Archive for December, 2009

The absurd hero

Dec 31st

Posted by Gideon in psa

Comparisons have been drawn, in recent days, between our condition and that of Milton’s Satan and Abdiel. Meaning has been sought to explain who we are and what makes us do what we do.

It is a curious profession we have chosen; those of us who dedicate our lives to defending the freedom of others. Certainly not I, nor most people I know, sought admittance into this small group with any notions of fame, grandeur and constant success. To the contrary, we were, and are only too aware that most battles we fight will be lost. Yet we carry on, day after day, year after year, pushing the rock up the hill.

To be sure, there are victories – some small and some big – yet the nature of the beast, the fabric of the system is such that we may be able to poke small holes in it only to soon become enveloped in it.

Even though we are not ourselves the object of the fire that spews from this beast’s nostrils, we deliberately place ourselves in that path. To get to my client, this other human being, you have to go through me. A small rebel force for hire, as it were.

But the damage we suffer, the blows we take, are small in comparison to the eventual destruction that is wreaked upon the life of the client. We dust ourselves off, sometimes taking longer than usual, and move on to the next person in need.

It is a sort of self-flagellation, I suppose.

I’ve never really thought about why I chose to subject myself to this. It seemed like a question that did not merit a response. I understand why the function is important: as the Emperor Julian is alleged to have said “if it suffices to accuse, what will become of the innocent?” To put in layman’s terms, the slippery-slope; there but for the grace of God…

But we do not exclusively represent the innocent; hardly ever, in fact. And yet even when a man we suspect to be guilty of the crime is he accused of committing is found to be so by a jury of his peers, the reaction is not of resignation or acceptance or that justice was done. There is always, unhesitatingly, a sense of defeat, failure and loss.

Maybe there’s nothing so profound about it all. Maybe we are just driven by our distrust of the Government and our desire to see that its laws are upheld in a consistent and orderly manner.

Are we Miltonian heroes? I’m not smart enough to answer that question. What I do know is that I have a job to do. A job that I know will most often end in failure and that the task is futile and yet I do it, day after day, year after year, decade after decade.

In that sense, I am Sisyphus. I must be happy.

10 things I learned this decade

Dec 30th

Posted by Gideon in moi

12 comments

Not being one to care about what others think and always wanting moar lists, I’m going to subject y’all to yet another. Here are ten things (in no random order) I learned this past decade. Some are law related, some are not related to anything at all.

The older I get the more incomprehensible law review articles become.
Winning isn’t everything, unless you’re a prosecutor.
That I am horribly addicted to the internet and there’s not a damn thing you can do about it.
Just as I consider everyone who has a blog and uses the ‘net to spew their opinions to be an idiot, they consider me to be one too. And I’m not happy about it.
DVR is the best invention of any decade.
Somewhere the real Gideon is crying.
That the death penalty experiment has failed and we must stop tinkering with the machinery of death.
That I have some clients who were in jail when this decade began and will still be in jail when I write an end of 2020s post in 20 years. This makes me sad.
Pluto is not a planet.
No one likes lists, unless there’s a badge involved.

If you’re black and you smoke pot, get arrested

Dec 29th

Posted by Gideon in drug offenses

6 comments

I'm not as think as you stoned I am

(Title sung to the tune of “If you’re happy and you know it…” What? It’s 11:00pm. Buzz off.)

While much of the news media and indeed the blawgosphere has been preoccupied with the news that NYC isn’t really a big, bad and dangerous place, curious little attention has been paid to another story out of New York: that under Mayor Bloomberg, drugs arrests have spiked and that blacks are 7 times more likely to be arrested for drug offenses than whites.

Thanks to Matt at Change.org (a blog you should be following if you aren’t already), we learn that a new study (and a related NYT article) has been published analyzing the incidence of drug related arrests in the Big Joint:

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

racial disparity

Is a battle on sex offender registration brewing?

