Category Archives: criminal law principles

The petulance of power

petulant

Let’s lay it out there: who here doesn’t believe that anyone arrested for a crime is automatically guilty of it? Who here doesn’t believe that there is a very good reason someone’s been arrested: they must’ve done something. Who here doesn’t believe that the system is a necessary inconvenience; a rigmarole we must go through before we arrive at the “truth” that everyone’s known about since the time of arrest.

The legal system – and the criminal justice system in particular – is increasingly viewed as an annoying detour on what should be a very short road from arrest to incarceration. If an arrestee is later found guilty by a jury, well then, I told you so. If an arrestee turns into an acquittee, it doesn’t mean he didn’t do it, just that the State couldn’t prove it. What has come before me, I do not know1.

And while it may be excusable for the masses to believe that the system is a technicality, it is exceptionally shameful for those educated in the law and charged with its conveyance to similarly believe so.

While this desire to dispense with the due process of law because we know better is foul when it emanates from law professors2, it is particularly odious when it extrudes from the pores of our own Champions of Justice: a terrible habit that seems to routinely recur.

Prosecutors can’t seem to keep their hands out of the misconduct jar. And when they engage in this misconduct, they do it over and over again, and indignantly soBecause they know better. Because they know how the system really works and how defense attorneys and the “constitution” are just impediments and tricks that prevent them from doing real justice: putting people who they’ve decided are rapists and murderers behind bars.

They have the power to decide who is a criminal and who is not and by God they’ve decided that long before they start to pick a jury.

Take Sharmese Hodge. A prosecutor in Danbury, Connecticut, who prosecuted a man named Michael Maguire. Hodge alleged that Maguire had sexually assaulted an eight-year old. In fact Hodge was so sure Maguire was guilty of this hyenous3 crime that she said the following4 [PDF] to the jury:

Defense counsel concluded his argument by stating: “I don’t ask you for pity. I don’t ask you for mercy. I ask you for justice. I ask you to set [the defendant] free.”

The prosecutor began her rebuttal closing argument as follows: “Ladies and gentlemen, that’s not what he’s asking you for. What he’s asking you for is to condone child abuse. What he’s asking you for is to allow a world in which a forty-one year old man sticks his hand down the front of an eight year old’s pants, claims to tickle her . . . [t]akes his hand out, smells it while his erect penis is sticking out of his pants, and, because he did that to an eight year old child, because he did it in a room where no one else was present, because he did in it in a house where mom and dad were separated and there was a woman staying the night . . . you can’t find him guilty. That’s what defense [counsel and the defendant want] you to believe. That’s what they want you to do. They want you to condone child abuse in this courtroom. They don’t want you to look at that little girl that sat on the stand and testified before you . . . . They don’t want you to look at her testimony. . . . They want you to say, hey, guess what? Because she’s eight [years old] and it was just her [testimony alone, you should find the defendant not guilty].”

After asserting that defense counsel had “lied to [the victim]” when he told her that his questions were not intended to trick her, the prosecutor returned to her earlier theme, stating: “So when [defense counsel] sits here and says to you today, we’re not here to condone child abuse or we’re not trying to beat up . . . on the [victim], listen to that. . . . Is he telling you the truth . . . when he says that?”

Finally, the prosecutor made the following argument with respect to the defendant’s own testimony: “I would assume what you wanted to hear was the truth, not a bunch of excuses, not . . . a big cloud of smoke and mirrors . . . . You wanted to hear the truth. That’s not what you heard. You heard a . . . coached conversation between a defense attorney and his client.” The prosecutor further argued: “[I]t’s not a secret that child abuse is a crime. But what counsel’s asking you to do is to say that . . . child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty . . . .”

In addition, during the trial, Hodge and the defense attorney Norm Pattis had agreed that the interview of the complainant should be edited to remove portions that did not deal with the current allegations5. Pattis asked the interviewer if he had asked the complainant about inconsistencies in the story (he had not). Hodge then argued in front of the jury that the interviewer indeed had asked about those inconsistencies, but it was in the redacted portion of the interview that the jury was not allowed to see.

