Monthly Archives: November 2007

The juror’s guide to social networking sites

This guide is pretty short: Don’t Use Them!

A West Virginia man’s conviction has been reversed because jurors looked up the victim on MySpace.

Why is it that jurors cannot seem to follow the judge’s instruction to not conduct any independent investigations and to rely solely on evidence presented during the trial.

You’d think that in the age of technology, enough people know that to do so will taint their verdicts.

Here is an excerpt from the decision:

We are mindful that the independent investigation conducted by two of the jurors did not bear fruit, which arguably lessens the prejudicial effect, but notwithstanding that fact, the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted. Without meaningful censure, failure to properly punish such behavior would encourage or allow its repetition. Given the independent investigation by these jurors and the fact that another juror advised that the alleged victims’ testimony should be given more weight than that of the appellant contrary to the judge’s instructions and our law, we have no choice but to vacate the appellant’s convictions.

Changes to Federal Rule 29?

Today I heard about a proposed amendment to Fed. Rule of Criminal Procedure 29 that will prevent judges from granting MJOAs at the close of the government’s case-in-chief unless defendants agree to allow the government to appeal.

Seems really strange and I haven’t been able to find anything about it. Anyone know anything?

Justice does not come cheap

Radley Balko has this fantastic piece in Reason, making a compelling argument for greater funding for public defender offices nationwide.

His starting points are the high-profile DNA exonerations, the Duke lacrosse case and Kevin Davis’ Defending The Damned [Davis was profiled on our sister blog, PD Stuff, here].

The piece first explores the prevailing perception of public defenders and why it is mistaken.

[Davis’ book] should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there’s actually some merit to the public defender’s familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.

As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone’s freedom, the defendant has an “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’?”

He then tackles the central point: Funding.

Most public defender’s offices don’t have those resources. A 1999 U.S. Justice Department study of the country’s 100 most populous counties found that 97 percent of their law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders. That study didn’t include less populous, rural areas of the country, where the public defender position rotates among private-practice attorneys or is filled by a single lawyer in private practice who receives a stipend of a few thousand dollars per year.

Finally, he artfully tells us why it is imperative that public defenders should have the same resources as prosecutors:

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.

Tip of the hat to Skelly. The comments to Balko’s piece are also very interesting. Be sure to check them out.

Some things that I don’t get

My earlier post on two interesting studies has prompted some responses in the blogosphere. Okay, two. Scott offered his own thoughts here and then there was this.

It looks like a message board, but from Web 1.0. My post was linked along with the following comment:

“Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools”

This is obviously not true. It is beyond dispute that “attorneys” from lower-ranked schools can’t even tie their shoes.

Ah, okay, sarcasm, you say. That’s what I thought. Then it got weird. Someone followed up with:

Do attorneys from higher tiered law schools represent enough criminal defendants to get a statistically meaningful sample size?

I thought the point of going to such a school was to avoid having to deal with such people.

Uh… That prompted the following response:

No. The point of going to a higher tiered school is to avoid being one of those people. A better pedigree means that you wonÂ’t be a contract “attorney.” I put “attorney” in quotes because they are not real attorneys and are a shame to America. Moreover, sometimes they are called “JD-Paras” or some crap to make it clear that they count as 3/5ths of a human. Law firms that hire them are engaged in an act of charity by employing these lazy lay-abouts (and teasing them with offers of employment) and teaching them the value of real work.

Once you are above it all, you can choose any job you want regardless of your qualifications.* Just like some people orgasm at the thought of helping their clients avoid criminal liability for anally raping the environment, some people like working with poor people accused of rape. (Obviously when rich people are accused of rape, local counsel must obtain the services of people that work at large firms.)

If you are a trust-fund baby, you can even afford to work for the lower classes.

*This isn’t really true with the exception of one or two places.

And finally this:

AWC: “A better pedigree means that you [won’t] be a contract ‘attorney.’ I put ‘attorney’ in quotes because they are not real attorneys and are a shame to America.”

Me: Nail on the head. They are not only NOT attorneys, they are barely human to hear my friend tell it.

I took a friend out to lunch yesterday who clerked for a magistrate judge last year to cheer him up. He went to a TTTT, got the job completely by connections, and did only pretty well at said school. Suffice it to say that in trying to find a job within arguably the most competitive legal market in the country, he’s finding it tough. He also has to eat so he’s working as a K atty.

Wow, I thought the rumors were, well, just rumors. He tells me that he and his compatriots are housed at an off-site warehouse in a large, badly-ventilated, dimly-lit, windowless room. They are literally made to “work” in virtual silence for hours at a time before taking bathroom breaks — too many of which will result in immediate dismissal. Sometimes they are sent home inexplicably at, say, noon because the work has dried up or the client is trying to save funds. Any diversion from the stated norm is, um, “frowned upon.” No phones, no internet, no escape.

Perhaps this is what John McCain went through in Nam.

Are large document productions modern-day prison camps?

I still think it’s all a joke. After all, this is a website run by a reputable company: Findlaw. Although it is called Infirmation, which redirects to Findlaw Careers, or Greedy Associates.

What do you guys think?

Two new studies on sentencing disparity and attorney performance

Stumbled across two new interesting studies last night, both by David Abrams of the Univ. of Chicago Law School. The first one, entitled “Do Judges Vary In Their Treatment of Race” tries to take on the burning question of racial disparity in sentencing from a different angle.

Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants…In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.

The second, entitled The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability, seeks to measure attorney ability (duh).

We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year.

