Archive for December, 2009
Depends on what “money” means
Dec 17th
As expected, my post yesterday on the money wedge between public defender and private attorneys has generated a response from Cousin Greenfield, who calls me on my bullshit of not noticing that there are, indeed, divergent interests to some extent between the private bar and public defenders. Scott, however, turns the table and gently points out that public defenders lack of concern for the actual eligibility of clients takes away from the ability of private lawyers to feed their families (which echos the comment left by “Bubba”).
The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking. There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.
Why buy the cow if you can get the milk for free?
Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD. I suspect they are flattered, though they should be angered. These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended. They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.
To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where’s the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.
While I suspect that Scott is engaging in hyperbole, I can see his point. However, I don’t necessarily agree with it. At least one hundred years ago (site very, very NSFW), I wrote about indigency standards and the authority of a court in CT to simply appoint a public defender even if the defendant has some resources available.
To be sure, there are extreme examples of defendants with liquid assets, who can (and routinely do) hire private counsel after they’ve become dissatisfied with their public defender. It’s happened to me and it irks me to no end. To that extent, I agree with Scott: don’t waste my time.
What’s a little money between friends?
Dec 16th
[Update: A follow up post with additional thoughts here.]
I always thought we were brothers (and sisters). You, the criminal defense lawyer in private practice, and I, the public defender. Cousins of a sort. We had one common objective: acquittals defending the Constitutional rights of those unlucky enough to be sucked into the vortex that is the criminal justice system.
But now it seems that there’s this schism between us. This divide that I’d never noticed. Your annoying wife, if you will. The one who tolerates me, but doesn’t really like me. I’m the Democrat to her Republican. Commenter Bill Thompson explains:
Your observations are but the tip of the iceberg relating to the inherent conflicts between the private bar and public defenders. The “money” factor is the absolute wedge dividing otherwise natural allies. Apart from the scare tactics you reference is the over-riding division between the two regarding general policy considerations. PD’s here complain about the phenomenon of over-indictment, while private practitioners celebrate it as “the difference between driving a Chevy and a Cadillac”. PD’s speak of decriminalizing drug offenses while profit-minded attorneys rue the day. It’s these differences which typically land a lawyer interested in criminal defense in one camp versus the other. Of course, there’s also the practical considerations of running or not running an office. Of paying or not paying support staff. Of looking for or not needing to look for clients. Of contributing or not to judicial candidates. Under the best of circumstances, the alliance between PD’s and private practitioners of criminal defense will always be tenuous at best. Loyalties are unfortuately compromised by the Almighty Dollar…
Polluting the jury pool
Dec 16th
In today’s hyper connected world of 24 hours news and in-your-face social media that tweets breaking information before you have time to read it, one of the great concerns among legal professionals is keeping the jury pool free from pollution. As information is more widely and easily available, more and more people are becoming intimately aware of details of even routine criminal cases in their towns.
This presents an added challenge in weeding out those potential jurors who’ve already heard about a case and who might have made up their minds about the guilt or innocence of a defendant. The core right, of course, is the right to trial by an impartial jury.
But there’s another concern, one that not many pay attention to or can do much about: and that’s the post-verdict informational session usually conducted between the judge and the jury. This has happened after every trial to verdict I’ve been a part of: the judge slips into the jury deliberation room, chats with the civic minded people who’ve just discharged their important duty and proceeds to give them the dirty details of the case (and occasionally to answer questions).
Invariably, this discussion comes around to the defendant. And when discussing defendants, there’s nothing juicier than discussing a defendant’s criminal history. The jurors, besotted by curiosity, may ask questions about the defendant – to know what kind of person the defendant is: has he done this before? Does he have a record?
Some judges may choose to ignore such questions and some may not. Some public defender wrote in to the Legal Ethics Forum to ask that very question: what do you do with a judge who reveals the defendant’s criminal history to jurors post-verdict?
This past summer I tried a criminal case in federal court. After the guilty verdict but before the jurors were dismissed, the district court judge told them about my client’s prior bad acts. I would like to write an article and argue that this is wrong because it damages the future jury pool. If it cannot be done in Texas state courts, why should the federal courts be any different? Could you tell me of any articles or periodicals dealing with this issue?
