Category Archives: criminal law principles

In Georgia, public means private

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Georgia: the land of misfit idiots and backward logic and a seemingly endless stream of opposite days. Georgia: a State whose official fruit is sweet to the taste but rotten to the core. Georgia: the only State to get its own category on this blog. Georgia: the State where public courtrooms apparently mean private courtrooms. At least in Massachusetts they don’t intentionally close courtrooms to the public.

Ben Hill and Crisp County operate Law Enforcement Centers [hereinafter “LECs”]. LECs contain each county’s jail and a courtroom to hold Superior Court criminal and juvenile delinquency proceedings. Pretrial detainees in the LEC jails appear in the LEC courtrooms for pretrial hearings, which include bond hearings, arraignments, calendar calls, and other criminal matters. Because many of the LEC pretrial detainees plead guilty and are sentenced at the LECs, the LEC courtrooms are often the only courtrooms they see.

Relatively speaking, the LEC courtrooms are not large. The Ben Hill County LEC courtroom has about thirty seats. The court reserves four to six seats for criminal defendants who appear before the court. A partition separates those seats from the remaining twenty-four seats. The Crisp County LEC courtroom has about twenty-five seats. Sheriff deputies place pretrial detainees in two rows of those seats, which apparently leaves about five seats available to the public.

Putting aside the problem I have with having defendants plead guilty on their dates of arraignment for a moment, this isn’t an issue of space. And even if it were, so what?

Family members and regular members of the public were apparently routinely denied access to the courtroom, despite a similar 2003 lawsuit that was dismissed because these very counties promised not to obstruct public access. And this is why consent decrees are useless.

When she arrived, a sheriff’s deputy told her she could not enter the courtroom until the judge called her grandson’s case. Ultimately, the deputy never allowed Hall to enter any of her grandson’s hearings, despite available seating.

Likewise, Plaintiff Beverly Fuqua tried, on three occasions in early 2012, to attend her son’s court appearances at the Ben Hill County LEC. Each time, the bailiff prevented her entry because her son did not plead guilty. She was not allowed to see any hearings.

On March 15, 2011, Plaintiff Joy Scales and her sister drove two and a half hours to see her nephew’s arraignment at the Crisp County LEC. After waiting in the lobby for several hours, she was prevented from watching her nephew’s hearing because he did not enter a guilty plea.

And on and on. The Counties argued that there was no formal “closure” of the courtroom and so the First Amendment was not implicated. In other words, that a court has to order the courtroom closed in order to trigger Constitutional protections. As we know from the discussion of the relevant caselaw in the Mass. post above, that’s not true. In dispensing with the Counties’ motion to dismiss, Judge Sands of the United States District Court for the Middle District of Georgia made it clear [PDF]:

It is no answer to say that there were space limitations and Defendants could not accommodate everyone. This is a motion to dismiss, so the Court takes Plaintiffs allegations as true. The complaint shows that the court and bailiffs required every member of the public to identify himself or herself and only family members were allowed in, for sole purpose of briefly watching their relatives’ guilty pleas, regardless if more seats were available. Defendants make no attempt to refute Plaintiffs’ basic allegations that no one is free to enter the LEC courtrooms without permission and that many people never successfully gain entrance.

Defendant-Judges’ argument that the First Amendment right of access requires a “court order” (Doc. 9-1 at 9) is also unpersuasive. The allegations state that the judges ordered the bailiffs to close all hearings to the public, except in limited circumstances. Superior Court officers, for example, prevented Carl Ringgold from entering the proceedings without approval from the presiding Superior Court judge. (Doc. 1 ¶ 27(f).) The fact that the judges did not explicitly put the order on the record does not absolve the alleged conduct of a First Amendment violation. Such a requirement would render the First Amendment’s right of access a mere formality.

You can get access to other documents from the Southern Center for Human Rights’ press release.

Listen, Georgia, you don’t mind if we take a look, right? I mean, after all, why would you care about open access if you had nothing to hide?

Reciprocal discovery: should we have to?

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

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

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

It’s not like you knew you had that right, anyway.

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We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that's what the value of your rights are. Are you guilty enough? That's the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. "Well yes, this confession was obtained illegally, but he was really guilty, so it doesn't matter" and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer's word is as good as the defendant's. 2. Except when the lawyer speaking doesn't mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived. 5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries

 

 

Not even wrong on individual voir dire

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It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual. Continue reading →

The propensity’s on the other foot

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Prosecutors and judges – and law and order types in general – are always on about “once a criminal, always a criminal”, and frankly, given some of the recidivism rates of our clients, sometimes I tend to think there’s some truth to some of it before I come to my senses.

Which is why I really enjoyed this delicious bite of schadenfreude. Remember the three cops in this video beating the tasered man in a park in Bridgeport? (I mean, how could you not? It was three days ago.) Turns out two of them are the subject of a previous separate brutality complaint. Filed by a disabled man. Shame on you, officers.

On May 23, 2011, three days after the Beardsley Park beating reportedly took place, Officer Christina Arroyo stopped Ramon Sierra for questioning, Sierra claims in a letter that he wrote to Chief Joseph Gaudett Jr. seeking an investigation.

Another officer, Elson Morales — who is one of the officers identified in the Beardsley Park videotape — soon arrived at the scene at the corner of Boston and Noble avenues.

Sierra said that, without warning, Morales “put his hands on me, and I asked him what he was doing.”  ”The next thing I knew, Officer Morales and an officer later identified as Officer (Joseph) Lawlor both threw me violently to the ground, and on the way down, the left side of my face struck one of the police cars on the scene, causing a bad laceration,” the complaint states.  Lawlor is also identified in the Beardsley Park videotape.  Sierra said that one of the officers then told him to put his hands behind his back, but because he has limited use of his right arm, he was unable to do so. Sierra said that he is disabled and is partially paralyzed on the left side as well as having limited mobility on his right.  ”I told the officers this, but they continued to assault me violently, finally handcuffing my hands in front of my body,” Sierra wrote in his letter to Gaudett.

So what happened to Sierra? Exactly the same thing that happens to people who “force” officers to use “physical force”: Continue reading →

The defendant’s right to confront a mustache

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statevmustache

So you’re reading the Constitution. And the Constitution says many things implicitly and a few things explicitly. And one of those things is that the accused shall have the right to confront witnesses against him face-to-face (Pennsylvania v. Ritchie). What the Supreme Court has never explained is just whose face that has to be.

Yes, that’s an odd statement, so let me explain: the Ninth Circuit ruled today [PDF] that it was okay for a confidential informant to testify in a trial wearing a ridiculous wig and mustache (I’m only assuming the wig was ridiculous; all wigs are ridiculous unless worn for medical purposes) to protect his identity because he was involved undercover with the dangerous Sinaloa Cartel.

Why, exactly, is it important for someone to be able to look at the person testifying against them square in the eye? Why is it even more important for the jury to be able to do that? Justice Scalia, writing in Coy v. Iowa, explains: Continue reading →

The Right to Counsel of Choice

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Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.

State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.

Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.

But to get there, we have to start at another beginning. Continue reading →