Gideon
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Homepage: http://apublicdefender.com
Posts by Gideon
A solitary epiphany
Mar 11th
“They treat me like an animal, so I’m going to act like one”, a client once said to me at the end of a two hour meeting in which we had discussed his life and the host of disciplinary problems he was experiencing in jail. “I’m not an animal”, he continued, “but in here, when you’re surrounded by the smell of piss, shit and blood every day and when they [the guards] spit at you and tell you you’re not human, but an animal. you become one”. He ended with the strikingly poignant “fuck them”.
The client was in solitary. He had a concrete cell with a thick metal door and no window. He was fed through a slot in the door and there was a one inch wide and 5 inch long “window” on the door of his cell that looked out onto a narrow corridor and other similar doors. He was, at times, chained in his cell. He’d had a TV for a bit, but they’d taken him away. He’d had a few books, but they wouldn’t allow him to have more than one or two at a time. Toilet paper was scarce. He could only take a birdbath. He hadn’t been out of his cell in days. He only got one hour a day, by himself in a cage, in a concrete “courtyard” where the walls stretched 30 feet upward like a chimney and an opening at the top that was covered with a grate, also like a chimney. Sunshine was something you imagined, not experienced.
Whether he, or any other client of mine deserved to be held in those conditions is something I will not discuss. But their experience, their conditions are common. In this State and throughout the country. At CT’s Northern Correctional Institution – the only Level 5 facility in the state – there are 310 staff members for 352 inmates. I don’t know the exact number, but I’m willing to bet that a large majority of them are held in solitary confinement or its equivalent.
At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.
The concept of solitary confinement has some appeal, if only superficially. Isolate a troublesome inmate as a punishment and hope that they reflect upon their actions that landed them there. Deprive them of human interaction and they’ll learn to behave well with others.
But anyone willing to give the concept more than a minute’s thought can point out the serious flaws with this argument. Depriving someone of human interaction and depriving them of humanity are two entirely different beasts, one far more dangerous than the other. As anyone who’s ever been laid up sick at home for days on end – or someone who’s ever gotten stuck in an elevator or between locked doors in a jail – can attest, the sense of isolation and abandonment seriously distorts our mental health.
And our prisons are full of people – diagnosed or otherwise – who suffer from mild to severe mental illnesses. Solitary confinement only serves to exacerbate and fine tune.
Only lately, it seems, has the message begun to get through:
Many states continue to house inmates with mental illness in isolation. Some inmates appear to function adequately in solitary confinement or even say they prefer it. But studies suggest that the rigid control, absence of normal human interaction and lack of stimulation imposed by prolonged isolation can cause a wide range of psychological symptoms including insomnia, withdrawal, rage and aggression, depression, hallucinations and thoughts of suicide, even in prisoners who are mentally healthy to begin with.
States are closing their supermax prisons, taking people out of solitary and the results are surprising:
They allowed most inmates out of their cells for hours each day. They built a basketball court and a group dining area. They put rehabilitation programs in place and let prisoners work their way to greater privileges.
In response, the inmates became better behaved. Violence went down. The number of prisoners in isolation dropped to about 300 from more than 1,000. So many inmates were moved into the general population of other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.
The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.
Unfortunately, as is the case with most criminal justice reforms, this paradigm shift comes not of some fundamental epiphany regarding the way we treat those among us, but from economics. They’re just too damn costly. And that’s fine, I suppose, for it brings about a favored result. But it does nothing to correct a greater problem prevalent in our correctional systems: that there’s very little correction and rehabilitation going on. There needs to be a change in attitude towards inmates. Most of them – almost all, in fact – will be released some day. They will rejoin us in society. They will live among us and try to work side-by-side with us.
Will they come out with a greater disdain for society and its rules and the better nature of us all? Or will they come out believing that no matter what, they’re still animals, and having had that drilled into their heads for years and decades, decide to act accordingly?