This Seattle DUI lawyer is not a douchebag
Dec 16th
Remember that stupid post I wrote about some article on some site that suggested that defendants were better off with private lawyers (a particular private lawyer, actually) than public defenders because pd’s are overworked-underpaid-useless-etc?
Turns out one of my two readers also writes a blog for the Seattle Weekly and the post was picked up there and the enterprising author sent the law firm in question an e-mail.
It took two days, but we now have some idea of what happened: Lovik & Juhl (the law firm) say they didn’t write the piece, nor did they pay anyone to write it. From the statement they sent to the Seattle Weekly:
I really haven’t a clue who may have written this (we have no staff, just two attorneys, neither of whom publish on any site like the one you have linked to here.) My guess would be that one of the services we use to try and drive traffic to our website has done this to try and make themselves appear more valuable to us. We have recently cut ties with at least one agency that we found were using fake names to give us “client reviews.” I didn’t feel right about that, either.
Lovik says the most likely culprit is a guy they hired to redesign their website. But the lawyer says he’s “just a kid.” And doesn’t want to reveal his name nor hurt his reputation based on what he sees as a misguided attempt to help the firm.
I have received e-mails from this young “kid” and I, too, am not going to name him. There’s no point. There was a lesson to be learned here and it seems that everyone has learned it. For Lovik & Juhl: outsourcing marketing = outsourcing ethics and reputation. I, for one, have learned that I really shouldn’t give a crap.
So, here’s what I’ve done: I deleted the content of the previous post and replaced it with a link to this one. If someone with better SEO knowledge tells me that it would be preferential to delete the original post in its entirety, I’m willing to consider it.
In the meantime, I would recommend that Messrs. Lovik and Juhl read Mr. Bennett’s post above and join us in the blawgosphere the right way.
The crumbs are asking me questions
Dec 14th
seriously, i didn't make this up
It’s time, once again, to play that game where I take search terms that led visitors to this blog and make pithy comments about them. I’ve done this before (and again and again) and yes, it is a diversionary tactic which keeps me distracted enough to not write that substantive post that none of you ungrateful readers will ever read or comment on.
Don’t look at me like that.
Let’s get started:
- From August till now, the #1 search on this blog is the term: “facepalm“, which might adequately convey one’s reaction upon reaching this blog.
- Phil Russell also got a lot of hits: by the way, he wants you all to know that he appreciates the support.
- Law: yes, that’s the general idea. Also equally productive searches: science, the and and.
- Raising the Bar Season 3: you have reached the end of the internet.
- Public defender crap: much like regular crap, except free and overworked. Also, not as smart.
- How to beat the law: It’s a futile exercise. There’s only one person in the history of the world to have ever beaten the law and then too only when he was the law. Figure out that flux capacitor.
- How to be a public defender: Depends on who you ask. My clients would say if you have a pulse, you’re in! Because that whole law school thing is totally useless.
- Fail: epic
- Crazy public sex: There’s no such thing.
- Mental health public defender: It’s touch and go, thanks for asking.
- How to hire a public defender: You really need to think about what you type before you type it. All kinds of stupid up in this joint.
- Several people want to know what Alex Kelly is doing now. I. Don’t. Know.
- ooo sex: what happens after an aaa meeting
- ipostnaked dot com: glad to hear it.
- need money: if you find some, let me know. I have a good friend in Nigeria who’d be willing to invest it for you.
- if someone has naked pictures of you: you should probably try and get them back before they end up on Facebook – ah, what the heck, are you hot?
- tomorrow, you will vote the abolition of the death penalty: tomorrow, I will vote the abolition – wha, wait a minute! I see what you did there.
- why the government of usa make such dumb laws: I don’t know, it didn’t say.
- castrate myself: I wouldn’t recommend it, but hey, if that’s what you really want.
- why do we need the 6th amendment?: so you can read posts like these, duh!
- sleeping public defender: and that’s my cue.
