I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.
In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.
In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:
(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.
The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.
What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.
What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.
All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.
Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.
But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.
Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.
This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.
Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.
Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.
[This is my latest in the CT Law Tribune and Part One of a two-part series. Part Two is here.]
Child abuse is a terrible thing. There is no dispute that in the hierarchy of most despicable crimes, the abuse – physical or sexual – of a child takes one of the top three spots. If the investigation, prosecution and punishment of child abuse were a policy that could be realized without coming into conflict with other important policies, this column would end here. Clearly it does not.
Currently, there is an untenable conflict between the law on mandated reporting of suspected child abuse and the Constitutional right to zealous, conflict-free representation of children and adults accused of crimes. The legislature had an opportunity to rectify this last session, but ultimately failed to do so. It should not be so remiss again.
While we, deservedly more so in recent times, have placed greater emphasis on the protection of children, we also, in this country, give great deference to our rule of law. Those great principles carry with them certain uncomfortable rights – that the accused has to be given notice of the charges, that he cannot be forced to give evidence against himself,that he has an attorney to represent him and that his attorney represents him free of any conflicts of interest.
Wigmore, in his seminal Treatise on the Anglo-American System of Evidence in Trials at Common Law, wrote that the importance of the social policy of attorney-client privilege has never been disputed. He wrote that by the end of the eighteenth century, the justification for the attorney-client privilege focused on the importance of providing an opportunity for a frank discussion between the client and the attorney. The risk of not having such a privilege is that clients would not feel free to provide all the information relevant to their legal conundrum and would this hinder attorneys from providing adequate representation. This would, in turn, diminish the ability of the court system to do justice.
This is why every code of professional conduct for attorneys involves rules on confidentiality and delineates a very strict set of circumstances under which attorneys can reveal information that would expose a client to criminal prosecution.
While attorneys thus far have escaped the reach of the child abuse reporting laws It seems as though some attorneys in CT are also now mandated reporters, but this post focuses on another integral member of the defense team has not: the social worker.
The social worker is an absolutely critical component of any individual’s defense because people charged with crimes involving the abuse of children typically aren’t evil people who do it for the sport. It is far more likely that the abuser himself has been abused or has mild to severe mental health issues and may come already diagnosed with a disorder. Many of them are low-functioning and have mild-to-moderate mental retardation or are on the cusp of such a diagnosis. Even those that the public might label as sociopathic have a diagnosis and require understanding and counseling. Sadly, a large number of them are also children themselves, stuck in an uncooperative juvenile system.
The defense attorney’s job isn’t limited to defending the accused at trial: It also involves investigating and providing mitigating information to help put the offenses and the individual who is alleged to have committed those offenses in context and perspective and thus negotiate a just and fair resolution. Lawyers, being lawyers, aren’t social workers or equipped with mental health training. Which is why every public defender office in the state employs one or more social workers.
The social workers can’t do this job, however, if there is a legislated divide between them and their client. Connecticut General Statute 17a-101a – the mandated reporter statute – does just that. Not only does it set an extremely low bar for the reporting of child abuse – “reasonable cause to suspect or believe that any child under the age of eighteen years has been abused or neglected…or (3) is placed at imminent risk of serious harm” – it also includes any social worker as a mandated reporter.
This means that if a social worker, during the course of fulfilling the Constitutional duty of providing effective representation of an individual accused of a crime, learns of information that merely causes her to suspect that a child under eighteen has at any point in the past, no matter how remote, been “abused” or “neglected”, that social worker must destroy that confidential relationship, must violate the individual’s right to conflict-free representation and essentially became an agent of the government in an instant.
The United States Supreme Court just granted certiorari in a case that implicates these very concerns. In Ohio v. Clark, the Court will decide whether being a mandated reporter – a teacher in that case – makes a person a law enforcement agent, thus rendering any statements made to them testimonial. If the Court rules that mandated reporters do become agents of the State then the already fraught reputation of public defenders will take a further hit. Clients are loathe to trust us public defenders because we are “paid by the State” and we only do this job while waiting to become prosecutors. Imagine if our social workers have to testify against our clients?
