Author Archives: Gideon

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.

See no evil, hear no evil

“When you see something, say something” is law enforcement’s mantra for the 21st century. Record everything, spy on everyone, eavesdrop on your neighbors, be a rat like no rat has ever been a rat before.

Except, of course, when it comes to cops themselves:

CHICAGO — Why are so many police dashcam videos silent?  Chicago Police Department officers stashed microphones in their squad car glove boxes. They pulled out batteries. Microphone antennas got busted or went missing. And sometimes, dashcam systems didn’t have any microphones at all, DNAinfo Chicago has learned.

Police officials last month blamed the absence of audio in 80 percent of dashcam videos on officer error and “intentional destruction.”

A DNAinfo Chicago review of more than 1,800 police maintenance logs sheds light on the no-sound syndrome plaguing Police Department videos — including its most notorious dashcam case.

Maintenance records of the squad car used by Jason Van Dyke, who shot and killed Laquan McDonald, and his partner, Joseph Walsh, show monthslong delays for two dashcam repairs, including a long wait to fix “intentional damage.”

Cops, apparently, are so afraid of people seeing how they police their communities, that not only are they destroying bystanders’ cameras, they’re intentionally sabotaging their own.

Bill Cosby and the unwritten agreement

This whole Bill Cosby’s mysterious unwritten plea agreement slash non-prosecution agreement slash immunity promise slash missing scrolls saga is a very fascinating law school hypothetical.

There was some promise made to Cosby about not being prosecuted, as former prosecutor Bruce Castor has said and is expected to tell a court under oath. Apparently he promised Cosby that he won’t be prosecuted, so as to remove any possibility that Cosby would invoke his Fifth Amendment privilege during a deposition in civil trial. Had such a promise not been made, Cosby likely wouldn’t have testified, because he would have been put in a position of incriminating himself, something the Constitution prohibits.

But it wasn’t in writing. God knows why. There wasn’t a written immunity agreement; it apparently isn’t on record anywhere except in the minds of Castor and Cosby’s lawyers. Maybe they have it in their files.

But the existence of a verbal agreement between prosecutors and defense attorneys isn’t uncommon nor is the fact that it wasn’t memorialized fatal to his claim. It would’ve been cleaner and nicer to have it in writing, but the fact that a promise was made and immunity was granted – in some form or other that caused reliance on that immunity – is the key. If there was such an agreement and Cosby relied on that agreement, then contract law dictates that the agreement be upheld.

The question, of course, is why didn’t they just get it in writing? I don’t know. It is spectacularly stupid in hindsight and does create grounds for valid skepticism that such an agreement actually existed.

But lawyers don’t fabricate agreements in court filings [PDF] and those with whom the agreement was made also don’t support the existence of an agreement if there wasn’t something to it. If there was no such agreement, or no such understanding, how easy would it have been for Castor to say to the media: they’re nuts, there was no such promise.

Is this verbal agreement enough? Does immunity have to follow a very certain formal structure? Will we ever know why these idiot attorneys never got it in writing? No clue, but I bet many law students will grapple with these issues next semester.

A dream unrealized

It’s MLK Day again and the familiar lament of Dr. King’s words echo through our consciousness. Yet, almost half a century on from his sacrifices and his labor, his words remain unheeded and his dream unrealized.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

 

We need just one modern day example to understand the pervasiveness of injustice and the long reach that it has. A week ago, public defenders in New Orleans started refusing cases. They are so overburdened, they claim, that they cannot ethically accept representation, because to do so would violate their professional rules and the US Constitution. The ACLU has sued, naturally, not because it thinks that the NOLA PD office is wrong – but rather that they are right and local and state government must be forced to properly fund indigent defense.

This is not unique to NOLA, of course. Story after story about indigent defense highlights the lack of the funding and the overwhelming crush of cases which attorneys barely struggle to juggle, forget handle effectively and zealously.

Let’s look at it from a chronological fashion, somewhat:

  1. Racially unjust policing policies unfairly target minority/underprivileged areas
  2. Minority youths are more likely to get arrested
  3. Cash bonds are set for these defendants most of which are unrealistically high
  4. Since they cannot post these onerous bonds, they remain locked up in jail.
  5. Being locked up, they get kicked out of school, lose their jobs, their housing, their family connections. Some lose their children.
  6. They are greeted by an overworked public defender since most cannot hire private counsel.
  7. Despite the best of intentions the public defender does not have the time or the resources to properly devote to each individual case.
  8. In some misdemeanor cases, judges and prosecutors pressure defendants into accepting sweetheart “one-day only” pleas.
  9. Faced with the prospect of middling representation and continued incarceration, a significant number of defendants accept these pleas to secure their release.
  10. Guilt or innocence is not a consideration.
  11. They are released, but with a record, the damage already done.
  12. Having lost their job or housing, now with a record, reacquiring those is more difficult.
  13. Point 1 above ensures their continuing contact with the criminal justice system, this time coupled with the need to commit crime out of desperation or lack of options.
  14. This time, saddled with a record, offers are higher and more vindictive.
  15. This time, the lawyer’s resources are still minuscule, thus creating a presumption of offers being more likely to be accepted.
  16. On and on and on.