I bet you can’t do better.
| RT @ryanbernat:
Judicial blindness to eyewitness ID
Dec 13th
Hazardous duty self defense
Dec 13th
There are some very interesting discussions being generated as a result of the Robert Lawlor acquittal in Hartford last week: what does this say about the community, what does it mean for the future of the city, will the mistrust between residents of the city and the police ever subside, is Hartford really one city or does everyone view the North End as a cesspool? [Even I arose from my slumber to post.]
Now, thanks to an “opinion piece” in today’s Courant, add one more conversation to the list: should there be a special “law enforcement self defense” provision in our law? The piece is authored by former prosecutor John Massameno (who, you might recall, was the prosecutor who oversaw the conviction of now exonerated Miguel Roman). Also, CT lawyers, stop the eye-rolling.
The piece is titled “Don’t charge police over errors”, so you would be right to believe that he is arguing for immunity from prosecution, not just a more expansive doctrine of self-defense. Indeed, most of his “opinion” piece reads like that:
Police officers need our help. They must make split-second but accurate decisions about using deadly force to protect themselves or others from harm. Occasionally, an officer makes a mistake. Absent some aggravating factor, such as an improper motive, the law should not criminalize officers’ good-faith mistakes in judgment. Otherwise, how can we expect them to take decisive action to protect lives when their own could be destroyed by doing so?
Yes, very good. But the crux of his “opinion” is an amendment to the self-defense statute, which would ask the jury to consider the dangers faced by police officers in their day-to-day business:
It gives an officer a defense to a homicide or assault charge when, in the line of duty, he “[makes] a mistake in judgment concerning the imminent use of force against him or a third person.” It requires the trial judge to tell jurors that “in assessing the reasonableness of the physical force used by [the] officer and … [his] belief that physical force would be used against him or a third person, [they must] consider the [officer's] unique status in the enforcement of the law, his background and training in the assessment of and response to the likelihood that physical force will be used against him, and the greater likelihood that physical force will be used against [an officer] than against a person not engaged in the enforcement of the law.”
The law wouldn’t require the jury to believe the defense, so when there’s evidence of some improper motive, such as racial hatred, a conviction for murder is still possible.
Judging evil: Do pedophiles have free will?
Dec 4th
Neuroskeptic, earlier this week, wrote this very powerful (and sad) post about the story of an anonymous man, who after several surgeries removing parts of his brain, developed sexual urges directed toward minors. He developed a case of the rare Klüver-Bucy Syndrome. KBS is a behavioral disorder that occurs when the right or left temporal medial lobes of the brain are damaged. One of the symptoms of KBS is altered sexuality, which can be defined as: characterized by a heightened sex drive or a tendency to seek sexual stimulation from unusual or inappropriate objects.
In this anonymous subject’s case, the inappropriate objects were prepubescents. He was arrested in 2006 and charged with knowingly and wilfully possessing material which contained at least three images of child pornography. The intent requirement of this crime was the key factor in the fight over his sentence. On his behalf, the argument was made that because of the damage to his brain and the resultant KBS, he was not in control of his hypersexual urges. The prosecution countered that since he was able to prevent himself from acting out in public (I wonder if that’s really the case or if that’s a bit of reverse logic), he was able to control his urges, and thus any criminal act was wilfull and knowing.
In his particular case, the judge accepted the mitigation provided by the defense and sentenced the man to the minimum permissible. [Note that after being put on anti-depressants and other medicine, his urges went away.] But, as Neuroskeptic notes, there is a very interesting question here. If the science does prove at some point down the road that pedophiles really are not in complete control of their urges and these urges are the result of a brain malfunction – an organic disorder, if you will – must we change our attitudes toward those that commit these crimes?
Neuroskeptic notes a striking similarity between the behavior of monkeys with similar brain damage and humans:
The fallacy of the good-hearted informant
Dec 2nd
An all too common scene in trials when a jailhouse snitch testifies is the elaborate song and dance performed by said snitch and the prosecutor to convince everyone (a bit too loudly) that there is no quid pro quo.
“Did you talk to anyone from the prosecutor’s office before coming forward with [insert damning piece of evidence]?”
“No, of course not.”
“Did anyone from the prosecutor’s office promise you anything in exchange for your testimony?”
“Not a damn thing.”
