Category Archives: criminal law principles

Free after 17 years

Late yesterday afternoon, 4 men walked out of the New Haven, CT criminal courthouse, free men for the first time in 17 years. Earlier in the day, they got to stand in court and hear the judge say that all charges against them were dismissed.

17 years ago, Sean Adams, Darcus Henry, Carlos Ashe and Johnny Johnson were charged with, tried and convicted of the murder of one Jason Smith and the shooting of Andre Clark. They all were sentenced to prison terms of over 75 years.

The main evidence against them at trial was the testimony of Andre Clark. Andre Clark, however, was himself the defendant in several other criminal charges. Prior to the Adams’ trial (I’m going to use Adams as shorthand for all the rest), Clark had pled guilty in that same New Haven courthouse and instead of facing 35-38 years in jail, had entered into an agreement that would cap his sentence at 4 years, with a right to argue for less in exchange for his testimony against Adams.

Clark testified against Adams. Under intense cross-examination, Clark denied that he had pled guilty, or had any deal with the prosecutor or had any expectation of leniency in exchange for testifying. In other words, he flat out lied. No prosecutor uttered a word to correct him.

It’s not like even with Clark, the State’s case was strong. From the Supreme Court opinion reversing their convictions [PDF]:

Finally, the fact that the evidence against the petitioner was hardly overwhelming is borne out by the  apparent difficulty that the jury had in deciding the case. The jury deliberated for ten days before reaching a verdict on the petitioner’s charges. Moreover, the jury could not reach a unanimous verdict on any of the charges against two of the petitioner’s three codefendants, resulting in a mistrial as to them, and before reaching its guilty verdicts as to the petitioner and Henry, the jury requested that the testimony of Ogman, Andre, and Charles Clark be read back. Although not necessarily dispositive of the issue of the strength of  the state’s evidence, the foregoing considerations support the conclusion that the jury viewed the case as a  relatively close one.

Prosecutors have an independent an affirmative duty under Brady v. Maryland to disclose biases that witnesses might have if it could lead to their impeachment on the witness stand. A plea agreement for a significantly favorable sentence in exchange for testimony in another trial certainly qualifies as such. If there was any doubt that he received favorable treatment, it was dispelled at his own sentencing:

Although the court originally set sentencing for February 19, 1999, Andre was  not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December  14, 1996 shooting, including the petitioner’s trial.At  Andre’s sentencing hearing, [the prosecutor] recommended that the court vacate Andre’s pleas on two of the charges  and impose an unconditional discharge on the third charge. In support of this request, [he] observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. . . . He’s been enormously cooperative.’’

But here, there were two prosecutors: one prosecuting Adams and one prosecuting Clark. They set up a sort of “firewall” between themselves, agreeing not to talk to each other about the other’s case. So when Clark testified at Adams’ trial that he had no agreement, that prosecutor didn’t actually know if that was untrue.

But that’s not good enough, said the Supreme Court – and the State agreed on appeal:

Of course, as the respondent now concedes, the state certainly did have a duty to disclose  Andre’s plea agreement, no less than it had a duty to correct Andre’s false testimony denying its existence, because the prospect of a lenient sentence gave Andre an incentive to curry favor with the state and the sentencing judge, an incentive that the petitioner and his codefendants were entitled to explore on cross-examination. See, e.g., State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010) (‘‘[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence’’ [internal quotation marks  omitted]); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir. 1980)  (‘‘[u]nquestionably, agreements . . . to reward testimony by consideration create an incentive on the witness’ part to testify favorably to the [s]tate  and the existence of such an understanding is important for purposes of  impeachment’’)

Having found that there was a Constitutional violation and that the evidence was material to the trial, the Supreme Court had no choice but to vacate the convictions and return the matters to the trial court.

And that’s where we started, as did Adams and his co-defendants. And now they’re back. To start a new life; maybe a different life.

“I’m overcome with joy,” said Johnson’s mom, Gloria, after hugging her son.

“Justice finally prevailed,” declared Adams. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.” He held onto his daughter as he moved through the crowd. “Finally, I get to be with her,” he said. “She was born while I was in jail.”

Darcus Henry has two 14-year-old sons, both of whose lives he’s missed out on.  “I feel like justice is served,” said Henry as he hugged Darcus, Jr.

Alaska bans plea bargaining

Well, it’s happened. Glenn Reynolds and Michelle Alexander are going to get their wish. Alaska – for the second time in the last 35 years – has banned plea bargaining.

Straight up. No deals. No agreements on sentencing. Done, with the swift stroke of the pen of their Department of Law 1. Prosecutors can negotiate charges, but in any case that is a sexual felony or involves domestic violence, they no longer have to discretion to agree upon a sentence in advance.

Essentially, they’re going to charge – or overcharge – and leave the sentencing up to the judge. Welcome to a world of “open pleas” 2.

How does this come about? As with all “great” ideas, it comes about with a horrific rape and murder by a guy who got out of jail earlier than he should have.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple — Touch Chea and Sorn Sreap — in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman.  Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

Well, I mean, if you put it that way. And so:

A new policy from the state Department of Law, effective immediately, instructs state prosecutors to stop negotiating sentencing terms in plea bargains for crimes like homicide, sexual assault, and other major felonies.

I have entirely mixed feelings about this. On one hand, I want to see if this experiment will work. On the other, I’m petrified that there are many people in Alaska who’re about to get fucked.

The system works as it currently does because there has to be a balance. While the defendant can always dangle the threat of trial, it’s usually a hollow one, because the potential for punishment after a guilty verdict – and it’s almost always a guilty verdict – is tremendous. You can bluff only up to a point. Pleas are entered to avoid that excessive punishment and to cut a bargain, essentially.

So what was the problem in Alaska?

Judges can now decide what sentence is fitting during hearings that make more information available to them: victim and witness statements, police reports and other information previously not known to the court.  While judges could always request the information and reject plea deals, Niesje Steinkruger — a retired Superior Court judge from Fairbanks — says that it rarely happened under the old rules.

She describes the absence of information previously presented to judges as troubling.  “When a plea is taken, usually all the judge has in front of her is a pretty thin file that only has the charging document, the complaint or the indictment,” Steinkruger said. “Judges do not have police reports. Judges do not have information from the victim, unless the victim has written a letter or is in the courtroom and provides information to the judge.”

Still not seeing it. What do defense lawyers say?

James Christie, an Anchorage defense lawyer, says the changes are beneficial even for lawyers who are intent on minimizing time served by clients. Christie says he supports the change because it puts an unbiased mediator in charge of decision-making, instead of biased defense lawyers and prosecutors.  “I would much rather have sentencing narrowly tailored in each individual case by an impartial judge than I would have the conditions crafted by somebody who has a dog in the fight, which typically are the prosecutors,” Christie said.

Let’s keep in mind that the prosecutors’ office has revoked the policy of plea bargaining. They’re not revoking it because their prosecutors were too harsh and they felt bad for defendants. it’s probably being revoked because it was too lenient and some guy got out and killed someone and they don’t want to be blamed ever again. This is not a policy change designed to benefit defendants. If it were, it wouldn’t be implemented.

So, you think you’re going to do better with judges? Judges who are almost certainly former prosecutors? Judges who’ve been watching his policy change and thinking oh, now you want us to put our necks on the line?

Defendants typically get higher sentences after “open pleas”. If it weren’t the case, wouldn’t that be the prevalent method of resolution of cases?

When you’re negotiating a plea – at least here in CT, for serious cases – the judge is almost always involved. In order to maintain a semblance of credibility, the prosecutor needs to make a “reasonable” offer: one that isn’t too far outside the norm of sentences for similar crimes and defendants. The judge “mediates” or negotiates and usually isn’t too far from either number.

With an open plea, however, the prosecutor is free to ask for the maximum in each case. And why wouldn’t they? it’s open season. And when faced with the choice of two recommendations: the harshest sentence from the prosecutor and the most lenient from the defendant, where do you think the judge will end up?

Almost everyone quoted in the news reports acknowledges that this change will place a greater burden on the resources of the judicial system in Alaska. So, in a time when the defenders of the accused are already overburdened and overworked, and indigent defense systems are crumbling and the injustices in the criminal system are racking up and sprouting up under the spotlight, Alaska has found the one remaining way to make it even harder for defendants to get individualized justice. You think having to hold a sentencing hearing in every single serious felony case is going to free up time for defenders to work on more cases?

If none of this convinces you, let’s go back to the last time Alaska tried this. It banned plea bargaining in 1975, before the ban eroded and plea bargaining was back in use by 1990. But in 1978, the ban was called “successful”. What do you mean by successful? I’m glad you asked:

[…] the length of prison terms for violent crimes had increased 50 percent; terms for felony sentences rose 200 percent for white-collar crimes and 300 percent for drug violations.

Oh. I see. Success means more people getting fucked and put in jail. You can’t rely on an “unbiased mediator” when the system within which the mediator operates is rigged against the defendant. Such faith presumes that the system is inherently fair. Anyone who has spent a minute observing the system can attest to the falsity of that presumption.

There seem to be some legitimate problems with the way criminal cases are handled in Alaska. Eliminating plea bargaining will only add another.

 

  1. Yes. It exists. Yes, they call it that.
  2. An open plea is where the defendant pleads guilty to a crime with no agreement or recommendation as to a sentence and leaves the sentence up to the judge. No one in their right mind agrees to open pleas.

In these times

It is good to recall, from time to time:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.

How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Irwin v. Dowd, Justice Frankfurter, concurring.

An acquittal unlike any other

Just when you think you’ve heard it all with regards to George Zimmerman 1, you’re accosted by this…article…claiming to have uncovered stunning jury tampering in the trial. But you already know, without even reading the article, that that’s just bullshit.

I’ll leave the debunking in depth to the Windypundit, but the gist is that the jurors in the Zimmerman trial did not, in fact, look anything like the 12 Angry Men and were permitted, for two hours on the weekends, to have contact with their families, ergo there was tampering and the verdict is illegal or something.

But hidden in that catastrophe of an “expose” is the far more curiouser point. The author seems to be adamant – in the comments – that:

actually, yes, you can declare a mistrial after the verdict in cases where jury tampering is found. Florida has multiple cases of it on record and validated all the way up to the SCOTUS.

When pressed, he asserts that:

Actually yes, it can. In cases of jury tampering, the entire verdict can be thrown out and the whole case retried, per the laws of the state of Florida.

and

I checked the books, Florida has a statute of up to three years for such a mistrial declaration.

Of course, there’s no cite to any of this, nor is there a clarification of what “verdict” entails. Here’s a hint if you can’t wait for literally the next sentence: verdict means guilty verdict, because it is a violation of the Fifth Amendment to retry someone after an acquittal.

Nathaniel Downes, meet Justice Brennan:

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 (1896).

And Justice Day:

As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. United States v. Sanges, 144 U.S. 310.

There is, of course, no provision or allowance for the declaration of a mistrial after a jury’s acquittal of a defendant because of a discovery of “juror misconduct” which is nothing more than jurors acting like human beings and talking to their families.

Except.

Except that there’s Harry Aleman 2. Harry Aleman is now serving a sentence of 100-300 years in jail, after being tried and convicted of murder in the late 1990s. Harry Aleman is the subject of a very unusual ruling. You see, in May 1977, Harry Aleman was acquitted of that same murder.

And so arises the one strange instance in the last 50 years 3 where someone was successfully re-prosecuted after a prior acquittal. But to underscore how unusual and bizarre this is, the reasoning for permitting this reprosecution was that he bribed the judge to acquit him in 1977.

Yep. Straight up bribery of Judge Frank Wilson – $7,500 worth – to acquit Aleman of the charge of murder. Eventually, someone got wind of it, started a new prosecution and Aleman argued that it was prohibited by the Double Jeopardy Clause.

In what can only be described as an outcome-oriented decision, the Seventh Circuit Court of Appeals affirmed the re-prosecution, deftly arguing that since the judge was bribed, Aleman was never “in jeopardy” of conviction and thus, the Clause didn’t apply. Get it? He wasn’t in jeopardy.

The legal conclusion urged by Aleman might not be an unreasonable application of Supreme Court precedent,[6] but the highly deferential standard of collateral review leads us to hold that the contrary interpretation —the one adopted by the Illinois courts in this case — is also not unreasonable. The Illinois courts viewed the authority cited by Aleman as begging the question; the Double Jeopardy Clause may well be absolute when it applies, see Burks, 437 U.S. at 11 n. 6, 98 S.Ct. at 2147 n. 6, but determining if it applies is the real issue in this case.

Similarly, the State argues that the protections of the Double Jeopardy Clause only extend to a defendant who was once before in jeopardy of conviction on a particular criminal charge; the State contends that, by bribing Judge Wilson, Aleman created a situation in which he was never in jeopardy at his first trial. The first trial, therefore, was a sham and the acquittal there rendered has no effect for double jeopardy purposes. Under this theory, the State was free to re-indict him because he has never been in jeopardy of conviction on the Logan murder charge.

SCOTUS held its nose while denying certiorari and the rest is history, relegated to the stacks never to be cited again. Literally. No one has cited that case for that proposition in the last 16 years 4.

That’s because, as this law review article willed into existence solely by the Aleman case argues, the downsides of carving out such an exception are tremendous 5. The purpose of the Double Jeopardy Clause is that the Government gets only one opportunity to bring its might and power to bear on the individual and if the Government is unable to use that opportunity to convince 6 or 12 people that the weight of its evidence proves guilt, then they are not deserving of a second chance.

If we are to permit States to continually re-try people until they get a favorable verdict, then defendants will forever live in fear of prosecution and the burden will be too great to bear. While the State may have (comparatively) unlimited resources, no individual would be able to match it and would necessarily eventually succumb to pressure and either admit guilt or be unable to defend himself. Who is to determine that the acquittal was obtained in an illegal way? What is the standard of proof? What is to stop vindictive prosecutors from asserting, time after time, that the acquittals were products of tampering or other illegality and thus keeping the individual forever under the unyielding microscope that is the State’s attention? Convictions would be the product of tyranny and coercion rather than an adversarial testing of the evidence.

Certainly, arguing that the principles that we hold so dear should be ignored and altered because of one unfavorable and undesirable result creates a situation that undermines those rights for all of us.

  1. Yes, he apparently did help rescue a family of 4 from an overturned vehicle.
  2. Hat Tip to Windypundit for this as well.
  3. That I could find.
  4. But see this case from the First Circuit which is tangentially but not really related.
  5. Even this other law review article, also spurred into existence by the Aleman case, which seems to reach the opposite conclusion, carves out an exception only in cases of judicial misconduct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. But see this recent opinion (PDF) from the Supreme Court mandating a new trial where prosecutors deliberately did not share information between each other regarding a witness’ consideration in exchange for testifying.
  2. State v. Williams, 204 Conn. 523 (1987).

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.


  1. For a more detailed take-down of Lawrence’s ignorance of the Fifth Amendment, see this post by fellow PD blogger NFT.
  2. Although he does pay lip service to the lawyer who has to defend the “innocent” client, but as we are all aware, there is a significant distinction between the innocent and the not guilty, and this distinction is not merely one of semantics.

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.