We also examine the correlation between attorney characteristics and case outcomes. Experienced attorneys achieve substantially more favorable outcomes for their clients (defendants) than less experienced attorneys. Defendants represented by more experienced attorneys are more likely to avoid a prison or jail sentence, and those who do receive a sentence serve shorter terms on average. We do not, however, find any statistically significant differences in sentencing based on the attorney’s legal educational background.

Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools. Lastly, and somewhat surprisingly, we find racial disparities in attorney performance: attorneys of Hispanic origin achieve lower average incarceration than all other racial attorney groups.

Well, there you have it. Going to a top tier school has no bearing on your likelihood of success in the public interest field and in criminal defense. This is not surprising to me at all.   The closer you are to the top of the tier, the more the focus is on securing lucrative jobs at big firms, which involve writing briefs and – if someone can please, please, explain to me what this means – document review. The towards-the-middle-and-bottom-of-the-tier schools seem to provide a healthy mix of the academia and the practical. That is what prepares you to practice successfully in this field. Not only knowing how to write that darn appellate brief, but also knowing how to try that case first.

HT: Andrew Leigh

Thoughts on criminal justice reform

A day after the judiciary committee held a public hearing on 15 proposals submitted by various people on how to reform Connecticut’s criminal justice system, I finally have the time to sit down and put my thoughts down on paper screen (I know you’ve all been dying to hear from me on this).

I see this as a golden opportunity going to waste. If the legislature is going to conduct a comprehensive reform of the system, then they need to do it right.

Undoubtedly, there is a class of defendants that poses a very real risk to society and public safety and if there is to be any legislation that strengthens penalties for these folks, then it needs to be tailored very specifically to affect only those people. It is very clear, despite any protestations to the contrary, that these hearings are a direct response to Cheshire and Cheshire only. I think legislators might have a bit more credibility if they admitted that at the outset.

Having said that, I have to disagree with the prevailing sentiment that there are serious offenders out there getting community service. It just isn’t happening. If you spent any time talking to prosecutors or public defenders in any of the Part A courts, you will know that the sentences for first, second or third time offenders of serious felonies are in double digits, usually starting with a 2 or 3.

If there are any hippie liberal judges in this State handing out reprimands instead of jail sentences on a daily basis, please let me know. I don’t know of any and I bet if you ask any practitioner in the State, they couldn’t name one either. The reality is that sentences are high and sentences are harsh. Which is how we arrived at the prison overcrowding problem in the first place.

Another common theme in the proposals has been mandatory minimums. I was very glad to see the Judicial Branch, led by Chief Judge Quinn and Judge Pat Clifford, come out against this. Defendants are people and should be treated on an individual basis. A Federal sentencing guideline type scheme is the last thing we want in this State. It removes any sort of authority vested in judges and under the guise of treating people equally, treats them more unequally than before. Judges should have the authority to consider the specific facts of each case and each defendant and determine the appropriate sentence. Again, there are no liberal judges in this State. Honestly.

Which brings me to why I think this could become a missed opportunity. While the legislature is considering the strengthening of punishment for a certain class of people, it is must also consider how to deal with overcrowding and how we came to it in the first place. It must deal with the Gov.’s promise of releasing non-violent offenders to make room and the wisdom in that. It must deal with ensuring that no one, not a single offender commits another offense upon release.

That is truly in the interests of public safety. Almost every inmate will at some point be released. In order to keep the public safe, the legislature must ensure that these people have no incentive to reoffend. Rehabilitation has long since been abandoned as a goal of corrections and the legislature should use this opportunity to rectify that. When an inmate is released after a prolonged period of incarceration, without an education, without any employable skills and definitely without any money, it is no surprise that a return to a life of crime is a foregone conclusion. This is not necessarily because they like crime, but mostly because they have no other choice. Left in the middle of one of CT’s large cities, with no hope for the future; no job to provide an income, no skills with which to obtain a job, it is very tempting for people to return to the quick and easy: selling drugs, robbing a bodega, etc. This only further puts public safety at risk. If we want to avoid that; if we want to give people a reason not to reoffend, them it is our responsibility to provide them with the tools to do so.

More halfway houses, more educations programs, more vocational programs will not only be a more effective use of money right now, but it will also pay great dividends in the future in terms of lower law enforcement costs and greater public safety.

More prisons is not the answer. Preventing people from going back to prison is a more logical and useful solution.

For other people’s takes on this, read CTLP’s posts here and here, the New Haven Independent continues its terrific work here, the Connecticut Post has a story here, the Norwalk Advocate has one here, something from The Day here and the Courant’s coverage is here. PDF files of all the testimony submitted to the Committee are here and Senator McDonald offered his thoughts here.

Sorry for the long post.

Breathalyzers under fire

Almost overlooked in the criminal justice brouhaha was this story about the possibility of hundreds of DUI convictions over the past few years being overturned because of the faulty breathalyzer.

The certified Breathalyzer test used by police in Connecticut is not accurate, some attorneys claimed Tuesday in hopes of urging the state to change policies.

A Superior Court judge ordered the DMV to conduct a hearing as opposing attorneys are trying to prove that all Breathalyzer tests taken by the Intoxilyzer 5000 are inaccurate.

“Their argument is there is no scientific basis to detect alcohol on a person’s breath to alcohol in a person’s blood, and it does not measure alcohol with weight, and we disagree with both claims,” [chief legal counsel for the DMV] said.

Jay Ruane represents three people who lost their licenses after failing the Intoxilyzer 5000 test.

“The Breathalyzer does not comply with state regulations,” Ruane said. “This would force the state and state police and prosecutor’s office to take a blood sample or a urine sample.”

Ruane is one half of CT’s premier DUI attorneys. If anyone can mount a successful challenge to the Intoxilyzer 5000, it is him.

Stay tuned; this could have major implications.