Archive for March, 2010
All it takes is one
Mar 30th
One witness, one complainant, one word. That’s all it takes for your life to start tumbling down the rabbit hole. One accusation, one prosecutor to believe it and one judge who is laissez-faire. That’s all it takes.
For some cosmic reason, this has been the most frequent topic of conversation with clients that I’ve had in the last two weeks. And I’ve always known, in the back of my head, the power wielded by the State in the criminal justice system. Heck, that’s why my job is an uphill battle.
But until last week, I’ve never really had to confront it head on, think about it for a while and explain it to several people, one after the other.
“Can they do that?” asked one client when I informed him that the State had upped the charges against him to a crime that carried a mandatory-minimum sentence. With an apologetic curl of the lip, I conveyed an affirmative response. “They can do whatever they want”, was my response.
“They can do whatever they want”. For the most part, it’s true, isn’t it? The State decides what to charge. The State makes all plea offers. The State decides which co-defendant to try first and which charge to try first. The State decides if it wants a pre-sentence investigation. The State decides what material they think is exculpatory and what needs to be turned over.
The power of the State is fearsome.
What’s more is that the State decides whom to believe. That was Client 2. “You mean someone can make up some shit about me, say I did this to her and I go to jail?”
“Well,” I tried to explain, “that’s what the State believes happened. That’s the evidence they’ll present at trial. It’s her word against yours.”
“That’s bullshit, man” came the understandable response.
It is bullshit.
Vengeance at its most shameful
Mar 29th
Jordan Brown, a resident of western Pennsylvania, is charged with shooting Kenzie Marie Houk and her unborn child. Police say that Brown shot her once at point blank range. Today, a judge ruled [thanks to Doc Berman via Gamso] that the prosecution against Brown can remain in his court and denied the defense’s motion for transfer of venue.
Jordan Brown is 12. At the time of the death of Houk, he was 11.
I repeat. Jordan Brown is 12. And a judge ruled that he can be tried as an adult. A state in these United States is about to prosecute an eleven year old as an adult murderer.
Here is a file picture of him, taken from CNN. Look at it. This cherubic 12 year old now faces life in prison. The rest of the post after the photo and the jump.
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
Monday Morning Jumpstart
Mar 29th
You know the drill:
- A 6-minute verdict in a capital felony trial.
- Ex-offenders want a seat at the funding table.
- 9th circuit okays use of taser on pregnant woman.
- MD venireperson brings lawyer to “failure to appear” hearing.
- 10 rules for dealing with the police.
- Judge Jack Weinstein is at it again. This time, electronic monitoring is unconstitutional.
- An OLR report on the number of people currently incarcerated in CT for non-violent crimes [about 63% of the prison population].
- Every time a killer is sentenced to die, a school closes.
- David Mamet gives tips on how to engage your jury (sort of).
- SCOTUS hears oral argument today on the manifest necessity of double jeopardy. (More here.)
Now, back to work you lot.
Bad ad-Weis: spitting on Barker
Mar 28th
To,
Jamie Ryan Weis
Soon to be on death row
Georgia, USA
It is your fault. It is your fault that your lawyers didn’t get paid. It is your fault that there wasn’t any money to hire investigators and mitigation experts. It is your fault that the two lawyers with whom you’d built up a relationship had to be replaced.
It is your fault that the lawyers they were replaced with weren’t experienced and didn’t have the time or resources to represent you. It is your fault that your Constitutional right to counsel of choice cannot be fulfilled. It is your fault that your new lawyers sought be replaced.
It is your fault that your old lawyers were promised funding if they returned to represent you. It is your fault that they never saw a dime of that money.
It is your fault that the public defender system has broken down. It is your fault that the State of Georgia doesn’t give a shit about indigent defense.
It is your fault that you now have to go to trial for a capital felony, still without any money.
Don’t you see? It’s so simple.
Love,
Georgia Supreme Court (well, at least four of us.)
Judge for a day – IV
Mar 24th
“Tring tring”
“Hello, how may I help you today?”
“One robbery, please.”
“For here or to go?”
“To go, please.”
“Okay, your total is one smack on the head, plus tax.”
