Monthly Archives: November 2009

Eeny, Meeny, Miny NO SOUP FOR YOU (and other tales of justice)

You want bread? Three dollars!

You want bread? Three dollars!

Eeny, meeny, miny, moe, goes the counting rhyme, the primary use of which is to select someone random to be “it” in a game. As anyone who’s ever used this rhyme knows, it’s rather easy to manipulate the rhyme (or where you start it) to “randomly” select a predetermined person.

The prosecutor’s office in San Diego is rather more blatant about its singling out of a judge to be “it”:

San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, […] is under a boycott from the District Attorney’s Office.

For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.

If this happened in Texas, I’d shrug it off as another installment of “It only happens in Texas”, but this is California, the land of the free and the home of the Governator.  Maybe some of our California brethren can inform us what this “peremptory challenge” is. Is it a device of state law or just state procedural rules? Regardless, the fact that the prosecutor’s office has employed this tactic against a solitary judge for two months straight should raise some eyebrows and concerns about their motivation and their role, aka “justice”. When asked for comment, this is all the prosecutor’s office could muster:

“This decision was made after careful consideration and thoughtful review over an extended period of time,” she said. “It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”

Normally, one would replace those sentences with something like this: “This decision was made after some anecdotal evidence that this Judge doesn’t accede to our every demand and seems to have some sympathy for criminals who rape and murder your children and those illegals who cross over the border to steal our jobs. Thus, since he has respect for the Constitution and there is no place for such liberal namby-pambying in the criminal justice system, which means we can’t bully our way into raising our conviction numbers which is all we really care about, we’re going to throw a hissy fit and say to him: NO SOUP FOR YOU!”

Okay, maybe not that last bit. But here, there seems to be no reason for the prosecutor’s office to be disenchanted with Judge Einhorn:

Gravy for your turkey

I can has cheezburger?

I can has cheezburger?

Or wine with your dine. Or “if the trytophan won’t get you, these links sure will”.

  • Sex offenders in CT still have no place to go. It’s Norm Pattis’ turn to rant against this.
  • A Michigan prosecutor is complaining about lack of funding. Maybe someone should teach him how to count.
  • Another prosecutor does some shady stuff, a Court has the stuffing to reject immunity, and now the prosecutor wants SCOTUS to intervene.
  • Don Pesci takes a look at Hartford’s community court, which I wrote about almost exactly a year ago.
  • Proud to go to jail for housing the homeless (via).
  • Corporal punishment using reasonable physical force for maintaining discipline is a defense [pdf] to the amorphous Risk of Injury.
  • Ryan McKeen tells us about “CT’s Great Turkey Case” in honor of Turkey Law Week.
  • Dave Chappelle on the age of consent and stuff.
  • Foreperson prevents juror from informing judge that they couldn’t reach a verdict. Court finds no problem with it.
  • Maybe the tryptophan got to them already: Obama late in issuing first pardon and SCOTUS is late in issuing first opinion.
  • CDW’s weekly edition is out.

Bonus for finding the hidden link.

Why people think criminal defense lawyers are scum (updated x2)

Exhibit B.

It seems to me that someone thought they were being artistic. The pictures, to be honest, aren’t half bad. It’s the subject matter of the pictures that is extremely questionable. Here are the worst offenders:

So, after looking at these I bet you’re curious what they have for the rest. The rest are as unimaginative and boring as these are offensive and stupid. Here’s Murder and here‘s [I have to warn you: that image is really, really gross. No nudity or anything, but..just…be careful and do not blame me for clicking on it] what it should have been. Here’s violent crimes, but  I think this would fit better with their theme. The only one that I think really works in money laundering (hey! someone’s got a sense of humor!).

Update: An intrepid reader provides a picture of what real money laundered money would look like. I want to swim in it.

Update-Update: The Texas Tornado points out that it’s a findlaw website, but someone still had to approve the damn thing.

Anyway, somebody better take screencaps quick before they change the images.

I have to ask: What is wrong with people?


Monday Morning Jumpstart


With great power comes great current squared times resistance

Ack! What is this? An edition of Monday Morning Jumpstart? Why, yes! What with my blooming campaign for Governor, I figure it’s time that I revive this once-loved, but much-maligned feature (at least for this week). It does help that there have been plenty of stories around the blawgosphere worth reading. So, in my own pedantic way, here are the best:

  • Bobby G has a trilogy of interesting posts on SCOTUS’ decision in Montejo v. Louisiana and the fallout from it.
  • Scott “I am the blawgosphere” Greenfield has an interesting post on justice and the role of the criminal defense lawyer (along with some advice for young lawyers), which resulted in this follow up by Rick Horowitz. My recent post tangentially related to justice is here.
  • Here‘s Reason magazine’s take on the story of the newspaper editor who got a commenter fired. (Here’s this blog’s comment policy. We won’t get you fired.)
  • It’s harmless error to permit a police detective to testify wearing a ski mask (my lengthy post on this). You can read the decision here [pdf].
  • The Government will not appeal the Lori Drew dismissal.
  • What does prosecutorial and judicial immunity from suit really mean?
  • Judge as advocate: 89 questions to a witness is okay.

That’s all. Now get to work.
Creative Commons License photo credit: NoWin

Face-to-ski mask: a defendant’s right to confront his cat burglar

Do you feel lucky?

Do you feel lucky?

