Archive for November, 2008
To the person currently on this blog
Nov 30th
The answer to your question about how much an inmate wrongfully convicted in Texas can get as compensation is $25K per year up to $500k $50,000 per year, or $100,000 per year for people sentenced to death, with no cap. Thank Mark Bennett.
See, I answer questions. It’s not all about me.
Sunday Stupidity: Star (Trek vs. Wars)
Nov 30th
So this isn’t your usual “stupidity”, but it’s a very funny interview with Patrick Stewart: Apparently embedding of that video is not permitted, so if you still want to see it, go here [Hence the original title of this post: male pattern baldness edition].
Instead, I give you this very, very funny Star Wars v. Star Trek video. Some of the audio sounds (well) dubbed, but it’s funny nonetheless. The first firing scene is pretty hilarious. It includes the infamous “handface”.
[youtube]http://www.youtube.com/watch?v=v4ijDlbvAxw[/youtube]
Come get your badge!
Nov 30th
After all the marketing/no-marketing brouhaha, I thought it appropriate to create some fun badges to display on your blog.
For the blawger:
For the public defender blogger:
Since you all know that my image making skills are limited to cutting and pasting, this obviously is not my work. All credit for these badges goes to Heather, who writes a terrific blog on city issues in Hartford and Springfield.
Update: Please don’t link to the image on my server. Right-click, save as, download, upload to your server and link to it there. The license for the image is the same as for all else on this blog: Attribution, Non-Commercial, ShareAlike.
Undercover mother: exposing a juror’s lies
Nov 29th
undercover mother
When John Giuca was convicted of murder in 2005 and sentenced to 25 years in prison, his mother was unconvinced. The evidence was weak, perhaps politically motivated and she was sure her son was getting railroaded. So he did what every mother would do: she went undercover.
Ms. [Doreen] Giuliano is the mother of John Giuca, a Brooklyn man who was convicted three years ago along with another man in the 2003 killing of Mark Fisher, a college student from New Jersey who was found beaten and shot five times after a night out in New York City. Ms. Giuliano claims her son is innocent and has mounted an unstinting campaign to free him from prison
She recently gave an interview to Vanity Fair, describing the last two years of her life and “the sting” that she performed to bring down one of the jurors in her son’s trial.
It went like this for a long time, Doreen in a daze, doing what needed to be done and feeling hopeless. Then, one day in early 2006, Doreen awoke from her stupor. The jurors, she told herself. Find something on the jurors. It was a desperate thought. She’d watched television cop shows: if you prove a juror engaged in misconduct, it could overturn the case. She obtained the jury sheet, which listed the names and neighborhoods of the jurors. She got her hands on a transcript of the voir dire, the pre-trial review of potential jurors’ fitness to serve on a case. She even managed, through a contact, to come up with a list of some of the jurors’ addresses.
She started trailing jurors, finding out where they lived or work, tried to get close to them.
Repairing Windows: Disorder to Order
Nov 28th
Two and a half years ago, I wrote (rather pithily and ignorantly) about some who were questioning the Broken Windows theory. The Broken Windows theory, which most of you I’m sure are aware of, was posited by George Kelling and James Q. Wilson in a 1982 article in The Atlantic Monthly [pdf version here]. The title was taken from this simple explanation for the theory:
Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.
Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”
Theories are, of course, the products of fertile imaginations.
Judge Wu needs to grow a pair
Nov 25th
The title of this post is somewhat of a response to the question in Dan Solove’s post at Co-Op, which is: Why won’t Judge Wu rule on the motions in the trial of Lori Drew?
Dan asks:
Judge Wu hasn’t ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not the prosecution, as a matter of law, has failed to prove the requisite mens rea. Why won’t he rule on any of these issues?
There is only one answer: because he doesn’t want to be the one making this obvious decision.
The testimony at trial was pretty clear:
testimony proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.
How, then, can she be convicted of intentionally violating MySpace’s TOS?
Sunday Stupidity: Office harmony edition
Nov 23rd
He must’ve read another post about legal marketing:
[youtube]http://www.youtube.com/watch?v=7Sq-HYGfnIo[/youtube]
It’s the client, my good chap
Nov 23rd
One of the primary reasons I started blogging was to express my thoughts and feelings about the criminal justice system. But the more I blogged, the more I realized that what it was really about was learning and sharing: learning new things and sharing experiences. Learning how to be a better lawyer, really. For the most part, the blawgosphere has served that purpose and it has enriched me as a lawyer and as a person.
There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:
Dear Private Attorney,
I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.
In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!
This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:
Dear Public Defender,
I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.
Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.
Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.
I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.
I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.
Warmly
Private Lawyer
Sigh.
This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.
The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.
Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.
Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn’t serve his interests for you to bad-mouth me now or promise him the moon.
It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.
We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.
Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.
[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]
[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]
A Friday Julie Amero can enjoy
Nov 21st
Well, it’s happened. I got word earlier this evening that Julie Amero‘s case had finally been disposed of. It seems that today, hiding from the glare of media coverage, Julie pled guilty to disorderly conduct, paid a $100 fine and went on her way.
