Archive for September, 2008
You can thank me later
Sep 29th
It's the economy, stupid
I have the solution for the country’s economic woes. Really. If the country’s politicians do what I say, there will be large revenues available to stabilize the markets and to inject back into the stream of commerce, thereby making everyone happier. Consumer spending will be up, housing markets will start to rebound and – most importantly – everyone will be relaxed!
Figured it out yet? Yep. Legalize marijuana (and throw in prostitution if you want). Estimates of the annual marijuana market range from $10 billion to $100 billion. Tax the import, export and sale of marijuana. Help the economy.
Duuuuuuude.
Quote of the … well, ever.
Sep 29th
“I don’t know what’s so great about the [Great] depression, but that’s the name that we gave it.”
- Nancy Pelosi, who is third in line for the Presidency (HT: C&F).
Legal fictions: Confidential communications
Sep 28th
Babel babble
One of the hurdles we have to deal with as criminal defense attorneys is the language barrier between us and our clients. A fair percentage of our clients don’t speak English or don’t speak it well enough for us to effectively communicate pertintent information.
The Court system provides for this by employing interpreters who stand next to defendants and translate anything that is being said verbatim. But that’s not good enough and doesn’t cover all communications between client and attorney. It’s also not fool-proof.
I could regale you for you hours with stories of interpreters that stretched the limits of their job description and started conversing with the clients. But I won’t – you’ve all been there.
Translating in court isn’t all that an interpreter is required for. What about letters to clients or phone calls or visits in person? Here, in CT, the interpreters office will send interpreters along on legal visits (if you ask for one) and will translate letters for you. This practice has inherent problems: the most important being confidentiality.
Any time you have a conversation with a client where a third party is present, confidentiality is waived. Anything you say at that meeting can be repeated in court. So what do we do? What do you do? Short of becoming fluent in Spanish and spanish-legalese, are there any options available? Without the assistance of the interpeter, one cannot communicate with the client, but if one does, then the conversation is not confidential.
Perhaps for those of you in private practice, there is an out. You use your own investigator who is fluent in Spanish. Those communications are probably still privileged. But for those of us in the public defender system, it creates a difficulty.
Ideally, there should be an independent interpreting service that enters into a contract with the pd’s office, wherein one of the conditions is confidentiality.
With the judicial interpreter’s office, there is only an implied confidentiality and, in reality, there is none whatsoever.
No one would actually try to use the information gained from such a meeting (or from “confidential” visiting rooms and telephones in prison) because the outcome would be a massive lawsuit and lots of headaches for the State, but that doesn’t mean that if push comes to shove, there actually is a cloak of confidentiality.
How does your State do it? For those in CT, how do you do it? Have you found a suitable workaround? Please share.
Friday night Funny
Sep 26th
Whatever your political affiliation may be, this video is definitely funny:
[youtube]http://www.youtube.com/watch?v=OBghD0XBN5M[/youtube]
Drive away. I dare you.
Sep 24th
Let’s try a little game. I will give you the opening lines of a recent Connecticut Supreme Court decision [pdf] and you tell me (you can do this silently, sitting at your computer) what the outcome is. Ready?
The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court’s judgment, claiming that that court improperly reversed the trial court’s determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant’s position to believe that he was not free to leave.
So. Raise your hands if you think the Appellate Court was wrong. Okay. You – the only one with the raised hand, there’s a job waiting for you at the State’s Attorney’s Office of Delusion.
The Court, naturally, finds that the Appellate Court was incorrect and that when two cops approach a stationary car – one from either side – a reasonable individual in that position would feel free to leave.
The car was parked in front of a private residence. At the time the cops got out of their police cruiser and began to approach the vehicle, there was no criminal activity and they had no R & AS. It was only when the approached an open window did they “smell” marijuana and the dance began. So it was essential to determine whether the defendant was “seized” when the cops began to approach his car.
The Court agreed with the State that there was “an insufficient show of authority” before the cops smelled the marijuana to constitute a seizure.
So, in essence, you’re free to go. Try it next time. I dare you.
This argument endorsed by the Court and proposed by the State is also rather troublesome. Consider the knowledgeable defendant who reads the Court’s decision and now knows that he is free to leave when cops approach his car. What is the natural reaction of “a reasonable person”? Drive away. This will lead to several things: cops and prosecutors putting forth the rather (dis)ingenuous argument that the act of driving away was sufficient to create reasonable suspicion and prosecutors relentlessly arguing consciousness of guilt. Of course, we can always argue that the defendant was merely exercising his Constitutional right to drive away, but that and a dollar will get you 50 cents.
Hidden in this reasoning is the disturbing notion of “if you’ve done nothing wrong, you’ve got no reason to run”, implying that anyone who drives off when a cop approaches has something to hide. Will that be enough, in future cases, to establish reasonable suspicion?
Officer: “Well, Mr. Prosecutor, when I approached the car, I was just trying to determine if the man needed help. But as soon as I started to approach, he put his car in gear and took off. In my training and experience, only criminals drive away from the police and based on my years in the force, I knew criminal activity was afoot. Why else would he drive away?”
The Court: “I find probable cause”.
The Supreme Court: “Affirmed”.
Someone please try this. I’m not brave enough.
After all that, we have a poll. Imagine you are legally parked by the side of a road. A police cruiser parks behind you and the officer disembarks and starts walking toward your vehicle. At that point, would you feel free to drive away?
