Archive for January 2009

The time for abolition has come

Jan 31st

The death penalty evokes strong emotions in those for and against it. The arguments have been thoroughly debated: justice, vengeance, retribution, eye-for-an-eye, we’re better than that, the state should not be in the killing business, it’s inhuman, it’s cruel and unusual, we’re the only civilized country, it is not deterrent, it doesn’t achieve anything, it keeps wounds open.

But we are living in very difficult times. The economy is performing at its worst level in decades – and some might say that this recession is the worst of a lifetime. The costs are piling up and the revenue stream is drying up. The state is facing a budget deficit of close to $1bn this year and over $8bn for the next two years. That’s an astronomical sum. And while Gov. Rell says that cuts are coming, and while taxpayers suggest ways to cut costs, and while legislators debate decriminalizing less than an ounce of marijuana, I have yet to see anyone opine that we should cut one expense in the judicial system: abolish the death penalty.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Man-Min sentences for juves: no (constitutional) problem

Jan 27th

Posted by Gideon in ct legal news

3 comments

It was a longshot, but by definition, it means that it was worth a shot. The CT Supreme Court recently held in State v. Carrasquillo that mandatory-minimum sentences for juvenile offenders don’t violate the Eight Amendment to the Constitution. This properly should be considered a companion case to the “Life without parole is not cruel and unusual” decision from a few months ago (my post on that decision here).

Like the previous case, the defendant in this case relies heavily on Roper v. Simmons. The defendant argued that juvenile possess characteristics different from adults that make the application of a mandatory-minimum sentence unconstitutional. The defendant did not argue that juveniles cannot be sentenced to 30, 40 or even 50 years in prison, but that a sentencing scheme that deprives a judge the ability to take into consideration the mental development of a teen and sentence less than 25 years is cruel and unusual punishment.

Once again, the court relies on a tested phrase to justify its decision: death is different. Roper spoke only to death, not to any other punishment and thus is inapplicable.

This, in my opinion, is too literal a reading of Roper. While Roper may have dealt only with the death penalty, the studies cited in Roper should have some applicability in the general field of juvenile punishment.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The argument in support of the defendant’s claim is this:

[N]ew technologies have revealed significant differences between the adolescent brain and the adult brain, including differences in psychosocial functioning. [A]dolescents are more readily influenced by their peers and have different attitudes toward risk and risk taking, with less orientation toward the future than adults. [T]he defendant was a typical teenager who still exhibited methods of thinking characteristic of an adolescent. [A]lthough the legal system considers a defendant’s actions in light of what a reasonable person would do under the circumstances, an adolescent’s actions should be measured against what a reasonable adolescent would do under the circumstances.

If an adolescent cannot fully comprehend the actions he has taken, if he is prone to growth and further understanding of his actions and development of his moral compass, then a mandatory-minimum sentence of 25 years, to be imposed in every single case, regardless of what the individual circumstances are, can start to seem cruel and unusual.

By mandating that a juvenile automatically be sentenced to 25 years, we are snuffing out any chance at rehabilitation; any glimmer of hope that the adolescent mind grows and learns and can become a contributing member of society is snuffed. Much like the life that the juvenile took away, his life will also be wasted.

There is a significant difference between an adolescent spending 10 years in jail and being released at 25 and spending 25 years in jail and being released at 40. What is he to do at 40, having spent half his teenage years, his entire 20s and 30s in prison? Will he have any tools or skills to succeed in life? Will he know anything of life?

Some cases might definitely warrant long sentences of juvenile offenders. But certainly not all, and that is what this statute does. It does not discern between the still forming adolescent mind that has a chance to fully develop a sense of right and wrong and one that has and makes a decision cognizant of the consequences.

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The FATWOD has a new ally: the crappy economy

Jan 27th

Posted by Gideon in ct legal news

3 comments

Folks, don’t ever again say I don’t call things. I called this.

Finally, it seems that legislators might be getting “smart” on drugs and drug crimes. And no, the impetus isn’t a wake up call on the inherent unfairness of the drug crimes and the racially disproportionate impact they have. It’s the economy, stupid.

