Archive for February, 2008
One by one they steal my sanity
Feb 29th
No wonder we’re all alcoholics. Researchers in Australia studied 50 criminal lawyers and 50 non-criminal lawyers and found that those engaged in the practice of criminal law are more likely to require therapy and turn to alcoholism. This is because of the nature of our jobs. Those engaged in the practice of criminal law (prosecutors and defenders both) deal with some rather unsavory facets of human nature and the seedy underbelly of society. We see pain, fear, anger, sadness and loss on a daily basis. Yet we have to be above it. We cannot let it affect us or cloud our judgment. We cannot dwell on it, for fear of getting lost in it. So we march on, perhaps repressing these emotions. What level of impact will that have on us?
Another part of the reason for this, the study reasons, is that the profession is such that it attracts a certain type of person – the perfectionist – and there really is no accepted was to discuss these issues with peers. The emotional stress of our jobs is not a frequent topic of conversation in our offices and hallways of courthouses.
“It’s about becoming aware. Everyone is upset by this type of work. It’s a normal response, and if you can talk about it and address it, you won’t develop full-blown vicarious trauma or post-traumatic stress disorder. Once you’re aware, you can start taking more positive steps — maybe playing some sport, or looking at your case load and saying ‘I’ve had five sexual assault cases in a row, maybe I need a break’.”
So how do you unwind after a hard day’s work? What are your distractions? Things that keep you sane. How do you cope with it after 10, 20, 30 years in this field of law?
Me? I’ve got all of you.
HT: CnC
1 in 99: America’s prison population explodes (even more)
Feb 28th
A new study released today by the Pew Center reports that 1 in 99.1 Americans is in prison. From the press release:
For the first time in history more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety. According to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, according to the study. During 2007, the prison population rose by more than 25,000 inmates. In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety.
As prison populations expand, costs to states are on the rise. Last year alone, states spent more than $49 billion on corrections, up from $11 billion 20 years before. However, the national recidivism rate remains virtually unchanged, with about half of released inmates returning to jail or prison within three years. And while violent criminals and other serious offenders account for some of the growth, many inmates are low-level offenders or people who have violated the terms of their probation or parole.
“For all the money spent on corrections today, there hasn’t been a clear and convincing return for public safety,” said Adam Gelb, director of the Public Safety Performance Project. “More and more states are beginning to rethink their reliance on prisons for lower-level offenders and finding strategies that are tough on crime without being so tough on taxpayers.”
Take a look at these numbers:
1 out of every 9 black men between the ages of 20-34 is in prison
1 out of every 54 men above the age of 18 is in prison
Over the last two years, CT’s prison population has grown by 1.1%, putting it slightly below middle of the pack.
CT’s spending on corrections is 4.4% of its total budget expenditures.
CT is also one of five states that spent more on corrections than on higher education.
So what are states doing about it? From page 22 of the report – there are three options: (1) diverting low-risk offenders from prison, (2) reducing the stay of low-risk offenders and (3) a combination of the two.
This is a fantastic report and a must-read.
H/T: SL & P
Piercing the blogging veil
Feb 28th
So, despite my best half-hearted attempts to conceal my identity, it has come to my attention that a growing number of you know who I am. My initial reaction was to go the Audacity route and just shut down. But I’m not going to do that. Frankly, because I enjoy this too much and I really don’t say anything here that I wouldn’t say to you in person. If you know me and think that I’m an idiot, then my work here is done.
I do have two requests, though. If you refer the blog to other pds or attorneys in CT, try not to refer to it by my real name. Second- and more important – what the heck are you people doing reading but not commenting? C’mon folks – start getting involved! There are plenty of you that know more about some of this stuff than I do. So chime in. Don’t leave me looking like a fool. That’s my job.
Otherwise I’ll be forced to send you all e-mails.
Thanks for reading 
For those of you who don’t know me, but are curious nonetheless, this is what I look like:
The photo has been updated. Now you’re all confused because you don’t know which one I am. HAH!
No, seriously, that’s my mortal enemy. This is me:
That’s Miranda in the background.
