Category Archives: criminal law principles

A fool’s competition: who can be more ignorant about the Constitution?

Yesterday, I wrote about world-renowned Slate columnist Matthew Yglesias’ nigh-moronic article on the ZImmerman trial suggesting that GZ (that’s what we call him) got lucky because he had high-paid attorneys and perhaps, just only, if he had public defenders, we’d have had “the right outcome”.

You’d think that’d be the extent of the stupidity. But someone mistakenly told Lawrence O’Donnell that it was a competition and so, on his show last night [warning: autoplay] on MSNBC, Lawrence (he goes by @Lawrence on Twitter, so I’ve taken the liberty of calling him that) decided to up the stupid ante and demonstrate that he either has forgotten about, or never heard of that thing called the Fifth Amendment.

most defendants in america are guilty, or at least are found guilty in court.

He opens with this, which is an absolutely critical distinction, but he makes no mention of it from here on out and doesn’t seem to actually understand that distinction. See if you can pick up on his theme.

when a lawyer wants to know how tough your case is, they always ask the same question. can you put your guy on the stand? and everyone understands what no means. no means your guy is guilty, very guilty, and putting him on the stand will prove that guilt beyond a reasonable doubt.

saying you can put your guy on the stand doesn’t mean he’s not guilty. it just means he might be a very good liar.

lawyers know the jury instructions will order the jury to not consider the fact that the defendant didn’t testify, but they know, the lawyers know that in a normal case jurors will hold it against the defendant. they will correctly in most cases interpret the defendant’s silence in the courtroom as an indicator of guilt.

Figured it out yet 1? No? Let’s see if Ken Popehat at Popehat can’t give you a clue. Yesterday, Ken wrote about that OG of imbecilic commentators, Nancy Grace. In a brilliant post, he solved the mystery of her and her seemingly discordant views that didn’t fit into one neat political label:

Nancy Grace’s political bent is quite recognizable to me. She’s not liberal or conservative, and no principled view of gun ownership or race or women’s rights drives her coverage. No, she’s a vigorous statist, at least with respect to criminal justice. Her political viewpoint is perfectly internally consistent. As a statist, purpose of the criminal justice system is to convict and punish to the maximum extent possible people accused by the government. To determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did. That’s why defense attorneys are worthy of contempt: they are, by definition, trying to obstruct justice. That’s why she questions and despises constitutional rights: they are mere impediments to the guilty being punished. (That view, no doubt, fueled her penchant for prosecutorial misconduct.)

As he writes further on, Nancy Grace is but the ugly personification of a viewpoint that has permeated and taken over large swathes of the American consciousness: if you are arrested, you are guilty and if you are guilty, you are, by definition evil and thus deserving of the most severe of punishments and you lose your humanity.

Now, go back and read @Lawrence’s comments again. See the theme? Lawrence makes no allowance for the ideas that: A) there are innocent reasons for not testifying; B) that the burden of proof lies entirely with the State and they must be rigorously held to that burden; C) that someone who is arrested is not guilty of the crimes with which they are charged 2.

He is but of a cloth with Nancy Grace: born of the idea that anyone who is arrested is validly arrested and, to borrow from Ken again, “to determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did.”

This is an extraordinary turn for a nation founded on quite different principles, ones that the Founders were sure to include in our organizational charter. America was not built to be statist. It was built to be skeptical of vast governmental powers and rubber stamps. It was built to protect the individual against the tyranny of the State.

The belief system that @Lawrence exhibits is anathema to the values we hold. I quote, again, my favorite quote:

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. Consider his other comments, which are equally puzzling, if not more so:

lawyers who win controversial cases always tell us we must accept the controversial verdicts. but they’re lying. lawyers appeal jury verdicts themselves all the time specifically because they themselves do not accept verdicts that they don’t like. you do not have a civic duty to accept the wisdom of jury verdicts. the founding fathers didn’t want you to. that’s why they provided for an appeals process.

There is nothing in the law that dictates whether verdicts must be socially accepted, in that people have been – and will always be – free to disagree with verdicts. But that is quite different from defendants appealing guilty verdicts, which is what he seems to imply.

But this reverts back to the unyielding faith that @Lawrence seems to place in the system itself. The system must be correct and has to be correct because to be otherwise is too frightening a concept to comprehend. Ergo, anyone who appeals a verdict does so because he or she “doesn’t like it”. There is no no acknowledgment from him that an appeal may be necessary to vindicate the Constitution, which may have been violated during trial thanks to single-minded people like him who take for granted the purity of the State’s decision to accuse an individual of a crime.

But here’s the troubling part. While Nancy Grace is wholly internally consistent, @Lawrence, in closing, reveals some sensitivity to the plight of the oppressed that is wholly inconsistent with the foregoing.

lawyers are the only white people i actually know who have intensely felt experience with the sadness and anger of justice denied in this country. i’ve actually seen young lawyers cry in court when an unjust verdict is read. if you’ve never experienced it, if you’ve never felt yourself somehow connected to it, then you might be lucky enough not to know how painful and sad justice denied can be.

black americans have known that feeling since the time they arrived on this continent in chains. the first e-mail i got after the verdict on saturday night was from a black american mother of a 2-year-old boy. she sent this picture with just these words — “weeping with rage for my little american.”

Black Americans are routinely victims – just not the victims that @Lawrence is supporting in this diatribe. They’re victims of an overzealous system that incarcerates them at vastly disproportionate rates. They’re the victims of underfunding of defense systems that leaves them vulnerable and exposed to the behemoth that is the Government. They are victims of drug laws that target their minority status and their residential status, unnecessarily tacking on enhancer penalties. They are victims of the biased death penalty, making it more likely that they will be executed. They are victims of race.

But to people like Nancy Grace and @Lawrence, there is no nuance. People are either good or evil. Evil people get arrested and punished and good people are the rest of us. Or is it them?

Does @Lawrence weep for them when they’re victims of the system that he is so invested in? Because when that happens, they’re not called victims. They’re called defendants. And defendants are bad people that no one should weep over.

Oh hai.

Oh hai.

How to kill a man: I’d tell you but then I’d have to kill you

Warren Lee Hill, mentally retarded and thus unqualified for execution, is scheduled to be executed on Saturday. That’s because in Georgia, they just don’t want to believe someone is mentally retarded and can’t be executed, even if an inmate is given the highest (and most likely unconstitutional burden) to prove his own retardation and surpasses that.

In fact, they want to kill him so badly, that they have obtained the lethal injection drugs from an unnamed pharmacy and made that pharmacy’s identity a confidential state secret.

But that’s not all. It’s such an important state secret that the statute forbids its disclosure even under process of law. Which means that pursuant to that Georgia statute, even a court cannot force the executive to reveal the name of the pharmacy.

Stunning. The first thing I thought of when I read this was Marbury v. Madison, that most seminal of seminal cases that established the authority of the judiciary as an independent and equal branch of government: the watcher of the legislators and the arbiter of the Constitutionality of the laws.

Since then, I don’t think I have ever seen such a shocking end-run around the power of the judiciary and a denial of due process. (Except, well, you know.)

Think about this. The State wants to kill a man and they are so desperate to do it that they will make the method of that execution a state secret so one can question them about it or challenge that procedure.

And challenge they should, because the lethal injection procedure is cruel. This isn’t the first time Georgia has pulled this shit. In 2011, they illegally obtained drugs from London and were shut down when the DEA raided their drug supply. The drugs they got weren’t FDA approved and were tainted. The following are three examples, taken from Hill’s lawsuit (embedded below), which will be heard on Thursday:

Both executions that used this supply of illegally imported, compromised drugs resulted in significant pain and suffering for the individuals executed. In Brandon Rhodes’ case, his eyes remained open for the entirety of his execution,indicating that the illegally imported sodium thiopenthal used in his execution was sub-potent, leading to an “agonizing” execution for Mr. Rhode. In the case of Emmanuel Hammond, Mr. Hammond’s eyes also remained open, and appeared to be trying to communicate throughout during the first part of his execution.

In the summer of 2011, Georgia switched its protocol from a three-drug protocol using sodium thiopenthal as the first drug in that protocol to a three-drug protocol utilizing pentobarbital as the first drug in the injection cocktail. The first execution to take place with this protocol was widely reported by objective, third-party sources to have caused tremendous suffering for Mr. Blankenship, the person executed. The media reports of Mr. Blankenship’s execution note that he grimaced, appeared to gasp for air, convulsed, and like Mr.Hammond and Mr. Rhode, remained with his eyes open.

Among the pro-death penalty jurisprudence, this is one area that exhibits some humanity: we will execute people, but we will execute them humanely. So the Supreme Court said in Baze v. Rees that a lethal injection protocol can be cruel and unusual punishment. There have been challenges to the drug protocols of various states and anti-death penalty activists have pressured drug companies into not providing the lethal cocktail.

And so, afraid of not having a legal source of FDA approved drugs, the Georgia DOC turned to its legislature to suddenly making the whole thing secret and unreviewable. So the man who is to be put to use using this magic concoction has no way of knowing if the drugs are safe or if they’re going to make him convulse in agonizing pain while he may or may not die.

It’s one thing for a state to have state secrets, but as Hill’s brief points out, they all have de-classification clauses, i.e., a mechanism to make the information available to the public and the courts under the right circumstances.

Not this one:

(1) As used in this subsection, the term ‘identifying information’ means any records or information that reveals a name, residential or  business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.

(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures,supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence  shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.

The press cannot get this pursuant to a Freedom of Information request and no court in Georgia or the United States can order it be revealed. If they can do it for a lethal injection protocol today, what’s next? Maybe they make the process whereby the decision to seek the death penalty is made a state secret. Why stop there? Search warrants become a state secret. Confidential witnesses are state secrets. If you see something, say something and we won’t tell anyone that you told. Do you have a chill running down your spine yet?

If they’re that desperate to keep something secret, doesn’t it make you wonder what they’re hiding? And do you have any trust left in Government? How do you know there isn’t a secret law gunning for you? How could you?

This isn’t even taking into account the madness of executing him despite his mental retardation and the absurd standard imposed by Georgia in the wake of Atkins v. Virginia and SCOTUS’ failure to act on his petition that’s pending before it.

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

We need to talk: the fourth, the Fourth and an unrecognizable land

This is a Fourth of July post, for which it is a bit too late, and this is a Fourth Amendment post, for which it is far too late.

Let me ask you: what sort of a government do you want? No. Scratch that. More basic. What sort of society do you want? Do you want a society where there are rules and laws and everyone, including you, has to abide by them? Of course. Do you want a society in which people are punished for transgressions of those laws? Most would say yes.

Well, who is to decide whether a person has broken that law? We have opted for the public prosecution system, where an appointed or selected individual or individuals take on the function of representing the interests of our collective society. it’s a fair system; designed in some part perhaps to minimize the possibility of individual vendettas.

But that system would perform that minimization role only if the agents of the collective were to exercise their individual authority and judgment in the pursuit of what is right and what is wrong and not just the chase of convictions – but that’s a story perhaps best left for another day.

So having established this system; having vested these enormous powers in our fellow citizens, do we wish to impose any checks on them? Do you have faith that these people perform their jobs in an admirable and honest manner? If so, why? Do you personally check on their performance? Is it measured to any standard for you? Or have you given then unfettered powers – carte blanche, so to speak. “If you do it in the name of Justice; your powers are limitless.”

Certainly, even the most Law & Order amongst you would argue that we can take a hands off approach to the daily machinery of the Justice system precisely because we have these rules in place: rules that not only govern our individual conduct in relation to one another – penal laws, for instance – but also how the Government must behave before it is allowed to take away one’s Liberty – that other ideal worthy of a capital letter.

So there is an interplay, most would agree, between Justice and Liberty. And most of you would point to those rules, those Constitutional technicalities as ensuring that the system is worthy of your continuing faith and disregard. We have the best Constitution in the world, and the best system in the world, ergo, everything must be operating as it should.

