give me your tired, your poor - no wait, that's the other one

A sense of awe and a nobility of purpose is an often-found characteristic among those of us who choose to dedicate our lives to the criminal justice system. Though most may not choose to repeatedly quote Ammianus Marcellinus or repeatedly invoke the image of Sisyphus, we are all aware of our place in the continual progression of a free society and most importantly, the simple atoms from whence we evolved into the rich, complex system which governs our lives today.

Whatever the role of Roman Law may have been creating the broad outlines of the present system, the most significant impact was that of the British legal system from the 17th century onwards, most famously represented by the court at Old Bailey. (Astute readers will note that this painting of a scene at the Old Bailey – which seems to be a color reproduction of a Thomas Hosmer Shepherd watercolour and H. Melville engraving – used to lend an unwarranted gravitas to this blog.)

To those who know – and those who want to know – I recommend the website ‘Old Bailey Online‘, the subject of this new NYT piece on the vast amount of historical information about Old Bailey trials now available and searchable. The advances in computer technology have made it possible for researches to quickly and deeply analyze the vast volumes of information stored in ‘the Proceedings’, drawing some interesting conclusions. From the NYT piece:

Beginning in 1825 they noticed an unusual jump in the number of guilty pleas and the number of very short trials. Before then most of the accused proclaimed their innocence and received full trials. By 1850, however, one-third of all cases involved guilty pleas. Trials, with their uncertain outcomes, were gradually crowded out by a system in which defendants pleaded guilty outside of the courtroom, they said.

Conventional histories cite the mid-1700s as the turning point in the development of the modern adversarial system of justice in England and Colonial America, with defense lawyers and prosecutors facing off in court, Mr. Hitchcock and Mr. Turkel said. Their analysis tells a different story, however.

“Mapping all trials suggests that the real moment of evolution was in the first half of the 19th century,” with the advent of plea bargains that resulted in many more convictions, Mr. Hitchcock said. “The defendant’s experience of the criminal justice system changed radically. You were much more likely to be found guilty.” Last month the scholars submitted an article to the British journal Past and Present on their findings.

Profound shifts were behind the turn toward negotiated agreements. The class of professional lawyers, police officers and judges was growing quickly at the same time that prison began to be used as an alternative to exile or capital punishment, historians have noted. (The first modern prison in Britain can be dated to 1792.) As Mr. Hitchcock said, “It’s hard to have plea bargaining when all they are going to do is hang you.”

This online repository is a delightful source of endless hours of entertainment. For example, see this account of the poor fellow who received a “fentence of Death” for stealing a Mare and a “Guelding”, or this unfortunate soul who was “Drawn, Hang’d and Quartered” for, well, you have to read it yourself:

John Francis Dickison , a notorious Popish Priest being taken in Newgate, as he came to pervert on Martha Cook a Convict, his Indictment being grounded upon a Statute made in the Third Year of King James, to prevent drawing away the King’s Subjects from their Allegiance; the manner thus, Martha Cook about Three Quarters of a Year since being Condemned for Cliping and Coyning, and remaining in Newgate, Two Women that were her fellow Prisoners, perswaded her to embrace the Romish Religion, and after some yielding to their proposition; the Prisoner was sent by the Priests into the Press-yard to visit her, who upon promise to get her a Pardon, made her renounce the Protestant Religion gave her the Sacrament, confessed her, &c. And to encourage her to perservere in what she had Embraced, oftentimes brought her Money; the which she disclosing to on Partridg a Presbyterian Minister, he discovered it to the Ordinary, who acquainted Captain Richardson with the same, so that about the Twenty-first of October last, the Prisoner coming to visit his Proselite, was seised in the Hole, and after some time carried before Sir William Turner , where he owned himself to be a Priest; and that he was Chaplain to the Portugal Embassadour ; whereupon he was commited, upon his Trial he likewise owned himself a Priest; and but faintly denied the pervertion, Mr. Ordinary, Mr. Partridg, and Martha Cook giving Evidence against him, after the Jury were satisfied of the Statute, they brought him in guilty ; and he was Sentenced to be Drawn, Hang’d and Quartered as a Traitor, &c.