Fine, so that’s not exactly how the conversation went when two would-be robbers called a local bank and informed the person on the phone that they would be stopping by in a few to pick up their order of cash.
“You can’t make this stuff up,” Sgt. James Perez, Fairfield police spokesman, told the Post. “They literally called the bank and said to have the bag of money ready on the floor because they’re coming to rob the place.”
Then, true to their word, they showed up – just as police were coming to greet them.
One is a 16-year old juvenile and the other, 27, is on probation for – wait for it – robbing a bank. Prison may not have cured him of his bank-robber-itis, but it sure did teach him some manners.
[This is just an extreme example of the dire mopiness of most of our clients. An overwhelming number of clients that we here at 'a public defender' represent are sad souls, lost in the quagmire of a dead end life. Most aren't very educated and very few are even street savvy. They're just fools, for the most part, who make bad mistakes without thinking of the consequences. Drugs, alcohol and poverty play a significant role in their motivations for committing crimes. Very few of them, however, have the common courtesy to call ahead.]
So it’s time to return to one of my favorite games: judge for a day (previous installments here, here, here and here). Imagine you’re the judge who is to affix a sentence to those two simpletons. You know what I know: one is a juvenile (assume that he his record is non-existent or minimal) and the other is somewhat older and on probation for robbing a bank. Also assume that the older guy owes about 5 years on probation.
Your options are: a nolle, some form of alternative to incarceration program (see 53a-39a to 39d and other diversionary programs start here), probation for a misdemeanor, conditional discharge for a misdemeanor, probation for a felony or a CD for a felony, or just straight up time in the slammer with or without probation.
The robbery statutes are from here on down and the larceny statutes start here. The terms of incarceration are here and terms of probation are here.
So, Judge Intrepid Reader, how would you dispense your justice?
One small step for Gideon…
Mar 23rd
see, you made Gideon cry
Today, New York’s highest court (confoundingly named the Court of Appeals , fuhhgeddaboudit), heard oral argument in a NYCLU lawsuit which seeks to enforce Gideon’s mandate (my previous post here). The case, and lead plaintiff, were profiled in this NYT article from Friday. The facts are the usual: pitiful client, not versed in the ways of the system; a contract public defender, overworked, overburdened and generally inattentive; a terrible error; a wrongful conviction; job lost, home lost, dignity dissolved, all over an error her lawyer made.
This and 19 other anecdotes form the basis for the NYCLU lawsuit against The Empire State. But these stories aren’t special to New York. We’ve all heard them, seen them even. The oft-repeated mantra of the overworked, underfunded public defender exists for a reason: they’re out there. They may not be you or me, but we know them; we interact with them and we think to ourselves: this is ridiculous.
Gamso’s written about it; so has BlogMaster Scott and even Mike’s chimed in. I agree with Jeff, somewhat agree with Scott and wholly disagree with Mike. Scott first:
A few stray thoughts
Mar 23rd
the metaphor, stupid
Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.
[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]
The habeas corpus effective suspension and evisceration bill
Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.
Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.
But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.
The second premise of the state’s position is all the more confusing and confounding.
Sex-y times at the state lege
Mar 18th
It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.
During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).
S.B. No. 33 An act concerning the registration of sexual offenders
This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.
S.B. No. 34 An act concerning computer crimes against children
This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:
or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.
In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.
S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.
Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.
H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.
That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.
The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.
The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.
The “good, I guess”: A violation is only a Class A misdemeanor.
H.B. No. 5533 (RAISED) AAC sexting.
Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.
Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.
The Limp Writ
Mar 18th
Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”
The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.
And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.
That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.
Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.
Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:
It sucks getting old
Mar 18th
Pardon the short missive, but i would be remiss if I didn’t remark on this, the 47th year of my existence.
I have a number of posts bubbling under, but we should all take a minute today to reflect on Gideon’s legacy and the absolute mess public defender systems are in around the country.
The promise of my youthful idealism seems so far away now. More than ever, I firmly believe that we are Sisyphus.
Right of passage
Mar 11th
I’m channeling my buddy Ryan McKeen here, but, the other day on the local listserve someone mentioned that a client had been given a ticket for “passing on the right“. It’s one of those things that we all do (you can admit it here, we’re all friends), like “following too closely” and don’t ever expect to get ticketed.