Disparity challenge to death penalty survives motion to dismiss (updated)
Feb 28th
Update: Here‘s a copy
CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).
In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.
“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”
This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:
“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”
Waste of tax dollars: pointless prosecution edition
Feb 27th
This week’s edition of “biggest waste of governmental money” is not a video, but a story that stems from a Supreme Court case. SCOTUS granted cert. in Keith Lavon Burgess v. United States. The certified question is can a sentence be enhanced on the basis of a prior felony conviction, so as to require a 20-year mandatory-minimum, if the prior conviction is for a misdemeanor under state law. Apparently, Burgess’ petition was filed with the assistance of a fellow inmate – Michael Ray. Ray used to be (still is?) a paralegal and is serving time for a fraud conviction.
The problem, now, is that the Attorney General for South Carolina is investigating whether Ray has committed a crime by doing so. The crime? The unauthorized practice of law. Oh yeah. Apparently they’ve got nothing better to do in S. Carolina. I mean, one inmate helping another to challenge his conviction is not to be tolerated, especially if that inmate is doing something that only a select few in this country can do. It’s not like there are a bazillion lawyers in America. Ray reportedly made a whopping $145 for filing that petition (I’m just guessing – 50 hours’ work seems reasonable. He makes 29c an hour). That’s half an hour that a partner at a law firm could have worked. How will he shine his shoes now?
Seriously, this is stupid. The AG should do some real work.
H/T: WSJ Law Blog
Money won’t buy you better justice
Feb 27th
On occasion, clients will hesitantly – almost embarrassingly – ask if giving us pds money will make things better for their case. Perhaps it will make us investigate defenses with more vigor or make us move their case to the top of our pile. Obviously, for the ethical attorney, the answer is no. That question is also a stupid question to ask private attorneys: they charge their fee and offering more money shouldn’t make them want to work more (some of the privates can chime in here).
There’s another problem with these sorts of questions: that money can be the answer to all of one’s problems. For example, a perfectly legal search can become problematic because $500 changed hands between the defendant and counsel or $2000 will create a third-party defense when you’re caught on tape with your name on a large cardboard card hanging from your neck, committing the offense, while looking straight at the camera, shouting loudly “I AM JOHN DOE. I AM COMMITTING THIS CRIME.”
Which is why I chuckle when defendants say things like “why did I pay that guy so much? I could have gotten the same result with a public defender” or “man, he didn’t do nothin’. The offer stayed the same”. It’s also really shady for a private to take a case away from a pd with the promise of a better offer. The other day, I read a transcript in which both the judge and the prosecutor stated on the record that the offer made to the defendant was the same that was made when he was represented by the public defender. The judge said “some defendants think that if they fire the pd and hire a private attorney, the offers are going to get better. That’s not the case.”
I’ve heard judges tell defendants “not to waste their money”, because whatever the private attorney can do, the public defender can do.
Folks – it’s the facts. Either there’s a defense or there isn’t. (In)competence reaches across both sections of the bar. There are incompetent public defenders and just as many incompetent private attorneys. Money won’t make them perform better. Or, at least, it shouldn’t.
Growing up inside Supermax
Feb 26th
Meet Jacob Ind. Jacob is one of 46 teens sentenced to life without parole in Colorado, pursuant to a statute that has since been repealed. The facts surrounding his conviction are pretty gruesome. He hired a fellow student to kill his mother and step-father, both of whom levied years of abuse on Jacob – emotional from the mother and sexual from the step-father. But you can do your own research on that if you’re interested.
At the age of 15, Jacob was sentenced to LWOP. He was featured in a PBS documentary and now Lisa at Compassion in Juvenile Sentencing has been corresponding with Jacob. The result is an 8-part series of posts, which feature his responses on topics ranging from how to survive inside prison, whether supermax is really for the “worst of the worst”, how the prison system isn’t designed to help teens along the right path, what he dreads most each day, what he dreams about doing if he gets out and, ofcourse, his coming to terms with his actions.
