Guilt by convenience

[I was going to go with the far more catchy title “If you’re innocent and you know it and you really want to show it, plead guilty” sung to the tune of – you know what? Stop that. Don’t judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone’s a damn critic.]

So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:

“This is America.  Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.

“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.

Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.

He was too slow with that training. Because this happened:

In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.

Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.

According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.

Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.

Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:

On Oct. 8, Luna appeared in Superior Court on Elm Street to answer to the charge of interfering.

“I approached the prosecutor and he said they would drop my charges and that I would have to pay a fine for creating a public disturbance,” Luna said. Luna said he thought to himself that he shouldn’t have to pay anything, that he hadn’t done anything wrong. But the prosecutor told him he probably wouldn’t qualify for a public defender, Luna said. He said when he asked where he might find a lawyer, he was referred to the yellow pages.

Without the time or money to fight the case, Luna decided to agree to the deal. He was charged with the lesser crime of creating a public disturbance.

When the judge asked if he was guilty, he said no, Luna recalled. “The judge explained I have to plead guilty,” he said. “At that moment when I said I’m guilty, I felt like I was going against myself.”

October 7: Actions perfectly legal and acceptable; not guilty of anything. October 8: Actions perfectly legal and acceptable; guilty of creating a public disturbance.

GA23 - where air goes to die

How did this happen, and why? Luna himself tells us why: because he didn’t have the time or the money to be bothered with it. Confronted with an overwhelming court system in that most overwhelming of courthouses: New Haven’s GA23 courthouse on 121 Elm Street, where the facade is barely hanging on supported by rafters and where throngs of people cram into the hallways like sardines and where air quality has been terrible for years, I’m told.

Luna, with nary an involvement with the system prior to this, was likely confronted with that madhouse like scene and had only one thought: “Get me the hell out of here“. So when faced with the daunting prospect of waiting to fill out an application for the public defender’s office, without any certainty of being eligible for the services of one of my brethren, or thumbing through a yellow pages (really? the prosecutor handed him the Yellow Pages?), he took the easy way out. He pled to something that was dangled in front of him: the all-saving “lesser charge”. An infraction, which is not a crime. It’s a slap on the wrist.

But wrists should only be slapped when someone’s done something wrong. Luna, even as of today, hadn’t. But he bore the sting of that slap just to get on with his life.

And Luna isn’t alone. Given the volume of people that wind their way through the system, it just isn’t possible for everyone to fight their fights. People, like Luna, want to forget their interactions with the criminal justice system like a bad nightmare about that ex who stole all your money.

And the ones that cave in are the ones that have had no prior interaction. The irony is that once you’ve been bitten by the court system, you aren’t shy anymore. You realize that it’s a sham for the most part and that sometimes, they’re just out to get you no matter what. So those with records stand and fight. Sometimes over nothing more than pride, but they fight like they’re Ali.

Those who are first timers fight like they’re Liston.

And that’s why Constitutional principles are decided in the cases of people who’ve had long exposure to the justice system – and that’s why these cases are called loopholes, because they only help the “lifelong criminals”. Well, that’s because they’re the only ones with nothing left to lose. So they stand up to the State and extend that middle finger.

Some of the comments on other sites seem to suggest that the prosecutor shouldn’t have extended the offer and the judge shouldn’t have accepted the plea. But I have a hard time faulting the judge. Factual bases for infractions are often sparse and limited. Did the judge know the underlying facts? The story – and Luna – doesn’t tell. What about the prosecutor? Should the prosecutor have known that what Luna did wasn’t illegal? Heck, the mayor and police chief are pretty clear on that. But then again, some seem to suggest that once a prosecutor believes probable cause exists – which is akin to believing there’s evidence of some higher power – then he’s within his rights to push for a conviction. If it’s not unethical, then well, what is it?

Remember that Luna was charged with Interfering With An Officer, which carries a maximum penalty of a year in jail:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

Do Luna’s actions fit within the definition of the crime? Depends on who you ask, I guess. Everyone but the prosecutor: No. The prosecutor (who’s the only one whose opinion counted): Yes/Maybe.

Luna could have been appointed a public defender – certainly the crime is eligible for our services – but maybe he made too much:

(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record.

Maybe he made too little to hire a private attorney. Maybe Luna was stuck in dead man’s land. And now? Now he’s guilty because it was convenient. The system claimed another victim.

8 thoughts on “Guilt by convenience

  1. Pauline

    In Santa Clara County, where I used to intern at the PD’s office, PDs used to not handle misdemeanor arraignments. (I don’t believe anyone from the DA’s office was present, either.) I don’t know what went on, but it took a report from the San Jose Mercury News, showing how many people pled guilty/no contest without fully understanding the consequences of doing so at arraignment to get that policy changed. It was a pretty significant number and it was enough to get the PD’s budget increased enough to hire three more full-time attorneys. I know some counties have alternatives for people who make too much to qualify for the PD, but not enough to hire an attorney, but others don’t. And a person who just wants to “get it over with,” even though he could fight the charge, is the one stuck. It’s really sad.

  2. spo

    This is absolute and utter garbage, and the prosecutor ought to be disbarred. First of all, as long as you are not physically interfering with police, then film away. Just because cops don’t like it doesn’t mean that it’s interfering with them. Sometimes I wonder if this is a free country.

    What really ought to happen is that the cops that erased the cell-phone pictures ought to be put in jail, maybe some shock probation, i.e., a 20 year sentence, lessened to 60 days. This crap has got to stop and the only way to stop it is to start disbarring prosecutors and to start putting cops in jail for civil rights violations. Heck, I’d charge them with armed robbery. Cops work for the citizenry, and the citizenry gets to take pictures.

  3. Anon

    No, no, no, no. I am surprised you work as a public defender and you don’t know this. Unless they are going to put you in jail they tell you up front that you can’t have a public defender.

    The judge will tell you right in open court. They cite some supreme court case. They say, I am not going to sentence you to a year in jail for this if found guilty so you can’t apply for a public defender.

    I don’t know if Luna made too much or not, but I can tell you that in every courthouse in Connecticut, well, all the ones I’ve sat in on anyway, they always say this stuff, the prosecutors and even the judges right there in open court.

    It is the sentencing thing. In these misdemeanors, they never give a year, or even a year suspended to these first timers. These people never get a PD.

    By the way, I would LOVE it if you would give your impressions as a public defender if people who’ve been charged like this for a first time, who have done nothing wrong, are at increased risk of rearrest any time they stumble on police in the future, creating the possibility of multiple arrests for innocent people.

    1. Gideon Post author

      No, I’m quite aware of it. It’s right there in the statute I quoted above:

      unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record.

      The difference, of course, being that in this case he was told that he “probably wouldn’t be eligible for a PD” by the prosecutor at the time of plea bargaining.

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