Dec 29th

Posted by Gideon in Adam Walsh Act

8 comments

Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Kansas v. Hendricks. The factors are:

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

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Comparing the conclusion reached by SCOTUS in Smith on the first factor to Maine’s SORNA law (and reality), the court finds that SORNA is indeed punitive in nature because it imposes an affirmative disability:

These provisions, which require lifetime registrants, under threat of prosecution, to physically appear at their local law enforcement agencies within five days of receiving a notice by mail, place substantial restrictions on the movements of lifetime registrants and may work an “impractical impediment that amounts to an affirmative disability”.

Here, however, quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint that is neither minor nor indirect.

The court then evaluates the other factors, finding some to be in favor of the state, some neutral and some in favor of the defendant. But viewing them as a whole, the court cannot escape the conclusion that enhancing a defendants registration requirements which were imposed as part of a sentence before the change in the law necessarily violates the EPF clause.

There is no dissent, but there is a concurrence by one Judge who would have gone further than the majority. He cites an Indiana Supreme Court decision, Wallace v. State (2009), which also held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the EPF clause of the Indiana Constitution. The Wallace court concluded:

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view— advancing a non-punitive interest—points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

So now we have two 2009 decisions holding that the retroactive application of SORNAs violates the EPF clause of the Federal constitution and a State constitution with identical language. This seemingly goes against SCOTUS’ holding in Smith, but I think that opinion was wrong and was very narrowly tailored. Will they revisit it? I’d love them to.

I wonder how such a challenge would play out in Connecticut. In the currently existing jurisprudential landscape, the prospects seem dim. Our Appellate Court has seemingly characterized Megan’s Law requirements as “collateral”, thus rejecting the notion that a defendant needed to be advised of the registration requirement at the time of plea and sentencing and the Supreme Court has held that Megan’s Law in CT is not punitive in nature at all. [Google Scholar doesn't seem to have a link to that decision, so the link is to a later decision that discusses and expands on the same ideas.] That Supreme Court decision, however, was in 2001 and since then there have been new versions of Megan’s Law here in CT. I think the time might be ripe for an all out assault on this piece of legislation.

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ex post facto, registration, retroactive

Preempting peremptories

Dec 29th

Posted by Gideon in criminal law principles

No comments

As I’ve noted before, there are times when I’m staring at a story, thinking about writing a post, when a few days later I come across something else that ties in nicely with the first. I have now concluded this is because of my unusually high midi-chlorian count and the Force is speaking to me.

Nevertheless, a few days ago, I noticed this news article from Mass that reported that the Mass Bar Ass’n is forming a task force (yeah, one of those) to examine the use and efficacy of peremptory challenges:

Chairing the task force is Richard P. Campbell, a bar association vice president and the founder and chairman of Campbell, Campbell, Edwards & Conroy in Boston.

Campbell, [...], said some members of the Trial and Appeals courts and even academics, such as law professors, are questioning the usefulness and relevance of the peremptory challenges.

Right on cue, I stumble across this new academic paper titled “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts”, which argues essentially that peremptory challenges are useless and states should eliminate them. From the summary:

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

Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction – as empirical evidence suggests is usually the case – then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future.

Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.

Naturally intrigued, I began reading the paper in earnest. I had to pause, however, when the author listed the two forms of jury selection: sequential selection (aka strike and replace or jury-box) and the struck-jury method. In that, there is also variance because the methods can be ordered or unordered. I paused because we don’t do either of those here in Connecticut. We, of course, have individual voir dire. Which means we question each juror individually, alone, outside the presence of other potential venirepersons. [See these posts for a previous conversation about the merits and demerits of the various systems as told by, you know, real lawyers.]

The paper talks about the mathematics of selecting jurors in those two methods: do you compare the one venireperson to the known panel in the case of the struck-jury method or do you compare the ones in front of you to the randomly selected ones who might come after? Besides, in most states, jury selection is rather quick and with limited questioning by the attorneys.