But since there are over a thousand crimes on the books, passing on the right being one of them* should come as no surprise. Being the intrepid blogger, it is my duty to inform you of the following:
The driver of a vehicle may overtake and pass upon the right of another vehicle only when conditions permit such movement in safety and under the following conditions: (1) When the vehicle overtaken is making or has signified the intention to make a left turn; (2) when lines of vehicles traveling in the same direction in adjoining traffic lanes have come to a stop or have reduced their speed; (3) upon a one-way street free from obstructions and of sufficient width for two or more lines of moving vehicles; (4) upon a limited access highway or parkway free from obstructions with three or more lanes provided for traffic in one direction. Such movement shall not be made by driving off the pavement or main-traveled portion of the highway except where lane designations, signs, signals or markings provide for such movement. Violation of any provision of this section shall be an infraction.
So, to break this down, you can pass on the right pretty frequently and in most driving conditions. For example, subsection (2) is horribly ambiguous. What does “lines of vehicles” mean? For that matter what does “reduced their speed” mean? If I’m in the left lane of a two-lane highway and the cars ahead of me start to slow down, from say 70 to 50, can I switch to the right lane to overtake? I assume the use of the plural “vehicles” eliminates an argument that the stupid car ahead of me was going 70 in a 65 zone and I’m late to work dammit so get out of the f*cking way you damn red Nissa-oh, hi there.
Subsection (4) is great to know. Most highways in CT have 3 lanes in some stretches; some like interstate 91 have 3 lanes for most of their journey. I shall pass on the right with impunity henceforth.
You can thank me later.
[Apparently, this is quite the hot-button issue that perplexes many. Check out the Google result for the search.]
*yes, I know that an infraction isn’t a “crime”, but stop getting in the way of my flow.
Wishful Wednesday
Mar 9th
In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.
So here we go again.
Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:
S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.
The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:
First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:
(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?
The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.
The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.
The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.
But wait, it gets better. And how:
In loco mass media
Mar 8th
Normally, I’m not one to advocate speaking to the press about anything related to a specific case. I’ve normally attributed the following reasons to this belief:
1. It’s not necessary
2. Most lawyers aren’t good at it, so why take a chance
3. The media almost always gets it wrong and writes whatever they want anyway, so why bother?
But with the proliferation of online news sites and the constant availability of news that makes any little story worth reporting on, I’ve begun to re-examine whether my reasoning is still valid.
More than any other, I think it’s reason number 3 above that has led me to believe that perhaps we should be making an effort to speak to the press after an arraignment or the resolution of a case. For far too long, I’ve complained about the lack of nuanced reporting from those assigned to the court beat. For far too long I’ve lamented the fact that these seasoned reporters can’t seem to get their basic facts straight and tell the story in a legally consistent manner.
Individual Skill-ing
Mar 1st
Just when I was on the precipice of not writing any further on the individual voir dire “debate“, I got sucked back in. So here is this half-baked post with some references to studies that you may consider the written equivalent of diarrhea and a few other thoughts that are slightly more well-formed.
First, having already disproven the notion that Connecticut is the only state in the country that conducts individual voir dire, I point you, discerning reader, to some studies that highlight the relative benefits of ISVD. In 1999, then Federal Judge Gregor Mize wrote a paper about an experiment he conducted wherein he questioned jurors individually, regardless of whether they’d self-identified any biases in the “introductory” phase of voir dire. Here is his conclusion:
In view of these results, one cannot help but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions. The sometimes shocking, and always noteworthy, quality of the statements given above, have caused me to require that I interview all silent venire members. I am convinced that even if individual questioning took up significant amounts of time (which it has not for me), it would be well worth expending the effort in order to avoid juror UFO’s and the consequent danger of mistrials caused by impaneling biased or disabled citizens.
In 2003, he followed it up with another paper: “Be cautious of the quiet ones.” Voir Dire, 10, pp. 1-4.
