Archive for August, 2008
A question
Aug 31st
Can one oppose gay marriage and/or civil unions and still claim to have “good friends” who are gay? Or perhaps the question should be: would someone who is gay be “good friends” with someone who opposes gay marriage and/or civil unions?
It’s not like having friends who refuse to be fuel efficient, while you drive a Prius. Gay marriage seems to be a more fundamental issue.
Anyone know the answer?
Do you know what a dojo is?
Aug 30th
Someone somewhere compiled a video of some funny karate kicks. Here they are. I’m sad to say that the list is populated by Jean-Claude Van Damme and does not feature either Chuck Norris or Steven Seagal. Still, some karate is better than no karate on a Saturday afternoon.
Stop. You have reached the end of the internet
Aug 29th
Well, not really, but you will be cut off if you’re a Comcast customer and you use more than 250gb of bandwith per month. This means that almost no normal user will have a problem. Except, of course, Scott Greenfield, who uses about 3 trillion GB of bandwith everyday.
Unlike Appellate, who is okay with it, I think it’s silly.
Do you gamble?
Aug 28th
The Texas Tornado, by way of the two Justices (Blonde and Western) writes about (what he might as well trademark) the NLS (Nasty Little Surprise©) strategy and tactic.
The question is simply
why a criminal defense lawyer would not share exculpatory information before trial with the Government.
All three of them hit on the crux of the matter – trust. Trust in the prosecutor assigned to the case and trust in yourself. You want to reveal this exculpatory information to a prosecutor whom you know will not dismiss it outwardly and then try to circumvent it surreptitiously. Thankfully, in my experience at least, such prosecutors are few and far between. It is a very real possibility, however, and one that should be weighed.
Then you have to trust yourself. Do you trust yourself to take the case to trial and present that exculpatory information in the best possible way? Only you can answer that question.
The Tornado then goes on to separate the NLS’ into two categories: the bombshells and the not-bombshells. Both should never be revealed to an untrustworthy prosecutor, he says, and the second category NLS need not be revealed if it won’t make much of a difference in the pre-trial stage.
I don’t know how they do it in Texas or the State of Justices, but here in CT, most pre-trials in Part A are in judges’ chambers, where both sides sit down, talk about the case, give the judge some information (without revealing all the cards, of course) and hash out a number. If the number is too high or too low for one side, you go back two weeks later and try it again (roughly speaking). So if there is some exculpatory information, you might be able to get a Judge on your side and convince the prosecutor to dismiss or nolle the charges. Won’t happen every time, but worth considering.
So, The Tornado argues, echoing Blondie, that you might want to set up the NLS for use at trial – a Perry Mason moment, if you will.
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk.
If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.
When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?
I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.
(Now, you all probably know that I hate generalizations, so I just want to add that every case is different and every circumstance is different and what I would do would probably depend on the individual case, but as a general rule, I’d rather use the exulpatory information pre-trial.)
Fellow practitioners, what do you think?
And finally, just because it’s been so damn long since I’ve done this:
[youtube]http://www.youtube.com/watch?v=kn481KcjvMo[/youtube]
Raising the Bar
Aug 28th
You’ve probably heard by now that Steven Bochco and David Feige‘s Raising the Bar premieres on Monday at 10pm on TNT. It stars Zack Morris as a public defender and Malcolm’s mom as a crazy judge (who, thankfully, doesn’t seem to yell as much in this new role).
I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.
For example, some guy in the Boston Herald writes:
In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.
Never has the justice system looked so silly.
That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.
If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:
But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).
Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.
Dear jackass
Aug 27th
To you in the not-to-be-disclosed-color car, who drove about 2 inches behind my car on the highway this afternoon: driving that close does not scare me and it will not make me change lanes. What it will do, is make me want to slam on my brakes really hard. You were driving a convertible. I was not.
Also, drive slower. Save gas.
Just a little guilty
Aug 27th
Due to unforeseen commitments, I’ve missed out on a great discussion in the blawgosphere between Scott, Scott, KFPL, Jr., Scott again and then KFPL, Jr. again on the presumption of innocence, actual innocence and not guilt and whether juries should be given that third option of finding a defendant “innocent”.