While celebrating the shift away from harsh, torturous conditions, I fear that the only actual difference is a change of scene for this play. The content will remain the same. And until we – all of us – accept and understand that the near inhuman treatment of others only makes us like them and them like us, safety will only be an illusion. And humanity a forgotten ideal.
Pardon me
Mar 8th
Just before he left office in January 2012, Mississippi Governor Haley Barbour pardoned a whopping 198 people at once. Despite the fact that only 10 of them were still incarcerated, the pardons set off a firestorm and gave birth to a lawsuit seeking to invalidate the pardons, not because they weren’t deserved or that the Governor didn’t have the authority to issue them, but rather because he allegedly hadn’t followed the notice requirements.
Today, the Mississippi Supreme Court issued a 6-3 ruling [PDF] holding that the pardons were valid because to rule otherwise would violate the separation of powers. All the opinions together total 77 pages, but they are worth reading from start to finish because they provide an in-depth analysis of the separation of powers and our system of checks and balances. The opinions are an enlightening walk into history underscoring the pivotal importance of the independence of the three branches of government. The granddaddy of all separation cases, Marbury v. Madison, is front and center.
Of course, while this furor isn’t about the fact that almost two hundred criminals were pardoned, it really is. People are angry for nothing other than the simple reason that some “lawless convicted felons” (a quote from the operative dissent) got some supposed windfall.
But what really, does this pardon do? Does it negate the crime? Does it negate the years of punishment? Of course not. All it does is gives some people a chance at rebuilding lives unburdened by the stigma and trappings of a criminal conviction. You can argue that some of these 198 don’t deserve it. You can argue that some people deserve to have less than meaningful opportunities as punishment for what they’ve done. You can argue that the Constitution shouldn’t give a Governor unchecked power to do as he pleases in this regard. Heck, you can amend the Constitution to do just that.
As one concurrence points out, that’s not the issue. The issue, simply, is whether judiciary can even begin to examine the exercise of authority that exclusively belongs to the executive? As the majority eloquently puts it:
the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of government has constitutional authority to void a facially -valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124′s publication requirement.
In other words, the procedure for exercising executive power is within the province of the executive alone. I’m not sure which side I come out on in this issue. It’s certainly not an easy one, nor one that was made lightly, I suspect. On the one hand, the implications of holding that courts can and should review executive decisions are staggering. Can you imagine courts reviewing and inquiring into every vote taken in every legislature throughout the country? The focus of the courts’ review has to be the content of the laws passed by the legislature and the actions taken by the executive, not the process by which those laws came into creation.
But, on the other, is the danger that facially void laws come into effect: what of a bill that is signed by the Governor that has not been passed by both chambers of the legislature? That, after all, is also merely the process by which laws are made.
There is a distinction, I suppose, but one that is ever so slight. And that’s what makes this opinion fascinating. It a decision of pure Constitutional interpretation that allows us all to act as if it were still 1803.
Seeing as how I mentioned Marbury, I have to link to this re-enactment again:
We need to talk about an injustice
Mar 6th
While it was happening, I heard from many on Twitter that Bryan Stevenson‘s TED talk on injustice was riveting and a must watch. It’s now available online and I’ve linked to it below. This is your homework for the day. Watch it, think about it and we’ll come back tomorrow to talk about it (and injustice).
You really should object when…
Mar 6th
An avid reader sent me this case that has been making the rounds of a local listserve and I figured it was too good not to share. I’ve tried to think of a reason why one wouldn’t object in the following situation, but I’m coming up empty handed. Candy for anyone who can think of a rational reason. One of the issues raised on appeal in Zabin v. Picciotto, 73 Mass. App. Ct. 141 (Mass: Appeals Court 2008) was:
e. As the trial approached the end of October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed the request. The defendants contend that the presence of jurors in costumes turned the trial into a circus and denied their rights to due process.[42]
With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.
[42] The defendants also assert that some of the plaintiffs’ counsel handed out candy to the jurors. They further claim that, on another occasion, a proposed “cast list” was circulated for a Hollywood movie version of the trial. The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the “cast list” was circulated to the jury.
