And almost get arrested in the process:
And almost get arrested in the process:
I guess the title explains the lack of blogging. But I’ll be back soon.
This here is what one might call a Public Service Announcement. Here’s a handy guide for those of you who want to sound “up” on the lingo and trends in our lexicon, c. 2009. This way I won’t think you’re a wannabe when you talk about blogging or tweeting.
Some simple stuff, said in fun, so don’t get all atwitter (HA! HA! Laugh at my joke; I’m clever!).
This whole website (apublicdefender.com) is a blog. I, Gideon, am the author of this blog. This makes me a blogger. This particular piece that I have written, entitled “blog, blogger, blogging” is a blog post.
You cannot say that I have written a blog when you are referring to this particular post. You can say that I write a blog in reference to apublicdefender.com, however. You also cannot have read my latest blog, unless, of course, I started a new website (or blog) and you have been reading that. You can (and must) say that you read my latest post. It’s like saying that you’ve read my latest book, when actually referring to the last chapter of my book.
Simple enough? Blog is a website, the person writing it is a blogger and the individual entries are blog posts.
Onto Twitter. Twitter is the company or service that is used by millions. You do not twitter. That’s like saying you Apple or Microsoft. You tweet. Thus, you cannot have read my recent twitter. You could have read my latest tweet, however. A person who uses Twitter is not twittering; he or she is tweeting.
Now if you absorb these simple conjugations, you will be ready to engage in an intelligent conversation on the above subjects! You don’t have to thank me, really. I want to inform.
In what is overwhelmingly being described as a “rare” or “never thought I’d see it in my lifetime” move, SCOTUS yesterday effectively overruled lower courts’ incorrect interpretations of Belton v. New York in Arizona v. Gant and restricted the ability of police to search vehicles without reservation.
In an delightfully oddly split 5-4 decision, Justice Stevens (penning the majority) wrote that police could no longer search the interior of a car after the suspect had been secured. The rationale given by Courts (perhaps stemming from an inartful explanation in Belton itself) prior to Gant was that officer safety demanded that they be able to search the interior of a car – the so-called “wingspan”, once a lawful arrest had been made.
Stevens’ majority debunked that:
We do not agree with the contention in JUSTICE ALITO’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although itappears that the State’s reading of Belton has been widelytaught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years,11 many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interestthat all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence.
The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’”453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.
The decision is also a great primer on search incident to arrest law (and Bennett’s post does a nice job of recapping the history of it). Notable, however, is another holding within this decision: that police will always be entitled to search the interior of a vehicle if the evidence of the instant offense might be discovered within it. Obviously, this would not apply to traffic violations.
Scalia’s concurrence is also rather notable and packs a lot of punch in a few short pages. Here is a choice quote:
I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much roomfor manipulation, inviting officers to leave the scene unse-cured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we shouldsimply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehi-cle search incident to arrest is ipso facto “reasonable” only Cite as: 556 U. S. ____ (2009) 3 SCALIA, J., concurring when the object of the search is evidence of the crime forwhich the arrest was made, or of another crime that the officer has probable cause to believe occurred.
As always, he concludes with a bang:
I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide thedegree of certainty I think desirable in this field; but the former opens the field to what I think are plainly uncon-stitutional searches—which is the greater evil. I therefore join the opinion of the Court.
For the CT reader, I decided to look up whether our Supreme Court had adopted Belton. My limited, preliminary research left me a little confused, so if you know the answer, leave a comment. Our Supreme Court first confronted Belton in State v. Badgett, 200 Conn. 412 (1986), in which they refused to extend Belton to permit law enforcement to conduct searches of vehicles willy-nilly.
We refuse, however, to extend the “fiction” that the passenger compartment is always within reach of the arrestee; New York v. Belton, supra, 467 (Brennan, J., dissenting); to circumstances, as here, where the defendant is no longer at the scene of the arrest when the warrantless search was undertaken. It is undisputed that in this case the defendant was strapped and handcuffed in the police cruiser leaving the scene when the heroin was discovered by officer Kiernan. Because Belton does no more than apply Chimel to a “particular and problematic” context, and “in no way alters the fundamental principles established in the Chimel case . . .”; id., 460 n.3; we hold that the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee’s removal forecloses any possibility that he could reach for an article within the vehicle.
