downey today asked Governor Rell to withdraw his nomination to the Appellate Court. She issued the following press release:
Judge Downey has asked me to withdraw his nomination to be a Judge of the Appellate Court. I respect Judge Downey’s decision. I am sure it was a difficult one for him and his family.
I will be submitting a new nomination to the Judiciary Committee in the near future.
His withdrawal letter can be found here [pdf]. Who’s next?
HT: CTLP and CT News Junkie
Judge Downey’s confirmation postponed
Aug 21st
The Judiciary Committee hearing on Judge Downey’s nomination, which raised some hackles, was postponed to sometime before September 17 about 70 minutes into the proceeding so as to allow the committee members some time to digest new information that was brought to their attention.
Specifically, this transcript [pdf], in which the following statement is uttered:
“Only people who are legally here in the United States, in my opi—-are entitled to the rights and privledges that we extend to U.S. citizens. Why should a person become a U.S. citizen if they can otherwise enjoy the same rights as the rest of us especially after 9/11?”
He also said he would not hear a case in which one of the parties said they were “not legal”.
Other quirks:
At one point during the hearing Downey referred to himself in the third person like he did in the May 24, 2002 transcript and Sen. John Kissel, R-Enfield, asked him to refrain from making third party references to himself calling it “Seinfeldesque.”
Read the full report at CT News Junkie
The impact of AEDPA
Aug 21st
A groundbreaking study was released today, examining the impact of AEDPA on Federal Habeas Corpus petitions. The executive summary is here and the full report is here [both are .pdf files]. From the press release:
Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.
“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.
The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.
Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.
Sleeping lawyers: Not just in Texas
Aug 21st
We all know the story of the Texas lawyer who fell asleep during a capital trial, but now Scott points to one in New York. Unfortunately, as was the case with the Texas appeal, the court in NY also found that it was not ineffective, because, in essence, the lawyer did some “lawyering”.
Here’s another *ahem* reason the petition was denied: the judge that heard the petition for a new trial was the same judge that presided over the trial itself.
Scott does a good job, as usual, of pointing out how stupid this decision is, but misses one important question: What was the same judge doing hearing the petition for a new trial? If the defendant had filed a petition for writ of habeas corpus, the judge should have recused herself. Precisely for the reason that no judge will admit that there was a sleeping lawyer in the courtroom and they did not catch it, should this judge have not been presiding over this hearing.
I don’t know much about the NY post-conviction process, so maybe someone can clue me in. Was this a petition for writ of habeas corpus? If not, is that available to this defendant?
Either way, judges do the darnest things.
Tips for the new blawger
Aug 20th
So you decided to create a blawg. You’re a lawyer – maybe even a “practical blawger” – and you want readership. Well, what should you do? Mark Bennett has some tips and asks others to weigh in.
I’ve never written one of these posts and I figure I still don’t know enough to dispense sage advice. That’s never stopped me before, though, so here goes:
1. Identify your material – What are you going to blog about? Have three or four topics in mind. Are you going to blog about legal decisions from your jurisdiction? Are you going to comment on national legal stories? Are you going to dispense advice to other lawyers? Are you going to wax philosophical? You can do all of the above via one blog, but you have to know that’s what you want to do.
2. Link, link, link – For the most part, the topics you post about are not going to be original – especially if you’re blogging about national stories. Link to other bloggers similar to you that are also posting about that. Their readership is your readership. Make use of trackbacks and pingbacks. That lets other bloggers know that you’ve cited their post and their readers know that you’ve got something to offer on the same topic.
3. Enable trackbacks/pingbacks – The flip side of #2. If someone links to you in their post, they will send a trackback. You want that trackback. It’s an acknowledgment and common courtesy. The other person knows that you received their trackback, but will also know if you don’t accept it. They’re offering a hand; you’re slamming the door in their face.
4. Comment on others’ blogs – The best way to get yourself out there. Don’t comment and leave a link to your blog (unless it’s part of the substance of your comment and you’ve explained your position in detail on your blog). Comment on the substance of the post. It might get repetitive, sure, but after all, you’re blogging to engage in a discussion.
5. Reply to comments – I’ve always made it a point to reply to comments (as much as I can) on my blog. It generates a reader-base and lets them know you’re involved in the blog and are genuinely interested in a discussion. Also, don’t moderate comments for reasons other than spam. If you’re using WordPress and Akismet, you have no reason to moderate comments once the spam filter gets going. People know when you moderate comments and don’t post theirs.
6. Pick a name and stick with it – Your name will forever be attached to you in the blogosphere. If you’re posting anonymously, make sure it’s catchy (like Gideon – thanks Mike 
). Pick a catchy blog title, too.
7. Blogrolls – Very, very important. Link to other blogs; link to many other blogs. If a few blogs reference each other all the time, link to all the blogs. Link to blogs that interest you and you think would interest your readers. Don’t wait for them to link back to you – some may not, some will eventually.
