Monthly Archives: May 2011

Best. Quote. Ever.

Look, you folks know it’s no secret that I’m disillusioned with the people that pretend to govern us, especially when it comes to their views on justice and crime. This disenchantment has been solidified in the current legislative session, starting with EdithGate and today’s news that the abominable DNA upon arrest bill staying alive. This bill, you will recall, permits the state to take DNA samples of any arrested of a crime. The DNA profile would then remain in the State’s database until you were acquitted and then you jumped through bureaucratic hoops to get it removed.

Explains State Rep Hewitt, a proponent of the bill:

“If I walked out of this door right now and I was arrested for rape with an eyewitness and there was DNA found on the scene of that rape — God help me I wish they would take my DNA.

I’d wish the same too. And you know what? They do. It’s usually titled ‘Motion for Non-Testimonial Evidence’ and is always granted, because there’s no basis to object. Then the police take a buccal swab of the defendant, do some science-y magic and decide if you’re the guy. It. Happens. All. The. Time.

Said another:

Rep. Don Clemons, D-Bridgeport, said it was the rape and murder of his son’s mother more than 30 years ago in Bridgeport that makes him inclined to support the bill. He said from 1978 to 1982 there were eight women abducted from Bridgeport and later found strangled and raped. To this day, those cases remain unsolved, he said.

“When I saw this piece of legislation Rep. Hewett produced, it brings back haunting memories,” he said, but he added that the measure could provide resolution for the families affected by those crimes.

And so you’d think there was no hope for individual freedoms and liberties in the Constitution State. But there is. And his name is Peter Tercyak, D-New Britain. Which brings us to the greatest quote ever:

Personally I’ve long argued that we won’t be robbed of our liberties at gun point. We will freely give them up one at a time to solve one problem at a time with our hearts being tugged by one truly horrible story at a time,” he said. “That’s why we’ve coded our liberties as we have.

Take a minute and read it again. Isn’t it beautiful?

Law firm IPO?

because life is no fun without stereotypes. or 90ft of gold coins.

No, this has nothing to do with the earth-shattering news that LinkedIn is seeking public investment through an IPO. What? You hadn’t heard about that? You don’t care? That’s why I didn’t blog about it.

No, this is about a lawsuit that was filed [PDF] just a day or so ago by the venerable law firm of Jacoby & Meyers, suing – essentially – the legal profession in the Tri-States: New York, New Jersey and Connecticut. The basis of the suit [surprisingly in-depth Courant article] is to force these states to alter their rules of professional conduct to permit non-lawyers to invest in law firms.

The legal profession is very tightly – albeit poorly – regulated and it’s very insular. Law firms are closely held businesses and there are rules that govern who can and can’t own a firm. In CT, the Rule is 5.6, which states:

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time  during administration;

(2) A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.

The commentary explains the basis for this:

COMMENTARY: The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment.  Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to  the client. As stated in subsection (c), such arrangements should not interfere with the lawyer’s professional judgment. This Rule also expresses traditional limitations on  permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8 (f) (lawyer may accept compensation  from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).

So, in layman’s terms, the point is to prevent financial interests being put ahead of that of the client. No one said the profession didn’t pretend to appear noble.

So what’s this suit all about? Jacoby and Meyers say – basically – it’s a scare tactic. Nothing happens if you let non-lawyers invest in law firms. UK and Australia do it and they have oodles of money, which make them better able to serve clients. So they sued the Judges of the Superior Court, who make up these court rules here in CT, alleging that this prohibition has no rational basis.

Okay, that’s about all I can type on this topic without getting completely bored. I’m sure some of my private practice lawyer friends will have more to say about this, but I’m done.

H/T Ryan for the copy of the complaint.

“Undesirable jurors” as euphemism

The State of Georgia is such a frustrating contradiction: they have no money and the worst public defender system in the country and then they go and rebuild it and make it extremely effective and then it crumbles under the weight of a few capital appeals and returns to the race to the bottom, turning into a model of what not to do. And then they pass legislation like The Jury Reform Act of 2011 which:

allows court officials to compile a statewide database from a variety of sources – not just from voter registration rolls – to ensure defendants are more likely to be judged by their peers.

The fact that juries are never made up of defendants’ “peers” is a long running sad joke in the criminal justice system. I once naively asked a co-worker why we didn’t see more urban youth in our panels. Because they don’t register to vote, obviously. Voter registration records are where jury pools are typically drawn from, which limits, in a sense, the pool to only those who bother to register to vote. But that eliminates an percentage of the citizenry who do and should have the right to participate in the civic process. And one way to get more people engaged in this civic process is just by getting them to show up.

There will always be people who want to serve and those who don’t. This is true for people who register to vote and those who don’t. No one registers to vote just so they can get on juries, so there may be a number of potential jurors who just don’t give a damn about politics but can feel some sense of responsibility to contribute to their community in this way. The GA bill seeks to do just that – expand the potential jury pool, thereby providing a greater and more accurate cross-section of society from which to choose a representative panel.

“Our legal system is based in large part on the idea that our citizens should be judged by a jury of our peers,” Swingle said. “Whatever steps the law can take, through technology or legislation, to make our juries more accurately reflect the demographic makeup of our communities are important improvements to our courts.”

Citizens can be more confident in the outcome of cases that are decided by juries that more accurately reflect their community’s makeup, Swingle said.

So you’d think that all would in agreement that expanding the pool is a good thing. If you have half a brain cell, you’d already know what’s coming next:

When courts summon everyone who meets the minimum requirements for sitting on a jury – that they are county residents at least 18 years old and not convicted felons – there’s a potential of “diluting” jury pools, said Athens attorney Harry Gordon, who served as district attorney for Clarke and Oconee counties for nearly three decades.

Ready for the next quote? Don’t say I didn’t warn you:

“There’s a possibility (the new law) could open up jury service to every Tom, Dick and Harry, and that could diminish the validity of the jury system,” Gordon said. “If it liberalizes people that get on juries, it’s possible you could find more undesirable jurors, but it’s going to have to be tried because it’s the law, and we’ll just have to wait and see if it works more efficiently or not.”

Every Tom, Dick and Harry, aka law-abiding citizens who have every right to participate in the legal system. Or, to prosecutors, real peers of the defendant who have experienced the same bullshit tactics that police employ, who live in the neighborhoods and communities where crimes are committed, who may be better at holding the State to its high standard and who aren’t as predisposed to convict.

It’s well known that if we had a truly representative cross-section of the community sitting on juries, there’d be fewer convictions, not because “every Tom, Dick & Harry” is more likely to ignore the law, but because they’d be more likely to understand that not everything is black and white:

Athens resident Maureen McLaughlin, a political scientist who has worked as a jury consultant for more than 20 years, is excited about the new law.

“For everything we get in this country, only two things are required from us – pay taxes and serve on juries,” McLaughlin said. “By expanding the list that they use to select the jury pool, you’re going to have a more demographically diverse base from which to select and have a more accurate reflection of the types of people you have in your community.”

“You want to have at least someone on the panel who can understand the defendant’s life history, life experiences and those types of things,” she said. “When certain portions of the population are underrepresented, that does a real disservice to the community.”

Here‘s a breakdown of voter registration demographics in GA. Slightly over 60% of registered voters statewide list ‘white’ as their ethnicity. Blacks make up just under 30%, Hispanics barely 1.5%. Blacks, however, represent 61% of all inmates, Whites 33%. And yes, I know this isn’t a totally accurate statistical comparison, but I’m using the figures merely as illustration.

Good luck, Georgia. May the peach no longer be rotten.

H/T: Juries

Death penalty worldwide

Just heard about a new website started by the Center for International Human Rights at Northwestern Law School’s Bluhm Legal Clinic called – you guessed it – Death Penalty Worldwide. From their about page:

The website and database are intended to fill a void in current information about the laws and practices relating to the application of the death penalty around the world. There is a great deal of conflicting information about the death penalty, and at times it is difficult to gauge the accuracy of reports one is able to find by searching the web. Although there are many excellent online sources of information relating to death penalty practices around the world—most notably, reports generated by Amnesty International and the database maintained by Hands Off Cain—none of these are devoted to academic and legal analysis of developments in this field. This resource is not intended to supplant those resources, but to supplement them.

The database is the centerpiece of the Death Penalty Worldwide project. It is intended to provide detailed and transparent information regarding the application of the death penalty in law and in practice in every country that retains it.

The database seems very comprehensive and informative, so be sure to poke around the site. You’re bound to learn something new.

The Aftermath

It’s no secret that if there’s one type of case that a defense attorney really fears, it’s the one involving allegations of sexual assault against a child. They’re morally repugnant crimes, which can be alleged with surprising ease and little evidence to back them, making them nightmares to defend. Add to that the stigma that is now attached, the media scrutiny, the complete disregard for the presumption of innocence and the witch hunt under way and you have the perfect recipe for sleepless nights and ruined lives.

This week, the Washington Post published a lengthy, powerful article on the aftermath of such a (false) allegation against an elementary school teacher in Fairfax, VA.

Sean Lanigan’s nightmare began in January 2010, when the principal at Centre Ridge Elementary School pulled him out of the physical education class he was teaching and quietly walked him into an interrogation with two Fairfax County police detectives.

He had no warning that a 12-year-old girl at the Centreville school had accused him of groping and molesting her in the gym.

The girl, angry at Lanigan about something else entirely, had made the whole thing up. But her accusations launched a soul-sapping rollercoaster ride that still hasn’t ended.