[poll id="24"]
Troy Davis given another week
Sep 23rd
CapDefWeekly has the news that Troy Davis’ execution has been stayed another week, at least. He explains:
The stay appears related to his actual innocence claim – the scotusblog.com has the details. The Court appears to be concerned with the question left open in Herrera – whether factual innocence alone is enough to prevent an execution &, assuming the answer is yes, what standard must the condemned show.
Tune in to CDW to get updates.
Georgia almost (and still might) executed an almost certainly innocent man.
Le Roi est mort
Sep 22nd
Two institutions saw their demise this week. Goodbye Wall Street and thank you Yankee Stadium. One will be resurrected; what will happen of the other?
Not everything’s a crime
Sep 22nd
Oh noes!
Two interesting stories from the Nutmeg State in the last month or so remind us rather forcefully that not everything is a crime.
First, we have the tragic death of a two-year old, who shot himself with his father’s gun. Both parents have been charged with risk of injury to a minor. Apparently, the gun was left unlocked and loaded in an accessible location. A very stupid move on the parents’ part and they are paying for it dearly. But will criminal charges accomplish anything? It is an accident and should be treated as one, not as a crime.
Some might argue that prosecuting these negligent parents serves as a deterrent to others, but I think the death of the child is deterrence enough. After all, children have died under such tragic circumstances in the past and criminal prosecutions haven’t prevented further tragic deaths.
Even more curious is this arrest today of a mother who left her child alone at home for four hours:
Police said when the boy arrived at his Richard Street home after school on Friday, Binns was not home.
Police said the boy was found playing in a neighbor’s yard and had no idea of how to contact his mother. The phones in the boy’s home were not working, police said, and the boy had not eaten.
State law doesn’t specify at what age a child may or may not be left alone at home.
So now the State is parenting? The mother probably needs a smack upside the head, but a criminal prosecution? That seems to be a bit of overkill in this case. The child is fine. We’re now punishing her for what might have happened, instead of what did.
Sounds an awful lot like the Guv’nor’s approach to criminal justice.
Whether either of these prosecutions goes anywhere remains to be seen. This also highlights the power wielded by prosecutors. They have the power to drop these prosecutions, or press on, a la Raising the Bar, in the face of common sense that advocates some sort of community service or probation.
Since when have kids become so fragile that they can’t be on their own (in a neighbor’s yard no less) for a few hours? Is stranger danger real or a product of a paranoid society?
And how screwed is Catherine O’Hara?
Raising the Bar Episode 4 liveblog
Sep 22nd
Sorry for the delay folks, was catching up on earlier shows. Using the power of DVR, I’ll catch up by mid-show.
Monday Morning Jumpstart: Post-Emmy edition
Sep 22nd
So who watched the Emmys? I’m pretty bummed that Jon Hamm didn’t win, but also quite happy for Malcolm’s father.
Anyway, here are the most interesting legal posts of the past week(end):
- TalkLeft gives us a primer on the harsh South Dakota abortion law that is being proposed to challenge Roe v. Wade.
- Bennett urges us to join the NACDL – and at the very least to read new President John Wesley Hall‘s inaugural column [pdf] in Champion.
- Lawyers make the news – and not in a good way.
- 35% of lawyers would choose their Blackberries over their spouse…I’ve seen you posting to the listserve from your Blackberry…you know who you are.
- The Palin e-mail hacker may be caught after all.
- Anne Reed brings us another jury questionnaire, this time from the trial of a serial killer.
- Dissenting judge tells plaintiff in civil rights suit to take police cruiser video to youtube – and he does.
- Scott vocalizes a feeling we’ve all felt: wishing we could help them all.
- Volokh asks whether non-unanimous jury verdicts in criminal cases are Constitutionally permissible.
- Injustice Anywhere is back and blogging again. I missed her posts.
- CapDefenseWeekly’s email edition for this week is here.
- The Underblawg reminds us that there’s always more to our clients in a powerful sentencing argument.
- The NYT tackles the one election issue that has meaning to us lawyers: what will the Court look like for the next generation?
- Jon Katz gives us an update on defending the first federal trial for online copyright infringement that primarily involves music.
That’s all! Enjoy your day! Stay tuned for more posts later and, of course, liveblogging tonight’s episode of Raising The Bar.
Fiction and Order
Sep 16th
L&O just had a line where the cop tells the defendant he’s “in the big leagues” because he hit a cop. One problem: cop was undercover. It’s like they’re not even trying anymore.
Gideon’s promise: Determining who benefits
Sep 16th
Gideon made his promise a long time ago and States began providing indigent defendants with counsel in criminal cases. Much has been said over the years about the promise being fulfilled and states not providing counsel, but the Brennan Center for Justice at NYU Law tackles the flip side of the problem in a new report [pdf]: just who is eligible for counsel?
The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.
The report makes several recommendations and offers guidelines for eligibility determination:
- Screen people seeking the appointment of counsel to ensure that they are financially eligible.
- Apply screening criteria and processes uniformly, and commit them to writing.
- Ensure that screening is performed by someone who does not have a conflict of interest.
- Ensure that counsel is provided to those unable to afford it.
- Streamline screening to speed up the process and save money.
- Ensure that required procedural protections are in place.
The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.
The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.
Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”
This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.
The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.
Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.
What’s your experience in other states?
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