But this online presence of the Old Bailey records also provides a very instructive roadmap of the evolution of the jury system and the rights of defendants and victims in the proceedings that were to have a profound influence on the framers of the United States Constitution and the architects of our modern criminal justice system. These bits of information show us just how much and how little the system has evolved since the turn of the 19th century. Take Grand Juries, for instance. Prosecutors in those days might vociferously disagree with someone from modern times who would scoff at their utility by citing their propensity to indict a ham sandwich:

The problem with this system was that the Grand Juries therefore often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname “the hope of London thieves”. From 1838 a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage.

The presumption of innocence started out as the presumption of guilt (unfortunately, as I’ve argued before, we seem to have reverted back to the late 1600s on that score):

The prisoners whose indictments had been approved by a grand jury were brought into the court and formally charged. Each prisoner was asked to plead to the charge, which was read to them, and the vast majority pleaded not guilty. Until the reforms of the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or a pardon. With the decline in death sentences in the early nineteenth century guilty pleas became more common.

Defendants who refused to enter a plea were, unless they were found mute “by visitation of God”, subject to the ordeal of peine forte et dure, in which they were forced to lie down and have weights placed on them until they either relented or died. For example see the trial of William Spiggot and Thomas Phillips alias Cross in 1721. This practice, however, was rare, and formally ended in 1772, after which date standing mute was deemed the same as pleading guilty. In 1827 the presumption of guilt was reversed and refusal to plead was redefined as equivalent to pleading innocent.

And lastly, the role of the lawyers:

Lawyers were rarely present in ordinary criminal trials prior to the last decades of the eighteenth century, and only began to appear in a significant number of trials at the turn of the nineteenth century. Lawyers who appeared at the Old Bailey in the eighteenth century hardly ever made it to the very top of the legal profession. They were often accused of being ignorant of the law and of a general incivility, something that was also said to characterise their bullying of witnesses. Such accusations were not always unfounded

…

Defendants in misdemeanour cases and treason cases (from 1696) could also employ legal representation, but they were excluded in felony cases (except for the purpose of raising narrow points of law) until the mid-1730s. The justification for this prohibition was that they were thought unnecessary: it required “no manner of skill to make a plain and honest defence” (Hawkins). Moreover, judges were thought capable of looking out for defendants’ interests. However, the increasing number of prosecution lawyers from the early 1730s appears to have led the courts to allow defence lawyers in order to help maintain a balance.

…

The trial process placed defendants at a disadvantage. Typically without the benefit of legal assistance, they had to organise their cases on their own, normally while in prison awaiting trial. Until the actual trial, they were unaware of the specific evidence that would be presented against them, and therefore had to respond spontaneously to what the witnesses said. This was thought to be the best way of ascertaining the truth.

Unthinkable now, but certainly fun to think about.

It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

…

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.

There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:

Avoid using the term “therapy dog” because the use of this term may create grounds for a mistrial or raise an issue on appeal. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. A defense attorney could argue that the use of the term “therapy dog” by the judge or the prosecutor implies to the jury that the witness is in fact a victim in need of therapy and could be construed as a comment on the evidence. It is up to the jury to decide if the witness was victimized by the defendant. You don’t want to retry a case and put the witness/victim through this ordeal a second time.

Martin hits it right on the head, by the way. Anytime the proponent of a new technique strongly (the above paragraph is in bold on their website) advises you to avoid the use of a term so that it can be admitted in court, you can safely bet that the discouraged description fits precisely.

The trial judge, in permitting the use of this therapy dog, draws an analogy to the use of a doll by a child witness by testifying. The analogy rings hollow, to me. A doll is inanimate and moves only when the person holding the doll gives it energy to move. A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?

Scott, in his post on this, highlights the problems with dog-aided-testimony:

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted.  Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question.

But we must feel similarly bad for the person convicted on erroneous testimony.  We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised.  Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

…

As  wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

Defendants, on the other hand, are only permitted completely shaved cats.

no self-respecting dog would nuzzle up to him

too soon?

Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.

Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.

I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.

But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?

In Cronic, SCOTUS said:

Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U. S. 308 (1974), because the petitioner had been “denied the right of effective cross-examination” which ” `would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Id., at 318 (citing Smith v. Illinois, 390 U. S. 129, 131 (1968), and Brookhart v. Janis, 384 U. S. 1, 3 (1966)).

Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U. S. 45 (1932), was such a case.

