Archive for October, 2008
Pro se per se
Oct 31st
I’m a little late on writing about this story (via several sources), but it sure is a doozy.
You know how it’s common knowlege that most appeals aren’t successful? Well, if you were a pro-se petitioner in Louisiana for the last 13 years, you knew that you wouldn’t win. Why is that? Because the Chief Judge of their Court of Appeals directed his clerk to summarily deny all appeals from pro-se petitioners without circulating the appeal to other judges.
The clerk, ridden with guilt, committed suicide earlier this year and left a note confessing everything.
This immoral and apparently illegal policy was in place until Jerrold Peterson, the staffer charged with implementing it, blew his brains out in May of last year. Peterson was driven to it in part, his suicide note suggested, by guilt over the nefarious tasks the judges made him perform.
In his note Peterson explained how the court gave indigent appellants the bum’s rush.
Although every criminal writ application is supposed to be reviewed by three judges, he was deputed to winnow out any that had been filed pro se and arrange for their automatic rejection.
Thus were an estimated 2,500 appeals deep-sixed without any judicial consideration whatsoever.
Now, facing public embarassment and possible ethical violations, the Louisiana Supreme Court has stepped in and asked…get this…the same appellate court to look at the appeals again. Note that they did not ask the Court to conduct an investigation into this practice, but simply to consider those appeals that were so summarily denied.
Because, if we placate the defendants with another cursory look at their appeals, we can sweep the ethical violations under the carpet.
At first this whole thing seemed rather odd to me. After all, how is this even possible? Here’s how:
Edward Dufresne, Chief Judge of the Fifth Circuit, took charge of pro se appeals in 1994. He then had Peterson prepare rulings denying writs for all of them and signed off “without so much as a glance,” according to the suicide note. “No judge ever saw the writ application before the ruling was prepared by me,” Peterson wrote in a second suicide note to the Judiciary Commission.
The rulings also bore the names, though not the signatures, of judges Marion Edwards and Wally Rothschild. Neither Edwards nor Rothschild had any clue as to what was in the applications, or even knew that they had been filed, according to Peterson.
So you’ve got one complicit judge and maybe three. But there are 5 more on that court. What of them? Are we to really believe that these 5 (or 7) other judges never once questioned the stark absence of pro-se appeals? Particularly in Louisiana, whose system has the following characteristics:
- About 90 percent of criminal defendants in Louisiana are indigent.
- Louisiana only provides post-conviction legal aid in death penalty cases. Everyone else must either hire a lawyer, find a lawyer to handle their case pro bono, or handle the appeal themselves. Obviously, most have no choice but to opt for the latter.
- One criminal defense lawyer in Louisiana told me that if you’re convicted of murder in Louisiana and you’re innocent, you’re actually better off getting the death penalty. At least then you’ll get a team of lawyers, investigators, and experts to help with your appeal.
This from a state whose criminal justice system was already crumbling. It’s hard to believe that people such as Judge Dufresne take an oath to uphold the law and to prove equal protection under it. Disbarment may be enough, but only barely.
Justice delayed is no justice at all.
Gideon endorses: The election meme
Oct 29th
So this post at Windypundit didn’t start out as a meme (although I guess you can argue it did, since he answered the questions posed to Reason editors), but I’ve decided in my infinite wisdom to make it one. This is not a political blog, but I’m allowed one political post every 45 years. This is it.
1. Who are you voting for in November?
Downticket Dems. For Prez – probably a write in vote. Boris Becker comes to mind.
2. Who did you vote for in 2004 and 2000?
Ralph Nader. Or not.
3. Is this the most important election in your lifetime?
Yes, until the next one. Or: no.
4. What will you miss about the Bush administration?
The Bushisms.
5. Leaving George W. Bush out of consideration, what former U.S. president would you most like to have waterboarded?
Can’t think of one who has so damaged the country. I mean, is there anything he didn’t do?
Your turn.
The AQA thread
Oct 27th
Once in a while I feel magnanimous. Like tonight. So I will answer all questions asked (thus, AQA). This is an AQA thread.
Let’s start off with some recent queries that brought people to this blog:
- is it ethical for a public defender to refuse to represent a person believed to be guilty? The short answer is no. There is no long answer.
- father in prison, can they file an amendment by default? I’d answer if it I knew what the hell it meant. I’m going to say….all signs point to yes.