In a sense, in CT, we also play the game of comparing the one juror with the unknown jurors to follow, but we have the luxury of spending as much time as necessary with an individual and making a determination of whether we want that particular person regardless of who else might be out there. Frankly, I can’t remember the last time during jury selection that I either used all my challenges or found myself scanning the list of those yet to come to see if I wanted anyone in particular.

The paper also makes some extravagant claims (supposedly backed by data) that show the more homogenous juries are more likely to be skewed toward conviction. I don’t know if that’s true or not, but the one statement I agree with in the paper is that most peremptory challenges are basically guesses made by lawyers.

There’s no such thing as a sure thing in selecting jurors: it is an art, not a science. When we excuse jurors we do it based on gut – a “feeling” that we got. We may have gotten in completely wrong, just as we do when we select someone, from time to time.

Despite my decided lack of interest in this paper, I’m writing about it because it may be useful to others. Let me know if you read it and found it thought-provoking.

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voir dire

A vex at your door: revisiting FL’s stand your ground law

Dec 28th

Posted by Gideon in criminal law principles

7 comments

Back in 2005, when this blog was in its infancy, I wrote a few posts about a new FL law which removed the duty to retreat before employing deadly force. The law, in essence, expanded the concept of the “castle doctrine” to, well, everywhere:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

I was concerned at the time with the implications of such legislation, both for lawyers and on law and order in general. Two years later, when Texas did away with the duty to retreat, I posted my concerns again and used the phrase “free for all”. I received some criticism at the time and most of the comments echoed one common sentiment: you show up in my house; I kill you.

Being the peace loving, pot smoking, Grateful Dead listening type, this open invitation to engage in needless violence perturbed me, but I was assured by smarter people that it was not a concern. Now, 4 years later, it seems as though I’m not the only one vexed by such legislation. As this article from the Miami Herald illustrates, more than just a naive blogger from CT is vexed by the law and what to do with it.

I think this would be an appropriate time to state that as a criminal defense lawyer, I’d love this law. That a fear of imminent physical danger serve as a bar to prosecution would be a godsend from the purely adversarial scenario. But as a resident in our communities, I’m not sure that this is still a good idea. To remove an incentive to de-escalate conflict and prevent needless violence doesn’t strike me as very smart or desirable.

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ‘Stand Your Ground’ self-defense law that broadened a citizen’s ability to use deadly force. “There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,” said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law “cheapens human life.”

I think I would agree with her. None of the people who responded to my posts back in 2005 saw this as encouraging vigilantism or resulting in a large number of acts of violence. But as the cases in Florida demonstrate, there are more than a few:

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

The Fourth District panel upheld a trial judge’s decision to deny immunity to Ricardo Velasquez, clearing the way for Broward prosecutors to take the attempted murder case to trial. Velasquez, who claimed self-defense for his role in a Hollywood knife fight, eventually pleaded guilty.

In April, a judge denied immunity to a New York partygoer who fatally stabbed a homeless man in a South Beach alley. Lawyers for Nadim Yaquibe, 21, had argued the youth was acting in self-defense when he killed Roberto Camacho, 50, who was unarmed but had threatened to kill Yaquibe.

Circuit Judge Daryl Trawick did, however, reduce a second-degree murder charge to manslaughter. Both sides are appealing.

Another defendant, Damon Darling, 24, was accused of murder after he got into a gunfight with a rival in the courtyard of a Liberty City housing project, killing 9-year-old Sherdavia Jenkins in the crossfire.

Another self-defense case under close watch is that of Gabriel Mobley, 33. In February 2008, Mobley shot and killed two unarmed men, one of whom had punched a friend outside Chili’s Grill & Bar near Miami Lakes. Mobley holds a lawful concealed weapons permit.

In May 2008, Maurice Moorer, 25, shot and killed his ex-wife’s new lover, Eddy Moore, after a dispute that started earlier in the day at Moore’s house.

