Author Archives: Gideon

On #PublicDefenseDay let’s talk about you

It’s the 53rd anniversary of my birth, the day when the unfunded mandate of state-provided lawyers for the poor was declared1. The decision was absolutely right and led to the creation of public defender offices across the country. Poor people, accused of crimes by the Government, facing incarceration, must have access to the tools to defend themselves just as much as those who are financially well off and can find counsel themselves.

The idea of Gideon is sound, but its execution has been anything but smooth sailing. States chronically and repeatedly underfund public defender offices, because public defenders “represent criminals” and get people off on “technicalities“. In fact, that’s precisely why prosecutors are often viewed as champions of the people and more frequently get nominated to appellate courts:

I’ll talk more about prosecutors in a later post, but it’s not something I haven’t said already, repeatedly.

Right now, I want to talk about you. You’re the reason we have this distrust of public defenders. You’re the reason Law and Order has been on the air for a thousand years. You’re the reason that tough on crime was so prevalent for decades, destroying lives and economies. You’re the reason that public defense is under appreciated and under funded.

Public defenders represent people accused of and convicted of crimes, sure. But public defenders also represent you. Public defenders represent the idea that each defendant is an individual and each individual circumstance is worthy of separate and unique consideration. Public defenders represent the idea that the treatment of one criminal defendant affects the treatment of all citizens.

Public defenders protect the rights of criminals. But more importantly, public defenders protect the rights of law abiding citizens too.

When the government argues that people walking on the streets can be stopped for no reason at all and questioned, who stands in their way?

When the government argues that people can be questioned and interrogated and subjected to the third degree, who fights back?

When the government hides information that shows a person is innocent, who brings it to light?

When the government argues that merely standing next to someone who is suspected of a crime means that you are also suspicious, who thinks that’s preposterous?

When the government argues that merely legally possessing a firearm in public is a crime, who points out the ridiculousness of it?

When the government wants free access to your phone, who says get a warrant?

So, you, the one who thinks we work only for criminals: we don’t expect a thank you. We don’t expect you to send accolades our way. That’s fine. It’s part of the job. We know that it’s a thankless job.

The one thing you can do, however, is start to understand that public defenders represent the rights and protections given to the entire public.

So when people ask: how do you represent the guilty? The most honest answer is: Easily, because I don’t care if they’re guilty or not. What I care about is that the Constitutional rights of every citizen are protected. And that includes you.

  1. I wrote a longer, more detailed post about the import of Gideon when the decision turned 50.

I think we oughta just f*&!@ pop him

From the Record-Journal:

Officer John Slepski and John Slezak’s actions responding to the report of an intoxicated man lying in the middle of the road resulted in unpaid suspensions for both officers — 60 days for Slepski, starting on Feb. 2, and five days for Slezak, which started on Feb. 5.

The video shows a roughly three-minute interaction between the officers and the man. Both officers’ tone during the encounter is demeaning and sarcastic. Slepski can be heard using explicit language and states to Slezak “I think we oughta just (expletive) pop him.” Slepski can be heard saying with apparent sarcasm that they should drop the man off in Durham or “off the castle.” Slezak states that they should drop him off in Southington.

At least Kristin Stoller of the Hartford Courant wasn’t reporting on this, otherwise the offending quote would’ve disappeared from the video and the accompanying article.

 

About that Scalia quote on executing the innocent

After the news of Justice Scalia’s death broke and people eulogized him and hated him and politicized him, one quote attributed to him started making the rounds of Twitter and thinkpieces. It was this:

Mere factual innocence is no reason not to carry out a death sentence properly reached

What an offensive, horrible thing to say! Reality, of course, is that he did not say that. It reached such Urban Legend proportions that Snopes quickly intervened, debunking that he wrote those words.

What he did say, in a concurrence to Herrera v. Collins was:

We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.”

I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible.

If the system that has been in place for 200 years (and remains widely approved) “shocks” the dissenters’ consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test.

I nonetheless join the entirety of the Court’s opinion,including the final portion (pages 26-28)–because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution [n.1] lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due process our society deems adequate and there is nothing that Federal courts can or should do to stop such an execution.

He didn’t say what’s being attributed to him; he said something far worse.

 

Everyone pays for prosecutorial impropriety except prosecutors

On January 12 this year, Lucas Betancourt, a felon convicted of various forms of kidnapping, burglary, robbery and attempts thereof received word that his request to a judge to have his convictions vacated and reversed had been granted [PDF]. The sole basis for the granting of his petition and the reversal of his convictions? Unsurprisingly: prosecutorial impropriety. Specifically that the prosecutor had violated her1 obligations pursuant to Brady v. Maryland, United States v. Bagley and Giglio v. United States. As summarized by The Open File:

One of the chief witnesses that [prosecutor Gail] Hardy used to obtain Betancourt’s conviction eleven years ago was an alleged co-conspirator, Felipe Buitrago. He was central to the case partly because the victim could not identify the perpetrators. Six months before Betancourt’s trial, Buitrago had pled guilty to his own role in the crime and been sentenced to five years in prison, followed by five years of probation. This much, Betancourt’s defense was aware of.

Of course, what the defense wasn’t told is that Hardy and Buitrago had “entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence,” after he testified at Betancourt’s trial.

In sum, here’s what happened:

  • On direct, Hardy did not elicit from Buitrago that they had a deal in place in exchange for his testimony.
  • On cross examination, Buitrago was extensively cross-examined regarding any incentives from Hardy, including sentence modification.
  • On cross examination, Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification.
  • Hardy did nothing to correct this false testimony.
  • In fact, Hardy argued during closing argument that Buitrago was reliable and there was no evidence established to doubt his testimony.
  • 9 months after Betancourt was sentenced to twenty-five years to serve,  Buitrago filed a sentence modification.
  • Hardy agreed to have the sentence modification heard.
  • Hardy agreed to the modification.
  • Hardy agreed to modify the sentence by 50%.
  • In order to effectuate such a massive modification, Hardy had to substitute the charges Buitrago had pled to, to ones that did not carry mandatory-minimums, which she did.
  • She stated during the modification hearing that Buitrago’s testimony had been crucial to Betancourt’s conviction.

Once again, a conviction – usually touted as a victory for justice – had been obtained by unsavory and unfair means; by cheating. So who’s going to pay for this? Certainly Betancourt because he served many years in prison for something he may not have done. But who else? Not Buitrago. He got his 5 year sentence cut in half. Certainly not Gail Hardy, who was in Waterbury when this happened2 and who has since gone on to become the chief prosecutor in Hartford. If there have been no sanctions or repercussions for Terrance Mariani or Sharmese Hodge then why would there be any for Ms. Hardy? If Andrew Benson can mock the defense during his closing argument and pretend to be asleep and go on to become a judge in Maine, why do you think anything would happen to Ms. Hardy for allowing her witness to lie on the stand?

Almost one whole year ago, I wrote a series of posts about the lack of accountability for prosecutorial impropriety in our system and the fact that it was a conversation we desperately needed to have. The first post was inspired by a string of reversals because of impropriety that resulted in no sanctions for the offending prosecutors. The second was an attempt to explore options for holding prosecutors accountable.

A full year has gone and we are no closer to finding a viable solution. But that doesn’t mean that misconduct has disappeared. Quite the opposite. It has continued unabated but we know who pays for it: we do.

We pay for it in the form of tax money that is used to fund compensation accounts for the wrongly convicted. Just this month, the claims commissioner J. Paul Vance Jr. has made two sizeable awards to 5 different people who were wrongly convicted: $4.2 million each to Carlos Ashe, Darcus Henry, Sean Adams and Johnny Johnson and $6 million to Miguel Roman, totaling in excess of $23million this year. This money comes out of our pockets. Of course, I don’t mind paying, because I think this is just compensation and then some for spending 18 years in prison. You couldn’t give me $4million if the condition was to spend a year in prison, let alone 18.

Yet the first award by Vance has given rise to a controversy and been the subject of criticism, because he didn’t find that they were actually innocent, merely that the charges were dismissed on grounds consistent with innocence. To some – notably agents of the state – that’s not enough:

Senate Minority Leader Len Fasano, R-North Haven, who has been in contact with the murder victim’s family, said Vance’s decision was an outrage.

“It is clear they need to be found innocent for damages. I think Paul Vance is absolutely wrong. I think he has no justification for it legally,” said Fasano, a lawyer whose district abuts New Haven. “I think what we should do in the event we have a claims commissioner who apparently has misread the statute, we should allow an appeals procedure.”

and

“Here, there is absolutely no evidence as yet in the record to show that these claimants are innocent,” wrote Assistant Attorney General Terrence M. O’Neill, whose office readily concedes the men deserved a new trial. “While there can be no doubt that a significant prosecutorial error constituted a significant defect in their prosecutions, that defect does not, in and of itself, establish innocence.”

So, clearly, the solution is to fault the commissioner and the system for allowing him to conclude that their dismissals were consistent with innocence:

Without commenting on the appropriateness of Vance’s decision, Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee, said he expects the law to be reviewed this session with an eye toward creating a venue for the state to appeal.

Certainly no one is asking: what of the prosecutor? What is to be done about the misconduct that leads to these unfair convictions? Why do we not have a system in place to review prosecutors whose conduct has been held to be improper and determine whether they need some sort of remedial training or suspension? Do we continue to pay the compensation of men who have had their liberty wrongly snatched away by an overzealous or unethical prosecutor?

Or do we say the American justice system is much more than the results that it spits out. That we care as much about fairness as we do about guilt or innocence? That it is not enough that for every instance of impropriety we reverse a conviction and then ignore it, pretending it never existed, leaving those that committed the injustice free to do so again.

It’s time to give process its due.


  1. Gaily Hardy, current State’s Attorney for Hartford, whose name is missing from the decision reversing the convictions but was uncovered by The Open File.
  2. For those who don’t know, Waterbury’s chief was John Connelly, who is now deceased. Waterbury has sent the most people to death row in CT by a LOT (http://apublicdefender.com/2012/09/04/racial-disparity-to-finally-take-center-stage/). There were some noises about him and there was a federal probe (http://apublicdefender.com/2010/08/10/cts-top-death-prosecutor-in-federal-probe/) and he resigned his post right before the Criminal Justice Commission was getting ready to take some action (http://apublicdefender.com/2011/01/14/prosecutor-connelly-resigns/). When Hardy came to Hartford, as an outsider, there was a lot of outrage (http://apublicdefender.com/2007/07/13/new-chief-states-attorney-for-hartford-appointed-impact-on-death-penalty-policy/and http://apublicdefender.com/2007/07/19/top-prosecutor-controversy-wont-die/). Waterbury is also where weird stuff like state police wanting an arrest warrant for a judge who refuses to issue another arrest warrant happens (http://apublicdefender.com/2011/03/25/state-police-want-to-arrest-judge-who-refused-to-sign-arrest-warrant/and http://apublicdefender.com/2011/03/29/arrest-warrant-for-judge-rejected-if-it-existed-in-the-first-place/).

Implicit biases, subtle racism and privilege: a West Hartford tale

Two days ago, a Hartford Courant Communities reporter Kristin Stoller posted an article, which was essentially a police puff piece, touting the decrease in DUI arrests in the suburban town of West Hartford, despite an increase in patronage of West Hartford’s restaurants.

What seemingly was an unobtrusive, nothing sort of article in fact serves as a lesson to us all about our inherent biases and a shocking reminder of the level of racism that still permeates our society and a sad story of the state of journalism today. First, some background. West Hartford:

The racial makeup of the town was 79.6% White, 6.3% African American, 0.2% Native American, 7.4% Asian, 0.03% Pacific Islander, 3.8% from other races, and 2.7% from two or more races. Hispanic or Latino of any race were 9.8% of the population.

The median income for a household in the town was $80,061, and the median income for a family was $106,089 as of a 2011 estimate.[24] Males had a median income of $69,888 versus $56,162 for females. The per capita income for the town was $45,453.

West Hartford abuts Hartford, with the border running in the middle of Prospect Avenue. Regarding Hartford:

The racial makeup of the city was 29.8% white, 38.7% African American or black, 0.6% Native American, 2.8% Asian, 0% Pacific Islander, 23.9% from other races, and 4.2% from two or more races. 43.4% of the population were Hispanic or Latino, chiefly of Puerto Rican origin. Whites not of Latino background were 15.8% of the population in 2010, down from 63.9% in 1970.

The median income for a household in the city was $20,820, and the median income for a family was $22,051. Males had a median income of $28,444 versus $26,131 for females. The per capita income for the city was $13,428.

West Hartford is a far more racially homogenous town and it is far more affluent than Hartford. This has been a source of conflict for many years, with the residents of WH aggrieved that they have to live adjacent to the poor, minority city of Hartford1.

Which is why some of the comments in Stoller’s column by the Assistant Police Chief of West Hartford Daniel Coppinger were troublesome. For instance, he said:

“Patrons like West Hartford because they feel safe. It’s safer, it’s cleaner.”

Okay. Well. I get that people like that it’s cleaner. And safer too, I suppose. I like safe places. But safer than what?

“Cab drivers like it because of the same reasons. The people that they are picking up and bringing places aren’t stiffing them on cab fares. They are a nicer cliente to transport around.”

If the coded language hasn’t hit you in the face, let me spell it out for you. He’s referring to people from Hartford and probably referring to racial minorities. I can’t be sure, of course, because Stoller didn’t ask him what he meant by any of that. Instead, she moves on to an example of the type of problems the town does have: a drunk, probably white woman, who was adamant that she drive, who got into her car and rammed two other cars, who was then successfully detained.

There are other bizarre quotes in there too, about how they’ve used local town ordinances to strictly control the types of establishments that are allowed to serve alcohol and some “friction with folks who wanted to be nightclubs, do bottle service and be 21 and over” according to another Assistant Police Chief Bob McCue. He also said: “If folks are interested in that nightclub feel with bottle service and cover charges, go to the city, or go to a casino.”

West Hartford clearly doesn’t want dirty clients, or unsafe people, or people who aren’t nice to cab drivers, or who stiff cab drivers or who want bottle service, or nightclubs, or be 21 and over, or pay a cover charge.

If all of that seems like offensive coded language then you’re not the only one. Because a bunch of local Hartford people started questioning the language used by Coppinger and McCue, challenging Stoller and the Hartford Courant to explain just why the use of this language hadn’t been questioned when writing this article.

Then the unthinkable happened. The first quote by Coppinger disappeared. It’s not there; check the article. It’s disappeared by magic, as if it never existed. There isn’t a mention that the article has been edited, there isn’t an explanation for why it was taken down and there has been no response to repeated attempts to find out who edited it and why.

This poses so many questions: the most obvious is, why was this nefariously edited? Who decided this? Clearly, ethics in journalism mean nothing if this is permitted to stand unexamined.

But there are greater issues to think about here, issues that impact the current state of society in America: the issue of inherent or implicit bias in the way we see the world, the privilege we experience depending on the color of our skin and our social class and the subtle aggression and racism toward people of color that is a feature of every American institution.

Why did Stoller not raise an eyebrow when faced with these quotes? Is it because she, just like Coppinger, views the world in the same way? Is it because it is an unspoken code among racial or class majorities? Did she instinctively know what he meant, agreed with it and saw no reason to question it? Because that’s the world in her view? In other words, was this a product of her implicit biases?

Also known as implicit social cognition, implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.  These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.  Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.  Rather, implicit biases are not accessible through introspection.

The implicit associations we harbor in our subconscious cause us to have feelings and attitudes about other people based on characteristics such as race, ethnicity, age, and appearance.  These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages.  In addition to early life experiences, the media and news programming are often-cited origins of implicit associations.

It’s critical to understand that the biases exist subconsciously. I have no doubt that if asked, Stoller and Coppinger will strongly attest that they are not racists, believe that to be true and act in accordance with that truly held belief. I am certainly not saying that Stoller and Coppinger are racist. I believe they are not.

But we all have biases. I do, you do2 and by extension so do Stoller and Coppinger. That’s what makes biases so insidious. We don’t know they exist and we don’t know that they affect and alter our behaviors and interactions.

Think about the impact of implicit biases in the educational system or in politics or in the criminal justice system. Policing has increasingly been viewed as racist or biased against racial minorities, yet most police officers would not be called racists by their friends or family. However, our policies are such that they affect the way we arrest and prosecute individuals, the way we offer plea deals or sentence defendants after trial. It affects the way we view claims of racism by others or we evaluate the life experiences of others.

To someone who has grown up with privilege – as the term is used today – combined with an implicit bias reinforced by one’s immediate society and the media that one chooses to watch – again influenced by that subconscious bias – there is absolutely nothing wrong with a town not wanting people who aren’t nice clientel to cab drivers.

But it affects everything. For a police officer, it affects the way they conduct stops and whom they stop and whom they cite. For a reporter, it affects the way they reproduce quotes and whom they turn a critical eye toward.

If we truly want to make society a more progressive place, a more inclusive and tolerant place, we must learn to recognize these biases when we are alerted to them, try and correct for them and gain an understanding that these are not flaws in our character, but a negative side effect of the environment of our existence.

What’s offensive about the article isn’t the quote – that would have served as an interesting study of the biases and subtle racism that exist, but rather its clandestine removal. The worst thing one can do is to ignore the existence of the bias or even give in to it, because that serves only to reinforce it.


  1. This problem is not exclusive to Hartford/West Hartford and exists as a part of CT’s identity.
  2. Take this test to find out yours.

Bill Cosby doesn’t get off on a weird technicality

He gets off on drugging women and fondling them, but that’s not what I meant.

cosby

As you by now no doubt have heard, Bill Cosby’s bid to have the sexual assault prosecution against him dismissed has failed:

A Montgomery County judge on Wednesday rejected Bill Cosby’s motion to dismiss his sex assault case, ruling that a promise from the county’s former district attorney was not legally binding and didn’t bar prosecutors from ever bringing charges against the comedian over an alleged 2004 attack.

We know the details: Cosby’s lawyers allege that former prosecutor Castor promised him that if he didn’t invoke his Fifth Amendment privilege against self-incrimination, he would not be prosecuted. The new prosecutor, who defeated Castor partly on a “this guy didn’t prosecute Bill Cosby” platform, then came along and said there’s no such agreement and I’m prosecuting Bill Cosby.

I have been unable to find a copy of the judge’s ruling and it’s critical to determine exactly what he decided. The quote above seems to state that his decision is that the promise isn’t legally binding, whereas this quote from the LA Times (and this from Reuters) seems to indicate something different:

Judge Steven O’Neill ruled that there was “no basis to grant the relief request” by the attorneys

That’s quite different than saying there was an agreement but it wasn’t legally enforceable. Either there was an agreement or not and then if there was, is it enforceable. Those are two very very different questions, critically so. If there was no agreement to begin with, then the inquiry is quite simple. The judge finds that Castor was full of crap and Cosby’s lawyers were full of crap or that there wasn’t enough evidence from which to conclude that there was actually a real agreement beyond the wink and nod stage and says oh too bad that’s it move on.

If, on the other hand, as Philly.com reports, the judge found that the promise wasn’t legally binding, then that’s a complicated legal question that has tremendous implications. Once we accept that a promise was made by the prosecutor to Bill Cosby, then the question becomes:

What does it take to make that promise enforceable forever and why wasn’t this promise enough?

Assuming that there’s a promise – “if you testify at the civil proceeding, I promise to never prosecute you in criminal court”  – then that induces Cosby to rely on that promise. Do all promises like that have to be in writing? Can contracts never be oral? Of course not. People enter into enforceable oral contracts all the time.

So then what does it mean? Does it mean that promises by prosecutors are only enforceable so long as the prosecutor making the promise is still in power/office?

That can’t be a result we would want the judicial system to endorse: otherwise promises of all sorts would constantly be revisited and every time a new prosecutor took over, they would file motions to revoke prior plea agreements and sentences just to appear harsher than their predecessor.

Additionally, no lawyer or defendant would have the trust to take a prosecutor at his/her word and agreements and promises to cooperate would be essentially meaningless.

Although this is precisely what current prosecutor Kevin Steel seems to be saying:

The problem is that there doesn’t seem to be any written record of any deal—which Castor has denied was a formal one—and the lawyer who represented Cosby at the time is now dead. For his part, Kevin Steel, the new Montgomery County prosecutor who replaced Castor after unseating him last fall, says he won’t throw out the case—even if evidence of a deal emerges. The whole situation is kind of a mess, and depending on what Judge Steven T. O’Neill decides, Castor’s recollection of the alleged agreement could get Cosby off from the only criminal rape case against him on a mere technicality.

So why Judge O’Neill rejected Cosby’s claim is critical, especially since Castor testified that:

He said that when he first declared he wouldn’t pursue charges against Cosby, he was declaring none of his successors would, either.

“Mr. Cosby was not getting prosecuted at all – ever – as far as I was concerned,” Castor said. “My belief was that I had the power to make such a statement.”

So which is it: Did Castor make an oral promise? Did he have this belief that he kept to himself? Or did Judge O’Neill rule that oral promises aren’t good enough?

As a side note, it’s really important to note that enforcing a promise made by a prosecutor to a criminal defendant – rich or poor – whether that promise was made orally or in writing, is not a “weird/mere technicality” as Vice write Allie Conti says in that quote above. She calls the enforcement of an oral agreement not to prosecute a “mere technicality” but then inexplicably goes on to say:

What makes the whole thing even stickier is that it was the very same civil suit testimony Cosby gave that inspired the new criminal case a decade later.

Anyone who thinks that falsely promising a defendant immunity to get him to admit to criminal behavior in a civil deposition and then 10 years later using that admission to form the basis of a criminal prosecution in violation of the immunity agreement is just fine and any attempt to enforce due process is a “mere technicality” is an incompetent moron who should not be given the task of covering stories which impact our individual rights.

The Constitution is not a technicality.

In news that should surprise no one

Ohio’s death penalty is racist and sexist:

[Frank Baumgartner, a University of North Carolina political science professor] looked at Ohio’s 53 executions between 1999 and 2014, finding “significant and troubling racial, gender, and geographic disparities with regards to who is executed in Ohio.” Baumgartner concluded that the victim’s race and gender, and the county where the murder occurred, influenced whether or not the killer was executed.

The study [PDF] found in 65 percent of all executions the murder victim was white. However, overall only 43 percent of all victims are white. In addition, murderers of white females are six times more likely to be executed than those who kill black males.

Just four counties, Cuyahoga, Hamilton, Lucas and Summit, are responsible half of all executions. There are 69 of 88 counties where no one has been executed.

Hamilton County’s execution rate is almost nine times that of Franklin County.

Of course, Connecticut has its own racial and geographic disparity in the death penalty, an issue that was highlighted in a concurring opinion [PDF] in the case that (for now) ended the state’s death penalty.