Really?
The United States of China
Mar 4th
China, not a country known for subtlety, has turned a mirror on ourselves by taking two of the most beloved forms of American entertainment and combining it into one: reality television and the death penalty. And they’ve struck viewership gold, with 40 million viewers every Saturday night for 5 years. The show, which is a slightly more twisted version of ‘To Catch a Predator’ features a Ms. Ding with:
harrowing – some would say voyeuristic – footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions.
The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.
The inhumanity of this all is staggering:
In one scene, a prisoner in his 20s falls to his knees before his parents, who have been allowed to see him. He pleads: ‘Father, I was wrong. I’m sorry.’
Moments later, his parents see him about to be led away to his death. His distraught mother apologises for beating him once as a child and implores her son: ‘Go peacefully. It’s following government’s orders.’
Prison officers then push her aside and drag him away.
We are in elite company, with only 3 other countries separating us from China in number of executions (2010 data). And yet, somehow, I have this nagging feeling that there are some within our country who rejoice at executions the way the Chinese have been riveted to their TV screens; that the increasingly louder howls for blood perpetuated by the 24 hour news cycle and its Voldemort make ‘Interviews before Execution’ an idea that is very much alive here in the US, even if it isn’t on our TV screens.
The vengeance in Ms. Ding is something oft seen stateside:
Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard.
‘When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’
And when we are face-to-face with the same sort of glee exhibited by a country that shares nary another value with us, it should give us pause. Is this who we really are:
The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body.
Three extra episodes were devoted to his story as viewing figures soared. Homosexuality is still regarded as taboo in most of China, and the sensational trailers described his interviews as ‘shining a light on a mysterious group of people in our country’.
When Bao was executed, no family members turned up to say farewell. His final conversation before being led to his death was on camera with a decidedly wary Ms Ding, who admitted to being unsettled by his sexuality. In a remarkable scene, he asks if she will do him a last favour by shaking his hand before he dies. She hesitates, before lightly touching his hand with her finger and then pulling it away.
She later confessed to being unsure if she should have shaken his hand, saying with obvious distaste: ‘There was a lot of dirt under his nails. For a long time there was a feeling in this finger. I can’t describe that feeling.’
Is this who want to be? Aren’t they doing what we already do, just more explicitly? A spokeswoman for the BBC, which is scheduled to air a documentary on this show, said:
The programme provides a revealing insight into Chinese attitudes to the death penalty. By showing rare footage of China’s death row alongside interviews with convicts, judges and journalists, it opens up an aspect of China that is normally hidden from the world.
It’s also opening up an aspect of ourselves that we wish to hide. Are we strong enough to face it and reject it? Or do we succumb to the power of anger and turn up the volume?
H/T: SL&P
Alabama, United States
Mar 4th
Back in December, 2010, Alabama’s preposterous prosecution of Gabe Watson caused me to write this post questioning whether The Yellowhammer State (seriously?) had forgotten that it was located within the territorial boundaries of these United States and not in Oceania, which it was at war with.
Concisely, Gabe Watson’s wife died during a diving incident in 2003. 5 years later, because that’s how laid back they are in Oz, he was indicted in Queensland for murder and eventually pled guilty to manslaughter receiving an 18 month sentence.
But that didn’t sate Alabama Attorney General Troy King, who is reported to have remarked: “18 months? In Alabama you get 18 months just for being black!”1 So he opened his favorite refrigerator and pulled out his favorite lunchtime snack: that venerable ham sandwich and had Watson indicted in Alabama for murder. For a death that occurred in Queensland, Australia. The theory, naturally, was that he planned his crime in Alabama and thus that – oh, I don’t know, just go with it, okay?
And so on went the prosecution of Gabe Watson, all the way to trial, causing most people with any knowledge of how things are done in Alabama that a capital conviction was forthcoming.