- why are prisons overcrowded in the US? Oh boy. This is a doozie. Well, let’s see. Overcriminalization, harsh sentencing, no parole or early release and the complete and total lack of rehabilitation in prisons leading to recidivism. How’s that?
- how do I get a public defender? Well, it varies from state to state. Usually you apply for a public defender at the local courthouse or in court when being arraigned.
- how to get around statutory rape? Abstain or don’t get caught.
- Connecticut public defender office. (this isn’t really a question, but here)
- How can prison overcrowding be reproduced? The old fashioned way, I’d imagine. See answer 3 above.
- Your chance for change rehab in CT? Limited
- Cross examining a known eyewitness? Easier than cross-examining an unknown eyewitness, I imagine.
- What are the principles of law? Life, liberty and the pursuit of happiness. Freedom, too.
- CT Constitutional Amendment question 1 2008. No. See, that was simple. Repeat after me: No.
- When an arrest is illegal. This feels like a game of madlibs. Hmm, let’s see. When an arrest is illegal the yellow mongoose swims with the overcrowded prison!
- Todd Rizzo, CT? Sad.
- Stoned. Good for you!
- How to keep prior conviction from being introduced at trial? Claim to be your twin brother. Or get a lawyer who can do it for you. Either one has a 50-50 shot at success.
- Ice cream Truck, and finally:
- Gay oral
What-choo got?
Tweaks
Oct 27th
FYI – I’ve tweaked a thing or two here on the blog. Some tweaks you won’t notice, one you will.
Given the propensity of people to say stupid things on the internet using the cloak of anonymity (myself included), it is always a good idea to keep reminding everyone to take personal responsibility.
To that end, I’ve appended a short paragraph at the head of each comment box. So every time you comment, you will be given a link to the privacy policy/legal disclaimer and the comments policy. If you haven’t read them in a while, go check them out.
Every time you say something stupid, you’re responsible. Not me. Some other blogs have chosen to moderate comments, I have not. I don’t want to impede the trickle of communication on this blog, but that doesn’t mean that you can say anything you want without consequence. I reserve the right to edit or delete any comment I see fit, without giving reason for it. I also reserve the right to ban people from commenting on the blog.
Finally, you say something, you own it.
If you haven’t been scared off yet, thanks for reading and leave a comment!
Liveblogging Raising the Bar: Episode Penultimate
Oct 27th
Second to last episode of our favorite criminal justice show is on at 10pm! Be sure to check in
Sunday Stupidity: It’s more difficult than it looks edition
Oct 26th
You try stackin’ ‘em
Massive Shopping Cart Fail by Two Morons – Watch more free videos
Residents of Southbury, CT
Oct 24th
Rest easy, you’re not alone: Roseville, CA has its David Pollitt too. Read the story, then go back and read some of the stories surrounding Pollitt’s release. They’re eerily similar. Well, except Schwarzenegger isn’t piping in trying to keep this guy in jail. Yet. Maybe Gov. Rell left a message for him.
Troy Davis gets a stay
Oct 24th
The 11th Circuit has stayed Davis’ execution – set for Monday – and asked both parties to brief whether Troy can file a successive petition. They also included this interesting question:
It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.
If someone has a copy of the order, please let me know. I’d like to link to it.
To bail or not to bail
Oct 22nd
If you listen to nothing else this week, listen to today’s episode of On Point with Tom Ashbrook as he discusses the mortgage crisis and what we should do about homeowners who are facing foreclosure.
Trading cases
Oct 22nd
Say it ain’t so, David F.! Last night’s episode of Raising the Bar included a storyline about a client of Bobbi the public defender, who had been waiting two years for a trial, but which the prosecutor kept putting off because she wasn’t ready. Then the prosecutor bluffed and put the trial on the “ready list”, knowing full well that the client really shouldn’t go to trial. With me so far?
In another subplot, Zack Morris has a client who is (again) getting screwed [and there's this innovative tangent about how the warrant is defective because it doesn't state the chemical name of Ecstacy. Oh, this client is also the gay clerk's secret lover]. In order to convince the prosecutor to give him a misdemeanor, he agrees to convince Bobbi to not object to a continuance in her case where the guy has been waiting forever.
The last I remember of this subplot was that Bobbi told Zack to stuff it. I even remarked in the liveblog that that particular loose end had not been tied up and I wondered whether they’d pick it up in the next episode.