So would you like the Government to be able to enter your home, just to look around? What if the police officer you passed on the road flagged you over and wanted to look inside your car, just because? Certainly, most Red Blooded Americans would have a strong visceral reaction to that. Why? Perhaps because it’s enshrined in our Constitution. The Founders had the good sense to include, in very strong language, such a prohibition:

“One of the most potent grievances that led the colonists to declare independence 237 years ago was the practice of British officials conducting door-to-door, person-to-person ‘general’ searches,” IU Maurer School of Law Distinguished Professor Fred H. Cate said.

Because they knew and  because they suffered. Because those who have the power, have power over us that don’t. Can you physically resist an armed officer entering your house to search because he feels like it? No, of course not. What stops them? The need for a warrant.

Why? Because we have these rules. The rules that say:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“The People”. That’s you. And your mother and your sister and your babysitter and your neighbor down the street and your boss. And me.

It is a right that you and I have. To be secure from warrantless searches and seizures. And the warrants must be particular.

Because we don’t want witchhunts. We don’t want blanket searches of anyone who we decide is undesirable.

But apparently we’ve forgotten the lessons of the past. We’ve forgotten that this Government – any Government – has the tendency to oppress those who are not like them. We have forgotten that at one time, a large percentage of the human beings in this country weren’t considered human. We’ve forgotten that until very recently our very same federal government didn’t recognize the rights of our brothers and sisters to marry whom they wanted. We’ve forgotten that in the last century, it was illegal and punishable by jail. We’ve forgotten that the world went to war to prevent the persecution and oppression of the “other”.

We’ve forgotten that parts of the world, until recently, lived under a surveillance state. States that we, the United States, sought to end. States that had far less surveillance powers than we now do:

East Germany’s Stasi has long been considered the standard of police state surveillance during the Cold War years, a monitoring regime so vile and so intrusive that agents even noted when their subjects were overheard engaging in sexual intercourse.

Even Schmidt, 73, who headed one of the more infamous departments in the infamous Stasi, called himself appalled. The dark side to gathering such a broad, seemingly untargeted, amount of information is obvious, he said.  “It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”


The reaction to Snowden is saddening. People are lining up to freely hand over their information to the Government. Is it because we’re desensitized? Or because we truly don’t understand that this cocoon of protection you think you have around you, this “other-ness” (I’m not those people, i.e. a criminal) is tenuous at best and imaginary at worst.

Ask yourself this: if PRISM is so useful, then why limit its use to “terrorism”? Make a difference to you now? What if your “metadata” is used to track what time you leave home, where you go, what time you come home and where you stopped for how long. What if it’s used to track your purchases online or your downloading of the latest single from a less than legitimate site? What if it’s used to figure out that you smoke marijuana recreationally? What if it’s used to monitor your speeds on national highways and send you tickets in the mail automatically? Where will it end?

Have you given the Government permission to do any of this? Would you? How quickly do you foresee yourself going from average citizen to criminal. And you know what happens to criminals, right? You’ve carried the pitchforks yourself.

The measure of a society is in how it treats its most vulnerable.

What does that mean. Have you ever thought about it? Today, you are in the majority and the majority cares about its rights. What happens tomorrow, when you are no longer in the majority and now your interests and rights are different than those in power? Will you acquiesce as easily as those you imposed yourself on?

Who will stand up for you? Why would anyone?

Compare and contrast this quote of Thomas Jefferson:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

with this from Dianne Feinstein, doyen of intelligence in the Senate:

“I feel I have an obligation to do everything I can to keep this country safe,” Feinstein told The New York Times. “So put that in your pipe and smoke it.”

Eloquent and telling. She’s telling you that she doesn’t care about your rights. That she has made the decision for you, that your Safety (another capital letter word) is more important than your Liberty.

And then, when that National Safety Threat doesn’t materialize – or it does but the intelligence is useless – and the Government is sitting on mountains of data about you, what makes you think it won’t go looking, just to see what’s there, because maybe, just maybe, the definition of “terrorism” isn’t what it used to be:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

And by turning a blind eye, by not caring, you’re giving up the right to ever be invited to the table to discuss this. Your rights and protections are now in the hands of secret courts.

Quis custodiet ipsos custodes?

Who will guard the guards? You didn’t use to be like this. This was a country that cared, before “soft on crime” ruined our youth, our cities and our wallets.