But those people don’t know Judge Tommy Nail, apparently (Can I point out how awesome it is that he goes by Tommy, not Thomas or Tom? Does he wear leather to work and ride a hog?). Because Judge Nail reminded the Yellowhammers that we still operate under laws and those laws come from the Constitution:
“The evidence is sorely lacking that it was an intentional act,” Nail said in response to a defense motion for acquittal after the prosecution completed its case.
“The only way to convict him of intentional murder is to speculate,” Nail said. “Nobody knows exactly what happened in the water. I’m sure we’ll never know.”
Nail also said the prosecution’s evidence about financial gain was a stretch, and he heard no evidence proving a profit motive.
And you know why there wasn’t any evidence of financial gain or profit motive? Because Watson couldn’t have profited. The beneficiary of his ex-wife’s life insurance policy was her father, who pushed King to prosecute Watson.
This silly, wasteful prosecution was rightly dismissed by the judge, but not after much money was spent and stress caused and the loss of liberty threatened. All for what? A political ploy? Publicity? I refuse to believe that King honestly thought he was pursuing justice in this case by prosecuting Watson on the most threadbare of theories. Someone who takes elected office must have a greater sense of responsibility to the citizens of the state and to justice. But there are or will be no consequences stemming from this for King. He’s free to terrorize someone else tomorrow, perhaps someone without the media attention surrounding Gabe Watson, thus escaping close scrutiny. Maybe there are other judges who aren’t Judge Nail, willing to give the prosecution the benefit of the doubt and deposit barely-weak cases in the laps of mercurial jurors.
Judge are the second gatekeepers of justice; prosecutors are the first (jurors are the last). We should demand more of them; we should expect more. If we don’t, we’re all a few minutes from midnight, about to turn into ham sandwiches.
1He said nothing of the sort that I know of. I mean, anything’s possible, I suppose, but I just made up that quote because I wanted to perpetuate stereotypes about Alabama. It’s parody. Don’t sue me.
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
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Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
Free-ish
Jan 12th
Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.
Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:
whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.
Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):
So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.
What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:
Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.
In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.
The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.
Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).
How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.
Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:
Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.
He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.
Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?
The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.
Connickally yours
Jan 11th
The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.
The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.
Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:
notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.
And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.
8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.
That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.
————-
A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.
CT death penalty nothing but arbitrary
Jan 9th
Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.
The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:
Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:
It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.
It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.
The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:
not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.
For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.
Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.
The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:
1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.
That sounds awfully like the State’s expert agrees with the defense expert.
The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.
Smile, you’re on dashcam!
Jan 9th
Folks, it’s 2012. We should all assume that we’re being videotaped by someone when we’re out in public. Especially if you’re a public servant. Most often, the videotaping is going to be done by the police. They’ve had these nifty things called video cameras mounted on dashboards of police cruisers for, like, ever now. They built an entire show – Cops – around it. I mean, seriously, this isn’t some new invention.
So you’d think that the last person to do something stupid that could be caught on a dashcam would be the officer in whose car that same dashcam was mounted and operating. You’d be so, so wrong:
httpwww.youtube.com/watch?v=XbDp0SD58Vw
The video, obtained by Lance Goode and his attorney/public defender as part of discovery purports to show an officer dropping what looks like a bag filled with a white substance and then kicking it out of sight while Goode is inside his home entertaining other officers. Goode is then charged with possession of oxy:
Goode said he was not able to find a valid insurance card so he went looking for it in the residence while [Officer Timothy] Henderson followed. [K-9 Officer Roger] Newton, in the video, circles the car, waving a flashlight inside Goode’s car before returning to his cruiser.
Goode said the officers told him they would tow the vehicle and Goode gave an officer his key. The officers allowed Goode to take his possessions out of the car before they towed it, Goode said.
In the video, Goode opens the trunk and removes several items that he takes into a house, with Henderson following.
Newton, Goode said, can be seen in the video dropping a plastic bag filled with white pills. Newton looks around, Goode said, before kicking the bag behind two trash cans.
A minute or so later, a third cruiser pulls up, at which point Goode is arrested and put into the back of a cruiser.