8. Cite your sources – Another important point. If you read two blog posts that talk about the same topic and reading them makes you want to post about that topic, credit both blogs. Don’t leave one out.
9. Design – A few people overlook this aspect (Sorry Shawn, but that white on black has got to go), but you shouldn’t. It’s imperative that people that come to your blog find it appealing and easy to read. You don’t want them distracted by non-essential things. Make it easy to read and easy to comment.
10. Be nice to people
For more tips, see Sui Generis, C & F, Legal Underground.
Monday morning jumpstart
Aug 20th
Monday morning blues? Don’t want to work? Here are stories to keep you occupied until that second coffee break:
- There’s an unconventional campaign to save Kenneth Foster’s life: Youtube. Death Penalty USA has the details.
- The dirty comic book prosecution in Georgia raises some interesting questions [SexCrimes].
- Shawn Matlock writes about the unethical lawyer that steals clients. Bennett and Greenfield chime in.
- Mark Bennett also has tips for the new practical blawger. Mine will be up later.
- Scott Greenfield writes about the jailhouse lawyer, following up on this post by Malum In Se.
- Grits is covering Texas DAs opposition to solutions designed to relieve jail overcrowding.
- Southern Crim Law writes about an excessive sentence for a violent crime.
- The Confrontation Blog has a new post up.
- Skelly asks: “Why don’t they just call the person the suspect?”
- CDW’s weekly roundup is now available.
- MissTyrios writes about overcrowding and Massachussets and what can be done about it.
- The Public Defender Blog Guide at PD Stuff has been updated.
A list of recent posts on this blog is, as always, on the top left.
That should get you through lunch!
Judge Downey has lots of baggage
Aug 19th
After Governor Rell nominated Judge Barry Schaller to the Supreme Court to replace Justice Borden (Courant opinion piece here), she nominated Judge John Downey to replace him on the Appellate Court. Judge Downey has not been popular and has some problems. Aside from his endorsement of Throm Sturmond, he asked if a man killed in an accident was here in the US legally – after hearing his name.
Attorney Brenden Leydon, representing the man’s estate, told Downey he believed so and stressed that issue had not been raised by anyone involved in the case.
“Well, it might be an issue in Judge Downey’s courtroom,” Downey stated on Sept. 11, 2006. He went on to say, “I presume that he was duly authorized [to sue] as a person here having the appropriate documentation, because I think citizens and people here validly have a right to use the court system and those who are here illegally do not.”
But the courts disagree with the judge’s opinion, which is guaranteed to prompt inquiries at his confirmation hearing before the legislature’s Judiciary Committee on Tuesday. Sen. Andrew McDonald, D-Stamford, who co-chairs the committee, said Downey’s statement was “alarming.”
“The quote contained in the transcript is a jarring proposition for a judge to make and certainly raises substantial questions about Judge Downey’s understanding of the law in Connecticut,” said McDonald, who is a lawyer. “The issue of whether someone is in this state legally has little or no bearing on a civil action, particularly in this case, where the person had died and it was their estate bringing the action.”
Indeed. Peter at Undercurrents has more.
The insidious underbelly of three strikes laws and zero tolerance
Aug 19th
Today’s Courant has this powerful piece by Richard Rapaport about the zero tolerance and three-strike frenzy whipping through Connecticut.
Welcome to ZT Connecticut. “ZT,” if you don’t know, stands for zero tolerance. It is a philosophy and mindset invoked to justify actions ranging from the expulsion of students for bringing alcohol-based mouthwash to school, to campaigns to pass “three strikes” laws in response to last month’s heinous murders in Cheshire.
Culled from the engineering lexicon, the slogan “zero tolerance” was trotted out in 1973 as Watergate’s noose tightened and Nixon Justice Department officials needed a tough-sounding anti-crime slogan. In the ’80s, the Navy adopted ZT to add rhetorical muscle to a purge of seagoing potheads.
From there, ZT entered civilian drug enforcement and then locked its tentacles around the justice system in the guise of “zero tolerance for crime.”
This same ZT sub-species has been roused from slumber this summer in Connecticut to induce normally even-keeled citizens to jump on the “three strikes” bandwagon, and to create a platform for those who see no shame in advancing their own social agenda in the face of the tragedy in Cheshire.
So I did a simple search for three strikes laws on Google and found the following:
I bit the bullet
Aug 19th
Off-topic post.
After years of being inundated with commercials and friends promising me the golden civilization, I bit the bullet and bought an iPod.
It’s okay. Someone want to tell me what makes it so great?
I hate Apple, btw. Their stupid gimmicks and tactics ended up costing me $60 more than I wanted to (or should have to) pay. Which lead me to buy the 30GB version instead of the 80GB version (which I totally was going to).
I shouldn’t have to pay extra for a scratch-resistant case or a freakin wall-outlet charger!
And as much as I love U2, I’m not paying an extra $30 for a U2 version. C’mon.
Anyway. At least I’m listening to music again in forever.
/off-topic post
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