Remember, too, the fight against the death penalty, and the days when the left was on the front lines to join most of the civilized world by doing away with it. Justices William Brennan and Thurgood Marshall and ultimately Harry Blackmun and John Paul Stevens, judicial heroes of the left, eventually refused even to consider the legal arguments in individual cases because time had proved again and irrefutably that the “machinery of death” could not be, and was not, administered justly. Can anyone credibly claim that this machinery is more just today? It is not. DNA exonerations in the triple digits should make us worry deeply about executing innocent people. And most defendants singled out for the death penalty don’t get the high-quality lawyers they need. But then came Willie Horton, and victims insisting they had rights too, and suddenly being for the rights of the accused and against capital punishment could get you labeled weak on crime, and that was political suicide.

I am reminded at this time of another quote, one that you may be familiar with:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”

A land for the downtrodden, for the oppressed, of second chances. A land unrecognizable today. Might as well replace that inscription with the more terse and apt: “I got mine, you can just fuck right off.”

Silence as guilt and the silent death of the Fifth Amendment

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.


33 years in jail is a technicality

People always complain that “criminals” “get off” because of “technicalities”. It’s a great jab and like the best of them, it’s short, it’s catchy and it’s completely ass-backwards.

So in order to counter this, a cottage industry of sorts has sprung up, utilizing the phrase “The Constitution is Not a Technicality”. You can buy stickers and t-shirts and notepads and whatnot.

Because it really isn’t a technicality. What people mean when they say “he got off on a technicality” is that there was a rule of law that mandated a reversal. It means that there was an error made that undermined the fairness of the trial. It means that the Government did something it wasn’t supposed to and was punished for it.

Because if you really want to talk technicalities, you’d have to look in the opposite direction. Technicalities are what the Judicial Branch relies on to ignore constitutional violations. Technicalities are the tools of unjust verdicts and ways to keep Very Bad People in jail. Technicalities are what get people in jail, rather than out.

Just ask Jerry Hartfield. Hartfield was convicted in the late 1970s for a murder. Sometime in 1983, Texas’ highest court reversed that conviction and ordered a new trial. When that happens, a man is returned to pre-trial status. Like he’s innocent. Except that sometime in 1983, after he was no longer convicted of anything, the Governor of Texas reduced his “sentence” to life rather than death. A sentence that didn’t exist, you remember.

So, there he sat, Jerry Hartfield, for 33 long years, without a conviction or a trial or a charge or a sentence, until someone, somewhere realized the error [PDF opinion]. The technicality that caused him to spent 3 decades in jail.

Just ask Taylor and Gould (well, one of them is now dead, so ask the other), whose convictions were finally reversed by a trial court because they were actually innocent, only for that to be turned right back around by the Supreme Court, because it is not enough to prove that you are innocent, but you must also prove who did it. This is not a joke. That legal standard could be called a technicality. Technically you are innocent, but you haven’t met our impossibly high standard. So sit in jail and die in jail.

As any criminal defense lawyer here in CT or any appellate lawyer or anyone who does federal habeas practice.

Courts here at least have increasingly taken the tact of refusing to remedy Constitutional violations because a magic script wasn’t uttered.

You’re on trial for your life. The judge instructs the jury completely incorrectly on the law. You get convicted. On appeal, the courts says “yes, that was a terrible instruction. Yes that probably led the jury to convict you. But you know what? You’re fucked. We aren’t going to review this claim and we aren’t going to correct this Constitutional violation because your lawyer didn’t exactly object to this instruction being given in the manner that it was given.” This is not a joke.

Constitutional violations in Connecticut are falling by the wayside, unreviewed, ignored and forgotten because the Courts have created an impossible standard for defense attorneys. If we don’t object, in the heat of the battle, to the exact wording of the language that the jury is instructed on, or if we don’t object in the correct way, then the Court elevates form over substances and ignores the claims.

That’s a technicality.

In a recent, similarly mind-boggling opinion, the Connecticut Supreme Court once again refused to decide a claim of a Constitutional violation because the defense attorney didn’t object in the specific manner raised on appeal. In State v. Jorge P. [PDF], the issue was the testimony of an expert witness who would testify as to the injuries suffered by the complainant. Before that testimony, the defense attorney asked for a ruling precluding the witness from opining on the truthfulness of the allegations. The judge delayed that ruling until the witness actually testified. The defense attorney then renewed that objection later on. The prosecutor assured the court that the witness would do no such thing.

Of course, the witness did exactly that, stating in his medical opinion that the victim was indeed, abused.

Do you think that claim should be reviewed on appeal? That a court should decide whether that testimony was properly admitted?

You would think. The Connecticut Supreme Court didn’t think so. There used to be a rule of law, that once you objected to something, you didn’t have to keep objecting over and over. You “took an exception” and that was that for appeal purposes. Now, apparently, in their bid to made it monumentally difficult for any citizen of this state to obtain fair review of Constitutional violations, the Court has resorted to nitpicking on the most menial and mean kind.

It’s a technicality. Because a Constitutional violation is a Constitutional violation regardless of whether it’s been “preserved” in the right way or not.

But when you turn the criminal justice system into a game of “gotcha”, and you have the power to keep changing the rules at will, well, then, is it no surprise that we always lose?

Van Poyck: FL’s bizarre death penalty farce continues

Van Poyck, the poster child for the batshit insane death penalty doings in Florida is one step closer to a June 12 execution, armed with attorneys that don’t know or have time for his case. Last time we checked in, lawyers had filed an emergency appeal with the Florida Supreme Court on Friday, May 17, arguing that they had neither the time, nor the knowledge, nor the expertise to represent Van Poyck in this expedited timeframe. The Florida Supreme Court was expected to rule late Friday.

It didn’t. It waited all weekend to rule late Monday. In what the Palm Beach Post calls “a deeply divided” ruling, the Court said – 4-3 naturally – that the execution would remain on track, although the deadlines for various filings were extended by a day here or there. The majority wrote a two page opinion stating:

“We deny the request for a stay of Mr. Van Poyck’s execution,” Justices Ricky Polston, R. Fred Lewis, Charles Canady and Jorge Labarga wrote in a terse two-page ruling. “Noticeably absent from these recent (court) filings is any substantive reason for granting a stay.”

I’ll give you a substantive reason: the Fifth and Sixth Amendments. But in their bloodlust and desire for finality, due process and the right to counsel are mere obstacles on what must be an ever shortening path.

This obsession with finality and speedy finality has always troubled me. Especially in cases where the sentence is irreversible, like death. It is often said by those with the taste of blood in their mouth that delay is a tactic used by the defense and every day the client spends alive is a victory. I found that argument most curious: for one, I’d rather be on the side that regards the extension of another individual’s life for even a day as a good thing and second, I’d rather be on the side that ensures that we proceed cautiously, carefully and certainly.

In an apparent effort to accommodate the three attorneys, the high court extended the deadlines of when they must file various appeals.

Instead of this Wednesday, Burton has until May 29 to rule on whatever motions are filed. Possible oral arguments before the Florida Supreme Court are scheduled for June 6 instead of June 5. That would leave a week to launch appeals in federal court in hopes of stopping what would be the first execution for a Palm Beach County murder in 21 years.

The justices, however, said they didn’t want to hear from any outsiders. They rejected requests from the 1,700-member Florida Association of Criminal Defense Lawyers and Sandy D’Alemberte to weigh in. On Friday, both the association and D’Alemberte, a former state lawmaker and past president and law school dean of Florida State University, said they wanted to explain problems with the death penalty process that has led to confusion in Van Poyck’s case.

What does it say when an institution (or perhaps institutions if you add Congress) that is designed to serve the people – all people – acts with such hubris and disdain for the voices of those very people? Have our laws become the playground of the present whims of 5 or 7 or 9?

What’s even more puzzling is that the defense attorneys, two of whom have never handled a death penalty appeal before and one who doesn’t know this client from a hole in the wall, asked for merely a 30 day extension. 30 days to ensure that Constitutional representation was provided. And apparently that’s too much. I guess once you have a taste for killing, it’s hard to let go. Isn’t that what they say about defendants? The only difference is that one murder is state sponsored and the other isn’t.