When Moore was killed, he was sitting in his car outside Moorer’s house. Miami-Dade police said Moorer had egged his rival on, luring him to his house, then walked out armed with a handgun.

But Moorer claimed he fired — some 15 shots — because Moore had been threatening him and might have been reaching for a weapon, defense lawyers Terry Lenamon and Kenneth Swartz say.

Of course, it is entirely debatable whether the existence of a duty to retreat may have prevented these killings, but it certainly is food for thought.

As a criminal defense lawyer, it is my job (and one that I tremendously enjoy) to protect the Constitutional rights of my clients, to hold the State to its burden of proof beyond a reasonable doubt and to represent my client zealously and to the best of my ability. But I do not agree that it is part of my job to condone violence or to be indifferent to it. Personally, I abhor violence. So while it may be an excellent defense to the crimes charged that a person has no duty to retreat and thus is immune from prosecution for the use of deadly force, you will not find me saying that I think this law is good. I think it’s bad and dangerous.

There are several areas that generally trouble me in self-defense cases. One is the rigid implementation of the prohibition against the “escalation of force”. Take, for example, the scenario of the bar fight. Two men get into a scrap at a bar and one gains the upper hand. This one man starts pummeling the other, raining him with fierce blows to the head and side of the body. The “victim” (soon to be defendant) cannot adequately fight back and is being beaten pretty badly. He fortuitously spies a knife on the bar, grabs it and stabs the attacker.

Since he had a duty to retreat, and since he “escalated” the level of force, we typically call it “imperfect self-defense”. That’s a misnomer and a legal fiction, in my opinion. To me, there’s no example of self-defense that’s more on point. The whole purpose of self-defense is to defend oneself. How is one expected to return reasonable force with reasonable force, when one is clearly incapable of doing so and thus being mercilessly beaten?

The test for self-defense, in cases such as those, needs to be modified. Currently, one is not permitted to go from reasonable force to deadly force without any legal consequences. I think that’s unrealistic. Juries should be permitted to reach the conclusion that at the time, the defendant saw no other way to escape his punishment than to use deadly force in order to make that retreat.

However, this exception should be limited to circumstances where the defendant is indeed incapable of making a getaway.

Granted, I have not looked at the intricacies of self-defense law in a while, but this is one thing that’s bothered me for ages. Do you have similar problems with self-defense laws? What would you change about it? And what of FL and TX’s removal of the duty to retreat? The forum is yours.

[Interestingly, FL is not the only jurisdiction wrestling with these concepts. Britain is also engaging in some debate over the "castle doctrine" and the presumption of imminent threat of deadly force during a home invasion, based largely on a case I briefly mentioned in this post a while ago.]

H/T: CrimProf

Because I love you all so much, I leave you with this heart-wrenching song:

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self-defense

Shamelessly self-indulgent list

Dec 28th

Posted by Gideon in moi

4 comments

Everyone’s making a list. It’s the year-end list disease. A list for top crime stories, a list for top blog posts, a list for top lists (yes, they’re out there).

So, not wanting to buck convention or anything and feeling the immense peer pressure, I am offering my own list. An utterly useless list of shameless self-promotion. Below you will find the Top 5 most commented posts of the last year, the Top 5 most viewed posts of the year and the 5 posts that I wished people read more.

Then I will open it up to you to nominate your favorite visual accompaniment to a post. If you do not comment, I will kill a bee (and as you all know, since the great bee exodus, they’re an endangered species). So, time for some “me, me and me”.

Most comments:

The most commented post in the last year was this meticulous exercise in legal analysis and insight, garnering 36 comments.
Here‘s a post that was neither meticulous, nor insightful, just whiny (29).
That was followed by my groundbreaking exposition on the correct usage of legal terms (25).
Coming in 4th was some throwaway post on the death penalty (24).
Number 5, I suspect, got a lot of hits for the titillating title (16).