Last year, Chief Public Defender Susan Storey eloquently explained these problems [PDF] to the legislature in written testimony submitted. Language that would have solved this problem was added to a bill and passed out of the Judiciary Committee, but mysteriously removed from the final language that gained passage in the legislature:
(14) any social worker, except a social worker employed or retained by an attorney or law firm who, in the course of his or her duties for such attorney or law firm, has knowledge of a communication from a client of such attorney or law firm about such client that would otherwise require such social worker to make a report pursuant to section 17a-101a
Whether that was the result of scared legislators or intervention by DCF or some other state agency, I do not know. What I do know is that now, in our criminal and juvenile courts, every person accused of a crime will receive cautious representation. Attorneys will be hesitant to involve social workers and clients with mental health issues may have to make the difficult choice of being frank in an effort to seek treatment but exposing himself to potential further criminal charges, or being circumspect and not getting the help he deserves.
This is to say nothing of the horrors in juvenile court where delinquents are mere children who come from messy homes and complicated backgrounds. Making public defender social workers mandated reporters does nothing to help children in difficult situations and serves only to further mistrust and perpetuate the chaos and disaster in their lives.
As Chief Storey suggested in her testimony, public defender social workers should fall under the umbrella of the attorney-client privilege and the same standard for disclosure of confidential information that applies to attorneys should apply to social workers.
The policy interest in having any social worker report any suspected abuse cannot be so rigid as to not accommodate the defendant’s right to conflict-free representation.
A fact, in the real world, is defined as: something that truly exists or happens : something that has actual existence. In the legal world, a “fact” is defined as: something that the jury could “reasonably” have found. But even that’s not certain. Because judges also “find” facts, based on the evidence that they hear.
But, you say, that seems incredibly subjective. And subjective it is. Because what the judges hear and how they interpret what they hear is also colored by their own opinions of important things like credibility – who to believe and how much to believe. It’s also informed by their personal opinions, experience and beliefs about the world.
I wrote most recently about the importance of making sure that “facts” on the record are as clear and as indisputable as they can be and I’ve written in the past about the fallacy of calling legal facts facts and so it comes as no surprise that this paper, written by a former police officer turned law professor, makes the claim that Supreme Court decisions involving police and police concerns are based on unsupported “facts”.
Seth Stoughton writes that:
[T]he Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers. Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too often gets it wrong.
This is critically important. There are generally two types of “facts” that are used in making legal decisions: facts about the specifics of the case (and we’ve seen how courts aren’t above retconning those to suit their outcome) and then facts about general policy considerations underlying the decision in the case – for example:
With regard to uses of force, the Court believes that officers use violence in an environment that demands “split-second judgments,” justifying significant deference to an officer’s decision of whether to use force and what force to use. However, only a very small percentage of use-of-force incidents resemble the Court’s intuitions, suggesting that the standard used to review police violence may not often fit the circumstances of the incident itself.
In the context of consent searches, the Court has held that officers need not inform individuals of the right to refuse consent, stating that such a requirement would be “thoroughly impractical.” A close review of the circumstances that typically precede a request for consent, though, suggests that it may not be as impractical as the Court believes; indeed, several states and police agencies require officers to issue just such a warning.
The modern exclusionary rule is predicated solely on the Court’s belief that the suppression of evidence, and the corresponding reduction in the possibility of conviction, can meaningfully deter officer malfeasance. But there are no formal mechanisms that would encourage officers to reevaluate the quality of their arrests based on the conviction results, and informal pressures actively discourage officer interest, leading officers to pay less attention to convictions than the Court assumes.
I would strongly urge you to read the whole paper [PDF], because I could quote almost all of it. These mistakes assumptions by the court impact our nation’s criminal justice policy because the Court relies on these to set the borders and boundaries of our individual rights.
As Elizabeth Joh says:
Many Americans feel some familiarity with the realities of law enforcement because of its pervasive presence in fictionalized media and the news, even if those depictions are mistaken. Learning criminal procedure from Law and Order might be inadvisable, but it’s not dangerous. Yet, as Stoughton points out in his thoughtful article, when the Court gets the police wrong, that misunderstanding threatens our basic liberties.
I’d go so far as to say that it has threatened our basic liberties and curtailed them in impermissible ways.
This may be too simplistic a view, but it seems to me that this is caused in large part by our increasing ability to see nuance in the world and to hold opposing and uncomfortable ideas in our head and resolve or even acknowledge them. “Criminals are bad and so we must do whatever we can to put them in jail forever”, is an accepted motto without once giving any hint of acknowledgment that in doing so we make it that much easier for those with power to call us criminals tomorrow and “find” that we are guilty.
[This is my latest at the CT Law Tribune]
A few weeks ago, I attended an oral argument before a panel of the Appellate Court, which was hearing a direct appeal from a conviction after trial. There were interesting issues before the panel and the defendant had been represented by a colleague, so I made it a point to attend and show support.
While the interesting issues were, indeed, discussed, an all too familiar refrain resonated throughout the argument: a discussion by the judges about the clarity of the facts in the record and what could – and could not – have been before the jury. There were assumptions made about the facts as presented to the jury and they were, of course, viewed in the light most favorable to sustaining the conviction.
As I left the courtroom, I was struck by several things: first, the absolute necessity of watching oral arguments; second, the unfairness of appointing judges who have no criminal law experience to the appellate court who then rule on issues stemming from criminal trials; and, most importantly, how the practice of law for the criminal defense attorney must be a comprehensive endeavor that encompasses not only pre-trial and trial ability, but also a recognition of the long-view.
I’ve written before about the willingness of appellate courts to avoid deciding issues of fact and law and turning their backs on Constitutional violations by requiring impossibly high standards of performance by defense attorneys. The precision required of defense attorneys in raising and preserving claims for them to be even considered on appeal leaves the precision required before finding someone guilty beyond a reasonable doubt obscured in its dust.
But today I turn to the faults of my fellow defense attorneys and a prevalent attitude that there are two types of defense lawyers: trial lawyers and appellate lawyers.
To those that may be a bit surprised at this fairly simple statement of fact, let me elaborate that the implication of the dichotomy is that trial lawyers are only trial lawyers and appellate lawyers are only appellate lawyers. In other words, trial lawyers see their job as trying – and hopefully winning – trials without regard to what happens on appeal. If you’re relying on an appellate reversal, goes the philosophy, you’ve already lost.
While there is a certain superficial appeal to this thinking, it is fundamentally flawed and dangerous. How, exactly, is one to “practice law” if one does not know or understand the law. Knowing and understanding the law is – or must be – a broader concept than knowing the elements of, say, murder. Practicing law must mean knowing what the law is and what the law isn’t. It must mean knowing how the law has changed, or where it is bending and whether those are issues to raise in the representation of the current client. Practicing law must also mean knowing that is required of oneself as a criminal defense attorney in order to protect a client’s rights.
The “I’m a trial attorney” attitude shows a complete disregard for a client’s Constitutional rights. A client is owed due process: which means not only that the State has to prove its allegations beyond a reasonable doubt, but also that the manner in which it does so cannot offend the Constitution.
This may take many forms: the obvious like a lack of probable cause for a search, or a clearly inflammatory argument by the prosecutor during closing, to the more nuanced: a failure to file a defense request to charge the jury or to object to specific instructions, or to ensure that the reasons for objecting to certain testimony are clearly and succinctly stated on the record.
When the lawyer doesn’t explicitly state an objection on the record or make a clear and precise request, appellate courts are left to interpret the resultant vagueness in any way they choose and that usually doesn’t benefit the individual defendant. Further, a lawyer who doesn’t follow the strict rules set up by appellate courts to preserve claims of error simply provides those courts an easy way to dodge tackling difficult issues in unsympathetic cases.
The causes for these failures by defense attorneys are the subject of some debate. To be certain, it is unrealistic to expect attorneys to remember to do everything perfectly in the frenetic heat of the battle. A trial is a rush of days, with little sleep and tremendous stress. Even the most prepared often miss things and even the most prolific often overlook the obvious.