That the cross-examination of the defendant during a trial is a “critical stage” in the proceedings cannot be denied. It can thus also not be denied that during that cross-examination, the defendant must have the assistance of counsel. It surely would not suffice to say that the defendant must have the assistance of counsel during some periods of the critical stage, but not all. The second paragraph certainly illustrates that: Muniz’s lawyer was technically “available”, so it isn’t a situation where there is an actual denial of counsel, but rather an effective denial of counsel. But can any lawyer provide effective assistance when asleep? Obviously not. So why don’t Cronic and Powell apply? Why is it okay, then, for a lawyer to be asleep during the cross-examination of his client, the defendant?

Cronic nowhere mentions the “substantial portion” requirement. That comes from further caselaw from the circuits interpreting and applying Cronic:

The Ninth, Fifth, and Second Circuits have all considered the question of when sleeping by trial counsel becomes the effective denial of counsel and “so likely .. .prejudice[s] the accused” that Cronic applies and prejudice is presumed. All of these circuits have held that the denial of counsel with presumed prejudice only occurs once counsel sleeps through a “substantial portion of [defendant’s] trial.” Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984); see also Burdine v. Johnson, 262 F.3d 336, 340-41 (5th Cir. 2001) (en banc) (concluding a defendant’s right to counsel was violated where defense counsel was “repeatedly unconscious through not insubstantial portions of the defendant’s capital murder trial”); Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996) (holding the defendant’s right to counsel was violated where defense counsel was asleep for “numerous extended periods of time”).

This still doesn’t answer the question, of course. The answer is, I suppose, that the Court makes a judgment that there are periods of a trial that are inconsequential. That if, for example, the lawyer falls asleep between witnesses, it clearly doesn’t affect the trial itself (now some might rightly argue that it does, but let’s assume that it doesn’t). But what about during the cross-examination of the defendant itself? The court, is in essence, applying a harmless error analysis to the lawyer’s actions. They’re condoning it because it really wouldn’t have made a difference whether the lawyer was awake or asleep. In doing so, in my opinion, the court conflates both Cronic and Strickland. Cronic, as noted above, says that whether it would have made a difference or not is irrelevant. What’s relevant is merely the fact that the defendant did not have access to counsel during a critical stage and that in those situations, because there is a paramount need to preserve the integrity of the system, we will assume prejudice. Strickland, on the other hand, says that where it is the performance of counsel that is under fire, we will see whether that performance made any difference in the outcome.

Cronic becomes useless.

Reading this opinion and its narration of the meaning and import of Cronic and Cronic‘s application, one is left with the distinct impression that it really is okay for lawyers to take brief naps during a criminal trial. That Cronic‘s language about the effective denial of counsel is meaningless and unenforceable.

Coupled with the very low bar of Strickland that one needs to skip over, it sends the message that we are willing to tolerate everything but the most outrageous instances of misrepresentation of clients.

That we do not require of those among the bar who take it upon themselves to protect and defending the liberties of others to be awake during one of the most crucial acts of the criminal trial. Is it too much to ask that lawyers stay awake when their clients are on the stand? Even if the prosecutor is droning ona and on and it’s after lunch and you’re slipping into that food coma?

Is the message a wink and a nod that those who are prosecuted are really guilty, so attorney performance doesn’t really matter?

Here’s a thought experiment: if you were the attorney, would you sign an affidavit saying you were asleep? Would you testify at an evidentiary hearing and admit that you were asleep during your client’s cross-examination?

That this is condoned is only further evidence of the fact that the purpose of the system is no longer to protect individuals, their liberties or their rights, and there is nary a regard for the appearance of justice, but rather the focus is on ensuring that those who go to trial are convicted and remain convicted.

—-

On a similar note, thanks to a commenter at Volokh, I stumbled across these four videos recording a very odd, disturbing and sad courtroom interaction between an allegedly drunk lawyer and a judge trying to make sense of it all and protect the hapless individual seated at the defendant’s table. I’ve embedded Part 4 of the series below, because it gives the most flavor, but be sure the check out Parts 1, 2 and 3 as well.

If the Federal government were on Twitter or Facebook (or even that shiny new toy Google+), they’d be the confused old grandfather who’s elated that he’s won the Australian lottery even though his clearly smarter – and younger – wife quizzically asks him if he’s every been to Australia.

