Category Archives: clients

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Come on, we’re not even pretending anymore

whatisthisidonteven

If you for some reason start a judicial opinion with the following:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was   scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

[No. Stop. You really need to read that blockquote. Don't skip it.] And then recite more facts like these: He worked for an hour and a half on Thursday. On Friday he worked on the case for 2 1/2 hours. Then, on Saturday:

defendant’s counsel conducted a three- to four-hour review of relevant evidence rules and suppression law to prepare himself for proceedings in adult criminal court

and on Sunday, he spent three hours reviewing discovery and preparing cross-examination. In all, he spent 10-11 hours preparing for a trial. For his first criminal trial in 7 years. For a client he’d never met.

St. John Parish: We, too, record you without your knowledge!

Hello? Can you hear me now?

Hello? Can you hear me now?1

If you’re ever in St. John the Baptist Parish in Louisiana (and really, after reading this post you should avoid it at all costs), make sure you don’t ever call the police. If you do call the police, pray to St. John the Baptist that you merely get arrested instead of shot and killed.

If you do go to St. John the Baptist Parish, and if you do call the cops and if you do somehow miraculously survive their almost-standard-issue shooting of you and you do end up arrested and alive, be aware that their Sheriff video records all private conversations you have with your attorney.

Scott mentions this recording in his post linked to above, but in an uncharacteristically muted way. I suspect there is some outrage fatigue here, so I’ll take up the cudgel:

OUTRAGE! SCANDAL! UNCONSTITUTIONAL! Etc.

You’re to blame: an excuse for courts to deny justice

The Connecticut Law Tribune has published this very important and necessary editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Written in the wake of the extraordinary opinion in State v. Santiago last month, the editorial rightly questions whether prosecutors in the State are paying any attention at all to the steady stream of opinions coming from our appellate courts that deem their comments improper. The editorial also rightly questions the efficacy of such chastisement when our appellate courts also routinely renders these improprieties harmless: a sort of get out of jail free card. A wink and a nod, as the editorial calls it.

What’s to prevent a prosecutor from taking a calculated risk in crossing the line of acceptable conduct when our appellate courts on a regular basis give a wink and a nod to this kind of improper behavior? Maybe it’s time for grievances to be filed where certain kinds of misconduct, like that detailed in the Santiago case is documented.

With appellate courts reluctant to even name prosecutors, let alone find that their misconduct impacted the outcome of the case 1, with still no referrals to the grievance committee and with no financial incentive to “behave”, as it were, there really is no effective way to enforce Constitutional limits on prosecutors’ conduct and arguments.

But the editorial also rightly points the finger at the defense bar: we are just as complicit in numbing everyone to the real extent of the impropriety in these cases. While it is true that lack of an objection by defense counsel to improper argument is but one factor 2 to be considered, it is fast becoming the predominant factor.

This highlights another massive problem with the fair administration of justice that has fundamentally altered the way due process is dispensed in Connecticut that has been left untouched by this – or any other – editorial as far as I know. I’ve written about it here, though.

Our court has become extremely outcome oriented and that outcome is predominantly this: sustaining convictions obtained by trial courts and juries. In order to achieve that outcome, the Court has – with the Prosecution’s urging and prodding – made it optional and less desirable for trial judges to be the arbiters of the law and of what is admissible and what is not. It has blazed a path that absolves trial judges of any responsibility for gaps in knowledge of the procedure to govern the orderly administration of justice.

It has taken this awesome responsibility and placed it squarely on the shoulders of defense attorneys. We are the lighthouses by which the appellate courts will guide the ships to safe port. There used to be a time where trial lawyers could afford to sit back in their chairs, roll up their sleeves and “try cases from the file”, making statements that border on ineffective assistance of counsel like “I try to win at trial, not on appeal”.

Well you better win at trial now, because given the way the majority of the defense bar practices, no one is winning on appeal. Defense attorneys are complicit in not preserving objections, not objecting properly, not filing motions in limine, not filing requests to charge: in other words, every single thing that is necessary to properly preserve Constitutional and evidentiary claims of error for appellate review.

Appellate review isn’t the wide open football field that it used to be – or even should be. Rather, our appellate courts have reduced securing appellate review to jumping through flaming hoops that move unpredictably and narrow impossibly to the head of a pin.

Appellate courts repeat incessantly – in some areas of the law – that “talismanic incantations” aren’t required to invoke the protection of rights, or that to be valid, a plea canvass need not have specific utterances, but rather simply the gist of the matter.

Not so if you want to vindicate your Constitutional rights. A most specific and almost entirely accurate objection must be noted and repeated several times.

Appellate review has turned into a game of hide the ball and you’re it.