Most views – two of these posts are recent posts, which is testament to the immense power of getting linked to by Radley Balko. If it weren’t for him, this blog would’ve had 3 hits all year. So thanks Radley!

Drunk driving is different (37 billion hits).
Why this got a lot of hits is pretty self-explanatory (27.56 billion).
Junk “science” and missing evidence (250 hits).
Sex offenders on probation – setting them up to fail (4 hits) [note that this is a post from last year].
It seems every teen in the world has landed on this page at some point (1 hit) [also, this is from 2007. Yeah, two years ago. F*ck me].

And finally, because this nonsense has gone on long enough, here are my personal favorites from the last year:

Do pedophiles have free will?
It’s a game of numbers.
This I believe.
Crazy? Jail’s the place for you.
When is an assault not an assault?

Now, go talk amongst yourselves while I write another post or something.

It’s time to wake up (updated)

Dec 27th

Posted by Gideon in drug offenses

4 comments

It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty? How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.

Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.

The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.

A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.

Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

High-risk sex offenders still have nowhere to go

Dec 22nd

Posted by Gideon in cheshire

3 comments

Two years ago (and how time flies!) I wrote about the lack of any real residential inpatient options for high risk sex offenders in Connecticut. As of today, nothing has changed. The man whose case prompted the prior post is set to be released from custody on Christmas eve and – surprise, surprise! – he’s most likely going to end up in a shelter.

And even that’s not certain.

Instead, 52-year-old Ransome Lee Moody will be waiting in line for a bed at Immanuel Baptist Homeless Shelter in New Haven, a place where indigent offenders who have done their time often go for housing when there are no other options.

Now Moody is not a nice guy. Having spent 32 years of his 52 year life behind bars for various sexual and violent crimes, it’s clear that there’s a problem and he’s a danger either to himself or to society. So it would be appropriate if there were a place to house people like him, which would provide them the appropriate treatment and security and allow them to successfully integrate back into society, if possible.

Such a place was envisioned by the legislature – perhaps the only good thing to come out of the wholesale *cough*bullshit*cough* “reforms” to the criminal justice system in the wake of the Cheshire murders.

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

Somehow, in the midst of all that fist thumping and righteous indignation, the legislature managed to make a provision for a residential treatment center for high risk offenders: 12 on parole and 12 on probation. They even secured a bid from contractors and identified a location.

Then came the budget crisis. And of that behemoth bill, the one thing that lost its funding was the one sensible proposition. Meanwhile, the state is still funding the prosecution and eventual housing of people charged with and convicted of the redundant crime of home invasion.

And so now, despite the best efforts of the judicial department to find Mr. Moody a roof over his head and much needed treatment, we’re all going to play a game of Russian roulette:

But last month, [Moody's lawyer, public defender Jay] McKay said “we’re quite a long distance from the hopes of Judge Holzberg.” McKay told Superior Court Judge Patrick J. Clifford the facility would have taken care of Moody’s housing and his therapeutic needs.

“But the problem is that there isn’t one,” Clifford said. “It is a hope. And that was the legislature’s hope also. But with the budget crisis, we don’t have it.”

In the meantime, probation and parole officials will struggle to find options for homeless sex offenders, addressing public safety but also helping offenders adjust to life outside prison walls.

Probation officials said if that shelter is full, Moody could look for a bed at two other New Haven shelters. And in what they called a rare case that all beds will be filled, Moody could end up on the streets.

When asked at last month’s hearing if Moody would be guaranteed a bed, Chief Probation Officer William Anselmo admitted it was not a sure thing.

“We can do our best,” Anselmo told Clifford. “We don’t have a safe house. We don’t drop them off at a motel and pay for the night. Unfortunately, we do have some sex offenders supervised by probation, registered offenders that do live under the bridge for a couple of nights. We’ve had guys sleeping on the green in New Haven. Unfortunately, we just do not have the resource to put somebody up for the night.”

So if you happen upon the New Haven green next week and see Mr. Moody sleeping on a park bench, be sure to go over and say hello. Tell him that while he may have spectacularly failed society, it too has failed him.

[By the way, I haven't heard anything from either the residents of New Haven nor the American Idol Governor on the release of Mr. Moody, have you? If she has tried to keep him in jail longer than his sentence because he's such a damn menace to society and I just missed it, please let me know.]

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Junk “science” and missing evidence

Dec 21st

Posted by Gideon in evidence

2 comments

Add a gallon of destroyed evidence to a tubful of junk science and what do you get? Another man set free. Philip Scott Cannon was released from prison Friday after serving 10 years for a triple murder. Note that I have not yet used the term exonerated – and that’s for a reason. We don’t know if he is truly innocent and we will never know. That’s because the police in Polk County, Oregon destroyed all the physical evidence they had collected during their investigation, despite a county policy.

Cannon’s conviction was overturned in the first place because it had been based on the now debunked “comparative bullet lead analysis”, that the FBI distanced itself from in 2005 after another NAS report in 2004 called bullshit on the “science” [not to be confused with the NAS report that this year called bullshit on a whole bunch of other "forensic science tools" and other tales of "junk science"].

In 2004, after the NAS report but before the FBI disavowal, NACDL’s Champion published this lengthy piece on CBL and its flaws. And then in 2007, the Washington Post had this article questioning the FBI’s failure to alert courts and lawyers of their distancing themselves from CBL and the closing window on the possibility of reversing questionable convictions.

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

The fear is upon us: convict to be on the safe side

Dec 20th

Posted by Gideon in sex offenders

7 comments

these are not the sex offenders youre look-wait, he kinda is

America’s War on Sex (Offenders) is well documented by now. Sexual deviants and offenders are the modern day witches, persecuted by the fearful among us, without any regard to rationality or reason. So it was only inevitable, then, that the prosecutions of these witches creeped into the Orwellian realm: seemingly innocent acts (albeit non-conventional) that may perhaps possibly lead to an actual crime, despite a mountain of evidence suggesting the opposite.

That’s precisely what happened to one gentleman in Colorado, as documented by Dr. Marty Klein, who authors the Sexual Intelligence blog. He explains (explicit details, skip the blockquote if you’re delicate):

Here’s the situation: The defendant “Mr. Jones” goes into a Yahoo adult chat-room, and makes it clear he wants to have conversations about sexually dominating a young person. A person responds—let’s call her “Missy”—who says she’s a teen who would gladly chat with a wiser, older man about the ins and outs of sexual things.“Missy” says she’s 14, and she and “Mr. Jones” proceed to exchange hundreds and hundreds of emails, IMs, and phone calls, which range from the incredibly boring to the graphically sexual. He discusses how one day she’s going to be sexual with men, and therefore he helpfully instructs “Missy” to put her fingers in her vagina, practice sucking them, etc.. On the other hand, he never invites his correspondent to meet him, never sends “Missy” money or gifts, never sends her pictures of adults having sex with minors.

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

Judging by the quotes, you might have guessed that “Missy” is a cop. Mr. Jones was charged with some form of internet sexual exploitation (if any CO practitioners know the statute, leave a link in the comments and I’ll amend the post – the closest I could find was this), notwithstanding the fact that “Missy” was not a minor, nor was he doing any grooming for any contact whatsoever, since through their repeated communications he had not once suggested they meet in person, nor sent a photograph of himself or requested photographs of her. In other words, it was a fantasy. Much like the ones we all have.

Dr. Klein, hired as an expert by the defense, was put through the wringer by the prosecution, who sought to paint Mr. Jones – and by implication all adults with healthy sexual desires – as deviants:

The prosecution tried to get me to say that most people who fantasize are sick, which I wouldn’t. They tried to get me to say that people’s fantasies indicate what they want to do in real life, which I wouldn’t. They tried to get me to say that Mr. Jones’ calls and emails were typical grooming behavior. I pointed out the fundamental flaws in their reasoning: he had met “Missy” in a chatroom for adults, not for fans of Miley Cyrus or the Jonas Brothers. And after a thousand emails and phone calls, he never said anything like, “Let’s meet. We’ll have a great time. When are you free? I’ll send you money for a bus ticket.”