An absolute must read for those who are interested in prison culture and the impact that lengthy periods of incarceration have on teens. Jacob seems to have come around and developed into an intelligent, articulate individual, but think of the many that are not. Here’s a sampling, but for the full series (and you really should read all the posts), go to Lisa’s blog:
What is hard on the young minority kids coming into prison is that they’re expected to remain loyal to their gang and some of the older gang members are not above exploiting the youthful urge to be accepted and to fit in. Black youth seem to be better off than Mexican kids because the Nation of Islam has enough of a following in here that if a Black kid chooses to drop his gang for The Nation, he’ll mostly be left alone. The Mexican kids don’t have a group like that, so if they leave their gangs they do so without any support. Prison is a scary place and with all the other pressures on a kid, he is not likely to abandon his support group.
That’s the boat Andrew Medina was in. If it wasn’t for the new mental health program which sidestepped the draconian members of the review board, he’d still be there. [Andrew Medina was shown on the Frontline Special, “When Kids Get Life” in May of 2007. At that time he had been in Supermax for over five years. He has subsequently been moved to General Population in the Centennial facility in Colorado]. That guy took his classes and stayed out of trouble, but it didn’t matter. He was young, looks very young, and has life so he wasn’t fit to be released. DOC locks away its perceived problems instead of dealing with them. It is far easier to send kids to Supermax instead of creating programs suited for their adjustment to prison… Juvenile systems country-wide manage to deal with it without resorting to Supermax prisons, but then again, juvenile systems are designed to deal with kids, adult prison isn’t.
…
A big part of that was taking responsibility for my actions. I had felt no responsibility for killing my parents and hurting so many people as a result. It was their fault I killed them, they shouldn’t have treated me like they did. I ended up trying to convince myself that I was acting in vengeance against two absolutely evil creatures with no human worth – I glorified myself and dehumanized them. Becoming a man I could be proud of required that I be honest with myself. I acted out of weakness and fear and my parents, despite their actions, were just very hurt people trying to deal with their own demons. My actions weren’t noble and pure, they were ignorant, hurtful and wrong. Putting myself in the shoes of those I’ve hurt gave me a whole new perspective.
The “Hillary as public defender” flak (updated)
Feb 26th
There’s some nonsense on the interweb about Hillary Clinton when she was appointed by the court to represent an individual accused of assaulting a teen and how she cross-examined the 12-year old complainant and what this means about her as a person or some such thing. Rushing out the door now, but read for yourself here, here and here. Here‘s the story in question. I might have more on it later, I might not.
Update: Okay, I’m going to jump in. This whole “story” makes me rather upset. To portray her in a bad light because she did the very thing every competent criminal defense attorney should do just exemplifies the lack of understanding of the functioning and the importance of our adversarial system. So what if the victim was 12 years old? If the defense was that she was lying, then you have to go after her. What if she really was lying? What if she was and Hillary went soft on her? Would we be celebrating Hillary for effectively abandoning Constitution? Have we become that blinded by the media glare on sex crimes that we cannot recognize that every charge must be zealously defended or our rights will be eroded?
Lots of people are chiming in, with various views. Take this, for example:
Indeed, if the young victim were lying, one wonders why Hillary agreed to plead her client to “unlawful fondling of a minor under the age of 14, which carried a five-year sentence.”
And yes, I understand that even a child rapist is entitled to present a defense, but there are other ways to present a defense than by trying to destroy a complaining witness, especially where exoneration is not the goal, but conviction on a lesser charge, as in Hillary’s case. All-out destruction of the “opponent” is not often, if ever, required for effective representation. I’ve seen truly competent attorneys who manage to retain their moral integrity while carrying out their legal duty to their clients.
This monday morning quarterbacking is bullshit and offensive. It’s also disingenuous. At trial, the goal is the best possible outcome, be it a not guilty verdict or a guilty verdict on a lesser included. Why is “all-out” destruction of the opponent’s credibility not required? Why are we encouraging half-hearted lawyering? Different people have different styles and there is absolutely nothing wrong with what she did. Let’s see if you have the same feelings when you’re charged with a crime and your lawyer doesn’t ask the unpopular questions.
Tom, have you never gone to trial on a weak case? Have you never offered a plea bargain to a defendant despite knowing that you’d lose at trial? Then why this bs of “one wonders why Hillary agreed to plead her client”. You know damn well why.