“Have you been told you’d get a reduction in your sentence for co-operating truthfully?”
“I wish I had, but no one has been so kind.”
“Is everything you’ve said been the truth?”
“Do I look like a liar?”
“So why did you come to us with this information?”
“Out of the goodness of my heart.”
That is what I shall henceforth call “the fallacy of the good-hearted informant”. You can picture it now, can’t you? The prosecutor winking, the informant nodding, the defendant eye-rolling, the judge snickering. The jury? Well, that’s the important question.
Does a jury buy this? Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?
Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?
Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.
Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.
A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.
As for the defense attorneys (and in an effort to make this post more than just stating the obvious), what tricks do you find work best in countering this charade? Maybe someone should start keeping track of every time an informant has received a reduction in his/her sentence after testifying in a particular courthouse or with the blessings of a particular prosecutor’s office.
[For more posts on other fallacies and legal fictions, click here.]
From the ass’s mouth
Dec 2nd
Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.
Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:
The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.
“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”
This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:
Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.
But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:
[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]
I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).
As Scott summed it up:
While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong. David Martin’s comments are a disgrace of the lowest order. And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.
I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer. Never, but never, smear your own client.
I’m glad to say that no one I know would act like Martin did (although one has come close).
Waah, I cut my finger: mandatory-minimum for you!
Dec 1st
There was an odd confluence of events in Hartford Superior Court yesterday: an expert witness testified in the trial of police officer Robert Lawlor, who is accused of fatally shooting a suspect, while at the same time Dwayne Powell was in court for his second appearance in the shooting of a Hartford police officer.
And when the odd confluence combines with the full moon (did you look at the moon today? absolutely gorgeous), we get knee-jerk behavior. This time, the knee jerk behavior is calls for mandatory-minimum sentences for assault on an officer:
“We want the community to know that any comments and or actions that advocate the assaulting or the killing of a police officer should not and cannot be tolerated by the very society we serve,” [Officer Richard Rodriguez, president of the Hartford police union] said. An assault on a police officer is an attack on “the very fabric that holds society from falling into chaos,” Rodriguez said.
Robles and two other state legislators who attended Monday’s rally said they’d propose and work to pass legislation enhancing the penalties for those who assault police officers. The legislative session opens in February.
“Being assaulted is not, I repeat not, part of this job,” Rodriguez said, adding that police officers would like to see a minimum mandatory prison sentence for those who assault police officers.
Now, before you jump on my back and call me a commie sympathizer let me assure you that I do not condone violence, whether it be against a police officer or any other “normal” person. If I had my way, we’d all wear tie dye and listen to the Dead all day long. I think a majority of police officers are good, conscientious people trying their best to keep order in our hectic cities.
But let’s not get carried away either. [A look at an absurdity in the statute and more after the jump]
Rell wants to close minimum security prison
Dec 1st
As expected, lame-duck Governor Rell announced plans today to close the almost-out-the-door Webster Correctional Institution (hey, news sites, look! It’s possible to link to websites besides your own!) for a savings of a whopping $3.4 million a year.
Actually, I have to be honest. I’m pretty ambivalent about this whole thing. It’s a low-level prison and per the reports would require the relocation of 220 inmates. That’s not a whole lot. So by itself it’s not a bad idea to close Webster. The question really is whether there is room at other facilities to house these inmates. Less space + more inmates = overcrowding. Overcrowding = bad idea. Despite the Governor trumpeting the “drop” in prison population from the record high of February 2008 (which, let us not forget, was her own fault), the fact is that CT’s prisons are still woefully overcrowded. 18,000 plus inmates are packed like sardines into a system that was built for 15,000. They’re still sleeping in the gym, they’re still sleeping on floors and there are still far too many per cell.
I have another idea: if you want to close the prison, fine. But instead of shoving them into an already full elevator, why not release the low-risk offenders? CT now has a full-time parole board (which they claim is working efficiently, but let’s remember this is still a government organization), so why not release the one that have no probable risk factors. There always will be the crazy ones that commit crimes that are unforeseeable. There’s no way to account for that or to correct for it. Sometimes, shit happens.
What do you folks feel? Closing the prison a good idea? Bad? Just want to hate on Rell?
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