There are, of course, things to be done. But it won’t come from the defense community. It won’t come from minority activists. It’ll come from the ruling middle class; it’ll come from everyone waking up and realizing that our policies have destroyed entire generations.

It’ll come when we heed these words of Dr. King:

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

Abolition of the death penalty is not a judicial “contrivance”

There’s been a lot of commentary about the abolition of the death penalty in Connecticut since State v. Santiago [PDF] was decided last week. Some of it has been interesting and insightful, if a bit of the “shh-don’t-give-them-any-ideas” variety. Some has been predictable and offensive.

A lot of the narrative has been what I call “conservative clickbait” with two themes:

  1. That the court engaged in judicial activism to overrule the clear will of the people of Connecticut, by abolishing death for all death row inmates retroactively, in clear contravention of the 2012 legislation that specifically said ‘prospective only’.
  2. That it is inconceivable that the two “Cheshire killers” will not get death.

I want to point out a few things about both these arguments because they are intellectually dishonest, misleading and dangerous.

First, the notion that a court – the third, independent branch of Government – cannot review and rule on the legality of legislation passed by elected representatives of the people was dispensed with in 1803 in Marbury v. Madison. It is an idiotic notion and anyone who espouses that should immediately have conveyed to you their utter stupidity. So the further question, then, is whether the judiciary must give deference to the legislature which has decided what is a crime and what are the punishments for those crimes. This is the argument raised by the Chief Justice’s dissent, which is quoted by many in support of their “judicial overreaching” argument.

This is also fallacious. Courts routinely decide whether a law is too vague, or whether the punishment exceeds constitutional bounds, like, say, execution of the mentally retarded, or of juveniles, or life without parole for juveniles, or criminalizing sodomy or making it illegal to marry a person of another race, or of the same sex.

This is precisely the function of a court: to review the laws passed by elected representatives and decide if they comport with due process and other constitutional guarantees, such as the prohibition against cruel and unusual punishments. The judiciary has this independent function to serve as a check against the oppressive power of a majority. Our history is all too littered with examples of a majority imposing its moral will on a minority through the legislative process.

In fact, this is precisely what the Connecticut Supreme Court majority did in Santiago. But first what it didn’t do: it didn’t rule that the death penalty itself is unconstitutional. It specifically stated that if the people of Connecticut wanted to amend the Constitution to state that our evolving standards of decency will always encompass the punishment of death, then we are free to do so.

What it said was that the prospective abolition of the death penalty in 2012 was the straw that broke the camel’s back. It is the the last sign needed to conclude that Connecticut no longer considers the death penalty a legitimate punishment. While the repeal law was the catalyst, it was not the sole factor.

For instance, Connecticut had been trending towards abolition since the mid-2000s.

In 2003, a Quinnipiac University poll found that 47% of CT voters favored death and 46% favored life.

In 2005, a QU poll found that CT voters favored life by a margin of 49-37%.

And then Cheshire happened. Two of the most notorious killers in CT brutally tortured and murdered almost an entire family. It was horrible and set off a shockwave of profound effects in the CT criminal justice system.

Yet. In November 2007, that same year, a QU poll found that CT voters were essentially split 47-44 between death and life.

In 2009, the Connecticut legislature abolished the death penalty. Remember that? Governor Rell vetoed it.

And yet, in 2010, a QU poll found that CT voters were still split between death and life, 46-41%.

In 2011, abolition came by again and this time it was defeated by two legislators, Edith Prague and Andrew Maynard, both self-proclaimed fervent abolitionists, who both could not bear to see the Cheshire killers live and thus they killed abolition.

And yet, despite all of that hoopla, in 2011 a QU poll found that CT voters hadn’t budged much on the death penalty: 48-43.

In 2012, abolition came for a third time and this time it stayed. A QU poll found that CT voters were now exactly split on death vs. life: 46-46%, a bit of an upward trend for life.

And even the abolition that came in 2012 was a compromise. It was abundantly clear to everyone who watched the proceedings that prospective abolition was the consolation prize. We were settling for this because no one wanted to be seen publicly agreeing to give the Cheshire killers life.