Which is not a misrepresentation but a blatant lie.

Why, if you must ask yourself, would a prosecutor argue to a jury that the defendant is asking them to condone child abuse? Why would the prosecutor make an argument so beyond the pale?

Because she believes it. Because she believes it and also believes that juries aren’t to be trusted. Because she knows that her best bet at “winning” is getting people angry. Because emotion is the surest way to a conviction. Because she has decided that Maguire has done wrong and she’ll be damned if she lets due process get in the way of a conviction.

Fortunately, this time our supreme court intervened6:

We agree with the defendant that the prosecutor’s repeated assertions, during her rebuttal closing argument, that the defendant and defense counsel were asking the jury to “condone child abuse” and to find “that . . . child abuse that happens in secret is legal,” and, further, that defense counsel was lying when he stated otherwise, were highly improper and intended not only to appeal to the jurors’ emotions but also to demean the defendant and defense counsel in the eyes of the jurors. In characterizing the defense theory of the case as she did, the prosecutor sought to demonstrate, unfairly, and without a factual basis, that the defense was illegitimate and wholly unworthy of consideration, for no juror reasonably could be expected to credit a defense predicated on condonation or approval of child sexual abuse.

While Mr. Maguire gets a new trial7. it seems that there are no consequences for Ms. Hodge, who appears free to repeat her questionable behavior.

This prosecutorial hubris is not an isolated incident. Defendants and defense counsel are not immune to the petulance of prosecutors. As a jurist, if you stray too far outside the line, you may find yourself banished to traffic court - a tactic seemingly only employed by prosecutors in San Diego8 - or the subject of a 2-year long inquiry into your impartiality. All because you rule in favor of defendants. Another way of saying that is ‘you rule in favor of individual rights and the rule of law.’ But no one says that. You’re partial and need to be banished if you rule for defendants and prosecutors will spend countless hours writing 70-page complaints against you9.

If none of this bothers you, ask yourself why. Even if you are that convinced of the infallibility of individuals who are given this extreme power, doesn’t their petulance and arrogance at being questioned give you pause?

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Restoring sanity to child sex cases

For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.

There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.

Zealous advocacy is not bound by your discomfort

Annex - Monroe, Marilyn (Seven Year Itch, The)_07

In what has become a hallmark of the site, Above the Law yesterday “posted” about a fascinating Massachusetts case and managed to distill it down for their LCD readership: man argues that upskirt photography is protected by the First Amendment.

That led a LawProf Jessica Smith to redistribute the same article with a comment appended:

Mark Bennett, fresh off his 1st Amendment win, does a brilliant job of explaining why not only is this argument the correct argument and that, if the Massachusetts Supreme Judicial Court wishes to follow the First Amendment, it will be constrained to find the statute unconstitutional, but also that any lawyer who failed to make this argument for a client charged with that statute might well have been ineffective.

Since he’s done the legal mumbo-jumbo, I won’t repeat it. What struck me, though, was the attitude taken that this argument: that a statute is facially or as-applied unconstitutional is outside the bounds of “zealous advocacy”.

Both the post at ATL and Prof. Smith’s appended comment were of a similar vein: have you no shame?

The motivator for that approach, perhaps, is their individual distastes for upskirt photography and their discomfort at the very nature of its existence.

It is one thing for lawyers to hold personal beliefs about laws and acts and what should and shouldn’t be legal1 and another to chastise and impugn another lawyer for making an argument that any halfway competent lawyer should have made.

For if the measure of what is zealous advocacy is one’s personal discomfort for that position, then what would ATL and Prof. Smith have to say about, for instance, Bernard S. Cohen and Philip J. Hirschkop, who argued Loving v. Virginia in a time where interracial marriage wasn’t exactly de rigueur. Or Matthew J. Perry, Constance Baker Motley and Jack Greenberg, who argued for Bouie, et. al., two black college students who were refused service at a restaurant and then ordered to leave for “trespassing”, charged and convicted. Or Doug Nash, of New Haven, CT, who successfully convinced the Connecticut Supreme Court that Judith Scruggs was not guilty of the indecipherably vague “Risk of Injury” statute when her son hanged himself.

It is one thing, for instance, to argue that all non-consensual sexual encounters should be legalized2 and quite another to argue that a person cannot be convicted of sexual assault if a reasonable person would have believed that the complainant actually consented.

It is precisely this attitude3 – that something that affronts us personally must be a violation of the law – that has led to the current state of the system we are in, where the predisposition is toward guilt, where there is no intellectual honesty and where the public are but sharpening their pitchforks at every turn.

The law is motivated and controlled more by emotion today than at any time in the past. For a law professor who purportedly teaches judges and other public employees about the law to question the ethics and zealous advocacy of a lawyer who is seeking to protect our individual rights guaranteed under the Constitution is more discomforting to me than Marilyn Monroe standing above the vents of the subway tracks.

Shooting a stranger on your porch is still a crime: The Stand Your Ground bogeyman

Last Saturday morning, Renisha McBride, a black woman, got into an accident in a very white neighborhood. At around 2:30am, she knocked on a man’s door to ask for help since her cell phone battery was dead. Upon receiving no answer, she turned to walk away at which point she was shot in the back of the head.

Absurd, grotesque, horrifying, infuriating and enraging, all of it.

Stand your ground? Not so much.

Stand your ground, as it is commonly referred to in our lexicon, implies that the user of the phrase is invoking a situation where an initial aggressor doesn’t have a duty to de-escalate or walk away from the situation and, instead, is permitted to use deadly force.

It’s all hogwash. Stand your ground laws (which I do not like)1, empower citizens engaged in lawful activity outside of the home to repel deadly force with deadly force2. It does remove the duty to retreat in a public place, but only in certain circumstances.

Stand your ground laws do not apply to a person inside his own home. Almost every state in the country has no requirement that a person try and “retreat” inside his own home or to another location when attacked in that safe place.3

What the law doesn’t allow, of course, is a license to shoot and kill, without legal consequence, a person who happens to be knocking on your door or standing on your porch or even – in some circumstances – entering your home.

We call that murder4.

Your home is not an independent foreign country and every visitor an enemy incursion that you must repel with ballistic force. This is not Petoria.

Whatever this individual did will per force have to be viewed in a subjective and objective lens. What did he perceive and was that perception rational?

It seems to me, without knowing anything about anything5 that a man shot a woman for no reason. In most states, it is either murder or manslaughter.

What it most certainly is not, is a free pass under Stand Your Ground laws.

But don’t ask me, I’m just a lawyer.

Come on, we’re not even pretending anymore

whatisthisidonteven

If you for some reason start a judicial opinion with the following:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was   scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

[No. Stop. You really need to read that blockquote. Don't skip it.] And then recite more facts like these: He worked for an hour and a half on Thursday. On Friday he worked on the case for 2 1/2 hours. Then, on Saturday:

defendant’s counsel conducted a three- to four-hour review of relevant evidence rules and suppression law to prepare himself for proceedings in adult criminal court

and on Sunday, he spent three hours reviewing discovery and preparing cross-examination. In all, he spent 10-11 hours preparing for a trial. For his first criminal trial in 7 years. For a client he’d never met.

In Ohio, it is June 24, 2008

In Ohio, the clock hasn’t moved past June 24, 2008. The residents of that state have been reliving that one day for the last 5+ years.

Or at least that’s the only explanation for this bill proposed by State Rep. John Becker, which would make horrific sexual crimes against children punishable by the death penalty.

So why June 24, 2008? Because the next day, June 25, 2008, the Supreme Court of the United States of America issued its opinion in Kennedy v. Louisiana [PDF], which held that it was a violation of the Eighth Amendment to the Constitution of the United States to punish a crime that did not result in death by death.

In Kennedy, Kennedy wrote that the 5 states that had authorized such a penalty did not constitute a “national consensus” and that it violated the prohibition against cruel and unusual punishment.

Rep. Becker wishes to create that “national consensus”, stating that the bill is modeled after the law in half a dozen states. Which is 6. 6 states out of 50. And which is decidedly not the law. See, Kennedy, supra.