It really is disgraceful that someone who fights to uphold the Constitutional rights of an accused individual is vilified in such a manner.
Contempt conviction reversed
Feb 25th
Way back in April, 2007, public defender Sherri Jefferson was convicted of contempt and sentenced to 30 days’ imprisonment. That led to her resigning from her position as a public defender and appealing the trial court’s imposition of the sentence.
Now, the Georgia Supreme Court has issued their decision In re: Sherri Jefferson [pdf], reversing the conviction for contempt. In doing so, they enunciated a new standard for evaluating whether contempt proceedings were appropriate and the standard to use in deciding whether to hold someone in contempt.
Initially,
the judge found two of the eight statements in question to have been contemptuous on the basis that the statements impugned, disparaged, and attacked the impartiality of the court and thereby undermined its authority, respect, and dignity.
Enunciating the new standard, the Court held that:
An attorney may be held in contempt for statements made during courtroom proceedings only after the court has found (1) that the attorney’s statements and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and (2) that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy.
and gave some guidelines:
(1) the extent to which the attorney was put on notice prior to the contempt citation that a continuation of the offending statements would constitute contempt; (2) the likely impact of the offending statements on the deliberations of the fact-finder, which calculus incorporates both the nature and timing of the offending conduct and whether the fact-finder is a judge or jury; (3) whether the offending statements occurred as an isolated incident or constituted a pattern of behavior; (4) the significance of the particular issue in question to the case as a whole and the relative gravity of the case; and (5) the extent, if any, to which the trial court provoked the offending statements with its own improper statements.
Now it returns for reconsideration. I’m not so sure she should be found guilty of contempt under this standard.
Monday Morning Jumpstart
Feb 25th
photo credit: Jessica DeWinter
Welcome to the Oscar after-party edition of the Jumpstart. How hungover are you?
- The Windypundit gives us a refresher course on why shutting down wikileaks.org hasn’t shut down the actual website.
- Scott continues the Miranda/videotaped interrogations conversation by quoting the perspective of a cop.
- Steve at SexCrimeDefender lists the “four types of sex cases”.
- EyeID reminds us that it wouldn’t take much to “fix” faulty ID procedures and yet we’re not doing anything about it.
- Matlock the Republican opines on why defense lawyers and prosecutors object differently and for different reasons.
- From Indefensible, a funny video covering hearsay exceptions.
- The right to trial by jury is inviolate, but sometimes you wish the client took that deal.
- EvidenceProf tells us of an opinion which holds that the work-product doctrine applies partially to jury consulting.
That’s all this week. You want more? Well, then blog more!
Sunday Stupidity: Wasting governmental money edition
Feb 24th
[youtube]http://www.youtube.com/watch?v=OLQydbDHYtE[/youtube]
Is videotaping interrogations a better solution?
Feb 24th
In my post discussing the demise of Miranda, I approvingly quoted the author’s mention of videotaping confessions as a possible solution. Scott writes today and warns us not to get too invested in videotaped confessions and why they may not be the answer. He is correct in that videotaped confessions are not very helpful and may end up providing the final nail in the coffin of a factually innocent defendant who goes to trial.
Scott’s post seems to focus only on confessions, as opposed to videotaping the entire interrogation(s). That’s the mistake. If we tape the entire interrogation instead, though, these reservations may not exist. Here‘s a report from The Justice Project which argues that entire interrogations must be videotaped. After all, it is the interrogation that Miranda seeks to safeguard. So why should its “replacement” focus only on the confession?
It is the interrogation that needs to be videotaped to provide a complete picture of the voluntariness of a confession. Of what use is a confession only? That is principally the same as a written statement. By that point, the defendant has been broken down and tricked, cajoled or threatened into confessing. If he seems resigned on videotape while delivering his confession, it may be a product either of his guilt overwhelming him or of fatigue and submission.
A google search for videotaped interrogations provides a wealth of information: some as far back as 2002 from Chicago and some more recently from California.
