Author Archives: Gideon

Erroneous release for 13 years leads to reincarceration

In yet another story that highlights the many cracks in the criminal justice system that a man can fall through, Cornealius “Mike” Anderson was recently taken into custody to begin serving a 13 year sentence for armed robbery, precisely 13 years after he was convicted of it.

While the story may sound like a comedy of errors, it really does raise important questions about the criminal justice system and its primary purposes of punishment and rehabilitation and which one should take precedence.

Anderson, who filed appeals and remained out on bond, was never taken into custody to start serving his sentence when all his appeals were denied. In an interview with ‘This American Life‘, he says:

he saw it as a sign from God, so he decided to transform his life. He went to school, became a master carpenter, got married, built his home, opened several small businesses and had four children. Anderson volunteered at his church and coached his son’s football team.

This is somewhat akin to the stories of Judy Lynn Hayman and Marie Walsh, except those two were actively on the run from their sentences.

Anderson, on the other hand, remained put:

A new venture

In the clash between a lack of time and the stroking of my ego, the latter will always win. Ergo, I have now signed on to the Connecticut Law Tribune, the statewide weekly legal newspaper as an “opinion columnist”. Here is my first column, (if you can’t access it because of the paywall, click on the link in this tweet, which I’m told should bypass it) which is an introductory one. In future weeks and months I aim to…well, write more of the same that I’ve always written.

If you’re new to the blog and have found it through the column, well, I don’t know what to say to you. Welcome? Where have you been hiding? You know this is 2014, right?

The same caveats that apply to the blog apply to the column, obviously. I don’t yet have permission to reprint the entire column here (primarily because I haven’t asked) so for the time being I will post a link to the column and then you can comment here as always.

What if they gave a prosecution and the prosecution took its ball and went home?

lucy

From the ‘don’t-try-this-at-home-kids‘ department, a truly flabbergasting story out of Illinois of hubris, hissy-fits and the Double Jeopardy Clause.

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing.

No, that’s not hyperbole or “insider-talk”. They literally did nothing. From the Illinois Supreme Court opinion:

According to the report of proceedings, “the jurors were duly sworn by the clerk.” The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

“[The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.

T

HE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard?

[Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we’ll take a ten-minute break.”

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

“[Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they’ve indicated their intention not to present any evidence or witnesses. Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges.”

Here, let me help you with your jaw.

Because getting a warrant is just so tedious. Grumble

“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause.1Warrants based on probable cause are, like, so “tedious”, he followed up2. Further:

“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.

“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.

Fernandez v. California: remove the objector, won’t be no objection

What problem is?

What problem is?

I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF - pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948)1. The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).

In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied  premises is generally sufficient to justify a warrantless  search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule  ordinarily prohibiting the warrantless entry of a person’s  house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4)  (“[W]hen it comes to the Fourth Amendment, the home is  first among equals. At the Amendment’s ‘very core’ stands   ‘the right of a man to retreat into his own home and there  be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which  . . . the Fourth Amendment is directed.”

That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.

How do you solve a problem like jailhouse informants?

Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer,  but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.

Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.

But how does the science match up? Does it support any of these methods by convincing jurors to disregard the alleged confession?