The Feds continued their misadventures in Terms of Service land with an indictment handed down today against Aaron Swartz, disputed co-founder of Reddit, the less well known bastard child of Digg.

His crime – described by his acts, not the silly US Code that they’re charging him with (PDF) – is essentially downloading staggering amounts of documents from JSTOR, the online repository of the ivory tower’s pontifications and musings on the life of the bourgeoisie. Seriously. Have you ever tried download anything from JSTOR? Apart from being so damn counter-intuitive, that shit is expensive. So expensive that some universities are charged $50,000 a year for access to the hallowed writings scanned and uploaded to JSTOR.

Swartz, someone whom the Feds have had their eye on for a while, basically used spoofed MAC addresses, guest accounts and the like to get behind their paywall and just download all their files. What was he going to do with it? Who the hell knows. But he did it because he hates paywalls and believes in freedom of information and free dissemination of that information. Or something. Watch out, NYT, you’re next.

Imagine, if you will, the olden days. No computers, nothing. Then imagine the most pompous guy in your town. He builds a house, goes around the country collecting all these interesting books and papers. Then he locks them in that building and charges each person one dubloon to look at one paper. That’s JSTOR, sort of. Along comes Swartz, who says, screw this, breaks in and starts photocopying (in this alternate timeline, photocopying is invented a century early) everything. The pompous guy realizes what happened, so he changes the locks. Swartz, undaunted in his singular mission of liberating information, pretends to be the termite inspector, goes back in and start copying everything again. Finally collared, he gives it back. All of it. He doesn’t keep a single piece of paper, doesn’t make a single dime off it.

That’s essentially what happened here:

The grand jury indictment accuses Swartz of evading MIT’s attempts to kick his laptop off the network while downloading more than four million documents from JSTOR, a not-for-profit company that provides searchable, digitized copies of academic journals. The scraping, which took place from September 2010 to January 2011 via MIT’s network, was invasive enough to bring down JSTOR’s servers on several occasions.

…

The indictment alleges that Swartz, at the time a fellow at Harvard University, intended to distribute the documents on peer-to-peer networks. That did not happen, however, and all the documents have been returned to JSTOR.

JSTOR, the alleged victim in the case, did not refer the case to the feds, according to Heidi McGregor, the company’s vice president of Marketing & Communications, who said the company got the documents, a mixture of both copyrighted and public domain works, back from Swartz and was content with that.

As for whether JSTOR supports the prosecution, McGregor simply said that the company was not commenting on the matter. She noted, however, that JSTOR has a program for academics who want to do big research on the corpus, but usually faculty members ask permission or contact the company after being booted off the network for too much downloading.

“This makes no sense,” said Demand Progress Executive Director David Segalin a statement provided by Swartz to Wired.com before the arrest. “It’s like trying to put someone in jail for allegedly checking too many books out of the library.”

Well, not quite checking too many books out of the library. Because it seems that JSTOR and MIT made it clear to Swartz that he wasn’t supposed to be doing what he was doing and could he please knock it off already? But the Feds think otherwise. Since all the other crimes in the US have stopped occurring, the Feds have decided to turn their sights on that most insidious of the new-age felonies: violating terms of service. You know what? I think I’m violating 3 TOS right now: the aforementioned social media networks. Hang on, there’s a knock on the door. Is it the Feds:

But the feds clearly think they have a substantial hacking case on their hands, even though Swartz used guest accounts to access the network and is not accused of finding a security hole to slip through or using stolen credentials, as hacking is typically defined.

In essence, Swartz is accused of felony hacking for violating MIT and JSTOR’s terms of service. That legal theory has had mixed success — a federal court judge dismissed that argument in the Lori Drew cyberbullying case, but it was later reused with more success in a case brought against ticket scalpers who used automated means to buy tickets faster from Ticketmaster’s computer system.

Ah, Lori Drew. Remember her? She was charged with some trumpeted nonsense because she set up a fake account on My[____] (yes, that’s what it’s called now) and some girl tragically killed herself because of the bullying she was subjected to from that account. While the event was tragic, a crime it was not.

And here we have essentially the same dilemma. Just how do the Feds have jurisdiction? Swartz was in the JSTOR building while he was “hacking”. It’s like me stealing from your house and being indicted for wire fraud because I took this nice vase that your Aunt Maude sent you from her old person’s home in Peoria.

That – at least to me, for now – seems to be the tenuous connection that gives the Federal government the authority to indict Swartz. But I’m not expert and I’m often wrong, so don’t quote me on it.

So what’s really going on here? It seems that they may just have a thing for Swartz:

Swartz is no stranger to the feds being interested in his skills at prodigious downloads. In 2008, the federal court system decided to try out allowing free public access to its court record search system PACER at 17 libraries across the country. Swartz went to the 7th U.S. Circuit Court of Appeals library in Chicago and installed a small PERL script he had written. The code cycled sequentially through case numbers, requesting a new document from PACER every three seconds. In this manner, Swartz got nearly 20 million pages of court documents, which his script uploaded to Amazon’s EC2 cloud computing service.

While the documents are in the public record and free to share, PACER normally charges eight cents a page.

The courts reported him to the FBI, which investigated whether the public records were “exfiltrated.” After in-depth background searches, a luckless stakeout and futile attempts to get Swartz to talk, the FBI dropped the case.

Ohhh. He’s that guy! This should be a fun ride. Strap in…or should I say…log on!

Okay, video time:

From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.

Just how egregious was this violation of the attorney-client privilege? Judge for yourself:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the  defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received  from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge  that the prosecutor had read materials that were subject to the attorney-client privilege.

This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:

The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.

What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :

We must state, however, that we are extremely troubled by the prosecutor’s conduct in this case. Although the privileged documents were not in the form of  letters or e-mails, it could not have been more obvious on the face of a number of the documents that they were intended to be communications to the defendant’s attorney. For example, one of the documents stated near the top of the first page that ‘‘[t]he following material is confidential and I would ask  that you review it. If this is a case you believe you would have success in defending, I would like to schedule [an] appointment to discuss it.’’ Another document was entitled ‘‘Strategy Issues’’ and stated in the first sentence: ‘‘I think that in the short term, especially for the court appearance on June 8, 2004, that our  objective should be threefold . . . .’’ The first two sentences of another document provided: ‘‘We were asked by our original attorney . . . to keep a log of any  events that we thought might pertain to this case. This document is the result . . . .’’

Oh. Well, I’m sure the prosecutor acted as he would have if he hadn’t read them and didn’t alter his strategy at trial as a resu-what’s that?

Indeed, the record strongly suggests that the prosecutor may have revealed the defendant’s trial strategy to witnesses and investigators. In addition,  consciously or unconsciously, the prosecutor’s knowledge of the defendant’s trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record. Again, the record strongly suggests that the prosecutor drew on his knowledge of the privileged communications  when examining the accusing witness in Docket No [XX] to anticipate and thereby neutralize what otherwise might have been a devastating  cross-examination of that witness.

The Court (at least 4 of the 6 members who sat on this panel) is rightly outraged at these actions by the prosecutor. So much so, that the Court creates a new rule: that there is a presumption of prejudice when inherently confidential materials are disclosed to the prosecutor, intentionally or otherwise, and that presumption is rebuttable only by clear and convincing evidence. The Court then places the burden squarely on the trial court to sua sponte conduct an investigation into this violation and fashion an appropriate remedy that would right the wrong.

The Court concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial  strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also  continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion  occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a  miscarriage of justice[.]

You can read the nearly-3-times-as-long dissenting opinion here, which basically argues that the majority is creating a new rule and that the violation wasn’t that bad because we really must assume that a prosecutor who receives these materials, reads them and then alters his trial strategy to counter the defendants did so unintentionally and in good faith and oh, I don’t know. I stopped reading after the 10th page or so.

I think it’s particularly telling that the majority opinion was written by the Chief Justice. CJ Rogers has been on a mission since being appointed chief: a mission to clean up the image of the judiciary and the legal profession. It’s abundantly clear that this isn’t an opinion about criminal law, albeit that is the mechanism for the ruling, but rather about the integrity of the profession, the fairness of the courts and the sanctity of our clearly defined roles and the rules that we must abide by.

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

We’ve all been there: the trial has just concluded, you’ve delivered the closing argument that you spent many nights working on and frankly, you’re exhausted. The judge starts giving the long, boring instructions to the jury – you know what I mean – which they’ll rely on to analyze the evidence and apply it to the law of the land. You tune out, your eyes glaze over, you just want a damn drink.

And in the midst of your reverie, the judge instructs the jury that the defendant has the burden of proof beyond a reasonable doubt to prove his innocence. Since you were preoccupied with visions of a drunken sleep, you didn’t notice. The jury, obviously, convicts, since there was no defense case in chief. You are upset, the client is led away and you go home to curl up in the fetal position and bemoan juries predisposition to convict.

Then your client appeals and the sharp, astute, awake appellate attorney notices the erroneous instruction. Oh no! This was instructional error! The judge gave the jury incorrect instructions! But you didn’t object! And so the error wasn’t preserved! Are we doomed?

Recognizing the problems that would arise with turning a blind eye to this obvious mistake of Constitutional magnitude that impacted the right to due process and a fair trial, the appellate courts in Connecticut issued a decision back in 1989: State v. Golding. The Golding decision created a 4-pronged test to deal with scenarios like these:

1. The record is adequate to review the alleged claim of error;
2. The claim is of constitutional magnitude alleging the violation of a fundamental right;
3. The alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
4. If subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

(note that Golding applied to all errors of constitutional magnitude, not just jury instructions). This test worked – albeit not perfectly – but it worked. Obvious errors that implicated constitutional rights received the appellate review they deserved. But the State, cloaked in its self-righteous veneer of finality over justice, was unhappy. It fought for years to reverse Golding, because dammit any trial is a fair trial. And if your lawyer is asleep at the wheel, or just plain misses something, you must pay for it.

Most defense lawyers weren’t that worried about the Court overturning Golding because, well, how could they? How could they justify punishing a defendant for an obvious Constitutional error? How could they justify depriving a defendant of his/her right to due process and a fair trial?

Blame the lawyer, that’s how. This year, in a trio of cases – State v. Kitchens, State v. Akande and State v. Mungroo – the Connecticut Supreme Court made jaws drop by holding that if a lawyer fails to object to the exact same language of a jury instruction that is later challenged on appeal, the defendant is deemed to have waived the right to appeal that error. Part of the reasoning is that it will be considered a tactic on the part of the lawyer to not object to that erroneous instruction. Like we’re all that smart.

Yes. So under my scenario above, the appellate lawyer cannot argue that the defendant’s right to a fair trial was violated, because the lawyer did not object to the incorrect reasonable doubt instruction. Think of it as that portion of a wedding vow where the officiant looks at the crowd and asks if anyone objects to the union and warns them to speak now or forever hold their peace.

Now, the example I gave is an extreme one – hopefully no matter how asleep you are, you would notice that the defendant doesn’t have to prove a damn thing. But what of other less noticeable errors? What of erroneous instructions that a particular lawyer just wasn’t aware of? But that’s apparently a tactical decision.

The burden this places on the defense lawyer is tremendous – and misplaced. The court has an independent obligation to ensure that the jury is instructed correctly. This removes that obligation on the trial court, which, after all, is in charge of courtroom procedure, evidence and instructions, and places it on the shoulders of the defense lawyer. And what if the lawyer is just plain wrong and incorrectly agrees to the erroneous instruction? How do you make a defendant pay for that lawyer’s mistake? And why must that defendant wait years and years for vindication that may never come? Why has the Supreme Court abrogated its basic function: to ensure that justice is delivered in Connecticut courtrooms and to preserve the Constitutional right to due process and fair trials? The Court seems more interested in arguing that defense lawyers will choose to knowingly ignore Constitutional errors so as to set up appellate claims – something that is highly unethical and detrimental to the client.

I refuse to cite from the majority opinion because it is just so vile. But, in the interest of making this post somewhat productive and instructive, I will cite only this one paragraph that provides some sort of guideline:

We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.

As far as I can see, here’s what we need to do:

1. File a motion with the trial judge for a written copy of the proposed jury instructions prior to the start of jury selection. In fact, demand them. Cite Kitchens over and over again.
2. Make a record every time you ask the Court for the written instructions.
3. Ask for a continuance of at least 48 hours if you receive the instructions during the evidence portion of the trial. Realistically, you need that much time to absorb, understand and critique the instructions.
4. Make a record of what else you have to do in the midst of trial and why you need that time.
5. Demand the time. Make a record and use the words “I will not have had a meaningful opportunity to review the instructions if you do not grant this continuance, Your Honor”.
6. The court will not usually grant you this time; expect that.
7. Share the instructions with other lawyers. Ask them to read them and provide feedback.
8. Start keeping a repository of your own instructions.
9. Always submit your own proposed instructions in writing.
10. Always ask the Court to give your version of the instructions, no matter how closely they track the Court’s.
11. Always object to the Court’s instructions and suggest that the Court give yours instead.
12. Make sure you don’t have something stupid or wrong in your proposed instructions.
13. Make a record that you have not shared your proposed instructions with your client, that he is not trained in the law and he is relying on you to get it right.
14. State on the record that your client is not waiving any right to review of errors contained in the jury instructions.
15. State on the record that you have perused the Court’s proposed instructions to the best of your ability and that there are no errors that you are intentionally not bringing to the Court’s attention.
16. Pray that the Court gets it right.

The State and the courts of this State don’t seem to give a damn about its citizens Constitutional rights. Now, more than ever, we defense lawyers are the only ones that stand between the individual who has all the might of a government thrown against him and a summary, lawless judgment being pronounced. This is not the time to tuck our tails between our legs and scamper off. Fight. Stand up and assert our rights. Your rights. My rights. Because if we don’t, soon, there won’t be any left.

———-

And because every post of this length needs a video, here’s a song about rhymes (language decidedly adult):

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding  it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead.  He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in  the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner  must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable  fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.

Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.

Florida’s capital sentencing statute (see also) permits exactly that:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.

But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.

All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!

This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.

What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.

In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 - heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:

The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.

Perhaps the good judge missed this from footnote 33:

Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.

Don’t even think about asking me what this means for the Casey Anthony trial.

Paul Kennedy, in this post today, writes about a recent Texas trial and the jury’s failure to unanimously agree on a verdict. He references the “reasonable doubt” posts written by both Scott and yours truly last week to ask:

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn’t prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn’t prove beyond all reasonable doubt?

Rephrased, in the words of Judge Gee, writing for the 5th Circuit in US v. Becton, the issue becomes this:

Appellants’ argument-and an appealing one it is-runs that had they been convicted, and had their convictions been reversed on appeal for insufficiency of supporting evidence, they could not have been again put to trial. This is correct. Burks v. United States, 437 U.S. 1 (1978). How then, they assert, can it be that where, as here, the evidence was so entirely insufficient as to produce a hung jury rather than a conviction, a retrial is yet permissible? When the prosecution’s case is on, and the evidence is insufficient, why should a defendant be worse off if the jury hangs than if it improperly convicts? Stated as an abstract proposition, the argument by analogy seems unanswerable.

But answer it they do, in a variety of ways. The most specious being that a hung-jury is “manifest necessity” that permits retrial and does not violate the Double Jeopardy Clause. That a hung jury is not a determination of the insufficiency of the evidence, because jurors may decline to convict for a variety of reasons despite overwhelming evidence.See, e.g., Richardson v. US.

That is a troublesome proposition, which becomes clearer if you look at it another way. The State, with all its might, had the simple task of convincing 6 – just 6 – people of the guilt of an individual beyond a reasonable doubt (yes, whatever that means). How else can their failure to do so be interpreted other than a lack of evidence?

This, unfortunately, is a lost battle. When Supreme Court decisions addressing this issue routinely quote Justice Story (US v. Perez), you know that this is a horse long-dead, never to reanimate.

But what’s to stop legislatures from codifying this principle as law? What if a legislature were to enact a statute that provides that all hung juries shall automatically be treated as acquittals? Clearly legislatures have considered this in one aspect: capital cases. A number of States provide that if a jury hangs in the penalty phase of a capital trial, the judge shall impose a sentence of life without the possibility of release.

Why, then, would legislatures be unable to mandate that if the prosecution cannot convince 6 people beyond a reasonable doubt of the guilt of the accused, then an acquittal must enter and the state is barred from retrying the person?

Would it necessarily run afoul of the “manifest necessity” jurisprudence? That seems, to me, to be an exception to the double jeopardy prohibition. The Constitution permits, but doesn’t require, that retrials occur after a hung jury. Could any court then say that such a statute runs afoul of the DJC?

Or have I gotten hold of the wrong end of the stick all around?

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.  It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt.  It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision.  It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.  Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

This is, of course, the model jury instruction. I request one that’s substantially different and lifted from State v. Jackson, which I’ll get to in a minute. But look at that definition above. The first sentence itself is so meaningless and confusing that I bet everyone who hears it spends the next 5 minutes trying to figure out just what it means and thus misses the exposition. Emphasizing the word “reasonable” simply leads people to say “proof beyond a reeeasonable doubt”, without any further clue as to how that is to inform their decision. Furthermore, what the hell is a reasonable doubt anyway? Chicken, egg, etc.

The real problem, though, comes when we start defining what “reasonable doubt” isn’t. This indoctrination and confusion starts with jury selection. Prosecutors in these parts read from a script and the script has this explanation:

Now, you may have heard of the phrase proof beyond a reasonable doubt. If you’re selected to sit on this jury, the judge will give you the exact definition, so I’m not going to do that. What I can tell you is that proof beyond a reasonable doubt isn’t proof to an absolute certainty or 100% proof. That’s an impossible standard. [Insert joke about packing up bags and going home or setting a 9am tee time.]

Of course, when the juror-of-average-intelligence follows up with the logical question of, well, if it isn’t 100%, then how much is it, we are all too quick to disavow any statistical attachment to reasonable doubt. We can’t put a number on it. You’ll know it when you see it, just like obscenity and chicken sexing. This loosey-goosey definition of reasonable doubt leads to the same pitfalls when applied to criminal law as it does when applied to obscenity. It means different things to different people.

The “not absolute certainty” instruction also, in my opinion, seeks to lessen the state’s burden in a sneaky, roundabout way: the logical conclusion is that a juror will remember that and say to herself or her fellow jurors: look, we don’t have to be absolutely certain. Close enough is good enough. And you can’t really argue with that, because we don’t know what the standard is in the first place. Scott, writing in the post I linked to above, says it better:

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them.  We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them.  It’s not their fault.  Not in the slightest.  It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

And it is precisely this imprecise and vague meaning of reasonable doubt that the State craves. Research into the psychology of jurors has shown that people are predisposed to convicting someone who is on trial, that jurors are more often likely to side with the State and their show of power. It’s an “us vs. them” mentality and this vague definition teases that out and exploits them. Reasonable doubt is replaced with “I think he did it and if I don’t have to be absolutely certain he did, then this feeling is good enough”. No matter how hard you try, it is extremely difficult to overcome this bias in jury selection and argument, because there’s nothing contrary to argue. You can’t stand up there and give them another definition that makes it clear to them just how high the State has to jump to convince them.

Back to Judge Blue, then. In his valiant attempt to bring sanity to and make concrete this most important concept in criminal justice, he penned the following instruction, which is a slight variation of the charge on reasonable doubt recommended by Justice Ginsburg of the Supreme Court of the United States in Victor v. Nebraska, 511 U.S. 1, (1994). It is a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts:

The state has the burden of proving each and every element necessary to constitute . . . the crime charged. And I’ll instruct on those elements later in my charge. The defendant does not have to prove his innocence in any way or present any evidence to disprove the charge against him. The state has the burden of proving the defendant’s guilt beyond a reasonable doubt. Some of you may be aware that in civil cases jurors are told that it’s only necessary to prove that a fact is more likely true than not true. In criminal cases, the state’s proof must be more powerful than that: It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

The irony is that, in State v. Jackson, the defendant appealed, arguing that this instruction diluted the State’s burden. I suspect, however, that it was appealed only so as get the seal of approval from our Supreme Court, which it did.

Is this definition perfect? No, but it is a step in the direction of providing a concrete explanation of standard to which jurors must hold the State. “Firmly convinced” is a phrase that has more meaning than “a real doubt, an honest doubt”. A juror can ask herself: Am I firmly convinced of this man’s guilt? It’s easier to answer than “Do I have reasonable doubt?”

It is, of course, easier for the courts to “let it be”, but I take that as an instruction to judges, not lawyers. We should routinely object to that nonsense definition I first quoted. Read it again. Tell me if any of it makes sense to you. Can the word “reasonable” be used any more times in a single paragraph? Reasonable men and women having reasonable doubts about reasonable hypothesis.

It is reasonable to think that reasonable people will reasonably be confused by this. And it is reasonable to think that it reasonably leads to reasonable men being convicted for lack of reason.

Reason does make cowards of us all.