It took a year, but Goode’s case was nolled and Newton has been placed on administrative leave pending an investigation.
DOJ finds widespread racial profiling in East Haven
Dec 31st
the land of steady racism
Almost exactly one year ago, I wrote about the town of East Haven, CT hurtling towards “sundown town” status, caused largely by alleged institutional racism and bias towards minorities – lately specifically Latinos. In that post, I mentioned that there was a federal civil rights lawsuit pending and that the Civil Rights Division of the Department of Justice had opened an investigation into these alleged discriminatory practices of the East Haven Police Department. This past week, the DOJ issued its report in the form of a letter [PDF] sent to the East Haven mayor and boy is it damning (media coverage here).
Some of its key findings:
- The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
- However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
In making these stops, the DOJ found that the EHPD targets Latino drivers and employs tactics not used against non-Latinos:
- Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
- Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
- Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.
The DOJ further charges that the EHPD haphazardly employes immigration policies against Latino drivers and points out that the EHPD and East Haven have had a long standing problem with policing of minorities, citing a recently concluded federal lawsuit which alleged discrimination against African Americans (Jones v. Town of East Haven, et. al.).
The most shocking thing about all of this (or the least surprising, depending on how naive you are) is that the DOJ got all the above information from the EHPD itself: from 2 years’ worth of police reports and interviews with officers and community members.
The institutional coddling of these discriminatory practices is mind-blowing. From the news report:
East Haven may be unique, if only because of a tangle of politics and the close friendship between East Haven’s Republican mayor, Joseph Maturo Jr. and his chief of police, Leonard Gallo.
Maturo was originally mayor from 1997 to 2007 and he hired Gallo as chief in 1998. But Gallo was put on administrative leave by Maturo’s Democratic successor as mayor, April Capone, in 2010, a result of the allegations of racial profiling and excessive use of force by East Haven Police.
After Maturo won in the November elections, he almost immediately returned Gallo to full duty as chief — an astounding move given the ongoing civil rights and grand jury investigations into police actions during Gallo’s tenure.
And more:
The 23-page report released Monday by the U.S. Department of Justice Civil Rights Division cited top police officers for “creating and condoning a hostile and intimidating environment for anyone seeking to provide relevant information in this investigation.”
“We also learned that Chief Gallo had warned staff that the Department of Justice had agreed to provide him with the names of individuals who cooperated with the investigation,” according to the civil rights report. And that, federal officials insisted, was completely and utterly untrue.
How bizarre is this institutional protection? EHPD officers told DOJ officials (that’s the fucking Federal Department of Justice Civil Rights Division, in case we were unclear) that the DOJ officials’ safety could not be guaranteed by the EHPD when they went on ride-alongs. Ponder that for a second.
The DOJ found an abject lack of any internal policing mechanisms and that the EHPD hadn’t ever bothered to compile the statistics to see if racial profiling existed with its department, something that’s required by C.G.S. 54-1m. In addition, the DOJ noted that a large number of entries into the EHPD’s database seemed to be missing ethnicity data or the data seemed to be misreported.
EHPD is at a crossroads: either admit that there are problems and work toward fixing them or deny it all and face lengthy and costly lawsuits brought not only by civilians, but also the Department of Justice. As a new year dawns, one can only hope that concern for the safety of officers and the constitutional rights of its residents rises above deep-seated racism and pride.
Witnessing bullshit
Nov 22nd
That eyewitness identification is a troublesome area of the criminal justice system is well known to regular readers of this blog. That the movement toward long overdue reform is lethargic and a source of much consternation to me is well known to the readers of this blog. So, it presented a bittersweet moment when I learned that the Connecticut-centric NPR show “Where We Live” was going to do an episode on the problems of eyewitness identification and the enacted legislative reforms. That the complexities of this issue cannot be given – heh – justice in a one hour time slot goes without saying, but there is something to be said about this seeping into the collective general consciousness. So, all for the better, I suppose.
