Monthly Archives: March 2010

All it takes is one

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

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?

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

You know the drill:

Now, back to work you lot.

Bad ad-Weis: spitting on Barker

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

“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…

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: