Author Archives: Gideon

Guilt by association and retconning reality

[This is going to be a lengthy post, so bear with me, but you must read it in its entirety. This has tremendous implications for those who are concerned about the imbalance of power in our society, especially when it comes to the ever-increasing encroachment of the government into our civil liberties and the already alarming abuse of power against minorities.]

I’m going to posit two scenarios. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom?

The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”.

This is all important, as you will see in a second, because the Connecticut Supreme Court yesterday [PDF] in State v. Jeremy Kelly, in its ever expanding love-affair with convictions and a not-so-shocking-anymore disregard for Constitutional protections, engaged in some blatant retconning of “factual findings” with the help of the trial judge to ensure that the “facts” supported their interpretation which supported a conviction.

But first:

You can now be legally detained/seized/stopped on a street by police even if they have absolutely no reason to stop you.

As I wrote in my preview post and then the argument recap post, the police and the prosecution in the State of Connecticut were seeking extraordinary authority to detain/seize anyone lawfully walking down the street in a public place in Connecticut, if they believed that people in the vicinity may have committed a crime. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you.

This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. In Kelly, the opinion at issue, they had the wrong guy they wanted to stop. In other words, they completely botched their job and as a result, we’ve all lost our ability to freely walk down the street without being forced to submit to police authority for no reason at all.

In some other countries, we call that martial law. In America, we call that officer safety.

I would encourage you to read the masterful dissent [PDF] that lays waste to all the majority’s purported “reasoning”. Here’s a sample:

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would  require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.

Oceania has always been at war with Eastasia

What problem is?

What problem is?

As mentioned above, one of the chief conceits in the legal system is that facts exist not as they are, but as a judge or jury finds them to be. This has great value in the way our system operates because it defines a universe according to rules of evidence and the primary goal is to ensure reliability.

In recent months, the Connecticut Supreme Court has shown a greater willingness, on appeal, to consider legal arguments that were not raised before. While this has raised some hackles, I generally view it as a good move.

Never before, in my opinion, however, has the Court engaged in retroactive fact-finding. So here’s the setup from the majority opinion:

The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found.

In other words, the trial court, in finding the need for officer safety, relied on clearly erroneous fact A and then, the Appellate Court ignored the trial court’s error as to fact A and instead said that the trial court was correct because of fact B. The trial court had never explicitly considered fact B.

You will have guessed by now that both fact A and fact B support a conviction.

In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it.

The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court.

The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation.

But here’s where it gets weird. After the case was argued in the Supreme Court, they send a letter to the trial judge and asked:

  1. Did you mean felony warrant for violation of probation?

  2. Did you consider the evidence that they received a tip that the guy was armed and dangerous?

The answers, of course, to both were yes, despite there being absolutely no evidence of that in the trial court’s ruling.

It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal.

This is highly unusual and should trouble everyone. I’m not assuming that there was anything malicious about it – that would be ridiculous – but even with a benign intent to “get to the truth” or whatever you want to call it, giving a trial judge an opportunity to change his responses in order to conform them to what the Supreme Court is clearly looking for really undermines faith in the process and the system.

Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority?

Oh, right.

Oceania has always been at war with Eastasia.

On lethal injections: academia vs. reality

The Wood botched execution in Arizona and others elsewhere have shocked many and rightly so. But it’s also opened up an interesting debate in the legal world. On the one hand, you have academics arguing the academia and the technicalities of the law and the meaning of words and on the other, you have former lawyers turned professors who are arguing that, really, what we should do is avoid torturous executions. The latter is a post at the ACS blog which I’d recommend that you read in its entirety. It is long and technical, but it really is worth reading to understand why the secrecy surrounding the lethal injection protocol is dangerous and cannot be tolerated.

H/T: Nancy Leong

Waiver by budget cut

You’ve just been arrested by the Federal Government and you’re shuttled off to a prison in a remote location, hours away from your home and your state. You are adamant that you’re innocent and you have lots and lots of thoughts about how the Government is persecuting you. You sit down to write these thoughts with pen and paper, but then the counselor who supervises you tells you that you can access email!

Email! The modern pen and paper; the standard mode of written communication in this day and age. You are delighted because your penmanship is atrocious and because it would take you hours to write all your thoughts and weeks to get your thoughts to your lawyers and weeks further still for them to write letters back. But email is instantaneous. So you fire up the email system and click accept and begin banging away at the keyboards.

You send these confidential thoughts about the defense of your case to your lawyer and, apparently, the prosecutors.

Yes. Federal prosecutors have readily admitted in several cases that they are monitoring suspects emails to their lawyers, reading them and then using that information to strengthen their case against those suspects.

Talk about system stacked against you: you’re charged with a crime by the Government. You have your liberty taken away by the Government. You have excessive bails set by the Government so you can’t leave. You are given limited and controlled access to your lawyers by the Government. And then, they monitor everything you say and then use that against you. How can they do this?

Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

Budget cuts. That bureaucratic, administrative go-to. The liberty that this nation pretends to hold so dear won’t be lost by war, or a bloody coup, but rather in slow, incremental steps by bureaucracy.

It is “too expensive” to set up a filter in the email system to enable a bypass of emails sent to specific email addresses, something that can be done for free in as clunky an email system as Outlook.

Some judges, however, are supporting this practice because they claim that defendants sign waivers when they use the system:

But a judge, Charles A. Pannell Jr. of the United States District Court in Atlanta, ruled in 2012 that by using Trulincs, Mr. Wheat “consented to the monitoring and thus had no reasonable expectation of privacy.”

This is consent of the same nature as you consenting to Facebook using your photographs or God knows what else we’ve all agreed to when we’ve hurriedly hit the “accept” button on terms of use on over a hundred thousand websites that we regularly frequent.

It’s coercive and, given the state of society today, we don’t really have a choice. Now imagine that coercive situation, but you’re in jail.

Comparing it to old-fashioned communication, however, shows how consent is a red herring. Letters written to lawyers are marked privileged and are not read. They can be, however. There’s nothing stopping correctional officers from opening those letters. They choose not to, because of a department wide policy and the general sense that doing so would violate confidentiality.

So either there’s a legal principle that bars them reading letters and that same legal principle should bar them from reading emails, or there’s a policy that prevents them from reading letters and they haven’t extended that policy to emails, but which shows that there’s no functional difference between the two modes and it’s merely a matter of convenience.

This is one of those things that, if pushed to a head, would necessarily spell trouble for the prosecution. We’ve had just that happen here in CT, where prosecutors read confidential word documents about the defense of the charges. A day after argument before the Supreme Court, he was ordered immediately released.

Sure, it’s good advice to never discuss confidential matters via modes of communication that have the potential to be monitored, but that applies to everything, including in person visits. But just because the Government can invade your confidentiality, doesn’t mean that they have the right to do so.

Conviction integrity starts with prosecutors

I had to double check1 to make sure I wasn’t reading an article in The Onion a few weeks ago when, apparently without irony, the Chief State’s Attorney Kevin Kane argued in the New Haven Register that the way to ensure “conviction integrity” was to give his prosecutors broader, unchecked power to conduct investigations and arrest citizens of Connecticut.

His editorial was in apparent response to an editorial the week before by Professor David R. Cameron of Yale, who argued that we needed a “conviction integrity unit” to ensure adequate and effective review of convictions in Connecticut.

Prosecutor Kane’s proposal involves “reforming” the grand jury process. His proposal – which has been the subject of bills submitted to the legislature for a few years now – would essentially make it easier for prosecutors to conduct investigations by forcing people to appear before individual judges in each judicial district and give testimony concerning any felony. His also wants to arm his prosecutors with the power of the investigative subpoena, which would be little more than carte blanche for prosecutors to command the appearance of uncooperative citizens and force them to bring papers and effects, all in the “interests of justice”.

That is the standard proposed by prosecutors for several years running in their quest to obtain the power to issue investigative subpoenas. Try to decide for yourself if you should do something “in the interest of justice”. I can say without reservation that every single person reading this has a different definition of what that means. As amorphous and flexible a standard as “probable cause” is, I have yet to hear of a burden of proof as indescribable and incomprehensible as “interest of justice”.

What is missing from either proposal is the recognition that perhaps the best way to avoid wrongful convictions in the first place is to ensure that people don’t get, you know, wrongfully convicted.

Prosecutor Kane seeks to minimize the number of wrongful convictions and touts the fact that of 100-plus cases analyzed by his office and the Innocence Project, there were no errors uncovered.

Of course, this assumes, as Prof. Cameron points out, that every wrongful conviction case will have DNA evidence that exonerates. Logic will tell you that this is impossible. In fact, most students of the system are unable to give accurate estimates of the numbers of wrongful convictions for that precise reason: without an identifiable marker such as DNA, it is virtually impossible to estimate one way or another how many people are wrongfully convicted.

A further complication, of course, that neither addresses just what we mean by a “wrongful conviction”. You ask the lay person and they’ll tell you simply enough that it involves a person who’s innocent being convicted of a crime.

But dig deeper: guilty of what, exactly? The real world and the actions we take are open to several interpretations. Our penal code has sought to codify most conceivable illicit acts, and by virtue of being overinclusive, necessarily has more than one provision that applies to any given criminal activity. So, what then, is a wrongful conviction? Are we to limit that term to only those who are innocent of any form of wrong doing? Or must we be more realistic and expand that term to include people who are guilty of something lesser but are, for one reason or another, convicted of something more serious?

If Professor Cameron and Prosecutor Kane wish to shore up the integrity of the criminal justice system, I have some suggestions that can be implemented upfront. First, stop over charging. There are a hell of a lot of people who are in prisons today serving bloated sentences because some prosecutors over charge in an effort to get leverage.

They have that leverage because of the second item on my list: mandatory-minimums. Mandatory-minimums are legislature set floors for incarceration periods and are almost universally hated because they homogenize crimes and individuals accused of crimes. They seek to treat all crimes of a certain type as the same, regardless of any mitigating circumstances. In the name of “truth in sentencing” and “tough on crime”, mandatory-minimums have eliminated the ability for judges to make nuanced decisions in every case and instead have given some prosecutors a hammer with which to bludgeon a plea out of frightening defendants.

If you’re charged with a crime which would result in a sentence of at least 5-10 years after trial, would you adamantly maintain your innocence and take the risk or would you take the plea offer that involves a sentence of only 1 year, What would you advise your daughter to do?

Our prisons are full of people who take plea deals in exchange for a “lesser” sentence because the alternative is so harsh. Our system is coercive and some of our prosecutors use that to full effect. If Prosecutor Kane wants to ensure integrity in our system, maybe he should start there. Maybe he and his office should oppose mandatory-minimums.

Maybe we should have more prosecutors who are willing to drop charges when they acknowledge that they probably couldn’t convince a jury beyond a reasonable doubt of an individual’s guilt. Maybe prosecutors who do dismiss questionable cases shouldn’t be shamed and reprimanded by their colleagues and superiors.

Here’s a novel idea: Maybe prosecutors who engage in misconduct should have to suffer some consequences. The Center for Prosecutorial Integrity estimates that there have been approximately 16,000 cases of prosecutorial misconduct since 1970. The National Registry of Exonerations maintained by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law estimates that official misconduct played a role in 43% of wrongful convictions.

What, exactly, happens in Connecticut to prosecutors who are reprimanded by appellate courts for engaging in misconduct? Is there remedial training? Integrity in the convictions obtained through the system isn’t limited to whether “we got the right guy”. Life, shockingly, isn’t as black and white. Integrity comes when we give meaning to the word “justice”. And justice comes in many forms. But how are we to have faith in the integrity of the system when justice is a punchline and prosecutors keep score of their wins and losses?

Because the joke, of course, is that when we have lost faith in the system, we are all losers.


 

The “accidentally suppressed” evidence keeps surfacing

The Dejuan Hammond murder trial in Kentucky is turning into a test of disbelief. First, the second trial was cut short when notes that tended to show he was innocent surfaced in the middle of trial, in a detective’s personal truck.

As if that wasn’t enough, the prosecutor’s office then reindicted Hammond, but refused to allow any questioning into how the notes ended up in said truck.

Now they’ve found more papers that were hidden from the defense:

The Jefferson Commonwealth’s Attorney’s office has found more evidence in the Dejuan Hammond murder case that “seems to have been overlooked” and acknowledges the material probably should have been turned over to defense attorneys years ago.

I can very proudly say that those quotes are in the original.

[Prosecutor] Jones Brown acknowledged the recently released documents probably should have been provided to the defense years ago but said she doesn’t believe any of it is exculpatory for Hammond, saying it was turned over “out of an abundance of caution.”

“We wanted to be on the safe side and turn it over,” Jones Brown said, adding that she did not know why previous prosecutors didn’t give the defense the information. “I don’t want to mis-try this again.”

But Ted Shouse, an attorney for Hammond, was furious about more evidence turning up five years after the investigation began into the murder of Sheckles.

It’s safe to say that most prosecutors, when given the leeway to decide whether something is exculpatory or not, will choose the latter, so I don’t put much stock in Jones Brown’s assessment of the evidence that was accidentally hidden forgotten found lost in a file 5 years after it was supposed to have been turned over.

At this point, does the prosecutor’s office have any credibility? How can they proceed with this murder trial against Hammond with any semblance of good faith?

How can you, after reading this, trust any prosecution?

The lawyer joke’s on you

“First thing we do, let’s kill all the lawyers” says Dick the Butcher in Henry VI, part 2. Some say it’s a lawyer joke, some say it’s a compliment to lawyers and, as all lawyers will probably guess, the right answer is both or depends.

But the reality cannot be escaped that we are the butt of many, many jokes. A simple Google search for “lawyer jokes” returns 5.5 million results.

As I write in my latest CT Law Tribune column, however, the joke’s on you if you dislike lawyers. From the denial of promotion to Debo Adegbile to this faux-outrage over Hillary Clinton’s defense of a “guilty” rapist, our modern trend of equating defense work with the crime itself is dangerous, shortsighted and incredibly stupid.

The truth is, as I’ve written before, we don’t just represent the rights of guilty people. In fact, through people accused of crimes, we represent the rights of everyone in society. Sit back for a minute and think: who is most likely to encroach on your individual liberties? And who is there to stand against that incursion?

You can thank me later.

Investigation into prosecutorial misconduct means no questions asked

On April 14th, I wrote about a Kentucky prosecution for murder during the midst of which an exculpatory statement was discovered in the truck of a detective and it was made known that the statement was “accidentally” suppressed by the former prosecutor, Tom Van De Rostyne. The man who replaced Van De Rostyne, Commonwealth Attorney Wise, promised an investigation into the suppression.

Turns out, by investigation, he meant “ve vill ask ze qveschuns!

In a motion filed last week, prosecutors acknowledge that they failed to turn over a summary of an interview with Hammond’s former girlfriend, Princess Bolin, until it was discovered after Bolin had testified, but asked a judge to quash the subpoena seeking testimony from Wine about what happened.

The case ended in a mistrial and the defense has asked that it be dismissed, in part, because of prosecutorial misconduct. A hearing could be held as soon as Wednesday on whether Wine will be called to testify.

Assistant Commonwealth’s Attorney Dorislee Gilbert said in her motion that, “while it might be inviting to want to know the reason that this happened, the reason it happened is not relevant” to the issue before the court, which is whether the case should move forward to another trial or be dismissed.

It only matters that the evidence was not turned over; the how and why of it is irrelevant because it involves a prosecutor. The fact that the reason for withholding the exculpatory information may lead to other evidence that may have been suppressed has apparently escaped the prosecutor seeking to quash the subpoena.

This attitude is an increasingly prevalent one wherein “the people’s attorneys” are answerable to no one but themselves. When you vest that much power in the hands of people, exculpatory statements naturally find their ways into trucks.