Lanigan’s story captures all the problems with child sexual abuse cases: an overenthusiastic willingness to believe the accuser, blinders that inhibit careful investigation, witnesses getting locked into stories they can’t get out of, job loss, media lynching and stubborn prosecutors digging their heels in, unable to see beyond the blind faith in their dubious complainants:

Lanigan spent months in anxious exile, forced from his school, his players, his neighbors and his friends, pondering the possibility of up to 40 years in a state penitentiary.That soon turned to relief. A jury found him not guilty after just 47 minutes of deliberation — virtually unheard of in a child sex abuse case. Jurors were outraged by the lack of evidence, with one weeping in sympathy during closing arguments.

But still the nightmare continues, as Lanigan struggles to earn back his reputation and career.

Within two weeks of the accuser’s report — without ever speaking to the girl — Fairfax detectives arrested Lanigan and charged him with aggravated sexual battery and abduction.

And then came the collateral consequences:

Police issued a press release with Lanigan’s booking photo and home address, and the school district sent home a letter about his arrest. TV trucks descended on the school and his neighborhood, and Lanigan’s reputation took a lasting beating. Even today, the first thing that comes up in a Google search of Sean Lanigan is a Web site called “Bad Bad Teacher.”

In this age of everything being stored forever, it is extremely disappointing that those who publish these sensationalist stories to grab headlines don’t have the ethical integrity to tie up loose ends and update their earlier proclamations when people are found not guilty. The internet garbage dump is littered with half-finished pronouncements of people’s arrests, floating about in the cyber wilderness, available to anyone and everyone for eternity. We see headlines every single day, on every news website: “Man arrested for robbery; Man accused of molesting child; Suspect arraigned in murder”.

The crime itself isn’t news – it’s the fact of arrest and allegation – a giant scarlet blob that’s shot out with the precision of a paintball gun, with no sense of duty to clean up the mess once the shot has been fired.

When do we ever see news organizations edit their original articles to reflect the outcome of the case. “Man arrested for raping 3 year old” never has an update attached to it stating “Man was ultimately acquitted, see here for details”. When do police departments put out press releases acknowledging that they arrested an innocent individual, one that was ultimately acquitted?

Why are we so quick to believe accusations and sully reputations based solely on them? Why do we permit shoddy police investigations that seem to have no regard for the truth? Think of the children, sure, but what about the rest of us?

Once in the equipment room, the girls decided, Lanigan laid the accuser on a stack of blue tumbling mats, began massaging her shoulders, then laid on top of her and told her he would “treat her like a queen,” while the other girl stood in the doorway. The accuser said that she tried to get up, but that Lanigan pushed her down and asked where she was going. The accuser said she had patrol duty, and Lanigan then allowed her to leave.

Several witnesses said the tumbling mats couldn’t even fit in the equipment room, but there is no indication in reports or trial testimony that Fairfax police ever checked.

Shoot first, there is no later.

 

King of my castle

Much ink has been spilled over yesterday’s SCOTUS decision in Kentucky v. King, holding that lawful police conduct that may or may not give rise to exigent circumstances does not fall within the scope of the exclusionary rule, so I’m not going to repeat what’s been said. Instead, I make the two obvious pop culture references:

You can thank me later.

Penis interruptus

When Edith-gate broke last week, there were plenty of questions being asked about the future of the death penalty, the propriety of the Senator’s comments, the level of contortion required of the Supreme Court to get out from under this one, but the most pressing question that most seemed to miss was what this meant for the ongoing trial of Joshua Komisarjevsky.

Now we have a partial answer: his lawyers filed this motion today (thanks, Courant!) asking the Hon. Judge Blue to interrupt jury selection for three months to allow the torturous image of a man hanging by his penis from a tree on Main Street to fade from the memories of the general public. The motion seeks a continuance of three months for this to happen. It does not request scrubbing Sen. Prague’s mouth with soap. An excerpt:

Her public comments were clearly reckless and undignified for an individual who is a member of the Connecticut legislature and her comments only serve to contribute to the mob mentality. If the senator truly did not care what people think of her reversal, she could have simply announced her reversal in a more responsible manner without need for anatomical reference. It is outrageous that an elected official of the senator’s stature would publicly advocate for public torture and attempt to subvert the judicial process with such sensational remarks.

(Are you paying attention, Connecticut Bar, Connecticut Criminal Defense Lawyers’ Association and CT Network to Abolish the Death Penalty?) This is a valiant effort and the motion includes lots of evocative and motivational language that is sure to rile up Komisarjevsky’s opponents and stir the smoldering embers within the heart of every abolitionist, but ultimately, it is a fool’s errand. Judge Blue is just as likely to grant this request as I am to become the next President of France.

What the motion does, however, is to highlight the inherent difficulty in selecting a jury in a case as inflammatory (pun wholly unintended) as this. It mentions a potential juror, who while being questioned seemed to give all the right answers, but upon being excused, erupted in cries of “Murderer! Asshole!” directed squarely at the defendant. If this were the case prior to Senator Prague’s comments, the motion argues, how are we to prevent the inclusion of such people, now emboldened by an elected official’s animalistic outburst, on this jury of supposed neutral peers?

That’s a rhetorical question.

You can thank me later for not including a picture with this post.