The gist is this: a defendant, found guilty by a jury, has his conviction overturned on appeal on grounds of insufficiency of evidence. Does he have a right to compensation under the wrongful conviction statutes? If not, why not?
I’ve written about this before and I think it comes down to the distinction between factually innocent and legally innocent. Compensation statutes are geared more toward (and public support of such statutes is based on) factual innocence. Legal innocence (which may very well be the same – and as Scott argues, and I agree, is the same), to the minds of the legislators, is something different.
This distinction places a tinge of guilt on the “legally” innocent: He’s guilty, but they couldn’t prove it.
Which, if you think about it, is exactly the same as the presumption of innocence. He’s not guilty until he’s found guilty. Some lawyers like to ask that question of prospective jurors: “If you were to vote today, how would you vote?” The correct answer, of course, is not guilty, because there has been no evidence presented of guilt.
But that’s perhaps where the problem lies. That we, as lawyers, create and perpetuate these two worlds, where factual innocence and legal innocence are two separate and distinct beasts. That we revere factual innocence and look upon legal innocence as an acceptable alternative.
They aren’t – and shouldn’t be – different. Innocence means just that. Innocent. Whether it is because the state couldn’t prove that you were guilty or because, as all-seeing superbeings we “know” that you weren’t guilty.
The second, as you can see, is an impossible scenario. No one truly “knows”, unless you were there (and even then, given the eyewitness ID failures, it’s hard to believe that someone will always “know”). Requiring someone to show that they are factually innocent, is in most cases, like asking someone to prove that God doesn’t exist. You simply can’t prove that negative.
Indeed, the bulk of scientific evidence and theories is based on hypothesis. How little of it is actually proven? Has anyone actually seen a black hole? Yet we know they exist.
Both physics and astronomy are sciences. So is the law.
Being found not guilty is the same as being found innocent. Let’s not confuse the issue further.
Legal fictions: collateral consequences edition
Aug 26th
Back in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been stuck in my craw for a week or so now: collateral consequences that really are direct consequences but no court will acknowledge that.
Most specifically, I’m referring to immigration consequences of pleas – and no, not illegal immigrants. There are plenty of legal residents of this country that get deported after obtaining convictions. The standards for deportation are so low: almost anything can be an aggravated felony that results in deportation (yes, even possession of marijuana).
But that’s not the problem. If you’re aware of that pre-trial, you can deal with it or make an informed decision. What really gets me is when defendants have absolutely no clue that if they plead guilty to a particular crime, they will face almost certain deportation and courts simply throw up their hands and say “too bad!”
The law in this area is absolutely terrible and almost all of it because immigration consequences are deemed “collateral”. There is very little more direct (besides the actual incarceration) than facing deportation as a result of a conviction. In most cases, it is the legal resident who has lived here his entire life, whose “home” country has no connections for him, who gets screwed.
In fact, the law is so terrible that attorneys have zero obligation to actually inform their clients about the immigration consequences of their convictions. They can say absolutely nothing about a possible deportation and yet they would have performed adequately. It is only if there is a misrepresentation about immigration consequences will courts look at the performance of attorneys.
There is nothing more absurd than protecting an attorney for failing to advise his client about a very real and very important consequence of a conviction. Yet, this is prevailing law of the land.
As an attorney, wouldn’t you want to know if the conviction will result in deportation? How difficult is it to ask if the client is a citizen and if not, know and understand the consequences of a conviction. It is our job as counsel to adequately and effectively advise our clients about their options and the consequences of their actions. Certainly the very real possibility of deportation is something that we should add to our checklist of things to do. Sure, immigration law is complex, but as with all things, it becomes clearer once you familiarize yourself with it. It should be made a part of every attorney’s training and practice.
The courts certainly aren’t going to help our clients in this arena; shouldn’t we?
Doin’ time on the outside
Aug 19th
Julie Amero, still stuck in legal limbo-land, 432 days later. Rick Green wants to make some noise. H/T Karoli. There’s a petition for those who might be so inclined.
Must prisons be so confining?
Aug 19th
Stuck in the waiting area of a local Level 4 prison yesterday, awaiting the arrival of a client, my investigator and I got talking about prison cells. So we decided to map out the size of a standard prison cell in the waiting area where we were.
We used 80 square feet as an average size – and boy is that a small, small area. The waiting room was roughly three and a half times that size and I don’t think I could keep my sanity after spending one day locked in that room. I can’t imagine what it would be like to spend just one day in your average prison cell.
And it isn’t 80 square feet of open real estate, either. There’s a bed (or two), a sink and toilet and perhaps a shelf or two. Add to that boxes, files, books, a tv, a mirror and other things and you have almost no space but the bed itself.
So, I ask, why? Why must prisons be so confining? It seems to me that making cells that small and restrictive is adding a second layer of punishment. There’s the overall punishment of incarceration in a state-controlled facility: you can’t leave for a specified period of time, you eat and sleep and drink and take a shower when someone else tells you to, you have very limited contact with the real world, you have no access to fresh air or the outdoors – you have no freedom. Why compound that with an incredibly small room that further confines your ability to move around in the already limited environment?
Is it a wonder that people in prison are aggressive and angry – and sadly – many of them have mental health issues?
For those of you who say they deserve to be there, to be further punished, I ask if the taking away of liberty is not punishment enough? How long do you think you could stay sane if you were under house arrest? Imagine living in your house – however big it is – but without the ability to leave. You’re still in your house, but you can’t cook your own meals, you can’t access the internet, you can’t mow the lawn, you can’t go to the mailbox to get your mail, you can’t open a window.
At some point (pretty quickly, I imagine), it won’t matter that your house is 3000 sq. feet, as opposed to 80. The punishment is in the restriction on liberty, not in the confinement like a caged animal (or should be). So, even if you lived in Buckingham Palace, at some point you’d feel confined.
Could you? Could you live in your house with the conditions I impose above for ten days? Two months? Five months? Two years? Two years. Think about everything you’ve done over the last two years before you answer that.
So what’s the harm in making prison cells a little…bigger? Isn’t it enough that we have confined these individuals for long periods of time? Must we also treat them like unwanted pets at a kill shelter? Maybe it’ll improve their mood a little bit, and with that, a chance at rehabilitation. But if you treat people like animals, they become animals. Show them some compassion and something good may come of it.
Take a look at this picture. What do you think it is?
It’s the Leoben Prison in Australia. As has been noted by others on the web, it looks like an Ikea Store. But it’s still a prison. Do you think the prisoners there are happy to be incarcerated? I bet they still feel pretty restricted. Here’s a picture of a jail cell:
But perhaps they don’t feel like society doesn’t give a damn about them and perhaps they feel treated like human beings.
Further related reading: A list of the most interesting, overcrowded, smallest and biggest prisons in the world
Monday Morning Jumpstart: It’s Aliiiive!
Aug 18th
aaargh! It lives!!!
Yes folks, believe it or not, the Jumpstart is alive! After spending three weeks in the infirmary, the Jumpstart has made it through. There were times when it seemed like there was no hope and the plug needed to be pulled, but every time that happened, poor old Jumpstart’s heart would beat a little faster, like an episode of House.
So, it’s here and raring to go. Leaner, meaner, greener and fighting machine-ier.
Start off your morning with these interesting posts and stories:
- The Texas Tornado has a fantastic post on the naivete of some prosecutorial veiwpoints.
- Could anti-drunk driving TV campaigns be a way to tamper with potential jurors?
- Scott tells us that the U.S. may have screwed up its response to the Lori Drew motion to dismiss.
- Missouri has an “old-timers” unit in prison. Others will probably have to follow suit as populations age and prison sentences remain astronomically high.
- In Virginia, they’re testing DNA on old convictions, but aren’t sharing the results.
- Loan forgiveness finally signed by the Prez. H/T Skelly
- The Underdog asks my favorite question du jour: How can a proper Terry patdown find crack cocaine?
- In the day’s “duh” category: prosecuting juveniles as adults increases chances of recidivism.
- Heller goes to school: Texas will now permit teachers to carry guns to school. Yay.
- It seems Gerry Spence reads my blog. He writes about the “secret of winning” (again) and focuses on preparation. But he also disses public defenders. So that’s not good.
- EvidenceProf brings us an interesting 7th Cir. decision on the testimony of a psychologist to prove lack of impulse to negate “attempt”.
- Probably the worst place you can get into a fight: a prison transfer van.