I’m not quite sure how to introduce this story (and the case that it covers) in a pithy manner, so I’m just going to get to it: New Hampshire’s Supreme Court recently ruled that it’s okay for a police officer to testify at a criminal trial while wearing a ski-mask to protect his identity because he was working in an undercover unit at the time of the trial.

Yes, you read that right. In State of New Hampshire v. Jose Hernandez, a police officer who had conducted an interview with the complaining witness was permitted to sit there like a cat burglar, with a ski mask on his face. The State’s reasoning – bought by the trial court – was that the officer’s identity needed to be protected. Nevermind the fact that the jury viewed the interview with the complainant in which his face was uncovered and that everyone knew his name. Oh and that pesky Confrontation Clause thing.

Let’s look at that. The Confrontation Clause provides that:

In all criminal prosecutions, the accused shall enjoy the right to […] be confronted with the witnesses against him.

Federal court decisions have interpreted this to mean eyeball-to-eyeball confrontation. The confrontation clause affords the criminal defendant two types of protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987). And there’s a reason for this. The accuser, or any other witnesses on the accusers behalf, should have to face not only the defendant, but the jury that is deciding the defendant’s fate. The jury should have the opportunity to observe the witness and the witnesses reactions and demeanor.

The Connecticut Supreme Court has not yet considered (that I could find) whether a witness testifying in disguise violates the Confrontation Clause. It has, however, considered whether an accuser can testify outside the presence of the defendant and not in court. In State v. Jarzbek, the Court permitted the videotaping of a minor who had accused the defendant of sexual abuse. While the court in Jarzbek ultimately permitted the introduction of videotaped testimony instead of live testimony at the trial, the jury had the opportunity to observe the demeanor of the complainant. Jarzbek, however, emphasized the importance of having the ability to look the accuser (or by extrapolation a witness) in the eye and having that witness face the jury:

Slogan contest part duh

Festivus for the rest'uv'us

Festivus for the rest'uv'us

As most of you may or may not know, I am running for Governor of the great State of Connecticut. You can follow my Gubernatorial overtures on twitter and in keeping with one of my many, many promises, I am bringing governing back to the people.

So, here’s a little contest for you common folk: help me design the campaign t-shirts that I will sell to you for a fee to fund my campaign. In return, I will receive your vote and make a donation in your name to the Human Fund.

What I need from you (besides your vote) is a witty slogan. Brian Tannebaum set things off in the right direction with this gem: “Gideon for Governor: Moving Connecticut in the Wainwright direction”.

Can you do better? Think Tannebaum’s a punk and want to show him up? This is your chance! Leave a comment and the wittiest slogan (or two) will make its way onto an extremely overpriced t-shirt [here’s a sample].

God Bless Connecticut.

It’s a game of numbers

And a game it is.

Every so often, because that is the nature of the beast, a judge will ask the lawyers during a pre-trial if they’re “ready to put numbers” on it. Either today, or next time. Numbers: the sanitized way of saying “let the dance begin”. When cases are thought of in terms of numbers, it’s easy to be dispassionate, to be detached from the sad reality underlying the wheeling and dealing.

Numbers are a way to numb yourself to the concept of incarceration. And numbers are common place. Sometimes I think numbers are thrown around without any regard to their actual value. Just as in science, numbers have no meaning if they don’t have units. Take this example:

Try this problem: a train of length 2, weighing 200, travels from Denver to Santa Fe at 15. How long did the trip take?

Yeah, that means nothing, right? Just as I feel that often “numbers on a case” mean nothing to the parties uttering the words. 10/5/3 is a common refrain. 20, 25, 30. As the numbers keep getting bigger, they shed meaning.

10/5/3, in our terms, is a sentence of 10 years’ incarceration, suspended after 5 years of jail time, followed by 3 years on probation. But when you say 10/5/3, you can avoid ugly words like jail time or incarceration. And we throw around numbers like candy. “Well the State wants 12/6/5. What’s your counter-offer? Make it reasonable.”

Reasonable. What’s reasonable? It’s a barter, a trading of liberties for wrongs committed. The whole thing is ugly. And yet it may be the only dignified way of resolving criminal prosecutions. Going to trial is easy. Declining to prosecute is easy. It’s this numbers game that the most difficult part.

What do we do when “put numbers” on a case? We assign an arbitrary value to the actions of one person, usually against another. What’s taken into account? The injury, society’s view of the heinousness of that act, the loss to the victim, the propensity of the offender to offend again and rarely the person who committed the act. But it’s still arbitrary in the end. Because they’re just numbers to us. None of us – the judge, the prosecutor or me – have to actually do the time. It’s easier to say “20”, when you don’t have to worry about what it really means.

It’s a struggle, honestly. A struggle between my acknowledgment that society has to exact its revenge for crimes committed against it, my duty to my client, my pragmatism and ultimately my utter horror that we are about to deprive someone of their freedom for any period of time.

I have a really difficult time telling a client to accept a plea offer that involves any jail time, let alone numbers in double digits. I do it, because I would be a lousy lawyer if I didn’t. But every time I hear a number, or utter a number, all I can think of is if I had to do that time: the things I’ve done over that time span going backwards; the things I will do going forward. And then I look at the man sitting in front of me and realize that there is no hope. That we’ve treated years of his life like chips in a game of poker. They wanted 5, I offered 3, we settled for 4.

There has got to be a better way.