Daily Archives: August 16, 2011


making impropriety cool since 1974

It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.

This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.

Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:

The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.

To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:

Keep Every American’s Digital Data for Submission to the Federal Government Without a Warrant Act of 2011.

I’m only just getting to this, but it seems that the Federal Government (or at least some wingnut faction of it) is seeking to pass this atrocious bill forcing all ISPs (that’s internet companies like Comcast, Time Warner, AOL haha good one and whatever the hell it is you guys have everywhere but the Northeast) to keep records of all your internet activity for a period of 12 months.

For what? Child porn. To prosecute, not to view, you goddamn pervert.

Here‘s an EFF primer on the bill and a statement on the bill making it out of committee. The title of this post comes via Rep. Zoe Lofgren (D-CA), which I learned of in this post.

Here’s a Reason post on the subject, here’s one from Cato which gives us the alternate title “You Are All Criminals Act”. From another Cato piece:

It’s got everything: porn, children, the Internet. And it’s got everything: financial services providers dragooned into law enforcement, dataretention requirements heaped on Internet service providers, expanded “administrative subpoena” authority. (Administrative subpoenas are an improvisation to accommodate the massive power of the bureaucracy, and they’ve become another end-run around the Fourth Amendment. If it’s “administrative” it must be reasonable, goes the non-thinking…)

This isn’t a bill about child predation. It’s a bald-faced attack on privacy and limited government.

What with all the BART nonsense this past week (but see and but but see) and the news that the NYPD will now be using Twitter and Facebook to monitor crime (giving a whole new meaning to the phrase “the NYPD is now following you”), one begins to wonder how far, not if, we’ve slipped down the rabbit hole.