- Of course, Hartford’s curfew is still making news (although zero new violence in the city since last week!)
- Someone sees the light and dismisses a “mandatory reporter” prosecution.
- Not that there was any real doubt, but: DNA helps confirm that the recent Bigfoot capture is a fake.
That’s it. Come back tonight for more. Have a good day!
Improving access to post-conviction DNA testing
Aug 14th
The Justice Project has a new policy review on this subject. I haven’t read it yet, but I thought I’d pass it along.
Want to reduce crime? In by nine!
Aug 14th
Hartford’s struggling. There’s no doubt about it. No matter what the police and city government try to do, it seems as though every week there’s more violence. Now, after last weekend’s shootings in which one was killed and 7 were injured – mostly children – the city has decided to try a new tactic: a curfew.
Under the rules of the curfew, which goes into effect today, anyone under 18 who is caught loitering on a city street without a parent, guardian or approved adult will be given a written warning and taken home. Repeat offenders will “go to court”.
Already the curfew has produced mix reactions: the ACLU saying it is not legal, a Hartford Courant editorial arguing it will be ineffective, Stan Simpson (whose columns I like) reminding us that this is a much deeper problem than vagrant youth, one victim’s mother telling people to buck the anti-snitching culture, Hartford prosecutors considering the use of a grand jury and a group of activists planning on going door to door asking the criminal element to leave Hartford.
There are arguments both for and against such a curfew. The ACLU recently successfully challenged a similar curfew in the northern town of Vernon and claims that curfews don’t work. However there are some reports that it may help reduce crime:
City of West Palm Beach Florida just observed the one year anniversary of a 10 PM curfew for those under 17 years of age. They say its enforcement has been very successful.
Police there say arrests of juveniles are down 36 percent and nighttime arrests dropped 86 percent. They also say the total number of crimes during curfew hours are down 12 percent.
Further, it doesn’t really solve the root of the problem, which I’ve talked about quite a few times. Hartford is an economic crap-hole and there are a lot of absentee parents. Add to that the anti-snitching culture and you’ve got a mob running wild.
Something has got to be done, but most of the solutions are long-term and the problems are so entrenched in the city that it would years, if not decades to right the ship.
In the meantime, the residents of the city need to feel safe. If a curfew is a band-aid to be placed over a gaping wound, then at least it’s something. Taking loitering kids home after 9pm would force their parents to start getting involved.
It’s worth a trial. Which is what this curfew is, since it lasts only 30 days.
CA bans uncorroborated jailhouse testimony
Aug 13th
Uncorroborated testimony in criminal cases has always been a source of problems and worries. Think about it – you, as the jury, are being asked to believe one person over another, based solely on the tightly controlled testimony presented in court. It amazes me, and I know Miranda agrees, that any jury actually convicts based solely on the testimony of the complainant. How is there not reasonable doubt in every case?
Anyway, we have to start somewhere – and that’s where CA has started. The CA Senate passed a bill today (by a bare majority, no less) that bans the use of uncorroborated jailhouse testimony in convicting defendants.
Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero’s bill would help prevent wrongful convictions.
Whether it prevents wrongful convictions or not remains to be seen, but he’s got the part about the incentive to lie right. What greater incentive is there than to get a reduction in one’s sentence; a chance at escaping the hell-holes that are correctional institutions a little quicker?
Well, a “snitch” can be cross-examined, you say. True, but the lawyer doesn’t always have all the ammunition he needs. Prosecutors frequently enter into no agreement with the “snitch” other than a wink and a nod, so the snitch can “truthfully” deny any reciprocity when asked during cross-examination:
“Isn’t it true that in exchange for your testimony today, you are receiving a sentence modification?”
[With a straight face] “No. The State has not promised me any modification. I am doing this out of the goodwill that overflows from within my heart.”
“You don’t expect to receive any consideration from the State in exchange for your testimony?”
“I can expect anything, doesn’t mean I’ll get it” OR “No.”
Then what? You’re stuck and sure as heck, three weeks after your client is convicted, the snitch quietly has a hearing where his sentence is reduced by half.
This bill eliminates the problem. No corroboration, no testimony, no incentive to lie.
Now if they could only fix that damn co-defendant’s testimony doesn’t require corroboration rule, we’d have something.
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