Unfortunately those who populate our courts of review don’t have that same experience and thus cannot relate to the pressures of being in a contested trial that lasts weeks. The luxury of hindsight, years on, combined with the obliviousness of the demands of that job allow courts to lament the missed punctuations in the preservation of issues and to hedge facts because it may be somewhat ambiguous upon a reading of the transcript what was abundantly clear to everyone present in the courtroom.
But that is a ship that the defense attorney cannot steer. No matter how many times I wish to invite appellate judges to second chair my trials to see what it’s really like in a courtroom, I know that they will not come.
So it falls upon us, the trial lawyers, to ensure that we do everything we can to make the record as clear as it can be. As lawyers who prepare for trial, we become intimately familiar with the facts of the case, the testimony of witnesses, their prior statements, our theories and strategies. As trials progress, the presiding judge and prosecutor also share that familiarity and a sort of shorthand descends upon it all.
I’ve read appellate decisions which held that I had not properly preserved an issue, been shocked because that conclusion conflicted directly with my recollection of the event and been miffed when I had to grudgingly admit that the appellate court’s reading of the statement in question was a plausible one.
We must put aside our ego and our hubris and realize that the system is engineered to defeat our clients. Most trial lawyers recognize the obstacles in the pre-trial and trial arena, but become surprisingly unconcerned by the existence of the very same obstacles in post-conviction review. This makes no sense.
Back in the old days, trial lawyers would handle their own appeals. Perhaps it is time for a return to that era, at least once, so trial lawyers can realize that everything that they do – and don’t do – impacts the ability of their clients to get vindication.
Otherwise, they might as well sleep through the trial.
Presented without comment and with a half-smirk
In fact, if this is not you after reading this post, you should ask for your money back:
1. Everyone pleads not guilty.
Everyone. By everyone I mean everrrryone1. You get arrested, you show up in court, you plead not guilty. Next. It’s as routine as tying your shoelaces. Even if you were caught red handed with 47 cameras trained on you, 230 eyewitnesses, 17 confessions signed in blood and the eyeball of your dead victim hanging from your mouth, you’d still plead not guilty on your first day in court.
2. Not everyone who is arrested is actually guilty.
This is somewhat related to the one above and the one below. It doesn’t take a rocket scientist to figure this one out but you wouldn’t know it from the wholesale adoption by the media of whatever garbage is contained in police reports. Failure to understand this principle is what leads to stories that are clearly slanted with a “how dare he enforce his constitutional right?” bias.
Police make mistakes. They arrest the wrong people and discard evidence of their innocence. They develop tunnel vision. They have biases that they don’t hide. They fabricate evidence. But you’d be hardpressed to find many criminal justice stories that display even a hint of skepticism of police claims. Rather, most of them are a mere regurgitation of the allegations contained in police reports and press releases.
3. Not everyone is or should be treated the same.
Here’s a secret: those who are arrested and charged with crimes go through a rigorous screening process to determine their planet of origin. To date, each and every single person ever charged and convicted has been determined to be human. They’re people. All of them. Just like you and me. Some are worse than us, some are better than us. And we should treat them all as if they were individuals who did bad things rather than the bad things they did.
That’s why we have sentencing ranges, maximum punishments. The legislature, at least in this State, decides what the maximum punishment should be for a particular crime. A judge, either by himself after trial, or with input from both sides before trial, determines what that sentence should be. No one gets the maximum sentence before trial. No one. Because it makes no sense to. The phrase “plea bargain” has in it the self-explanatory word “bargain”. Who the hell would bargain for the maximum? No one, that’s who.
This should not be surprising. Individualized sentencing is the only fair way to sentence a person for a crime. If we were sentencing only the physical acts, without regard to the individual who committed them, we’d have no need for maximum or minimum punishments: all crimes would be punished the same way.
