Archive for June 4, 2008
On the law
Jun 4th
From Fred Rodell:
The Law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind. In medicine, in mathematics, in sociology, in psychology – in every other one of the physical and social sciences – the accepted aim is to look ahead and then move ahead to new truths, new techniques, new usefulness. Only The Law, inexorably devoted to all its most ancient principles and precedents, makes a vice of innovation and a virtue of hoariness. Only The Law resists and resents the notion that it should ever change its antiquated ways to meet the challenge of a changing world.
The tender Crawford
Jun 4th
As if child sex cases weren’t difficult enough, there are a couple of disturbing developments (at least here in CT) in this arena.
The first, covered well by Norm, is a proposed change to the Connecticut Code of Evidence. Norm explains:
Proposed Section 8-10 of the Rules would permit a statement made by a child to be admissible in lieu of live testimony if the following circumstances were met: First, the court would have to find the statement trustworthy; next, the statement was not made in preparation for litigation; third the child either testifies and is subject to cross-examination or is otherwise unavailable.
I hope the Rules Committee members were giggling when they cooked this up, at least that would show they have not altogether abandoned reason. Decoded, the rule will result in trials without child witnesses; defendants will simply have to confront a cold statement.
What is most disturbing (among a lot of other disturbing things) is that last part of the third circumstance: the unavailability of children. As anyone versed with the law knows, unvailability does not mean physically unavailable; reluctance to testify qualifies. The scary part is that this unvailability requirement essentially permits the introduction of inculpatory and incriminating statements with zero opportunity to cross-examine.
Sixth Amendment? What sixth amendment? Imagine this: There will be trials conducted in which a child can accuse someone of sexual assault and never have that assertion challenged by anyone. This is truly scary stuff, folks. Lock your doors and never, ever be in the presence of children, for one allegation is all it can take to ruin your life.
One would think this is squarely covered by Crawford. The problem, however, arises in defining what is a testimonial statement. By adding this requirement, SCOTUS has provided wiggle-room (whether intentional or not) to prosecutors to introduce statements that realistically should not be admitted.
As Norm correctly points out, any time there is an initial allegation of sexual abuse, the wheels of the criminal justice start turning. Anything after that – the interviews by doctors, social workers, forensic pathologists, are for the purpose of determing who abused the child and how, not if. There are mandatory reporting requirements and the allegations are duly conveyed to the State, which duly institutes a prosecution. But yet, there has to be a determination by a trial judge, faced with a young child and their outraged family, that these statements were made with a prosecution in mind. This is extremely subjective and almost always results in the statement being admitted.
So we end up with trials where a videotaped statement by the victim is admitted into evidence and the defendant has been forced to forfeit his right to confrontation. The word of the victim is now gold and goes unchallenged. Convictions are almost a foregone conclusion and obscene sentences the norm.
This is a very, very troublesome situation and I sincerely hope that the defense bar is fighting it tooth and nail. What do you guys do to combat these situations? What’s the best tact?
Previous posts:
Et tu Florida?
Jun 4th
Don’t feel so lonely, Minnesota. You’re not alone. As a wave of cuts in indigent funding seems to be sweeping across the country, Floridians are next in line to be submurged under the tides of cutbacks.
The Miami-Dade Public Defender’s Office plans to begin turning away thousands of cases in the coming weeks, arguing it is so short-staffed and underfunded that attorneys can’t effectively cover their assigned cases.
”We’re dancing as fast as we can. We can’t keep this up. We don’t have any alternative,” Public Defender Bennett Brummer said Monday, noting that his attorneys are required by the Constitution to provide adequate representation for indigent defendants.
Brummer’s plan: Refuse most felony cases. The office will continue to take cases in juvenile and misdemeanor court and the most serious felony cases — first-degree murders and capital sexual batteries.
Broward Public Defender Howard Finkelstein is considering a similar measure.
”No public defenders office can provide effective assistance because we are overwhelmed with cases and have inexperienced lawyers and have high turnover,” Finkelstein said. “There is a line as public defenders we cannot walk across. The judicial system is crumbling.”
Scoplaw reports from the front lines.
What is going on here? Off the top of my head I can list 5 states with indigent funding problems: Florida, Minnesota, Kentucky, Nevada and New York. I’m sure I’m missing a few.
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