Sen. Toni Harp, chairwoman of the powerful appropriations committee, and Senate Majority Leader Martin Looney hope economics will succeed where other arguments have failed in convincing their colleagues that the costs of prosecuting and punishing pot smokers is an expense Connecticut can no longer afford.

“We’ve got to take a strong look at what we want to pay for as a state,” said Harp, D- New Haven, who with Looney is co-sponsoring a bill that would punish low-level marijuana users with a fine, not a criminal charge.

“To waste our resources on this small problem is not a good use of the people’s money.”

Now, they’re not going as far as I would go, so simmer down (and you know who you are). The proposed bill would decriminalize possession of less than one ounce of marijuana – essentially what Massachussetts did this past November. People found using that small an amount would be fined: akin to a parking ticket.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Careful what you wish for

Jan 23rd

Posted by Gideon in clients

6 comments

Someone needs to explain to me why this case ever made it to SCOTUS. Actually, I have several questions:

What are you asking for, exactly?
Is this a case of getting too greedy or too literal?
Did anyone consider the ramifications of an unfavorable decision in this case? (Let me spell it out for you: it could spell complete evisceration of a well-established and solidly pro-defense line of cases starting with Santobello)
How do you get selected to argue in front of SCOTUS and then produce a complete clunker [pdf] (and not just one counsel – both!)?
Does anyone think either lawyer has any clue as to what is being asked of them?

I fear that Puckett might win the battle, but lose the war. That would be bad news for all of us.

Scrutinizing the scrutiny

Jan 23rd

Posted by Gideon in ct legal news

5 comments

Judicial reconfirmations in Connecticut have usually been a low-key affair, so it was newsworthy last week when an all out battle erupted on the floor of the Senate during the reconfirmation of Judge Patricia Swords.

Judge Swords, just finishing up her first 8 year term a judge of the Superior Court, made it through the Judiciary Committee by a margin of 4 votes, despite the testimony [pdf] of a prominent criminal defense attorney regarding her behavior in a murder case where she declined to grant a continuance when the lead counsel had suffered a soon to be fatal brain injury just two days prior to the start of trial. Her reconfirmation made it through the House of Representatives pretty easily (100-41 or so), but stalled in the Senate, where the votes were pretty evenly decided.

After a vigorous debate on the floor of the Senate, during which Senators questioned the anonymous comments submitted by the defense bar opposing her reconfirmation (one of them likened these comments to blog posts – ha!) and used misinformed logic such as the number of decisions upheld on appeal. If I remember correctly, one of the Senators, in her defense, asked something along the lines of whether we should…well…judge a judge based on demeanor or accuracy in the law.

Anyone who has practiced law should know that not everything a judge does on the bench or behind the scenes that questions their impartiality in a case is appealable.

The judge was eventually confirmed by a vote of 19-18, the tiebreaking vote being cast by the Lt. Governor. But this reconfirmation battle raised some interesting questions, and rightly so.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In a process that is highly politicized – from the initial confirmation to each subsequent reconfirmation – is there any room for a truly objective evaluation and re-evaluation process?

It’s tough to know what the judiciary committee and the legislature rely on in making their assessment of whether to give a judge another 8 year term. One can assume that the anonymous questionnaires they send to counsel after each trial are taken into account, but these questionnaires are generic and rudimentary, at best. Also, given the fact that they are sent to both parties, their utility is questioned by many, including me. Parties unhappy with the outcome may tend to grade the judge lower and vice-versa.

There is obviously a cause for hesitation among lawyers to attaching their names to any criticism of judges. In some ways, it’s the same problem that plagues reporting of questionable or unethical conduct to the grievance committee. There is a fear of retribution – whether legitimate or not. If, after all this brouhaha, Judge Swords was reconfirmed and will serve at least another 8 years on the bench, what is the reward that outweighs the risk to an attorney who sticks his neck out and provides signed criticism of the judge? She may legitimately feel that by doing so, she is risking the well-being of clients, current and future.