So when you read a news report that laments that the defendant got only 6 years in jail while facing a maximum of 20, ask yourself why. What is it about that person that warranted a lower sentence? What is it about the crime that warranted a lower sentence? Why does the newspaper reporter think you’re an idiot?
After all, there must be a reason. We don’t just pick numbers out of a hat.
3a. We pick numbers out of a hat.
Metaphorically speaking, of course. There is no sorting hat. There are just discussions about the values of types of cases, taking into account the attendant circumstances. But if were to make films of the origin stories of the “going rates” for certain types of crimes, we’d have an awful lot of ass-birthing scenes.
4. Not everyone who pleads guilty is actually guilty.
I know, I know, this is basic stuff. But can you imagine the level of criminal justice reporting if I have to tell you this?
People plead guilty all the time. For all sorts of reasons not having to do with actual guilt or innocence. Here, I’ll list a few off the top of my head:
- They can’t afford to post bond and have been in jail for as long as the prosecution is offering in exchange for a guilty plea.
- They’re covering for someone else.
- It’s a case of he-said/she-said and no one will believe what he said and he can’t testify anyway.
- Our mandatory-minimums and maximums are so outrageous and out-of-whack that any sane person, when arrested, would seek to plead guilty for as low a sentence as possible.
- It’s easier to go to jail than deal with a difficult probation officer and an unrelenting world that sees nothing but a felon.
5. The Constitution’s protections are available to the guilty and innocent alike.
I’ve tried very hard to find that exemption clause in the Constitution: the one that says that the following provisions do not apply if, like, you totally did it, dude. Alas, so far, I have not been able to find it.
The Second Amendment protects you today, when you’re law-abiding and it protects you tomorrow, when they take your right to own a gun away. The Fourth Amendment protects you today, when you’re sitting at home and it will protect you tomorrow, when your shipment of high-grade cannabis arrives from Mexico. The Fifth Amendment will protect you today when you have sex with a woman who isn’t technically physically unable to consent and it will – you know what, you get the picture. The Constitution protects you in ways you know and in ways you don’t know.
So when a conviction is “reversed” on a “technicality”, you should cheer, instead of jeer. Because the Constitution just got stronger and one day, you might need it.
6. The law is complex.
A lawyer’s favorite answer to any legal question, immediately before being punched in the face by the questioner, is “maybe” or “depends”. In fact, there’s a whole sub-industry in the legal field that is devoted exclusively to getting lawyers to the point of being able to say “maybe”. Lawyers make bank over saying “maybe”.
Here’s my bill for $750.
The point is that thousands of lawyers spend every day parsing the nuances of ridiculously boring texts to find wiggle room to convince a judge or jury that their case is different from the 50,000 other cases out there and this time it really was an anal probe so they should totally get the $4 bajillion that they’re demanding. Heck, the internet is full of lawyers and unemployed lawyers either making or defending fraudulent claims.
The newspaper ain’t going to get it right, especially if the reporter is someone who doesn’t have any understanding of points 1-6 above.
7. Shit takes time, yo.
You read a newspaper story about some guy in your town getting arrested for shooting his ex-girlfriend’s uncle’s sister’s dog and dammit you want justice. But days go by and nothing. Weeks, months and maybe a year. The paper keeps reporting delays and continuances. Maybe an op-ed in the paper about how justice delayed isn’t justice served or some such nonsense. You’re outraged! OUTRAGED!
Let me tell you something: shit takes time.
For instance, your everyday public defender in Connecticut is representing about 180-200 people at a time. On any given day, they are responsible for 20-odd people. That’s 20 stories to learn and understand. 20 allegations to digest. 20 investigations to conduct. 20 clients to track down. 20 offers to negotiate.
Maybe 5 of them don’t have available witnesses so you need more time. You don’t know when they’re going to be available so you estimate 2 weeks to get the job done. Too bad. 2 weeks from now the court already has an unmanageable docket, so you need to continue it 4 weeks.
That’s just today.
And on and on and on it goes.
Investigations take time. Negotiations take time. Research takes time.
Justice takes time.
Anyway, time’s up. Tell me what you think the media gets wrong in the comments.