There is, of course, the initial hurdle of resistance from law enforcement to overcome, but as with lineup and ID procedures, the wall is slowly starting to crumble. As of April, 2006, there were 450 law enforcement departments nationwide that required videotaping of interrogations. From Northwestern Law, here [pdf] is a list of agencies in the country today employing some form of videotaping and here [pdf] is a fantastic report (that I intend to read in-depth) from 2004 chronicling police experiences with videotaping interrogations. The New York County Lawyers’ Association has published this report [pdf] calling for interrogations to be videotaped. It analyzes statutes and regulations in various states.
In Connecticut, a pilot program was approved last year for certain jurisdictions. I haven’t heard anything about it or how it is working. Anyone who knows want to chime in? Did any jurisdictions actually sign up for the pilot program? [Previous coverage here and here.]
Once concern from law enforcement is that it may be difficult to videotape interrogations in all circumstances. I don’t think that’s true. If a suspect is arrested in a remote area, cops have two options: (1) use the in-car video system or (2) wait till you get to a police station. What am I missing here?
If the entirety of an interrogation is recorded – videotaped – then it certainly would give the viewer an accurate picture of the voluntariness of an eventual confession.
The only obvious problem that I can see is defining when such a recording must commence. Is “custody” too late in the game? What if there is an audio recording of initial contact and then video recording of an interrogation? I guess the answer will depend on what studies show to be first time that coercive tactics are used. I haven’t done enough research to provide a reasonable answer, but I think it is one that can be answered.
Videotaped interrogations may not be a panacea, but I think they will be a hell of a lot better than what we have now.
photo credit: werewegian
Blawgers Baseball 2008
Feb 24th
The 2008 season of the Blawgers Baseball Fantasy Baseball League is about to start. BRING IT ON! Details at the Blawgers Baseball Blog.
I am going to win this year. Book it.
W(h)ither Miranda?
Feb 23rd
A new paper asks the very question: Has Miranda become ineffective? Not because it’s not needed anymore, but because police departments are finding ways to get around it while achieving the same results. The conclusion is pretty bleak:
So how well do Miranda’s safeguards fare overall? I believe that we have a Miranda rule that is somewhat limited in reach, that sometimes locates warnings and waivers within the heart of a highly-structured interrogation process, that provides admonitions that many suspects do not understand, and that appears not to afford many suspects a meaningful way to assert their Fifth Amendment rights. As a prophylactic device to protect suspects’ privilege against self incrimination, I believe that Miranda is largely dead. I would welcome compelling evidence to the contrary (or proof that California is a complete outlier), but I do not believe such evidence exists.
This paper does an excellent analysis of the Court’s decision in Miranda and subsequent decisions that defined gutted its meaning and scope:
But a primary virtue of Miranda is, in theory, giving clear guidance and bright line rules to police, judges and prosecutors, thus avoiding difficult individualized assessments. Thus, it is not so much that the Court has retreated after Miranda but rather that the one-size-fits-all safeguards put in place by the Miranda Court could never have functioned as intended. Or perhaps it would be more accurate to say that a far higher proportion of defendants than the Court initially anticipated have been left uninformed and unempowered by form warnings.
So whither Miranda? Will it provide more benefit to abandon Miranda? The paper suggests legislative action:
One possible outcome might be legislation that directly regulates the police and affords greater protection to suspects than Miranda currently offers, perhaps in conjunction with a modified system of warnings. A legislature might, for example, require warnings in very simple language and instruct police to give them prior to any suspect interviews or interrogations. It could require that all interrogations be videotaped, a movement that is slowly gaining ground.
H/T: Appellate.
Update: I should have checked before posting. SimpleJustice also has some thoughts.
Racial breakdown of crime and conviction rates in CT
Feb 22nd
The OLR has been doing some terrific work that I have been neglecting. One example is this report dated January 18, ’08, titled essentially the same as the title of this post. Another is this report on the cost of incarceration broken down by correctional facility and the cost of a career criminal (answer: Northern CI, where it costs $100k to incarcerate one inmate for one year). All of the criminal justice reports are collected here. I’m still looking for data on racial disparities at sentencing, either in CT or elsewhere in the country.
The racial breakdown data is interesting and is reproduced after the jump.
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