So what then is the appropriate mechanism for review? After all, we really shouldn’t rely on a system where the fate of a judge hangs on a chance encounter with an up-to-then opposed Senator in the hallway prior to a vote on the floor. Because that’s what happened here. A chance meeting in the hallways of the legislature between the then-likely-to-be-former-Judge Swords and Sen. Joan Hartley of Waterbury lead to Sen. Hartley changing her no vote to yes. I’d sure like to know what was said in that brief encounter, because it was powerful enough to get the good Senator to change her mind and keep Judge Swords’ career alive. Surely, the fate of our eminent jurists cannot hinge on such fortuitous meetings.

And we certainly cannot have unnamed judicial branch members ushering judges around the legislature into meetings with Senators and Representatives.

But is there an alternative (and please don’t talk about election)? Can there be an effective and unbiased review process and what should or would such a review entail?

Certainly a prime criterion in evaluating the performance of a judge should be her actual work: but how is that appropriately measured? The number of reversals on appeal mean nothing more than that 3-4 judges agreed with a particular interpretation of the law. The only way to effectively measure performance, in my opinion, is an in-depth evaluation by members of the bar appearing before those judges. And those evaluations have to be honest. It has to involve an in-depth evaluation of the judges behavior on the stand while dealing with lawyers and pro-ses and that can be achieved through a parsing of transcripts.The judiciary committee, in making its recommendations, must take a closer look at any complaints put forth by lawyers. Perhaps the legislature needs yet another committee or sub-committee, charged with the task of ferreting out those that do not deserve to don the black robe. If the parole board can sit in judgment of other human beings based on acts in their past, surely we can come up with some system whereby the gatekeepers of justice are judged.

The key, though, in my opinion, is to be heard by standing up and being counted. There is certainly a strength in numbers, as evidenced by the near ouster of Judge Swords. What are judges going to do? Exact revenge on all 75 members of the bar that signed their names to their evaluations and said negative things about the judges? Doesn’t it stand to reason that in the future, judges will be less likely to be unfair and impartial toward those members, for the appearance of retribution would surely be a death knell for their careers?

Now, you may rightly say, “Gideon, you should be the last person to talk about shedding the cloak of anonymity”. True, I sit behind this cloak and offer my thoughts on general principles of criminal law. But I will tell you this: I hope that if I am ever faced with a situation where I feel the judge has committed an act so egregious as to call into question their impartiality on the bench, I will have the conviction to say something and repeat my objection if the need arises.

I’m not talking about decisions a judge makes that you may disagree with. I don’t believe that is worthy of sending to a review committee. Those observations are best saved for the anonymous questionnaires of questionable utility. But every now and then, a judge does something that leaves you speechless, that leaves you with the absolutely firm impression that what she just did was a blatant show of bias or partiality and a violation of the rule of law. That is when it is your obligation to stand up and say that this cannot be permitted. And the judge should have to answer for that.

A judge may learn, as Judge Swords said she did, that such behavior cannot be tolerated from a member of the bench. Or a judge may not. Ultimately, with the system we have, it is up to the legislature to decide. But the legislature cannot make an informed decision without these reports, these pieces of information that shed true light on the merit or demerit of a particular individual to serve a judge of the Superior or appellate courts of the State of Connecticut.

Is there a system where we can get a truly honest evaluation of our judges? I’m not sure there is. All I have presented here are some poorly formed ideas and some half-baked thoughts. You will probably disagree with all that I have said and all that I have asked. But these are questions we must ask and then work toward answering, if we are ever to achieve a fair system of justice.

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New pd blog

Jan 19th

Posted by Gideon in asides

No comments

This blog came to my attention a while back, but just getting around to posting it: Incorrigible Dicta, written by MA public defenders.

MLK Day

Jan 19th

Posted by Gideon in racial disparity

No comments

MLK Day doesn’t just mean another day off (although that is nice too). If you do nothing else, make sure you read Scott’s post on the fight that remains to be fought.

You’ll find a video of Dr. King’s speeches elsewhere in the blogosphere, so I’m gonna give you a video instead. Taken from last year’s BR:

[youtube]http://www.youtube.com/watch?v=D7COntXhPcI[/youtube]

A red Herring, masked by Ma(r)sala

Jan 17th

Posted by Gideon in ct state law

11 comments

I’m awfully late to this dance, but as a criminal law blog, I might as well shut down completely if I don’t post about Herring. As you may be aware, this past week SCOTUS held in a 5-4 decision that mere negliglence doesn’t require the suppression of evidence obtained as a result of a 4th Amendment violation.

Some have called it the death of the exclusionary rule (or certainly the death knell) and others don’t think it’s such a big deal.

The underlying premise of this decision can be traced, in part, to the “good faith” exception enunciated in United States v. Leon. In Leon:

The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Herring furthers that proposition by holding that mere negligence of a police department does not trigger the exlusionary rule and thus the evidence seized as a result of an arrest made based on a mistake should be admissible.

If you’re not from CT, you can weep now. Those of you in CT don’t have any reason to be particularly concerned about Herring. This is because, in CT, there is no “good faith exception” to the exclusionary rule.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

19 years ago, our supreme court considered Leon and its application in CT and decided that under the CT constitution, there is no such thing. The issue came before the august tribunal after two rounds of apeals and an adoption of Leon by the Appellate Court, in State v. Marsala. In Marsala:

the trial court issued a written decision in compliance with the directive of the Appellate Court to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480 (1989)

The Court then turned to the question du jour: Whether Article 1, Section 7 of the Connecticut Constitution provides for a good faith exception. Justice Shea and the full panel of supreme court justices simply declined to adopt Leon. Writing for an unanimous court, Justice Shea opined:

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447 (1987); State v. Brown, 199 Conn. 47, 51 n.3 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12 (1983).

The Court relied heavily on the dissent in Leon and the subsequent criticism of it to reject the good faith exception:

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionaryrule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” 12 Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not designed “to punish the errors of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1 W. LaFave, supra, § 1.3(d), p. 55.

Over the years, I have become embroiled in several discussions with opponents of the exclusionary rule, whose primary argument is far too simplistic and myopic: The Fourth Amendment itself says nothing about the exclusion of evidence obtained via a violation of itself.

I have a hard time responding to this because on its face it makes no sense. To take the stance taken by the anti-exclusionists, one would have to believe that the Fourth Amendment reads something like this: the right of the people to be free from unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, except if you violate this provision, we will scold you, but not really do anything about the violation, so it’s okay, go ahead and subject the people to unreasonable searches and seizures. So, violate this provision. It is what future generations will call a “technicality” and really, we can’t let those criminals go free on a technicality, can we?

As for Herring, I think my position is a little closer to the doomsdayers than it is to the laissez-fairers. I suspect many defendants will be the victims of “negligence”. But if you’re in CT, you don’t have to worry about this. Unless you’re a fatalist and decide to notice that the entire bench at the time of Marsala is no longer there and we now have 7 new justices who might want to revisit it.

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Fifth Amendment Right to Counsel

Jan 13th

Posted by Gideon in confessions

No comments

After reading the oral argument transcript of Montejo v. Louisiana today, I decided to refresh my memory of the Fifth Amendment Right to Counsel (starting with Miranda). In particular, I was curious to see if anyone had written a paper about the evolution (if any) of this right to counsel. I haven’t come across anything yet, but I did stumble across this.

It is an FBI law enforcement bulletin from 2002, which describes in some depth the 5th and 6th Amendment Rights to Counsel and their respective scopes. It’s a good refresher, if nothing else. Though you do have to wade through the “tips to law enforcement”.

Enjoy.

We could learn a thing or two from pro-ses

Jan 6th

Posted by Gideon in clients

No comments

For example:

The birds today

Are singing loudly,

The day is fresh

With the sounds

Upon the wind

The crickets.

The blackbirds

The woodpeckers

Beauty in every

Spark of life

Just So their sounds

Are appreciated

Their sounds are beauty

The ants are silent

But always searching

The birds noise a song

and the fade of the automobile tires

Chirp. A shadow from

a passing monarch butterfly

Breathless in Colorado.

Overheard at the pd’s office

Jan 6th

Posted by Gideon in clients

3 comments

Public defender 1 to public defender 2 about a client who believes God will help her obtain a verdict of not guilty:

PD1: Well, what do I do now?

PD2: Look at it this way. If she gets convicted, she can file a petition for writ of habeas corpus alleging ineffective assistance of divine counsel in violation of the Sixth Commandment.

You had to be there.

If only they’d used such caution the first time

Jan 4th

Posted by Gideon in cops

6 comments

As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.

Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.

The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In 2002, Elkins’ niece recanted her testimony about Elkins being the perpetrator. That same year, Elkins made a request for DNA testing, which was denied on the grounds that the results would not prove Elkins’ innocence.

Despite this ruling, Elkins managed to provide his own funding for Y-STR testing on evidence from the crime. Y-STR is a relatively new form of testing that isolates certain characteristics of the male chromosome suitable for comparison. In 2004, Elkins’ lawyers at the Ohio Innocence Project cooperated with the prosecutor’s office to send evidence to Orchid Cellmark, a nationally recognized forensic lab.

The results of this testing excluded Elkins as the possible perpetrator of the rape and murder. A male profile was found on male skin cells from both the grandmother’s vaginal swab and the young girl’s underwear. Elkins moved for a new trial. On July 14, 2005 the court denied Elkins’ motion.

The State, meanwhile, was not convinced. They claimed that because the DNA was from skin cells, it wasn’t conclusive that Elkins was excluded as the real perpetrator. Eventually, after some considerable risk to his own life in prison, Elkins and his wife were able to get the DNA of the man they believed committed the crime. But even that wasn’t enough for prosecutors. They wanted more.

Just today, the Hartford Courant has a front page story about two men, similarly claiming innocence:

The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn’t belong to either of the two men convicted of killing him.

Fingerprints found on the door handle of the store’s safe are not theirs, and the state’s main witness now admits in a taped interview that she lied when she testified at their trial.

But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.

The similarities between Taylor and Gould’s case and Elkin’s case are eerie: In both, there is a recanting eyewitness. In both, there are alibis. In both, there is a wife convinced of innocence fighting to prove it. In both, there is DNA evidence that excludes the defendants and for now, in the former, the prosecutors have refused to test the DNA of the man the defense believes is responsible. Finally, like in Elkins, the prosecutor in New Haven isn’t convinced:

“Having reviewed the file presented by Gerry O’Donnell, it wasn’t like in the Roman case, where there was clear-cut evidence,” Dearington said. “In this case it’s not clear that the inappropriate person or persons were convicted.”

Dearington said that although O’Donnell’s report raised questions about the original case, he wasn’t about to order the release of two convicted murderers based mostly on “pure conjecture and speculation.”

The prosecutor is more willing to leave it to a court to decide, with a hearing on the petition for The Great Writ scheduled for June. Will the similarities between Elkins’ case and Taylor and Gould’s case continue? It remains to be seen.

All of this makes one wonder: why are prosecutors so fiercely protective of their wins? Certainly, there is much to be said about the finality of convictions (and indeed courts around the country have written enough about it to replenish the rainforests) and the need for closure, but none of these cases present ordinary circumstances.

Both prosecutors, in Elkins and Taylor and Gould have shown or are showing caution in proceeding. The prosecutor in Elkins took a long time convincing herself that Elkins was indeed innocent – seeking voluminous DNA testing, and she took an even longer time to charge the man who actually commited the crime. The prosecutor in Taylor and Gould is taking the ultimate cautious approach: a hands off one. Leave it to the judge and let him take the rap.

If only they’d been this cautious or skeptical of evidence the first time around. Which brings me to my last story, via David Tarrell. Prosecutors in Omaha have announced that they will no longer be accepting plea bargains from adult defendants. In any case. At all. [In other news, Omaha's criminal justice system shot itself in the head.]

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn’t think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

“This prevents overcharging,” Ritnour said. “You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We’re going to see what we should charge people with and stick with it.”

I, for one, am not buying it. This will be a short-lived experiment, during which a whole bunch of defendants will get screwed. This stance places a lot of faith in prosecutors’ ability to see their case for what it is and not for what it might be. It also raises some questions: what charges is he talking about? I don’t know how it works in NE, but here, the charges can be changed at any time via a substitute information. So if the cops charge Assault 1st at the arrest and the prosecutor, either at arraignment or at some point further down the line, say after an extensive defense investigation, is of the opinion that Assault 1st is no longer viable or is risky, will offer a plea to Assault 3rd. That doesn’t mean that the prosecutor thinks it’s unprovable, just that it’s unlikely. Is that what Ritnour is saying? Because if it is, then I don’t know the difference between what he’s saying and plea bargaining. Or is he saying that they won’t file charges until they’re absolutely sure of what they can prove, regardless of what any further investigation turns up? Because that’s a hollow policy.

He’s also implying that there will be no guilty pleas whatsoever. That’s a ridiculous assertion, even if there is no right to plead guilty. The volume would be crushing. What of the defendant, who agrees that he commited Assault in the Third Degree and the prosecutor is of the same mind. Why waste everyone’s time and money and go to trial? Would a plea not suffice in that situation?

Anyway, let us assume that he means he won’t charge someone with crimes he doesn’t think he can prove. How sure does he have to be? The two innocence stories above are examples of shoddy investigation. I’m sure prosecutors in both cases thought (and still think) that they could prove their cases. It raises an interesting question: do the two innocence cases serve to bolster Ritnour’s new policy or do they inform us that no matter what, defending a win seems to be of prime importance.

See more from the Viscount of the blawgosphere.

As always on this blog, there are no answers. Only (stupid) questions.

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Sunday Stupidity: Feels like…edition

Jan 4th

Posted by Gideon in sunday stupidity

2 comments

Is that a gun in your pants or are you just happy to see me?

[youtube]http://www.youtube.com/watch?v=7T9YaDZRUTw[/youtube]

So let me take naked pictures of you

Jan 2nd

Posted by Gideon in fourth amendment

16 comments

One of the most common (and infuriating) responses to any indignation about the government’s surveillance and wiretapping programs is: “I’ve got nothing to hide, I don’t care”. A fundamental underpinning of this argument is that a little bit of intrusion protects our national security, so it’s okay.

I see similar arguments from those not of the criminal defense bent in regards to some basic Constiutional protections: “Well, if I’ve done nothing wrong, then why should it matter that the police didn’t have a warrant.” It underlines the notion that the Fourth Amendment is a “technicality”.

Only criminals need the protection of the 4th, because they have done something wrong or have some to hide. If they hadn’t, they wouldn’t be where they are in the first place.

It’s also why many wonder why there needs to be a criminal defense bar at all, or that hiring a lawyer is a sign of guilt.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The Nichol(s) effect

Jan 2nd

Posted by Gideon in death penalty

2 comments

The capital case of Brian Nichols has had a terrible effect on the state of indigent defense in Georgia. A system that was already strained under the pressure of one capital case is on the verge of a deathblow. There are many, many other defendants not named Brian Nichols in Georgia who need representation and need it now. One of them is Jamie Ryan Weis and he’s suing the public defender’s office:

Since April, Weis has been sitting in jail awaiting trial without lawyers to represent him. The lawsuit was filed after trial judge Johnnie Caldwell scheduled a Jan. 5 hearing on the case.

“It’s frustrating,” Pike County District Attorney Scott Ballard said. “Everybody wants the defendant to be well represented. We’ll be ready to prosecute just as soon as they’re ready.”

The suit was filed in Fulton County Superior Court against Mack Crawford, director of the Georgia Public Defender Standards Council, and Gerry Word, acting head of the capital defender’s office.

As the Nichols case made its way through the system, Weis’ case took a beating:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Archive for January, 2009

The time for abolition has come

Man-Min sentences for juves: no (constitutional) problem

The FATWOD has a new ally: the crappy economy

Careful what you wish for

Scrutinizing the scrutiny

New pd blog

MLK Day

A red Herring, masked by Ma(r)sala

Fifth Amendment Right to Counsel

We could learn a thing or two from pro-ses

Overheard at the pd’s office

If only they’d used such caution the first time

Sunday Stupidity: Feels like…edition

So let me take naked pictures of you

The Nichol(s) effect

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January 2009
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Archive for January, 2009

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