This is close to Gant, but not quite. In Badgett, the emphasis was on whether the defendant was on the scene as opposed to secured and unable to access the interior.
But it gets murkier. In States v. Dukes, 209 Conn. 98 (1988), the Court wrote this:
With reference to the legitimacy of the search of the defendant’s vehicle, we conclude that it was proper. There is no need for us in this case to decide what authority the officer would have had under our constitution to search the vehicle for contraband when the only provocation for that was a traffic violation. This is so because once the officer had searched the defendant incident to a lawful arrest and found contraband, he then had probable cause to search the vehicle as he had grounds of the probable guilt of the defendant of a “crime,” as defined under General Statutes § 53a-24. New York v. Belton, supra. The discovery of the contraband in the defendant’s pockets, coupled with all the officer knew at that point, including the fact that he was now presented with a misdemeanant and not a mere traffic violator, gave him probable cause to search the vehicle for contraband. Black’s Law Dictionary defines “contraband” as “any property which is unlawful to produce or possess.” See United States v. Williams, 533 F. Sup. 448, 450 (E.D. Pa. 1982). We point out here that the officer’s ability to search the vehicle is not to be justified as any continuation of his authority to conduct a pat-down search specifically for weapons in order to protect himself, but is justified on the ground that the escalation of the defendant’s involvement had now risen from that of a mere traffic violation to probable guilt of a “crime” as our statutes define that term. Despite the fact that one does not enjoy the same expectation of privacy as to the interior of his motor vehicle as one does in the interior of one’s home, nevertheless, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). The same applies to an “automobile” under article first, § 7, of the constitution of Connecticut. The exception to the warrant requirement in an automobile search demands that the searching officer have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 153-54, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Badgett, supra, 429. So does article first, § 7, of our constitution. We believe that this officer had, as we have outlined, objective facts upon which could be based a finding of probable cause to search the defendant’s vehicle for contraband. Accordingly, the motion to suppress was correctly denied by the trial court.
You tell me what that means. (There’s more, but it’s late. I’ll update later.) If you’re interested, see State v. Wilkins, 240 Conn. 489 (1997), specifically the end of the majority decision and all of Berdon’s dissent.
Here. Let’s play a game. I give you a sentence, you fill in the blanks. Everyone wins.
You know you’re _____ when you’re an ______ on _____ _____ in _______ and your _______ misses _______. ___ ____ ____.
Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys
Because getting that appeal heard may be the best thing that can happen to you. The worst, of course, is getting executed. But there’s so much middle ground: important middle ground that these people are losing out on. Specifically the Constitutionally mandated review of their claims.
Yes, I know, everyone is human and we all miss deadlines. But if you’re in the capital defense business, you better damn well make sure that you make every date you’re supposed to. If you don’t, the worst can happen:
Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.
That’s just the worst thing one could imagine happening. So it necessarily begs the question: How? Read on, and the answer will become clear:
A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.
That’s just insanely mind boggling. He represented defendants in 1638 cases in a span of three years?! Including a whopping TWENTY-ONE capital cases? No wonder he missed a deadline or two and had a client executed.
Death is different, they say. Which is why the ABA has published separate guidelines [pdf] for the representation of defendants in capital cases. From to commentary to Guideline 6.1 (page 40):
Studies have consistently found that defending capital cases requires vastly more time and effort by counsel than noncapital matters. For example, a study of the California State Public Defender revealed that attorneys there spent, on average, four times as much time on capital representation as on cases with any other penalty, including those involving a maximum possible sentence of life imprisonment without parole. In terms of actual numbers of hours invested in the defense of capital cases, recent studies indicate that several thousand hours are typically required to provide appropriate representation. For example, an in-depth examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.
One lawyer, with 21 capital cases, which may on average take 1889 hours each. You do the math, even if half the cases go to trial, or even 1/10th. Add in all those other non-capital clients and a lot of people are receiving substandard representation.
The ABA guidelines mandate that the “responsible agency” monitor the workload of capital attorneys and help manage them. The guidelines also call for specific support staff and mitigation specialists. A quick review of the internets reveals that this particular attorney (and I don’t mean to harp on him, but he’s a good example) is a private attorney who probably gets assigned these cases. So there is no “responsible agency” such as the public defender’s office.
So whose responsibility is it? From what I’ve read and heard, in Texas, these appointments are made by the judges, who is some instances continue to appoint these attorneys over the objection of the public defenders office (who want to be assigned to these defendants).
Jack V. Strickland Jr., a Fort Worth lawyer who specializes in capital case law, also has repeatedly missed death row deadlines. However, judges accepted his explanations and allowed late filings for four of five appeals.
Being overwhelmed on capital cases was the excuse for two late 2008 filings.
Strickland told the court that he’d been hospitalized several months before the appeals were due, then “began a new death penalty trial right after his recuperation period, was in the process of preparing another death penalty writ application which was due mid-September, was preparing for trial in another case, and had presented five lectures and papers in the previous sixty days,” according to a CCA opinion.
So while Attorneys Godinich and Strickland may well have engaged in unethical behavior in accepting these cases and missing deadlines, surely some of the blame must fall on the courts for continuing to appoint him. Is it that it’s cheaper to keep assigning cases to contract attorneys rather than the public defender’s office? I don’t know the answer to that, but it’s something to think about. Are we sacrificing Constitutional standards of representation for cost-saving?
Grits has more on this.
Today, I was arrested for DUI. I spent a few hours at the police station and I called a friend to come get me. When my friend came to pick me up, I decided it would be a good idea for me to drive home. On my way home from the police station, the cop that arrested me the first time saw me. I was arrested for DUI again. FML. (No, it’s not really me. Click the damn links.)
A very important study was released earlier this week by The Constitution Project, titled: Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel [here's a PDF of the entire report].
The study is a survey of all 50 states and the Federal government and the levels of indigent defense provided by each. It is an extremely lengthy report with many recommendations (22 in all) and observations. The study is damning in its conclusions about the state of indigent defense. Not only does the study identify workload issues with indigent defense but also structural problems with state or county agencies that inhibit the provision of adequate defense.
[As an aside, discussion of this report should not be limited to indigent defense circles, especially in times like these where money is drying up and indigent defense is bearing the brunt. Legislators, judges, etc., in States where funding has been cut or will be cut should be given a copy to read.]
From the Executive Summary:
Yet, today, in criminal and juvenile proceedings in state courts, sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric. Throughout the United States, indigent defense systems are struggling. Due to funding shortfalls, excessive caseloads, and a host of other problems, many are truly failing. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems. In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever. Although troubles in indigent defense have long existed, the call for reform has never been more urgent.
Chapter 2 of the Report summarizes the problems currently plaguing indigent defense:
That’s not all. Here’s the next paragraph, which I find particularly disturbing:
So far, we have focused on situations when lawyers are provided for the accused, although sometimes later than they should be. But there is another dimension to the problem, namely, the total absence of counsel because defendants either are not advised or not adequately advised of their right to counsel. When a defendant is not adequately advised of the right to counsel, the waiver almost certainly would not withstand scrutiny as a valid waiver of the right to legal representation. The invalidity of the waiver, however, typically fails to come to light, as the waiver process is of low visibility and defects rarely surface in the appellate courts. There are still some lower courts, moreover, that do not maintain a record of proceedings, so there is no way to be sure exactly how counsel was offered to the accused and if the waiver of legal representation was valid. There also is considerable evidence that, in many parts of the country, prosecutors play a role in negotiating plea arrangements with accused persons who are not represented by counsel and who have not validly waived their right to counsel. Not only are such practices of doubtful ethical propriety, but they also undermine defendants’ right to counsel.
So with this veritable quagmire, what are States to do? How do we fulfill Gideon’s promise? The report has several recommendations, one of which is the use of litigation. But in the end, it all comes down to one thing and one thing only: adequate funding.
Recommendation 1—States should adhere to their obligation to guarantee fair criminal and juvenile proceedings in compliance with constitutional requirements. Accordingly, legislators should appropriate adequate funds so that quality indigent defense services can be provided. Judges should ensure that all waivers of counsel are voluntary, knowing, intelligent, and on the record, and that guilty pleas are not accepted from accused persons absent valid waivers of counsel. Prosecutors should not negotiate plea agreements with accused persons absent valid waivers of counsel and should adhere to their duty to assure that accused persons are advised of their right to a lawyer.
Reading this report makes me realize that even a State like CT, which has a system that is favored with an independent and autonomous public defender’s office, which provides a large amount of funding, still has a long way to go toward fulfilling Gideon’s mandate.