To anyone following the course of abolition in Connecticut, there is no doubt that if Cheshire had not happened, the death penalty would’ve been abolished in 2007 or 2009. And no one would’ve cared.

This – not the 2012 law alone – is what leads the supreme court to conclude that we just don’t have the appetite for death anymore in Connecticut. That we have determined, through the legislature, that death is not a viable option anymore.

And if it cannot be a viable option going forward, then how can we say that we will still execute people? If the death penalty is no longer a valid punishment, then it is no longer a valid punishment for everyone. If we will not execute anyone because the death penalty is barbaric, or fraught with problems, or irreversible, or too costly, or morally repugnant, or a waste of time and money or overrun with racial and geographic bias, then that argument holds true regardless of the date of the offense. Because it is to the time of punishment that we look in determining if we have the stomach for executions.

That time is now and we don’t. Frankly, Connecticut never has had the stomach for executions. The last two have been volunteers and they’ve been the only two in over half a century.

It would have been judicial contrivance to say that the will of the people magically changed on that night in April 2012 and that from that day onwards and only onwards, would we have evolved to the point of disfavoring death.

Either Connecticut no longer imposes the death penalty or it does. We can’t do it for some and not others, where that distinction isn’t based on the acts or the individual but rather the date of the crime.

But really, this is about the Cheshire killers and our collective desire to see them dead. While Connecticut voters’ enthusiasm for the death penalty waxed and waned and ebbed and flowed, there really was an overwhelming consensus that the Cheshire killers be put to death. Voters wanted them executed by 4-1 margins.

Abolition bills were vetoed and nixed because of those two.

And yet, that is precisely why retaining the death penalty is a dangerous idea. To pin the veto of repeal or the reason for suddenly voting against abolition after being an abolitionist for most of one’s life on the desire to see those two individuals executed comes awfully close to a bill of attainder. That should frighten everyone.

Bills of Attainder, of course, were acts of the legislature that targeted specific groups of people and punished them. They are unconstitutional everywhere in this country and rightfully so because they are, in effect, the government singling out a few individuals because of who they are, not what they did.

To permit the death penalty to continue as a viable punishment solely because we want to execute those two – and, seriously, no one knows the other death row inhabitants or their victims, which is disgusting and insulting on its own – should be a notion that wakes the libertarian hiding inside each one of us.

The supreme court did what was squarely within its power to do. The death penalty is a contentious, moral issue, which is debated while seated on the corpses of the dead. It should be treated with the solemnity it deserves. To accuse the justices of neglecting the law to achieve a personal goal – activism – is to insult the profound questions we grapple with and demean our convictions that society must always evolve to be more humane and more decent.

There is no greater embodiment of this idea than Justice Palmer himself. Justice Palmer, who wrote the majority opinion, has voted to retain the death penalty every single time since he joined the bench. By my rough count, he’s had more than a few opportunities since 1993 to pen an opinion finding the death penalty unconstitutional. Rather, up until 2015, Justice Palmer had only said that the death penalty was not violative of the Constitution. To say that he flipped his vote out of judicial activism is to put political theater over the reality of coming to terms with a difficult but logical evolution in how we wish our society to be.

From this day forward, [we] no longer shall tinker with the machinery of death

Three years and four months ago, Connecticut abolished the imposition of the harshest penalty – death – for any offense, no matter how severe. There was one caveat, however. Those who already were sentenced to death remained so. In what was pretty blatantly an attempt to assuage those who felt uncomfortable voting to give life to two of Connecticut’s most notorious killers, the abolition was prospective only, with the fight for full repeal left to the courts.

Two years after a full panel of the state Supreme Court heard oral arguments on whether every person on death row should be spared death, it issued a contentious ruling [pdf] declaring, in the words of Justice Blackmun, that this State would no longer tinker with the machinery of death.

Everything that I can say about repeal I’ve said before. I have no flowery words, no eloquent statements about our humanity, no odes to civilized existence. The horrible deed of murder in cold blood that we’ve been engaging in for 400 years is done. There is a grim memory of those who have been executed, right or wrongly, and those who have been killed at the hands of the executed.

But that is not to say that we must not remind ourselves that this was the correct decision – the only decision – to be made as we enter the middle half of the second decade of this century. For that, I turn to Justice Blackmun’s infamous dissent in Callins v. Collins, from which the title of this post comes:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.

We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant.

We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished.

In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow.

Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well.

Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U. S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

and thus

From this day forward, I no longer shall tinker with the machinery of death.

So say we all.