If we are to vindicate all the Constitutional rights that every citizen of this country is entitled to, then we have to start getting better at our jobs. We need to understand the game the court is playing and we need to play that game. We have to think of the long game: trial, appeal, habeas, federal habeas.

Because, for our clients, this is their life, not a game.

Conviction reversed for man who was tried without an attorney

When we say that everyone is entitled to counsel, what we really mean is that everyone who can afford a lawyer can hire one and everyone who is this poor will be provided one. Everyone else is on their own. So the floor – the income eligibility – is the arbitrary cutoff which determines who gets a public defender and who doesn’t. As I’ve written before, it’s an imperfect system with a ridiculously low threshold for cutoff: 125% of the federal poverty level which amounts to slightly more than absolute poverty. And they’re guidelines, which means that the determination is left to individual offices to make. And offices are staffed by humans and humans make mistakes. Just ask Gene Newland:

For nearly two years, Gene Newland told a judge that he could not afford a private attorney to represent him following a 2007 arrest for sexual assault and risk of injury to a minor. “I’m trying to come up with the money,” he said in one courtroom appearance. “I’m barely making ends meet as it is right now. Believe me, if I could afford a lawyer, I would.”

Newland had been denied access to a public defender in Danielson because, someone decided, he had too many assets. He owned a house and worked two jobs, though he lost one of them after he was charged with the crime.

Just so we know what’s at stake, both sexual assault and risk of injury are Class B felonies, each carrying a maximum of 20 years in jail for a grand total of 40 years’ incarceration.

The problem with making such a simplistic determination that he has a house and a job and is therefore ineligible is that it fails to take into account the reality of hiring private counsel for serious charges. The house isn’t liquid and a job is a job even if it pays nothing:

Newland was earning $350 a week at the time of his criminal trial, had no funds in the bank and that he was unable to make payments on his $168,000 mortgage.

Despite this, Newland was denied a public defender and then no one told him that the decision could be appealed to the trial judge, who, according to our statute, makes the final appointment of counsel. In fact, when faced with an unrepresented individual facing serious jail time, the court made Newland state that he wanted to proceed without counsel, instead of acknowledging that maybe the man couldn’t afford to hire his own attorney.

But don’t be fooled. Newland didn’t do this voluntarily. Who, in their right mind, would?

When [Judge] Robaina asked Newland if he was sure he wanted to waive his right to an attorney before proceeding to trial, Newland replied: “I have no other choice.” He then stated that he had neither the training or skill to represent himself. He acknowledged that he had been arrested 23 months earlier, and he knew that he had to be tried sometime.

It may seem as if that’s a long time to save up money and hire an attorney, but that’s only if you don’t factor in any other expenditure to live. Rent, food, insurance, clothing, gasoline, taxes can all add up and even sizeable incomes can disappear with nothing left over to pay attorneys $5,000-$25,000.

Newland fell through the cracks and remained there. He was tried – representing himself in a case involving allegations that give even the most seasoned defense attorneys nightmares – and convicted. Then he was sentenced to 10 years in jail.

It’s been 4 years since he was sentenced to prison after being tried without an attorney, but a judge just reversed his conviction in a habeas corpus proceeding, holding that the State violated his right to counsel.

Attorney Jim Ruane, who represented Newland in his habeas wondered:

“How many other trials statewide did people go unrepresented, and was that a voluntary issue or forced upon them?” said Ruane. “I was practicing in 2009 and I had no idea this was going on in a courthouse. So it’s possible other people have slipped through the cracks.”

One would hope that this doesn’t happen often or even rarely; that the system is designed to pick up these oddities and that no judge or prosecutor would want a trial to proceed on some of the most serious charges with a man representing himself not because he wants to, but because he claims he can’t afford a lawyer.

The reality, though, is that it happens. I’ve dealt with similar situations and I know others who have too: clients who are appointed lawyers in one court but are deemed ineligible in another, merely because the people making the determination have different opinions on what qualifies as income.

While I don’t think any of this was ill-intentioned or malicious, the fact remains that a man was convicted without a lawyer and remains in jail 4 years later.

I don’t know if Newland is “truly” guilty or not, but I have no faith in a verdict that was obtained without the assistance of competent counsel and neither should you. The system is about fairness and protection of individual rights, not strict adherence to imaginary and arbitrary guidelines that bring about the opposite result.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

I can think of another inmate who faced a similar predicament. And we know his case changed the landscape of the legal system. It seems, though, that those lessons have yet to be learned.

No confidentiality in PD applications

Public defenders, pursuant to Gideon v. Wainwright, are provided to all indigent people accused of crimes. Seems simple enough in theory, but in practice, there has developed over the years a battle over what “indigent” means exactly. Some states, like CT, use the Federal poverty guidelines and set eligibility at 125% of that. Other states do… I don’t know what.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about thisover and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.

 

Reciprocal discovery: should we have to?

The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine.