Gideon
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Homepage: http://apublicdefender.com
Posts by Gideon
We don’t need no! Sentencing Guidelines!
Nov 18th
I tried really hard to come up with a witty title, but this is all I could muster. After a long day stuck getting re-educated [Ed. Note: Gideon's just trying to be funny. Actually was one of the most educational CLEs ever], I’m not going to try harder. Deal.
Via Scott via Doug Berman comes word of Norm Pattis’ latest article in the Law Tribune (which I might have read if someone hadn’t snagged it right away), in which he essentially argues for sentencing guidelines. Heck, the first sentence is:
Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts.
If that’s all you take away from the article, then, yes, you should go bang your head on a table or wonder if Norm’s tried any Federal cases recently.
But there’s more. What Norm is suggesting is a solution to a state-wide problem, one that I’ve written about before and one that really needs to be rectified somehow.
Here’s what he’s really complaining about:
I stagger from the courtroom to tell my client that the court cannot force the prosecutor’s hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.
That’s just it. Everything in Connecticut is so…isolated. What’s a good offer in Hartford is unheard of in Waterbury. What would get accelerated rehabilitation in New Haven gets you a trial in Manchester.
Each courthouse in Connecticut is a separate entity, it’s own fiefdom. Some are run with iron fists and some with sensibility and compassion. But the results will always be different. A case that’s worth 1 year in one courthouse shouldn’t automatically become worth 7 years in another.
A long time ago, I asked what the reasons for this might be. The most popular answer was volume. Smaller courthouses have more time and resources to devote to prosecutions. Hence, a greater emphasis on adversarial litigation and demanding the moon and less on resolving the case efficiently and moving on to the next.
But that’s not all of it. As some regular readers will attest, in a few jurisdictions, the standard offers for certain crimes start in the high 30s. That’s years, not months. The same cases can get resolved in other equally busy courts for numbers in the 10s. That, squarely, rests on the shoulders of prosecutors. There are some that know they can twist the arm of every defendant, with pliant lawyers, into pleading guilty.
Sentencing guidelines, in my opinion, are a terrible idea. What Norm sees as the virtues of sentencing guidelines, I see as its pitfalls: a rigid set of rules, determining what the sentence should be for someone in an arbitrarily defined category. Sentencing guidelines remove all judicial discretion – and in good courts – prosecutorial discretion.
What he really means is that prosecutors need to stop being so varied in their assessment of cases. That judges need to grow a backbone and stop toeing the prosecutor’s line.
Maybe the next time legislators and the general public wonder why we’re spending so much money on the criminal justice system, they’ll look at the inconsistencies in prosecutions.
It would help. Sentencing guidelines won’t.
And to make you ignore everything I’ve typed thus far, here’s Pink Floyd:
[youtube]http://www.youtube.com/watch?v=lwTpZpwjtIE[/youtube]
Video of police interrogation of 8-yr old released
Nov 18th
The Apache County Attorney’s Office has released 12 minutes of the video of the interrogation of the 8-year old charged with murdering his father and his father’s friend.
It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.
They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved. He even describes with some detail a car he saw driving away from the house.
Obviously, this is not the part of the video where he “confesses”. Just listen to the voice of the 8 year old boy. It’s disgusting that they’re doing this.
I am quite curious about the prosecutor’s motive in releasing this truncated video. Any thoughts on that? It seems like a PR ploy, but I can’t quite figure out their angle. Are they bowing to media pressure? Are they trying to show the public that this was a conniving young boy? Portray him as a liar?
Whatever their motives may be, the bottom line is that the police should not have interrogated him for hours without the presence of an adult.
Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.
I would be rather surprised if a judge admits this confession at a trial – and if by some miracle it is admitted – I would be even more shocked if an appellate court permitted the conviction to stand.
A shame, really, that this kind of shit still goes on.
An AP report with some clips of the video is below; the full raw feed is at this link.
[youtube]http://www.youtube.com/watch?v=OuZ0AkqSILM[/youtube]
Monday Morning Jumpstart
Nov 17th
Just a few things you should read this morning:
- In light of my recent post about the plight of pd systems, Scott writes a stirring tribute to the public defender and hidden in that is a call to arms for every other lawyer. More on that, and my own thoughts, later.