A shame, for sure. What? You thought I’d be happy? I am, to a certain extent, yet I’m rather perplexed why she had to plead to anything at all to get this nightmarish ordeal to end. Rick Green, who has been championing her cause, has the details:
Amero agreed to plead guilty to a single charge of disorderly conduct, a misdemeanor. Amero, who has been hospitalized and suffers from declining health, also surrendered her teaching license.
Judge Strackbein ordered a new trial over a year and a half ago, in June of 2007 (yes, it has been that long). So what the heck has been going on since then? I suspect the State got another expert to review the logs and investigate the computer, but 18 months?
No, what’s closer to the truth, I suspect, (and evidenced by the surreptitious manner in which this case was resolved) is that the State was embarrassed publicly and nationally and closed its eyes tight and clenched its teeth and hoped and prayed this would go away so it could quietly slink into the courtroom and do away with this stain.
New London County State’s Attorney Michael Regan told me late Friday the state remained convinced Amero was guilty and was prepared to again go to trial.
“I have no regrets. Things took a course that was unplanned. Unfortunately the computer wasn’t examined properly by the Norwich police,” Regan said.
“For some reason this case caught the media’s attention,” Regan said.
He’s just playing dumb. He knows exactly why this case caught media attention – shoddy police work in an area that a growing number of people know a lot about: computers. If this was some investigation where the question was interpretation of DNA evidence or the trajectory of bullets on a windy evening, Julie Amero would have been halfway through her sentence.
Instead, the police department messed up big-time in an area where a lot of people pay attention (and have been victims themselves).
Instead of owning up to their mistake and the possibility that there was an error, the State tried to shore up its ego by stretching this prosecution as long as it could.
What’s even stinkier is the fact that they just couldn’t let her go. Having kept her in limbo for 18 months, with failing health, wasn’t enough. They had to extract something – even if it were a slice of flesh.
I can understand why she accepted the offer and why her lawyer probably convinced her to take it. Get it over with. But that doesn’t excuse the fact that it’s pretty obvious the only reason the State insisted on it is to make themselves look slightly better.
They aren’t fooling anyone.
Enjoy your evening, Julie. There’s nothing good on TV, but I suspect you don’t care.
Update: Karoli, who first brought Julie to my attention, writes indignantly about the pound of flesh the State took from her.
Are an informant’s questions testimonial?
Nov 21st
A co-conspirator is in jail. The police send in a confidential informant, wired, to talk to the co-conspirator. The informant asks the co-conspirator questions about the crime, prodding him, making assertive statements which elicit mono-syllabic responses from the subject.
The State attempts to use the transcription of the tape of that conversation as evidence against the defendant. Clearly, the co-conspirator had no idea that he was talking to someone acting for law enforcement or that his words would be used at trial. The question, though, is whether the informant’s questions testimonial under Crawford and thus inadmissible?
The CT Supreme Court recently faced this question in State v. Smith [pdf]. The Court notes:
In the present case, we view Williams’ recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., ‘‘mm-hmm’’ or ‘‘yeah’’; (2) questions Williams directly posed to Estrella about the crime; and (3) statements Williams made that directly implicated Estrella or the defendant in the commission of the crime.
The Court is quick to decide that the first category is non-testimonial. Deciding whether those that fall into the second category is a matter of context, the Court writes. Despite some leading questions, the Court finds that most of those questions about the crime were to provide context to other questions and were not assertions of fact.
In addressing the final category, the Court finds that the informant was clearly aware that this entire conversation was being taped with an eye to a prosecution. In fact, it was the informant who approached the authorities to obtain favor in his cases. The Court does not hesitate in finding those statements testimonial and since the informant was unavailable at trial, a violation of his Confrontation Clause right.
The defendant still lost on appeal, however, due to our good friend Harmless Error. The Court finds that the informants assertive statements were merely cumulative.
Still, it’s a good start and something to keep in mind in future cases. Where the transcript of any such conversation between the defendant and an informant is dominated by the informant, the CT Supreme Court can be fairly said to have ruled that those statements are testimonial.
Why Lori Drew is so screwed
Nov 20th
Because almost all the testimony on the first day focused on Megan Meier’s suicide. Don’t believe me? Read Scott’s post on it from a few days ago.
California Supreme Court to consider challenges Prop 8
Nov 20th
In what may be the pro-gay-marriage community’s last stand in California, the CA Supreme Court has agreed to review challenges to the constitutionality of Proposition 8.
The issues they have asked for briefing on are:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
This is going to get very, very interesting from a Constitutional law perspective, folks. You better strap yourselves in.
My previous thoughts on Proposition 8 and it’s validity are here and here.
More from The Satyricon, Volokh and TalkLeft.
Confronting swastikas
Nov 20th
You represent a man who belongs to an ethnic minority, charged with shooting a weapon illegally. The state’s main witness is his acquaintance, a caucasian male. He gives some damning and incrimination testimony. Then you notice tatoos on his arm. Swastikas. Do you cross-examine about any bias he might harbor toward a man of color?
That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.
Judge Sack writing for a panel of the Second decided:
Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa
…
The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.
It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.
So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!
[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]
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