Until a caller called in with a comment toward the end of the show (which you can listen to in its entirety here). The caller “Wayne” offered a personal anecdote, which I paraphrase below:
I’m a cab driver in New Haven and back in 1979, I had transported an individual, who it turned out had just committed a murder. So, as a witness, I was called to testify at the trial and identify him. Now, when I had transported him, he was a thin fellow, riddled with a drug addiction, unkempt, mousy and had that lean and hungry look. After getting 3 squares a day, regular sleep and no sunlight for a year at the taxpayer’s expense, he looked like a different man. He’d put on weight, had grown hair and was looking well-fed. I couldn’t recognize him at all. I couldn’t see the person I had transported a year earlier, so when asked to identify the passenger, I figured, heck, it has to be that guy sitting next to the defense attorney, looking quite out of place in a suit. So I pointed in that direction. Luckily, there was other evidence and he was convicted.
Read it again if you’re sitting here thinking “well, what’s the problem?”. The problem is that this witness admitted that he had no idea whether the defendant was indeed the same person who he had transported a year ago, but pointed at the guy sitting in the courtroom anyway, thereby making an in-court identification that jurors could – and would – rely upon to convict him.
Putting aside the desire that witnesses be honest and forthcoming about their inability to recall the defendant as the perpetrator – they rarely are – this highlights a recurring problem for which there may be no solution. In most criminal trials, there is one person sitting across from the jury who just doesn’t belong to the scene. There is one person who best resembles a Microsoft photoshop faux pas: the defendant. Either he isn’t wearing a suit, or wearing one that’s ill-fitting or is wearing the same shirt that the juror saw him wear during voir dire, or he’s just…sitting there. Looking out of place. Uncomfortable.
And everyone can see it. Even the witness. And that makes identifications in court essentially meaningless. Because, when asked to identify the perpetrator, who else is the witness going to pick out? The prosecutor who’s just been asking him questions? The defense attorney who’s been objecting? The judge? Don’t be silly.
I’ve been thinking about this all day and I’m not sure that there’s a solution. But there is a problem. And the problem is that it turns bad memories into good ones. It turns hunches into convictions. It’s the same problem with juries: the defendant’s here, he’s arrested, he must be guilty. Innocent people don’t just end up in trial for no reason. If the system has got him, it’s got the right guy.
We can control this to some extent during pretrial hearings on the suppression of identifications, but in trial, there’s no apparent remedy. It’s yet another failing that we have to live with and work to overcome.
A different approach
Nov 22nd
For those of you who have followed the recent history of capital punishment in Connecticut and the struggle over abolition, I will quote a few paragraphs. Tell me if it sounds familiar:
[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.
In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.
But we have done nothing. We have avoided the question.
And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.
It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.
Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:
And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing. Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.
versus:
We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.
Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling support for abandoning our decisions in Ross and Webb.
The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.
Says Kitzhaber:
Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.
The time has come. Who will have the courage to utter these words and take a different approach?
Mi case es su case
Oct 28th
Consider the following scenario: defendant A is arrested for a burglary. Defendant A, in confessing to the crime, implicates defendant B. Defendant A is unable to afford counsel and is represented by the Lawyer A of the public defender’s office. Defendant B is also unable to afford private counsel. Which of the following is the correct step to take regarding the appointment of counsel for Defendant B:
- Appoint a private attorney as a “special public defender/assigned counsel/conflict attorney”.
- Appoint Lawyer B of the same public defender’s office as Lawyer A, and pray that they behave themselves and don’t share information.
If you have your head screwed on right, you’d choose 1. If you were two members of the public defender’s office and 3 judges of the appellate court, you’d choose B.
Don’t believe me? See for yourself. In Anderson v. Comm’r, the appellate court reversed a habeas court’s finding that the representation of two co-defendants by two public defenders of the same office violated the right to conflict-free counsel. That the public defender’s office didn’t see the need to assign one of the co-defendants to a lawyer outside their office is troubling enough, but the Appellate Court’s decision to condone this highly improper, if not unethical practice, is mind-boggling.
The Court writes:
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