a public defender

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While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin, it does not require that the trial court go beyond these “constitutional minima.” United States v. Dayton, 604 F.2d 931, 935 n.2 (5th Cir. 1979) (en banc). A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712. Therefore, although the Practice Book provisions were designed to reflect the principles embodied in Boykin; State v. Godek, 182 Conn. 353, 357 (1980), cert. denied, 450 U.S. 1031 (1981); Blue v. Robinson, 173 Conn. 360, 373 (1977); precise compliance with the provisions is not constitutionally required. Thus, our analysis will focus on whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book.

State v. Badgett. But enough with the primer and onto my idle thought. Here, as part of the plea canvass, a judge will routinely ask defendants the following question: “Are you satisfied with your attorney’s representation of you?” This question, to me, is distinctly different from the practice book requirement that the defendant be aware that he is entitled to the effective assistance of counsel. The latter is directed at informing the defendant that if he proceeds to trial, he will have available an attorney to conduct the trial for him.

The question of satisfaction, on the other hand, seems to have no basis in any Constitutional requirement (at least none that I can see on this idle Friday afternoon).

You can imagine the gamut of responses to this question: A perfunctory “yes”; a begruding or resigned “yes”; a hesitant “yes”; some hemming and hawing followed by “yes” and the rare “no”.

Most defendants view this as asking whether they are satisfied with the outcome of the case, rather than the performance of the specific attorney (in fact, some judges will follow up with that clarifying statement, if they notice any hesitation in the defendant). Their thought process is obvious: “I’m not thrilled with this deal, so how can I be satisfied that my attorney did the best job?”

Which brings me to my question(s): What, exactly, is the point of this question? It certainly cannot be to prevent any future habeas corpus litigation alleging ineffective assistance of counsel. The administration of a Boykin canvass hardly precludes future arguments that the plea was not voluntary. I’ve seen prosecutors attempt to question habeas petitioners whether they answered the question in question in the affirmative, as if it were evidence of a lack of IAC. But they are not serious arguments and don’t hold much weight in the eyes of even the most pro-state judges.

Everyone realizes that most defendants are aware of the dance. They know the questions to be asked and they know the pat responses. Some are truly satisfied with the sentences they are receiving; most are resigned to them. After all, who wants to go to jail?

So, why then, do we ask this question at all? Is it habit? Is it really designed to truly determine if the plea is voluntary? If that is the case, there would be no need for the follow up clarification that judges tend to employ. Rather, we would see a judge exploring the basis for any hesitation on the part of the defendant. But that’s rare.

Now, I’m not saying that we need to do away with this question, or re-work the Boykin canvass (at least not in this post); I’m merely following a train of thought out loud, as is my wont.

Those of you in other states: do your judges ask this question? If so, any insight on why it is necessary?

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Police departments cannot be sued unless there was no probable cause for an arrest. The so-called “forensic experts” in child sex cases can coax a victimization out of a rock, yet there are no consequences for them when the “allegation” is later proven to be utterly false.

No, it is everyone’s favorite punching bag and scum of the Earth, the criminal defense lawyer, who must expose himself to criminal liability for doing the very thing that the Constitution mandates: defending the accused.

It’s not like there aren’t avenues for discipline of defense lawyers who engage in offensive behavior: prosecutors and judges are free to file grievances if they think the lawyer has crossed the line: this results in suspensions and disbarments.

But to create a whole new category of criminal offense for merely giving the jury a reason to question the credibility of complainants? Might as well do away with the whole “trial” thing, no?

While lawyers have called this bill unconstitutional, Burchett said it is the right thing to do.

“If I was member of the legal community, I would quit wrapping myself up in the Constitution and start thinking about what’s right,” said Burchett.

I could say many things here, all sarcastic, all witty, all derisive, but I don’t think anything I can come up with can top the sheer stupidity emanating from every pore of that statement, so I shall let it stand on its own.

H/T

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All of the above assumes that one twin is unambiguously guilty, and the other is unambiguously innocent. In real life, it’s hard to imagine such a clear-cut case. For example, a jury might be inclined to believe that the “good” twin acted as an accomplice, or perhaps an accessory, to the crime after the fact. This charge would apply if one sibling knew that the other had committed a crime—which seems likely under any circumstances—and that he intentionally provided assistance or comfort to his sibling rather than calling the police at the first opportunity. If the good twin were convicted of an accessory crime in federal court, he’d be subject to at most half the prison term appropriate to his evil brother. In some states, however, it’s legal to harbor a fugitive if that person happens to be your sibling.

One more way that a “good” twin might be convicted, even if he took no part in the actual committing of the crime: In some states, he might be found guilty of not stopping his brother. Although as a general rule, common-law tradition dictates that you can’t be held accountable for something you didn’t do, 10 states have so-called “duty to rescue” statutes. These require innocent bystanders to call the police or reasonably attempt to aid a victim in distress. (In four of these states, siblings of the offender are exempt from the law.) If one twin tried to stab someone, the other might be expected to grab his arm or drag both of them to the ground. The penalty for failing to rescue is usually a fine, though some jurisdictions allow for up to a year in prison.

All clever arguments, but they assume that the innocent twin is physically capable of preventing the other from committing a crime. I don’t know how the physiology of conjoined twins works, but if the guilty twin controls the legs, can the innocent one truly stop him?

There’s all sorts of other juicy stuff: obviously the innocent twin can testify against the other, but wouldn’t that require the defendant to take the stand, in a sense? Also, how would sequestration orders be followed? How might the defendant defend against charges of tampering with a witness? Of course, there would also be the case of the state’s eyewitness sitting right next to the defendant throughout the trial.

There’s even a (really, really, really bad) movie about this.

(If think about this too much, you’ll start seeing double. Get it? GET IT?)

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The defendant, as he should have, made a motion to bar reprosecution arguing double jeopardy. The court, continuing its line of correct decisions, denied that motion.

As you already know, that decision was reversed. Read the opinion if you want the legal basis.

What I couldn’t get out of my head as I read the decision was how this would never have happened had it been a defense motion for mistrial. That motion would have been roundly (and rightly) denied and the curative instruction would have been sent forth, to encourage the jurors to disregard what was material and relevant evidence of bias.

There’s one thing you learn as a defense attorney over time and that’s that judges are slightly, if not overwhelmingly, pro-prosecution. What’s good for the goose is rarely good for the gander. And when a judge does rule in a legally appropriate manner, tales of that instance are spread far and wide and the judge is hailed as “fair” and “unbiased”. What’s forgotten are the hundreds of instances when that didn’t happen.

The liberal, pro-defendant judge is a myth. A persistent myth perpetuated by the media, prosecutors and – to some extent – defense counsel.

Anyone else think differently?

And because you knew this was coming:

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In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime  details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect  and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that  apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

In addition, while courts have taken a hard line stance condemning physically abusive tactics during interrogations, their rulings in the area of psychologically abusive tactics can be best seen as condoning the methods. The psychologically abusive tactics can be briefly categorized as: maximization and minimization, false-evidence ploy and other forms of deception (most notably not objected to in Frazier v. Cupp).

When dealing with a case that involves confessions, it is important to know the different types of false confessions and how they are induced. This paper classifies them into three types (drawing on an earlier taxonomy by Kassin): voluntary, coerced-compliant, and coerced-internalized.

Voluntary false confessions

This is where the subject intentionally confesses to a crime he did not commit. The reasons are varied: notoriety, a breakdown in reality monitoring and most frequently to protect the real perpetrator.

Compliant false confessions

These are the types of false confessions one most frequently associates with this concept. Think of it as acquiescing to the color of authority. This is the kind of false confession that also poses the greatest problem for both defense attorneys and jurors. The prevalent thinking is that one would never confess to a crime they did not commit, no matter how persuasive the interrogator and thus if there is a confession, it must be true. Yet the psychology of the human mind stands at odds with this assumption.

Demonstrating the form of influence observed in classic studies of social influence (e.g., Asch, 1956; Milgram, 1974), this type of confession is an act of mere public compliance by a suspect who knows that he or she is innocent  but bows to social pressure, often coming to believe that the short-term benefits of confession relative to denial outweigh the long-term costs. Based on a review of a number of cases, Gudjonsson (2003) identified some very specific incentives for this type of compliance—such as being allowed to sleep, eat, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional  confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up in a police station. The pages of legal history are filled with stories of compliant false confessions.

Internalized false confessions

This is third type, where not only does the suspect confess, but also starts to believe that he or she has actually committed the crime in question.

So what causes people to falsely confess? As I mentioned above, it seems incongruous to you and me that a person who knows that he is innocent would nevertheless confess to a crime. The answer begins with basic human psychology: we are highly responsive to reinforcement and subject to the laws of conditioning and of course our behavior is influenced by our perceptions of short-term rather than long-term consequences.

A voluminous body of research has shown that people make choices that they think will maximize their well-being given the constraints they face, making the best of the situation they are in—what Herrnstein has called the ‘‘matching law’’ (Herrnstein, Rachlin, & Laibson, 1997). With respect to a suspect’s response to interrogation, studies on the discounting of rewards and costs show that people tend to be impulsive in their orientation, preferring outcomes that are immediate rather than delayed, with delayed outcomes depreciating over time in their subjective value (Rachlin, 2000).

In addition to the intrinsic factors of human psychology that lead to false confessions, one must also be on the lookout for the external circumstances that can result in these confessions. Kassin breaks them down into two parts, each with subparts: the situational risk factors and the dispositional risk factors.

Situational risk factors include interrogation time, false evidence and minimization. Interrogation time, obviously, is the length of time that a suspect is interrogated. Some fun facts: the average interrogation lasts anywhere from 30 minutes to 2 hours. Interestingly in a 2004 study of 125 proven false confessions,

in cases in which interrogation time was recorded, that 34% lasted 6– 12 hours, that 39% lasted 12–24 hours, and that the mean was 16.3 hours.

When you get into those kinds of numbers, it’s easy to see why one should heed the red flags. Sleep deprivation can lead people to do – and say – almost anything.

False evidence

Once the interrogation has begun, the interrogator will try to convey to the suspect that resistance is futile. Basic psychology tells us that once people see an outcome as inevitable, cognitive and motivational forces conspire to lead people to accept, comply with and even endorse the outcome. Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation.

The forensic literature on confessions reinforces and extends this classic point, indicating that presentations of false evidence can lead people to confess to crimes they did not commit

…

That this tactic appears in proven false confession cases makes sense. In self-report studies, actual suspects state that the reason they confessed is that they perceived themselves to be trapped by the weight of evidence  (Gudjonsson & Sigurdsson, 1999; Moston, Stephenson, & Williamson, 1992).

Here’s an example via a study conducted by Kassin:

In one study, Kassin and Kiechel (1996) accused college students typing on a keyboard of causing the computer to crash by pressing a key they were instructed to avoid. Despite their innocence and initial denials, subjects were  asked to sign a confession. In some sessions but not others, a confederate said she witnessed the subject hit the forbidden key. This false evidence nearly doubled the number of students who signed a written confession, from 48 to  94%.

The most famous real-life example of such a confession is that of Marty Tankleff.

Minimization

The final situational risk factor is one we’ve all seen during interrogations: the officer convinces the suspect that confessing is in his best interest. That he is the suspect’s friend and that he can help him if he just confesses; that the judge and prosecutor will understand why he committed the crime, etc. The ultimately exonerated defendants in the Central Park jogger rape case reported feeling that they would be allowed to go home if they just confessed to the crime. Two core psychological phenomena underlie this factor: us being susceptible to reinforcement and and our eschewing long-term consequences in favor of short-term benefits.

Taken together, basic research showing that people are highly influenced by perceived reinforcements and that people process the pragmatic implications of a communication suggests the possibility that suspects infer leniency  in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable—even in the absence of an explicit promise.

Dispositional risk factors are those that are defendant specific, such as the age and maturity level, the mental and cognitive abilities of a particular defendant and whether the defendant suffers from any psychological disorders. You can easily imagine how any of these (or all) would play a significant role in inducing false confessions.

Interestingly, this paper notes another new and perhaps surprising risk factor: innocence. Yes, it does seem counter intuitive, but apparently recent studies have shown that innocence is a factor that can lead people to falsely confess. This is the “I did nothing wrong, I have nothing to hide” problem which leads innocent people to waive the rights and speak with police, subjecting themselves to the coercive interrogation techniques.

The[...] findings suggest that people have a naive faith in the power of innocence to set them free. This phenomenology was evident in the classic case of Peter Reilly, an 18-year-old who falsely confessed to the murder of his mother. When asked years later why he did not invoke his Miranda rights, Reilly said, ‘‘My state of mind was that I hadn’t done anything wrong and I felt that only a criminal really needed an attorney, and this was all going to  come out in the wash’’ (Connery, 1996, p. 93).

The consequences of false confessions are pretty obvious, starting with police inaction. Once the police obtain a confession from someone they already strongly believe to the be the culprit, they close the investigation, don’t follow up on other leads and ignore exculpatory evidence even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation. This, the studies seem to show, spill over onto prosecutors as well, who refuse to accept the idea of false confessions.

But there’s another consequence that is even more troubling for you and I. And that is the effect that a confession has on people’s perception of the remainder of the evidence even when told that the confession was coercively obtained and false! The results of studies in this area are extremely frightening and must be given a lot of though going forward:

In a second study, Hasel and Kassin (2009) staged a theft and took photographic identification decisions from a large number of eyewitnesses who were present. One week later, individual witnesses were told that the person they  had identified denied guilt, or that he  confessed, or that a specific other lineup member confessed. Influenced by this information, many witnesses went on to change their identification decisions, selecting the confessor with  confidence, when given the opportunity to do so.

Mock jury studies show essentially the same results. The fact of a confession may be the single most powerful piece of evidence introduced in a trial to begin with. We learn that people (jurors) may not even fully discount the confession if told that it was coerced (going back to the “why would anyone confess if they didn’t do it, so there must be some reliability or some morsel of truth in it” problem).

For example, Kassin and Sukel (1997) presented mock jurors with one of three versions of a murder trial transcript. In a low-pressure version, the defendant was said to have confessed to police immediately upon questioning. In  a high-pressure version, participants read that the suspect was in pain and interrogated aggressively by a detective who waved his gun in a menacing manner. A control version contained no confession in evidence. Presented with the high-pressure confession, participants appeared to respond in the legally prescribed manner. They judged the statement to be involuntary and said it did not influence their decisions. Yet when it came to the all-important verdict measure, this confession significantly increased the conviction rate. This increase occurred even in a condition in which subjects were specifically admonished to disregard confessions they found to be coerced.

There are several reasons for this – three, primarily:

1. that people still have a hard time believing that even coercive techniques result in false confessions because they are more likely to take behavior at face value than to account for situational factors;
2. that people are terrible at deception detection: both cops and laypeople exhibit accuracy rates that range between 42 and 64% – no better than chance.
3. that confessions often include content cues presumed to be associated with truthfulness.

As Kassin concludes: Uninformed, however, this spectator mistakes illusion for reality, not realizing that the taped confession is scripted by the police theory of the case, rehearsed during hours of unrecorded questioning,  directed by the questioner, and ultimately enacted on paper, tape, or camera by the suspect.

So what is the solution? How do we prevent false confessions from occurring, from being entered into evidence and from jurors continuing to be deceived  by them? The single most important reform is videotaping of all custodial interrogations (which I’ve argued for before). Videotaping not only permits an entirely accurate record of everything to be maintained, it permits the jury to see how the confession was obtained, not just the content of the confession itself. It also deters interrogators from using the most blatant and obvious methods of coercion.

While initially meeting with resistance, the police departments whose jurisdictions have adopted videotaping are now strongly in support of it:

Among the collateral benefits they often cited were that recording permitted detectives to focus on the suspect rather than take copious notes, increased accountability, provided an instant replay of the suspect’s statement that  sometimes revealed incriminating comments that were initially overlooked, reduced the amount of time detectives spent in court defending their interrogation practices, and increased public trust in law enforcement.

In addition to the videotaping of interrogations, Kassin proposes several others reforms in the method of interrogations: limiting the time of such interrogations, a ban on fabricated evidence but not false assertions (as a compromise), moving from a “confession” model to a “fact finding” model of interviewing suspects and eliminating the use of legal consequence minimization in interrogations.

But the bulwark against false confessions remains the recording of interrogations. While most states do not require the videotaping (only 2 do), several others have lately indicated that such videotaping would be a good idea. In addition to Alaska (Stephan v. State, 1985) and Minnesota (State v. Scales, 1994), seven additional jurisdictions—Illinois, Maine, New Mexico, New Jersey, Wisconsin, North Carolina, and the District of Columbia— have joined in  requiring recordings of custodial interrogations in some circumstances (Robertson, 2007; Sullivan, 2004). In several other states, supreme courts have stopped short of requiring recording but either have issued strongly  worded opinions endorsing recording—e.g., New Hampshire (State v. Barnett, 2002) and Iowa (State v. Hajtic, 2007)—or, in the case of Massachusetts, held that where law enforcement officers have no excuse for the failure to  record interrogation, defendants are entitled to a strongly worded instruction admonishing jurors to treat unrecorded confessions with caution (Commonwealth v. DiGiambattista, 2004).

In Connecticut, however, there is no such requirement. Our Supreme Court recently heard oral argument in State v. Julian Lockhart, in which it is being asked to hold that videotaping interrogations is required under the State constitution. I’m not holding my breath.

In the meantime, however, I strongly urge you to read the entire paper by Kassin and every time you have a case that involves a confession, look closely for the presence of these risk factors. I might even go so far as to say that one should make it a practice to consult with an expert in cases involving confessions.

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Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction – as empirical evidence suggests is usually the case – then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future.

Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.

Naturally intrigued, I began reading the paper in earnest. I had to pause, however, when the author listed the two forms of jury selection: sequential selection (aka strike and replace or jury-box) and the struck-jury method. In that, there is also variance because the methods can be ordered or unordered. I paused because we don’t do either of those here in Connecticut. We, of course, have individual voir dire. Which means we question each juror individually, alone, outside the presence of other potential venirepersons. [See these posts for a previous conversation about the merits and demerits of the various systems as told by, you know, real lawyers.]

The paper talks about the mathematics of selecting jurors in those two methods: do you compare the one venireperson to the known panel in the case of the struck-jury method or do you compare the ones in front of you to the randomly selected ones who might come after? Besides, in most states, jury selection is rather quick and with limited questioning by the attorneys.

In a sense, in CT, we also play the game of comparing the one juror with the unknown jurors to follow, but we have the luxury of spending as much time as necessary with an individual and making a determination of whether we want that particular person regardless of who else might be out there. Frankly, I can’t remember the last time during jury selection that I either used all my challenges or found myself scanning the list of those yet to come to see if I wanted anyone in particular.

The paper also makes some extravagant claims (supposedly backed by data) that show the more homogenous juries are more likely to be skewed toward conviction. I don’t know if that’s true or not, but the one statement I agree with in the paper is that most peremptory challenges are basically guesses made by lawyers.

There’s no such thing as a sure thing in selecting jurors: it is an art, not a science. When we excuse jurors we do it based on gut – a “feeling” that we got. We may have gotten in completely wrong, just as we do when we select someone, from time to time.

Despite my decided lack of interest in this paper, I’m writing about it because it may be useful to others. Let me know if you read it and found it thought-provoking.

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The Fourth District panel upheld a trial judge’s decision to deny immunity to Ricardo Velasquez, clearing the way for Broward prosecutors to take the attempted murder case to trial. Velasquez, who claimed self-defense for his role in a Hollywood knife fight, eventually pleaded guilty.

In April, a judge denied immunity to a New York partygoer who fatally stabbed a homeless man in a South Beach alley. Lawyers for Nadim Yaquibe, 21, had argued the youth was acting in self-defense when he killed Roberto Camacho, 50, who was unarmed but had threatened to kill Yaquibe.

Circuit Judge Daryl Trawick did, however, reduce a second-degree murder charge to manslaughter. Both sides are appealing.

Another defendant, Damon Darling, 24, was accused of murder after he got into a gunfight with a rival in the courtyard of a Liberty City housing project, killing 9-year-old Sherdavia Jenkins in the crossfire.

Another self-defense case under close watch is that of Gabriel Mobley, 33. In February 2008, Mobley shot and killed two unarmed men, one of whom had punched a friend outside Chili’s Grill & Bar near Miami Lakes. Mobley holds a lawful concealed weapons permit.

In May 2008, Maurice Moorer, 25, shot and killed his ex-wife’s new lover, Eddy Moore, after a dispute that started earlier in the day at Moore’s house.

When Moore was killed, he was sitting in his car outside Moorer’s house. Miami-Dade police said Moorer had egged his rival on, luring him to his house, then walked out armed with a handgun.

But Moorer claimed he fired — some 15 shots — because Moore had been threatening him and might have been reaching for a weapon, defense lawyers Terry Lenamon and Kenneth Swartz say.

Of course, it is entirely debatable whether the existence of a duty to retreat may have prevented these killings, but it certainly is food for thought.

As a criminal defense lawyer, it is my job (and one that I tremendously enjoy) to protect the Constitutional rights of my clients, to hold the State to its burden of proof beyond a reasonable doubt and to represent my client zealously and to the best of my ability. But I do not agree that it is part of my job to condone violence or to be indifferent to it. Personally, I abhor violence. So while it may be an excellent defense to the crimes charged that a person has no duty to retreat and thus is immune from prosecution for the use of deadly force, you will not find me saying that I think this law is good. I think it’s bad and dangerous.

There are several areas that generally trouble me in self-defense cases. One is the rigid implementation of the prohibition against the “escalation of force”. Take, for example, the scenario of the bar fight. Two men get into a scrap at a bar and one gains the upper hand. This one man starts pummeling the other, raining him with fierce blows to the head and side of the body. The “victim” (soon to be defendant) cannot adequately fight back and is being beaten pretty badly. He fortuitously spies a knife on the bar, grabs it and stabs the attacker.

Since he had a duty to retreat, and since he “escalated” the level of force, we typically call it “imperfect self-defense”. That’s a misnomer and a legal fiction, in my opinion. To me, there’s no example of self-defense that’s more on point. The whole purpose of self-defense is to defend oneself. How is one expected to return reasonable force with reasonable force, when one is clearly incapable of doing so and thus being mercilessly beaten?

The test for self-defense, in cases such as those, needs to be modified. Currently, one is not permitted to go from reasonable force to deadly force without any legal consequences. I think that’s unrealistic. Juries should be permitted to reach the conclusion that at the time, the defendant saw no other way to escape his punishment than to use deadly force in order to make that retreat.

However, this exception should be limited to circumstances where the defendant is indeed incapable of making a getaway.

Granted, I have not looked at the intricacies of self-defense law in a while, but this is one thing that’s bothered me for ages. Do you have similar problems with self-defense laws? What would you change about it? And what of FL and TX’s removal of the duty to retreat? The forum is yours.

[Interestingly, FL is not the only jurisdiction wrestling with these concepts. Britain is also engaging in some debate over the "castle doctrine" and the presumption of imminent threat of deadly force during a home invasion, based largely on a case I briefly mentioned in this post a while ago.]

H/T: CrimProf

Because I love you all so much, I leave you with this heart-wrenching song:

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Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There's this fellow who's going to jail for beating up an intruder and then this awfully sad story.]

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A friend of a friend told me the story of a potential juror during voir dire a few years ago who was the lucky recipient of this “extra” information post-verdict in a trial for which she was a juror a long time ago. During this current voir dire, the story goes, she expressed her reservations about the criminal justice system because of that very fact: that she may not have all the information she’d like. “We found out later that the defendant had a lengthy record for this kind of thing”, she said. “If we’d known about it during the trial…” and her voice trailed off.

We can all finish her sentence, can’t we? “…we’d have convicted with much less deliberation.” There was a certain distrust in her voice, I’m told, about the system and of the defendant. This juror had been contaminated. How could she ever believe the defense? What were they hiding? Was the defendant a really bad guy? There’s no way she’d acquit, is there?

Telling the jury the behind-the-scenes operation of a trial is problematic, in my opinion. There’s a reason why some prior convictions aren’t introduced into evidence: primarily to avoid that very reaction. “Once a criminal, always a criminal” is a sentiment we strive very hard to avoid (unless, of course, you’re a sex offender, in which case, God help you. And even then…). It’s easy to think that once a trial is over, we can conspiratorially reveal the “secrets” of the trial to the jurors, like some piece of gossip we were just dying to reveal.

Doing this places an inordinate amount of importance on the fact of such prior convictions and elevates its function in the equation of guilt or innocence – which is to say it gives prior convictions any place in that equation, where it should have none.

That juror may have already discharged her service for that trial, but just as surely as the Sun rises in the East, she will be called for jury duty again and now, she will no longer be an acceptable juror for any criminal trial.

If that isn’t polluting the jury pool, I don’t know what is. And there’s not a damn thing we can do about it.

Bonus: On a related note, see this amusing story of a judge who served as a juror in the trial of a defendant over whose previous trial on identical charges he had presided. What a clusterf*ck of a sentence.

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[I do acknowledge the apparent flaw in my logic that a normal individual would not normally be in the confrontational position that officers find themselves in when they're making arrests or conducting an investigation, but then again, nobody goes around shooting random people willy-nilly. If that is a flaw in my logic, then that's a flaw in Massameno's logic as well and his proposal should be altered accordingly.]

I’m also unsure of scenarios that this “change” in the law would leave criminalized. He suggests racial hatred, but how difficult is that to prove? Additionally, there’s nothing in a proposal that permits a jury to “improper motive” as a reason to reject self-defense. Massameno’s mention of that is a nod to jury nullification. So, in essence, he’s suggesting a modification to the law that would preclude prosecution of officers who shoot at citizens.

Frankly, I have no problem with this idea. Just expand it to all people, not just police officers. Why is my drug lord client also not in a unique position of working in a danger-laden profession? What about my clients that grew up in, and still reside in rough neighborhoods? They’re liable to be robbed and shot at any point.  Why shouldn’t this extend to them as well? After all, regular self-defense makes no distinction between those engaged in legal and illegal conduct.

Of course, I have no doubt that Massameno wouldn’t agree with me. [The rest of the post is a bit of a sidetrack, so skip to the comments if you don't care.]

Massameno seems to struggle mightily throughout this “opinion piece” with his advocacy for those that are, in every sense of the word, criminal defendants and those that he normally associates with that phrase. In essence, he’s making the “they’re one of us, not one of them” argument:

[This proposal] does recognize that, when police mistakenly kill or injure someone in the performance of their duties, they should not be treated as common criminals, unless, of course, they are.

I have absolutely no idea what that sentence means. It seems to be internally contradictory: either they made a mistake or not, in which case it shouldn’t matter if they’re a common criminal (whatever that means). Even if the dirtiest cop in the world mistakenly shoots someone in the performance of his duties, he should get the benefit of Massameno’s proposal. But I don’t think Massameno can bring himself to say it. He has to still hedge his bets on the off-chance that the cop is really, really bad. In which case, he’s “one of them”, or something.

Of course, Massameno seems to have forgotten that a successful self-defense claim doesn’t negate the fact that a crime was indeed committed, thus turning the actor into a “criminal”. It simply justifies that criminal act and permits the actor to be treated as if he committed no crime.

Ironically, in the early part of the “opinion piece”, Massameno goes on at length about an Officer Smith, who 10 years ago shot and killed some common thug, but someone had the nerve (the nerve!) to charge him with murder, “a Class A felony, punishable by up to 60 years in prison!” (Yes, that is a direct quote, exclamation and all.)

Although Smith was not convicted of murder, he was convicted of manslaughter and sentenced to six years in prison. The conviction was reversed on appeal. Just before his new trial, wanting to avoid prison, Smith felt compelled to accept a plea agreement that turned him into a convicted criminal.

Yet, what if Smith had lost his appeal? The original conviction would have been upheld and Smith’s life would have been destroyed. Given the publicity surrounding his trial, with civil rights advocates claiming that he shot Reid because he was black, Smith probably would have met a terrible end in prison at the hands of the type of criminals he had vowed to bring to justice.

But…but…I thought only guilty people pled guilty. What’s that? The Earth is not flat?

Anyway, as I said, I haven’t made up my mind either way on this proposal, or something like this. It’s just a discussion, after all. So what do you think, you-who-are-less-snarky-than-I? Should there be a special hazardous duty provision? Should it apply to everyone? Or is the law of self-defense fine just the way it is? If you like this post, you can bookmark it for later use.

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On the other hand, damage to the same parts of the brain causes strikingly similar symptoms in monkeys. An alien scientist observing life on earth might well conclude, from cases like this, that all the species of monkeys on this planet are very similar – including humans. You damage a certain part of their brains, and their behaviour changes in a predictable way. Most of us humans would say that other monkeys don’t have “free will” – but then how are we so sure that we do?

No matter what your views on child molesters, if you are a student of the law and of the human mind, the possibility that some people may act out in ways that they cannot control must pique your interest. For the very essence of criminality is the mens rea, the intent to commit an act that society has deemed illegal. This may not be limited to pedophiles alone: consider the man who by all accounts is sweet, gentle and kind and who, one day, goes on a rampage for no seeming reason and commits horrible murders. Criminal defense lawyers have already recognized the impact of traumatic brain injury on the defendant and his culpability. So why are pedophiles so different in our view?

People almost universally will decry the act of pedophilia as immoral, distasteful and heinous. The reason for this particular hatred toward pedophilia is the nature of the victim: the innocent, not-as-yet-sexual child, who cannot defend himself against the improper advances of someone older. And there is a lot of merit to that. But ask someone the next question: why do pedophiles offend? The answer you’re most likely to get will include some vague term such as “sick” or “evil”. Underlying these reasonings is the belief that pedophiles are able to control their urges and their actions. But “sick” or “evil” are amorphous terms. They mean whatever you want them to mean and are usually dismissive in nature. To ask that question is to invite the “are you serious?” look.

But it is an entirely legitimate question. At least for those of us concerned with fitting the punishment to the crime and with understanding the motivations of human beings in the context of the criminal justice system.

As long as a large majority of the population views sexual acts committed upon a child as against the norm, pedophilia will remain a crime (there is some discussion on the internet that pedophilia is a sexual orientation, not a sexual disorder, but I will leave that for another day). Having accepted that, we must then turn to the punishment for that crime. Must we punish the individual who wilfully and knowingly shoots another person for a perceived slight less severely than the individual who sexual abuses children, albeit without any ability to control his urges?

The development of neuroscience vis-a-vis pedophiles may lead (should lead?) to an adjustment in our view of the offender, not the crime itself. This student paper asks some of the pertinent questions:

If it is the case that pedophilia is often unpreventable and always incurable, is it not also the case that any one of us is at risk for pedophilia? With this possibility in mind, should we try and be more sympathetic, or would sympathy mean forgiving a heinous crime and at the same time sacrificing critical moral guidelines? This is not necessarily the case. For example, in the film The Woodsman, a convicted pedophile is released from prison and struggles with his past offenses and continued urges. The audience is asked to be sympathetic but also recognize that his deviant behavior is harmful. Understanding and perhaps sympathizing with those who suffer from pedophilia does not mean believing child molestation is acceptable.

Just as we don’t “accept” the robberies committed by the junkie to support his habit (we understand and sympathize with the junkie and his need to commit the robbery), would it be so horrific to understand the physiology of the pedophile and to make a correct in our perception of the punishment needed to be meted out? After all, it is our changing views (and some might say oscillating) of this type of behavior that result in the classification of illegality.

At the very least, as we represent individuals charged with these crimes, we must begin to explore the neurological possibilities that the client may or may not be fully in control of his actions. The three stated goals of the criminal justice system – punishment, rehabilitation and deterrence – would be better served by understanding the cause of the action, rather than ignoring it altogether, as is often the case with pedophilia. Discovering that the defendant suffers from an organic brain injury may help us fashion the appropriate sentence and create access to the appropriate treatment to prevent re-offending.

As more light is shed on this area of neuroscience, [see the work of Frederick Berlin] I suspect that this is a conversation we will be having more often.

[Because there are many who would skim this post and conclude that I am advocating de-criminalizing the act of pedophilia, I feel it is important to reiterate that I am not. I am merely exploring an area that is new to me: the possibility that brain functioning might explain the reason why pedophiles molest children. Also, this is my personal view only.]

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Over the past year, Einhorn has been at the center of two of the higher profile cases in San Diego. Sommer was convicted of murdering her husband, Todd, in 2007 by poisoning him with arsenic. She was granted a new trial in November of that year. Then in April 2008, new evidence was discovered — tissue samples of Todd Sommer that showed no traces of arsenic — and that led to prosecutors dismissing the case.

The retrial had been assigned to Einhorn. Allen Bloom, Sommer’s lawyer, pressed for the case to be dismissed in a way that would preclude prosecutors from ever charging Sommer again.

That turned into a pissing match between the State and the judge (the state accusing him of a lack of jurisdiction), but he eventually ruled in favor of the State. In another case, he interpreted a statute in a way the state disagreed. Unless the judges of San Diego are really prosecutors-not-in-disguise, this sort of stuff happens every day. So, what then, caused them to hate him so? No one knows, except the prosecutor’s office, which isn’t talking. The Judge himself doesn’t know.

It’s only natural, however, when prosecutors make decisions in a clandestine manner that seem contrary to the administration of justice, to ascribe nefarious motivations to such actions. Perhaps we will be proven wrong at some point down the line, but now, as it stands, it seems they do not like this judge and are using some procedural mechanism to prevent him presiding over any cases.

Not only is this extremely inefficient (one judge sitting idle in these days of tremendous workload?), but is also casts an ugly shadow on the rest of the courthouse. In our criminal justice system, a judge is supposed to be an impartial presence: someone who ensures that a trial proceeds smoothly and makes rulings of law. The nuts and bolts of the criminal case – the facts – are left to the parties. Is it fair to draw an inference that the prosecutor’s office expects judges only to side with them and a judge who shows a hint of independence is thus an obstacle to the administration of “justice”? Are the other judges in San Diego merely lemmings who follow the prosecutor’s office with nary an independent thought? It would certainly seem that way.

Now, I’m not saying that “judge shopping” doesn’t occur. It does, but in more subtle and less ugly ways. You have a complex legal issue? You might want to try and get it before an eminent jurist. You have an uppity prosecutor? You might want to try and have the trial before a no-nonsense judge. These, usually, are not done to subvert the administration of justice, but rather to ensure the smooth and fair administration of the process of the trial.

To completely block one judge from sitting on any cases whatsoever for some undisclosed reason smacks of subterfuge and arrogance.

As a criminal defense lawyer, would I want to have a trial before a pro-defense judge (if there is such a beast)? Absolutely. Do I think that fact by itself would make a difference in the outcome of the case? Probably not. It might net me a favorable jury instruction or a helpful ruling on some questionable evidence, but the facts are the facts. And this is the key distinction: It is not my job to ensure the administration of justice or the appearance of a fair system. I have no obligation other than that to my clients. The prosecutor’s office, on the other hand (as appropriately stated in the press release quote above) represents “the people” as a whole and is obliged to not only prosecute crime, but to provide a fair and just system, which includes the appearance of propriety. [For a lengthy discussion of "justice" vis-a-vis the role of the defense lawyer, see the discussion that's been making the rounds of the blogosphere here, complete with links to all the posts.]

And, since the title of this posts teases it, here’s the Soup Nazi:

[youtube]http://www.youtube.com/watch?v=M2lfZg-apSA[/youtube]

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As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

The court, in a subsequent case analyzing Jarzbek, engages in a thoughtful analysis of the Confrontation Clause and the need for the jury to be able to observe a witness:

Our law is well settled that it is a jury’s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude. See, e.g., State v. Morgan, 274 Conn. 790, 800 (2005). Some of our older cases indicate that fact finders properly may consider not only a witness’ demeanor during his testimony but also his spontaneous reactions in the courtroom, as a whole, provided these considerations are limited to assessing credibility. See Kovacs v. Szentes, 130 Conn. 229, 233 (1943); State v. McLaughlin, 126 Conn. 257, 264-65 (1939). A jury’s assessment of a witness’ credibility also naturally and rightly may include observations of his reaction to having to confront the defendant physically and to testify in an open and public forum. See State v. Jarzbek, supra, 204 Conn. 683, 692-93 (1987) (confrontation clause “finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process”), cert. denied, 484 U.S. 1061 (1988).  We have observed that the confrontation clause was conceived as a means of providing the accused with “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis added; internal quotation marks omitted.) Id., 692. Therefore, we conclude that, to the extent that the jurors formed opinions as to Ford’s credibility by observing his demeanor on the stand and his spontaneous reactions in the courtroom, they acted properly. Such observations and the rational inferences drawn therefrom are not prejudicial. See State v. Porter, 241 Conn. 57, 120 (1997) (“forming impressions and intuitions regarding witnesses is the quintessential jury function”), cert. denied, 523 U.S. 1058, (1998).

The court, however, has applied the rationale of permitting unmasked out-of-court testimony to cases of sexual abuse of minors and only on the rationale that the State has a compelling interest in protecting child victims and encouraging their participation in the criminal justice system. Even then, it is a determination to be made on a case-by-case basis. The New Hampshire Supreme Court in Hernandez seems to buy into a similar compelling need to protect the identity of undercover officers, but in my opinion, at the grave expense of the Confrontation Right. That court relies on Coy v. Iowa and Maryland v. Craig and crafts another case-by-case test for permitting witnesses to testify in disguise. But Coy dealt specifically with the defendant’s absence from the presence of the accuser and again in a child-sex case. The Supreme Court in Craig did hold that the right to face-to-face confrontation was not indispensable and that the requirements of the Confrontation Clause:

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

In doing so, according to the NH Supreme Court, the Craig court focused on four factors:

(1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the court, defendant and trier of fact.

In holding that permitting the police officer to testify in disguise constituted harmless error in this case, but may be permitted in other cases, the NH court seems to explicitly ignore (4) above. Who knows if the detective is smirking under that ski-mask, knowing that he’s lying through his teeth and the jury is unable to observe that. Again, it is important to note that Craig again dealt with the physical presence of a defendant and the impact and trauma that might have on a child victim. None of these cases speak to permitting a witness to testify, in court, with his or her face hidden.

Given my reading of Jarzbek, Coy and Craig, I think the Connecticut Supreme Court would be hard pressed to agree with New Hampshire’s august tribunal, but I’m usually wrong when it comes to things like this.

Two side notes: The newspaper story covering the NH decision includes the usual quotes from law enforcement about how the primary focus should be the safety of the officers, not the Constitutional rights of an accused. So make sure you read it if you want to get all indignant.

Second, the dissent by Scalia in Craig is certainly worth the time it would take to read it. Here’s a sampling:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

Sometimes, he’s so good that it hurts.

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