Monthly Archives: April 2008

Hump day is link dump day

It’s hump day. It’s been a long hump day. So here’s a link dump.

And finally, in honor of hump day, the Black Eyed Peas:

So much resistance to change

Cops really don’t like change, do they? One of the more noteworthy bills the legislature passed this past session was the one re-classifying 16 and 17 year olds as juveniles, as opposed to “youthful offenders”.

Why does this bother the cops? Because it means they won’t be able to talk to these teens without a parent or guardian present.

[West Hartford Police chief] Strillaci said that the law would cause juvenile courts to see a 60 percent increase in cases, and that police wouldn’t be about to question the teens without a parent or guardian, and that they wouldn’t be able to detain a 16-or 17-year-old.

He said it would prove costly for local police departments that would have to build special cells for the teens and hire more staff.

Note the contradiction there? “They wouldn’t be able to detain the teen”, but “they would have to build special cells and hire more staff”.

You can’t see it, but I’m rolling my eyes right now. Oh boy. Now they can’t get confessions from confused, immature teens. Tragedy.

Gov. considering veto of crim justice bill

Well, well. Now that the budget has tanked and we might not even have a surplus, the Governor announced that she is considering vetoing the recently passed criminal justice bill.

Gov. M. Jodi Rell said today that the state’s worsening financial condition may lead her to veto high-profile criminal-justice legislation passed in reaction to last year’s Cheshire home invasion.

Legislation on her desk would stiffen penalties for certain crimes and provide resources for new prosecutors and police and probation officers.

Rell said the tougher penalties could be salvaged by her vetoing only the monetary portions of the legislation.

It is remarkable when you remember that just a few years ago, the State had a surplus in the $700 million range (am I remembering that right?).

Can you imagine if they’d approved new prisons? Geez…

I can’t say that I’m surprised, to be honest. As prison populations rise, cost rises and the bloated budget of Corrections is, in my opinion, a direct consequence of the harsh tact taken toward drug offenses.

Take a look at that DOC budget – somewhere around $650 million last year. Then tell me there’s no harsh sentencing in CT. The truth is that CT hands out some of the harshest sentences in the country.

On top of that, there’s really no parole right now. Prisons are overflowing. Cost is up.

Her idea of a line-item veto may not be feasible. It very well might not be possible to keep the increased penalties without providing the funding for prosecutors and public defenders to man the system.

On the other hand, maybe there are enough votes in the legislature to override any such veto.

Senate President Pro Tem Donald Williams, a Democrat, strongly rejected Rell’s veto threat.

“I think it’s outrageous to suggest at this late date that we would not go forward with critical investments in our criminal justice system that pretty much everyone has agreed to,” Williams said. “I think it’s irresponsible at this point to say we’re going to ignore all that, and not find the resources to make this investment. … We will find the money for this critical investment in public safety.”

We’ll see. For now, I must confess that I chuckled a bit when I read the headline.

More at CTLP and CT NewsJunkie

Kool-Aid drinker

Western Justice, self-proclaimed small town prosecutor, quotes Alan Dershowitz in asking whether criminal defense attorneys are “lie promoters“.

But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.

Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?

Several things struck me about this as problematic. First of all, it would indeed be an extremely rare circumstance in which the defendant actually admits that everything that is alleged is 100% true. There’s a reason for this and it’s not because defendants are liars, but because rarely is everything actually true.

The second, and more fundamental, problem is the abject failure to recognize the system that we have and the distinct roles that prosecutors and defense attorneys fill in that system.

Defense attorneys are not partners in this pursuit of justice – we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.

Yet another thing that bothers me is the holier-than-thou attitude, which I’ve written about several times. Prosecutors like to think of themselves are righteous, can-do-no-wrong proponents of some higher ideal. Yet, time and again, they will take as gospel the drivel spewed forth by cops in “police reports”, ignore blatant lies, “lose” exculpatory information, condone arm-twisting of witnesses and victims. Where is the righteous indignation then? Why no outcry? The hypocrisy is palpable.

If you’re looking for the truth, Mr. Prosecutor, start by asking yourself if you would file a substitute information on a lesser charge or dismiss them entirely if you have any doubt as to the veracity of the facts are reported by the police. And if you would, recognize that it is your job to do so and that you are in the minority. Just as the defense attorney who goes to trial with a client who has “admitted” guilt. And even then, recognize that both the rare prosecutor who does not drink the kool-aid and the defense attorney that goes to trial in those circumstances are obligated to do so. The burden is yours, not ours.

This is not some silly game. The very liberty of individuals hangs in the balance. What I know or do not know about my client’s guilt or innocence is irrelevant. What is relevant is whether you can prove that he is guilty.

In the real world, one would assume that if the facts are such that all the elements of the offense would be easily proven, and there is no dispute from the defense, then the case will be plea bargained. But remember that a bargain means give and take. If you make an offer that is essentially the same as what the defendant would get if he went to trial, there is no bargain. You are providing no incentive to avoid putting you to your burden.

Scott provides a fitting conclusion:

But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.

So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.

What say you, WJ?

Monday Morning Jumpstart: Anniversary edition

happy birthday... er, um, anniversary

Creative Commons License photo credit: Sluggo

Slightly over one year ago, I debuted the Monday Morning Jumpstart (and it typical Gideon fashion, it was posted that evening). Look how it started out! Just four links. Ah, the innocent days.

Anyway, before we jump into this week’s…jumpstart…. I wanted to thank all of you that read the blog and especially those of you who actually click on a link or two in the Jumpstart. Thanks.

  • Dan Hull at What About Clients? comes out very strongly against elected judges.
  • From Jamie Spencer, can you spot the problem with how this bill was written?
  • Blonde Justice asks whether it is wrong for us defense lawyers to want to see someone prosecuted. Norm had a similar post about attitudes toward prosecutors and cops when they become defendants.
  • The CrimProfBlog’s thoughts on Virginia v. Moore.
  • Mark Bennett sides with the cited lawyer in the “hand gesture” contempt incident.
  • Anne Reed tackles disqualifying jurors that are related to the judge. Juries follows it up with some studies on the subject.
  • EvidenceProf covers the recent 9th Circuit decision finding no RS required for search of a laptop at the border.
  • LegalBlogWatch brings us the story of the student who twittered “arrested” to alert his family. Technology finally being put to good use.
  • Norm correctly points out that the Sean Bell saga is far from over.
  • Two interesting crim cases might be granted cert. by SCOTUS today. Watch SCOTUSblog for the news.
  • Scott asks whether the criminal justice system is too broken and whether we can do anything to fix it.
  • Western Justice asks whether defense attorneys are ‘lie promoters’, but really is tackling the ethical question of presenting patently absurd defenses.
  • The WSJ Law Blog has the highlights of Justice Scalia’s interview with 60 minutes.
  • CapDefWeekly’s weekly roundup is here.
  • A sex offender in CT is suing his neighbor, claiming harassment.

That’s all I have. If I missed anything noteworthy, leave a comment! Have a great day 🙂