The jury received Dr. Klein warmly and showered Mr. Jones’ lawyer with compliments. Yet today, Mr. Jones is not a free man. The jury convicted him, because they were afraid to believe him. They couldn’t be sure if he was really seeking out a child. No, he didn’t prove his innocence beyond a reasonable doubt.

This war on sex has so turned the tables on individuals that the fundamental constitutional protections of due process and the burden resting with the state to prove a crime exist only as a sham, if at all. When juries are afraid to do the right thing and acquit someone who has committed no crime, only because they could never be a hundred percent sure that the defendant didn’t intend to, or never will intend to, it is time to lock your doors and never leave the house.

When convictions are based on what the defendant couldn’t disprove, not what the State failed to, the criminal justice system has turned into nothing more than the crusade against heretics.

As the comments to my previous post on whether pedophelia is the result of organic brain disorders show, it may very well be the fact that “these people” are “different” from the personas average people put on display that drives the “average juror” to convict, just to be safe.

Hopefully, on appeal, it will be proven that this was not a “reasonable” jury and restore our faith in the criminal justice system. But don’t hold your breath.

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Act V

Dec 20th

Posted by Gideon in asides

No comments

If you haven’t yet, take some time out of your day to listen to Act V, an episode of This American Life from 2002 about Hamlet performed in a Missouri prison, with the assistance of this group. There’s some video here. Poignant, insightful and moving.

The stupidity epidemic: it’s catching

Dec 20th

Posted by Gideon in sunday stupidity

6 comments

Well, folks, now you’ve gone and done it. The stupid has taken over the world. In addition to the “honey I found a shotgun in the yard” crime in Britain, Virginia has now gone and convicted the coffee guy who was walking around his house naked and was spied by some peeping toms.

Add to that this by now well worn video of the DC cop who pulled a gun on snowballers and it might be time to scratch this whole homo sapiens project and start over:

I am now going into isolation to avoid catching the stupid. See you never.

The Georgia peach has turned rotten

Dec 20th

Posted by Gideon in death penalty

8 comments

not cool, GA. You made lolcat swear.

I’m going to throw some numbers at you. See if you can recover sufficiently to read the rest of this post. Ready?

475, over a year, $160,000, 187 and finally 2 and a 1/2.

Any guesses? If you guessed active cases, time pending, funding for contract attorneys, clients without counsel as of November ’09 and finally, the number of appellate attorneys state-wide in GAs pd system, then you either deserve some sort of prize or have read this.

That’s right. Two full time and one part time appellate public defenders. Handling a caseload of 475.

I don’t think you understand.

475 divided by 2.5 = 190 appeals per lawyer. Appeals. Per. Lawyer. And it isn’t like the State of GA has stopped prosecuting and convicting people.

This is the latest stand in the war against the rape of Constitutional rights in GA. The Southern Center for Human Rights has filed a fourth lawsuit against the State of GA, seeking to ensure that adequate funding is provided. This, from their press release, nearly made me cry:

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

The individuals bringing forth this challenge are among nearly 200 people who have been convicted of offenses in Georgia carrying a term of incarceration who are without legal representation to assist with their appeals. Two of the six named plaintiffs have been incarcerated for more than three years and do not currently have counsel to represent them in their motion for new trial proceedings; three others have been denied counsel for at least a year. The sixth has been without appellate counsel for almost ten months and has been informed by GPDSC that he is number 105 on the Council’s backlog list; the GPDSC is unable to even estimate when he is likely to be appointed an attorney.

However, is this sorry state of affairs surprising given comments like these from the Governor’s office:

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit. Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants,” says Chris Schrimpf, a spokesman for Governor Perdue.