- The Courant reports on this new ACLU study which finds that – surprise! – minority kids are arrested more than white kids. Definitely some more on this later.
- On the DNA front: 6 exonerations in NE and unreported DNA in a Baltimore case casts doubt on conviction
- The Lori Drew trial has taken some odd turns: yes suicide, no suicide, yes!
That’s it. Now get to work!
Ask and ye shall receive; or: don’t invite suggestions
Nov 15th
Last month, the Governor of the fair state of CT asked taxpayers what they thought the state should do to cut expenditures and close the budget gap. There’s a website where you can go and submit your suggestion. The Gov’s office publishes the suggestions.
I mean, she had to expect this:
- Stop paying police overtime to babysit construction jobs and watch traffic lights at events such as basketball games at Gampel.
- Too many “commissions
- Reduce mowing along the highways
- Too many DOT workers watching work and too many trucks watching someone mow the grass.
- Look into why state agencies have so many high-end SUVs
- Reduce the number of troopers enforcing speed limits – stop purchasing speed detection equipment.
- Reduce the number of supervisors at the Dutcher Building on the CT Valley Hospital Complex. (Someone’s not happy)
- Change garbage bag liners in trash containers less often in state offices.
- Cut out all advertising to attract businesses to CT – CT is not a business-friendly state.
- Why the need for a horse guard?
The most popular ones seem to be bringing back tolls and cutting down on personal use of state vehicles and getting state employees back to 35 hour work-weeks.
One that makes a lot of sense and that I argued for yesterday:
- Get rid of the death penalty. Lock the murders up and throw away the key. Killing these people is expensive and it prolongs the ordeal for the victim’s family
And my personal favorite:
- Have the legislature stay home this year
Bailout where it’s needed: public defender systems
Nov 14th
The last few months have brought us a crashing economy and massive government bailouts to the tune of 34 trazillion dollars (it’s a real amount). As banks fail and the auto industry fails and the real estate market plumbs the depths of depression, an equally frightening scenario is unfolding in states throughout the country: the crumbling of indigent defense systems.
Just like the economy, however, this failure of the legal system should come as no surprise. Back in May, I wrote about the mess in Minnesota (and followed up with a June post about Florida) [full coverage here] and our sister blog PD Stuff has been covering money problems for years. Nevada will face some problems starting next year. Things don’t look all rosy in Connecticut, either, as legal aid is taking a hit.
The NYT piece is rightly drawing a lot of attention in the blawgosphere. Bob Ambrogi and J. Craig Williams devoted their recent podcast to this problem by interviewing the Miami public defender Bennett Brummer and NLADA research director David Carroll. [The podcast is at the end of this post.]
This is a very serious problem. As funding for indigent defense declines with no corresponding declines in prosecutions, defendants will experience greater wait times for their trials, resources will be stretched thin and the criminal justice system will produce far more wrongful convictions. There will not be enough time to conduct proper investigations, to hire experts and, frankly, to go to trial.
If a public defender has an obscene number of clients, a number which grows every day, there will a lot of pressure to resolve cases without much advocacy. This is where the rest of the justice system needs to step up. Prosecutors need to take their duty to seek justice more seriously and drop the pursuit of “wins”. Judges need to take a more mediation-oriented approach and broker fair deals and not permit the State to demand the moon.
From the NYTimes piece:
Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.
“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.
No defendant should ever have to put up with this. No lawyer should ever be in a position where he is advising a client based on incomplete information. This is not only a money issue, but a Constitutional issue. Skimping on public defenders offices now will only postpone the problem, because there will be a greater number of successful habeas corpus petitions or appeals, which will result in new prosecutions.
Or worse: Federal courts will have to step in and force the state to pay for adequate funding, something no one really wants. So you know, might as well bail them out now, right Prez-elect Obama? Seriously, who better to give federal money to? The banks that set up their own downfall? The auto-industry that refused to innovate? Or the hardworking public defenders that protect your and my rights, day in and day out, doing a community service for little money?
But these are tough economic times. Money is drying up. Perhaps this is a very appropriate opportunity to look at truly reforming the criminal justice system. Let’s provide more alternatives to incarceration and true rehabilitation, let’s not keep non-violent offenders in jail any longer than we absolutely need to. As costs of the prison complex go down, there will be more money to fund the defense of the innocent man. We should start to look at the exorbitant sentences handed down by judges. Do we need a 40 year sentence when a 15 year sentence should do? Do we have to be punitive in our punishments? Must people be on probation for 35 years? A true reformation of the criminal justice system would go a long way towards alleviating these woes.