Perhaps it was toward the end of the show and I lost interest, but Miranda today informed me that, actually, the implication was that Bobbi agreed to continuance because Zack asked her to. This is hinted in the second to last scene, when they all congregate in the bar. As Zack enters, he sees Bobbi and the rabid prosecutor sharing a drink and laughing. Zack comments that Bobbi has a new best friend and she tells him that the prosecutor bought her a drink and that now Zack owes her.
I totally missed it. So chime in if that happened and if that’s your interpretation of the scene. Because if it is, then I’m really disgusted.
The implication, obviously, is that we trade cases. You give me something on this case and I’ll give you something on that case.
I can’t tell you how many times clients have told me that they felt they “got sold” in previous cases. That their lawyer “traded” them in for a favorable result in another.
Not only is it completely unethical, but also quite disgusting. We have a duty to each client and no self-respecting public defender that I know would do something like that.
For Feige to suggest that – and with the character of the intelligent, passionate and no-nonsense Bobbi no less – is a surprise.
Scott wrote a while ago about “the bank” going out of business. I don’t think this is the kind of bank he had in mind. If it was, then I’m glad it went out of business.
You absolutely do not – ever – compromise the rights of one client for another. You fight for both. I don’t care how difficult the prosecutor is. You lose all credibility when you start leveraging clients against one another.
I’m absolutely flabbergasted that David F. would include this in his show and insinuate that such things actually occur. This does nothing to dispel the commonly held misconceptions that we work for the state, we don’t care about our clients and we’re evil.
On the show itself: I think it has stopped being a legal show and has turned into a pure and simple drama that happens to be located in a courthouse. That’s how I will continue to watch it.
But not if this shit happens again.
The war on drugs: Making friends customers
Oct 21st
R U mai fren or mai deelerz?
In another stirring strike for the war on drugs, the Second Circuit last week issued this impressive decision in U.S. v. Luna (but the appeal is really about some guy named Hawkins).
The facts go thusly: Hawkins wanted to buy some drugs from Luna, so he talked to him about buying 5 grams. That sale didn’t materialize. Then, one day, he called Luna and said that two kids from work wanted to get high, so could Luna please sell him some drugs? Luna did.
Five days later, Hawkins called Luna back and said, I know this white kid who’s got a $100 for an eight-ball, but he didn’t have the money, so he’d take the drugs from Luna, get the money from the white kid and bring the money back to Luna. The Court characterizes it as “drugs on credit”. This sale never materialized.
Fast forward to the trial and they are all convicted of conspiracy. Hawkins moves for judgment notwithstanding the verdict and Judge Stefan Underhill grants his motion.
The appellate court, in what seems to be a continuing display of wisdom, reversed. [This decision is not to be confused with the other gem from a few months ago, which makes it illegal to share drugs.]
They acknowledge that the buyer/seller relationship itself cannot constitute a conspiracy to distribute
however, where there is additional evidence showing an agreement to join together to accomplish an objective beyond the sale transaction, the evidence may support a finding that the parties intentionally participated in a conspiracy.
So Hawkins was essentially a “guy”. You know…I have a “guy”. Someone who does drugs and knows where to get you some from. He’s not a dealer, but he has a dealer. He’s the guy in college whose parties you went to because you knew there’d be some pot (or coke or meth..whatever, I’m not judging).
The Court acknowledges that there is no evidence of Hawkins intent with respect to the first transaction, so the entire conspiracy to distribute would be based on the evidence of the second transaction – the white kid whose money he would have to go get. Because if he was getting it on credit, it must mean that he was dealing. After all, it isn’t like “the white kid” could have called Hawkins and said “I want some, meet me here and I’ll give you the money”. The Court also seems taken by the fact that Hawkins programmed Luna’s number into his cell phone.
Right, because I remember every number ever told to me. And even if I could, why would I in this day and age? It’s called convenience, 2nd Circuit, not conspiracy to distribute.
So essentially, those of you who’ve ever bought some for a friend from a “guy” you know, you’re guilty of conspiracy to distribute. Enjoy those 15 years with the Feds.
This just goes to show that you should not do drugs. Not because they’re bad for you or because it’s morally wrong or something, but simply because the Government (and the Courts) don’t like you and will make you pay for it, even if they have to contort like Nastia Liukin to do so.
Troy Davis is “innocent” because…
Oct 20th
This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].
More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.
He writes:
There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.
I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.
Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.
Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:
Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.
I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.
Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?
Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.
Finally, we get this zinger:
Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.
I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.
This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.
Troy’s execution date is coming up soon. Read more about him and make your own decision.
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