That is so idiotic a statement that I would hardly bother to address it. Here’s a simple solution Mr. Schrimpf: fund them and then you won’t have to respond to these “frivolous” lawsuits that only seek to secure that funding.

This is a crisis of epic proportions that has only one foreseeable conclusion: the courts (either State or Federal) stepping in and putting a stop to this madness. [See my previous posts on Jamie Weis's appeal: one of the four lawsuits currently pending in GA.]

The real lesson from such a crisis should be a rethinking of our criminal laws. When almost every act can be criminal and when lengthy penalties are handed out for most crimes, these problems are only going to continue to grow. Perhaps we haven’t seen the full effect of the “harsh on crime” policies of states. But some day, these 30, 40, 60 year sentences are going to come home to roost. Some day, there will be thousands of men sitting in jail, taking up a bed, costing healthcare when a 20 year sentence would have sufficed. That is money we do not have and will not have. All States should be ready for this. The crisis is only going to get worse.

I talk frequently about eliminating the death penalty to reduce costs. That’s only the tip of the iceberg. In reality, States will need to do a lot more to have a more effective and efficient criminal justice system: first by taking a look at the sheer number of crimes in the statutes, then by determining whether we want to fund the prosecution, defense and incarceration costs for all those crimes, then by getting realistic and realizing that we simply cannot sustain this tidal wave of incarceration, for all the costs it has on our budget and our communities.

This money crunch is not only a product of the failing economy, but also of lawmakers’ short-sighted campaign sound bites. Until they wake up and do something about it, posts like this from a GA public defender will be the norm.

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Between a void and a hard place

Dec 20th

Posted by Gideon in cops

8 comments

You are Paul Clarke. You live in a small town in England. You’ve had a run-in or two with the law, but nothing serious. One day, you find a black bag a the end of the garden. You think it’s a bag of rubbish (garbage, for you non-Brits). You open it and inside find a shotgun. Being civic minded (plus a little lazy), you take the gun to the police a few days later and turn it in.

Fast forward a number of months. Where do you think you are now, Paul?

Awaiting sentencing for possession of a shotgun Sentenced to 12 months suspended, that’s where. An offence which carries a mandatory-minimum penalty of 5 years. Jack of Kent, a British blougger, has written extensively on this case and it’s well worth the read (via the deadly Charon). As with all strict liability crimes and crimes that involve mandatory-minimum sentences, the befuddling question here is the exercise of discretion to prosecute Mr. Clarke. While the police were unwilling to comment on the case, Jack of Kent was able to enter into a lengthy e-mail exchange with the Crown Prosecution Service, who explained their decision to prosecute thusly:

Paul Clarke claimed that he found the shot gun in his garden and decided to bring it to the police station. Evidence showed that he was in possession of the gun and the cartridges for some days earlier and that at that time he did not try to contact the police, for them to collect the weapon. He could not explain why he waited some days before bringing the gun to the police station and why he did not contacted the police for them to come and collect the gun.

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

So it seems that the entire crux of their decision to prosecute was based on the lack of a “satisfactory” explanation from Mr. Clarke as to how he got the gun and why he waited two days to turn it in. Nevermind the fact that the same police department distributed a leaflet encouraging people who find guns to bring it to the police station.

Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There's this fellow who's going to jail for beating up an intruder and then this awfully sad story.]

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Archive for December, 2009

The absurd hero

10 things I learned this decade

If you’re black and you smoke pot, get arrested

Is a battle on sex offender registration brewing?

Preempting peremptories

A vex at your door: revisiting FL’s stand your ground law

Shamelessly self-indulgent list

It’s time to wake up (updated)

High-risk sex offenders still have nowhere to go

Junk “science” and missing evidence

The fear is upon us: convict to be on the safe side

Act V

The stupidity epidemic: it’s catching

The Georgia peach has turned rotten

Between a void and a hard place

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