Then, of course, there’s the death penalty.
[display_podcast]
LWOP for juve not cruel and unusual: CT Supr. Ct
Nov 12th
Right on the heels of my post about juvenile offenders comes this decision from CT’s Supreme Court today. In State v. Anthony Allen, a 5-0 majority, in a decision authored by Justice Katz, held that C.G.S. 53a-35a(1), which mandates Life Without Parole (LWOP) for juveniles convicted of a capital felony, does not violate the Eight Amendment to the US Constitution.
The defendant, in making his argument, relied heavily on Roper v. Simmons:
The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility, necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders.
The Court, however, reads Roper as narrowly as it was written: for death cases only. But the court doesn’t dismiss the claim outright – in fact, it seems as though the judges on the panel may agree that LWOP is not appropriate for juvenile defendants.
They cite, favorably, all the studies cited in Roper about the development of the juvenile mind and disfavorably compares the rates of juvenile incarceration in the US to that of other countries:
We recognize that the overwhelming majority of countries around the world do not permit the imposition of a mandatory life sentence on a person under the age of eighteen; see Amnesty International, Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States (2005) p. 106 available at http://www.amnestyusa.org/countries/usa/clwop/report.pdf (only fourteen countries permit life sentences for juveniles, either with or without possibility of release); and that the Supreme Court indicated in Roper that international practices are relevant to this constitutional question. Roper v. Simmons, supra, 543 U.S. 578. Moreover, we agree that the large number of juveniles serving life sentences in the United States as compared to those few other countries that permit such a sentence raises deeply troubling questions. See Amnesty International, supra, pp. 1, 106 (estimating that there are 2225 juveniles serving life sentences in United States, but only twelve in rest of world).
However, Justice Katz follows several other state and federal courts that have dealt with this question in deciding that this is an issue left to the legislature:
The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The eighth amendment affords heightened significance to the ‘‘diminished culpability’’ of juveniles, but the reasoning of Roper does not extend to the present case. Accordingly, in the absence of a constitutional prohibition against the imposition of a life sentence without the possibility of release, the wisdom of this sentencing scheme remains with the legislature.
As advances are made in the study of brain functioning of adolescents [see, for example, this amicus brief in Roper], challenges such as these will continue to grow. Hopefully the legislature can cut this off by carefully and honestly considering the continued viability of LWOP for juvenile offenders. After all, they are the ones with the most hope of rehabilitation.
This is what some people were trying to prevent
Nov 12th
[youtube]http://www.youtube.com/watch?v=t-kxa0S2pwY[/youtube]
You can’t watch this and not feel some happiness.
The man officiating, btw, is Appellate Court Judge F. Herbert Gruendel.
The forgotten: Julie Amero in purgatory?
Nov 11th
As per Rick Green‘s counter, today is 524 days since Julie Amero‘s conviction was overturned and a new trial ordered by Judge Strackbein in New London.
The last media coverage was in July.The pending case detail on the Judicial Branch website reports that her case is “on the trial list, to be scheduled” and the last court date was October 27, 2008.
So what’s the deal? Is anything happening? Does anyone know?
There seems to be an absolute dearth of information about the progress of her case. Normally, such would lead me to believe that there’s been a gag order in place, but there would at least have been coverage of the gag order. No such thing. So either the parties are being really, really secretive – or there’s no damn movement. There are only two outcomes here – as there were the first time around: dismissal of the charges or a new trial.
What’s the State waiting for? What’s her lawyer waiting for? Why is there zero action in this case? What am I missing?
Tried together, but separately
Nov 11th
Someone needs to explain to me how this works. Three co-defendants in a cop-killing trial in NYC are tried together, but each has their own jury. Short, thin and fat are being tried in front of green, blue and yellow. And this is considered efficient?
Prosecutorial hubris: Ethics, shmethics
Nov 11th
Prosecutors are special. They have their own little section [pdf - Rule 3.8] in the rules of professional conduct. For the most part, they’re people like you and me, trying to do their job, abiding by their special duties and responsibilities.
Then you come across prosecutors like Ben Field of Santa Clara County, so intent on furthering his career that he doesn’t care who stands in his way: defense lawyers, rules of professional conduct, rules of evidence, the U.S. Supreme Court or the bar grievance committee. Here‘s the full investigation conducted by the Mercury News that, in part, led to the following.
Back in May, Field faced a disciplinary hearing, which was based on alleged misconduct in three cases dating back to 1995:
The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a “blatant” violation of requirements that prosecutors hand over any evidence that could help prove innocence.
The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.
Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field “willfully disobeyed a court order.”
In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney’s investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.
Prosecutors were beginning to get up in arms back in May. That was just the beginning. Last month, the grievance committee recommended that Field be suspended for three years. This is shocking to many because it shows that the bar committee has teeth and is downright earth-shattering to prosecutors because they may finally be held accountable for their actions. Here’s what the recommendations said about Field:
Field “still does not understand that he stepped far outside his professional obligations and committed serious misconduct,” states the filing of bar trial counsel Donald R. Steedman and Cydney Batchelor. The bar prosecutors also questioned Field’s claim that he will be more careful in the future, contending that Field “evinced no change in the arrogant attitude” throughout those cases, and up through the disciplinary hearing.
The bar contends the four cases demonstrated repeated “acts of dishonesty and an intent to subvert the proper workings of the criminal justice system.” In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.
Naturally, they’re not happy. The decibels have gone up several levels. So they’re doing what they do best – appeal try to change the law to restrict the power of the bar to suspend attorneys. I kid you not.
In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.
[T]he draft calls for a two-year statute of limitations for bringing any charges against attorneys.
This two year statute of limitations is quite ridiculous, btw. Many convictions are found to have been wrongful years after they are finalized. In some cases, prosecutorial misconduct may not come to light for a while. If justice is the goal – as prosecutors love to say – then there should be no limit on innocence and certainly no limit on punishment for those that subvert it.
“Are we doing this solely in response to Ben Field? No,” said union president and prosecutor Kevin Smith. “But when a member gets tried, you learn how the process works, and this process is unfair.”
It’s also particularly ironic that the prosecutors are complaining that Field didn’t get a fair trial when he was on trial for depriving defendants of a fair trial.
There’s a reason there is a special section for prosecutors in the Rules of Professional Conduct. It’s not to let them know they are special and exempt from the ethical requirements, but to remind them that their duty is and responsibility is greater than that of the ordinary lawyer and that additional demands will be made of them.
Not whining about being finally held accountable for ethical violations isn’t one of them, but it should be.
Thanks to loyal reader LJS for the tip.
The problem with parole (hearings)
Nov 11th
Have you ever been to a parole hearing? Or watched one? I happened to catch the CT Board of Pardons and Paroles conducting hearings at Carl Robinson on CT-N last week (they’re now broadcasting these hearings). Watching them unfold was very interesting and instructive.
The setup in simple: the inmates sits in from of the panel of three. A fourth member reads out the charges the inmate was convicted of and his sentences, then asks the inmate, a la a job interview, to explain why he thinks he should get parole. Then the board members question him about things that bother them.
And that’s what bothers me. The tone and tenor of the questioning was akin to a cross examination: some of the attitudes were hostile, there was a lot of disbelief about the inmate’s responses and, frankly, everyone knows the game.
The one that caught my eye was a domestic crime, where the inmate acknowledged flouting a protective order along with his “victim”, by living together during the pre-trial process. The board member wanted to know or why the protective order was issued in the first place, something the inmate didn’t seem to understand initially. This caused the board member to get rather frustrated and accusatory.
As far as I know, some of the board members are lawyers. They should have some experience dealing with clients, but I didn’t see that at all. And that’s the problem: yes, you’re evaluating inmates for suitability for release. Yes, you want to know whether they’ve “changed”. But what are these standards we’re holding them up to? Are they yours and mine? Is that unfair?
It’s safe to say that most of our clients did not come from the same backgrounds that we did; they didn’t have the same upbringing, the same opportunities. Yet, somehow, they’re supposed to meet our arbitrarily defined standards.
I understand that on some level there’s a bright-line rule for behavior in society – you do not commit crimes, you do not hurt other people, etc.