In Judge Mize’s research, in the criminal trials, 1 in 5 of the silent jurors offered a highly relevant comment in individual voir dire that was withheld during group voir dire; at least one, and up to four, silent jurors were then struck for cause in 27 of the 30 criminal trials. Silent jurors in criminal trials withheld being the defendant’s fiancé, being related to the police, being predisposed toward the police, being predisposed against the police, having self or someone close shot with a gun, having lied in group voir dire, and religious convictions conflicting with duties as a juror.
In the civil trials, 1 in 10 of the silent jurors disclosed a highly relevant comment in individual voir dire, which translates into one significant disclosure for every two civil jury trials. Silent jurors in civil trials withheld having been represented by an attorney in the case, being in an auto accident one month before being called in an auto accident case, overhearing others discussing frivolous lawsuits, predispositions against the plaintiff, and predispositions against the defendant.
In both civil and criminal trials, silent jurors withheld medical conditions/hardship, financial hardship, and limited English proficiency.
The most common excuses jurors gave for failing to answer questions in group voir dire were shyness, embarrassment, and a belief that their answers weren’t very important.
Judge Mize concluded that individual voir dire is an indispensable means of identifying juror bias.
In 2005, Dax Urbszat published another study entitled The challenge for cause: Does it reduce bias in the jury system? I am unable to locate a free copy of the paper on the interwebs, so you’ll have to make do with this excerpt and summary:
Urbszat (2005) recently conducted three studies examining the effectiveness of voir dire in identifying jurors with bias or prejudice in a case. The challenge for cause was found to be ineffective in identifying and rejecting biased jurors. In addition, when the jury pool remains inside the court during voir dire, jury pool members were less likely to admit being prejudiced, and less overall rejections occurred. Individual voir dire, conducted outside the presence of other jurors, increased admissions of prejudice.
In addition, since the original series of posts, I did informally ask several local attorneys who have experience both in the Federal system and in other States, and to a person they all affirmed that they would prefer individual voir dire over group. But that is neither here nor there since I am anonymous/pseudonymous and it is only anecdotal.
However, I may not even have written this post, were it not for oral argument today in Skilling v. United States (transcript) before SCOTUS. There are two issues before the Supreme Court, both interesting in very different ways. The first is of relevance here. Skilling claims that his “trial was unfair” (and I’m paraphrasing) because of the immense pre-trial publicity his case received that rendered it impossible to empanel an impartial jury, especially given the manner in which voir dire was conducted. For a case of this magnitude, an entire jury was selected in just 5 hours, with limited questioning by the judge and even more limited questioning by the attorneys. Their primary reliance was on a 14 page questionnaire that each potential juror had filled out well in advance of jury selection. It is especially important to note that in Skilling, the voir dire was individual voir dire (and this is the much vaunted Federal “quick pick” system).
In Skilling, 60 percent of the jury venire affirmatively acknowledged in the responses to questionnaires that they would be unable to set aside their deep-seated biases or doubted their ability to do so, or that they were angry about Enron’s collapse, an anger that was manifested in the vitriolic terms in which Skilling was referred to repeatedly both in the questionnaires and in the community more generally.
Here, in CT, a similar trial is underway in New Haven. I mentioned this in a previous post and it seems that this trial is the gunpowder that has ignited some calls for doing away with ISVD. Any such reliance on highly-publicized trials is misguided. As with the Skilling trial, there is an overwhelming percentage of people called to serve who immediately are disqualified due to the immense publicity in the press and the overwhelming emotions the case evokes. That, in of itself, takes up a lot of time. In the Hayes case in New Haven, it is my understanding that only 14 jurors have actually been questioned on their suitability, with 4 of them being selected to serve. The rest have either been excused for hardships or for cause.
And yet some would have us pick a jury in a capital case which evokes the strongest of emotions in a matter of hours. I wouldn’t do it if my life were on the line, would you?
And if you cannot answer the above question in the affirmative, then we must stop calling for a truncated process when the lives and freedom in question are of those who trust us with them.
In the vast amounts of time that I have to myself, dragging the wheel as an indentured servant of The Man, I have thought about ISVD. Perhaps it is my feeble mind that cannot escape the conclusion that ISVD is a tool to be cherished by the true believer in the fairness of the system. Perhaps it is the lack of dollar signs impeding my vision that does not let me see reason. Perhaps none has been given.
recent comments