But we understand that and we’re taught (for the most part) how to follow those general rules and how not to run afoul of them. We all have had support structures to keep us in place – a moral compass if you will. But not all of our clients have.
Perhaps it would be better if the determination of suitability for release was not based on whether these inmates have crossed this threshold set by us, the rest of society, but on how far they’ve come from where they started.
It would be much easier for me to say that inmates should be measure against our bright-line rule if there were opportunities made available to them in prison that taught them how to behave in society. If we provide that support that we had, to them, then we have an adequate measure. If we have rehabilitated inmates or provided them the opportunity to rehabilitate themselves, then the comparision is valid.
Rehab in prisons is a sham, though – a mirage if you will. The spectre hangs over incarceration as the lipstick on a pig. That’s part of DOC’s motto, but for whatever reason – public sentiment, lack of political will or just lack of funding – it isn’t actually practiced. Seats in classes comprise a miniscule percentage of the prison population. Even if inmates want to change, do we provide them with adequate opportunity? Why, then, do we expect anything different?
How are we different from the environments they grew up in or the environments that caused them to bend toward the criminal? By putting them in prison, we’re telling them that what they did was wrong and we’ll let you out early if you change, go on the path to the right. But aside from pointing them in the general direction of “right”, do we do anything else? So if they get only halfway there, by sheer force of will, then is it fair to say you’re not far enough?
On the flip side, there are inmates that know the game: they know what to say, they know that even being on the waiting list for a class counts for something. They know how to act remorseful, how to pretend like they’ve changed. They do this because they know there is no other way; that there is actually very little chance that programs and support will be available.
So what’s the point of all this? I think the parole system (and the correctional system as a whole) will perform better if we take a more nuanced approach to evaluating individuals. We must look at where people come from and how far along they are, rather than whether they’ve met a bright-line test. If the alcoholic recognizes that he gets into trouble when he drinks, that should count as a lot in his favor, not against him because he can’t guarantee that he’ll never drink again.
We do this in our daily lives, with our friends and family. We empathize and we encourage and we support. But in the prison system, it’s us against them. That is a failing strategy. We can’t give people a quarter and then complain that they don’t have a dollar. Where’s it going to come from? Magic?
Monday Morning Jumpstart: Veteran’s Day edition
Nov 10th
A day early, but never too much so to salute the veterans who have served this country over the years. This one’s for you:
- Speaking of serving your country, public defenders in seven states are refusing cases due to high caseloads and low funds.
- Why the path of least resistance in police encounters isn’t always the best approach.
- Michael Dorf has some interesting suggestions for post Proposition 8 strategy.
- SCOTUSblog has this preview of today’s argument in Melendez-Diaz, a Crawford case.
- Jon Katz argues that the slowing economy demands a tighter criminal justice system.
- New Haven implements street cameras.
- The fantastic OLR has this report detailing every single time in the last 30 years that the legislature has responded to a Supreme Court or Appellate Court decision.
- Who bears responsibility for overburdened dockets? Not judges.
Huh. That was a slow weekend. Anyway, enjoy the day and the day off tomorrow, if you have it.
It’s not only about the client
Nov 10th
I received a letter in the mail a few days ago. It was from a client. Nothing remarkable about it – 3 pages, handwritten, barely legible. The pages were of different sizes and came from different notebooks. I tossed it onto my desk; I was in the middle of something else.
Later that afternoon, I started to go through the mail again. I came across the same letter from the client. Scanning through the first page, I read words I’d read a thousand times before: please will you do this, please will you do that, when, when will you…when, when, when.
I flipped to the second page. The same handwriting – or so it seemed – except it was not from my client. It was from his daughter.
“Hello daddy”, she wrote, “when are you coming home? I’ve grown tall now – almost 4 feet! I also had to get glasses, but my little brother doesn’t have them.”
“We miss you daddy”, the letter concluded.
I’ve written before about our duty to our client. “It’s all about the client”, I’ve remonstrated time and again. It is, but part of understanding that it’s about the the client is to understand that the client is a person – not a file number or a docket number. The client has a family too, just like you and just like the victim. The family of the client may be the one that loses out the most when he goes to jail. Given the epidemic of incarcerations in this country, there are many, many broken families, some with no parents at all.
So the next time you’re feeling down or feeling like you just don’t care, take a second to think about who you might end up helping more than the client: the family that he could leave behind.
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