He said:

his House Bill 244 would give prosecutors another option when negotiating plea agreements and could help to persuade the U.S. Supreme Court to allow capital punishment for heinous crimes against children.

Oh, that’s great. “Take this plea deal or we’ll kill you” has proven real effective in ensuring that only the guilty get sent to prison.

But what could be causing him to suddenly propose such a bill?

“In light of the Ariel Castro kidnapping case of three young women in Cleveland,

I don’t need to finish that quote. Thankfully (or not?) Ohio is still part of these United States and thus subject to the law of these United States as interpreted by the Supreme Court of these United States, which said, quite clearly, that what Becker is proposing is unconstitutional.

At least we can sit comfortably here in CT knowing that no legislato-nevermind.

Clearly unclear and unequivocally equivocal

The Hitchhiker’s Guide to the Galaxy describes Vogons as:

[O]ne of the most unpleasant races in the galaxy – not actually evil, but bad tempered, bureaucratic, officious and callous. They wouldn’t even lift a finger to save their own grandmothers from the Ravenous Bugblatter Beast of Traal without an order, signed in triplicate, sent in, sent back, queried, lost, found, subjected to public enquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.

There is no way that Douglas Adams, when he created the Vogons, would have the foresight to know of the CT Supreme Court. But in his description of the Vogons, he has also put into words the most precise description of this State’s highest court1.

They’re not evil. They’re bureaucratic.

And they certainly won’t lift a finger unless every request you’ve made is signed in triplicate and somehow magically predicts the spot to the which they’re going to move the target and then manages to hit it perfectly, while following all the rules they’ve subsequently made up.

Some of their opinions are much like Vogon poems:

Vogon poetry is of course, the third worst in the universe. The second worst is that of the Azgoths of Kria. During a recitation by their poet master Grunthos the Flatulent of his poem “Ode to a Small Lump of Green Putty I Found in My Armpit One Midsummer Morning”, four of his audience died of internal hemorrhaging and the president of the Mid-Galactic Arts Nobbling Council survived only by gnawing one of his own legs off. Grunthos was reported to have been “disappointed” by the poem’s reception, and was about to embark on a reading of his 12-book epic entitled “My Favourite Bathtime Gurgles” when his own major intestine–in a desperate attempt to save life itself-leapt straight up through his neck and throttled his brain.

So pretty much how I feel after reading CT Supreme Court opinions. Like this one from yesterday [PDF].

Meet Michael Pires, Sr2. Pires was a VeryBadMan©, guilty of murder. Michael Pires also had a big problem with his lawyer. In a word, he didn’t like her. So he tried, on many occasions to fire her. The problem is, that he didn’t hire her to begin with, so the upside-down law says that you can’t fire someone you didn’t hire.

As a poor person who couldn’t afford private counsel to defend a murder charge – and let’s be honest, unless you live in Fairfield County or the East End of Long Island, you can’t afford a private attorney to represent you on a murder charge – he was appointed a public defender.

And once you have counsel foisted upon you, you’re stuck with that attorney no matter how much you hate him or her. Because that’s what you get for free.

Now there is an alternative, which is usually used as a stick to make the carrot of the infuriating counsel-who-can’t-be-fired more attractive: represent yo’self! After all, Faretta v. California says that it a core Constitutional right to be permitted to represent oneself.

In order to exercise that right, you have to inform the Court somehow that you want to. That’s fair and logical. You can’t be afforded a right that you don’t express you want to exercise.

So, what did Pires do, after rounds of headbutting with his LawyerWhoCouldn’tBeFired? He apparently told her he wanted to represent himself. Which she duly conveyed to the court:

I did go downstairs and attempt to talk to [the defendant]. He did want to discuss strategy with me. He indicated now that he wishes to represent himself in this matter. I informed him that I didn’t think Your Honor was going to allow him to represent himself on a murder charge simply because that would be much too dangerous and it would not be in his best interest. And that’s about where we stand, Your Honor.

Putting aside the fact that counsel’s advice was blatantly wrong, she is alerting the court “that he wishes to represent himself in this matter”.

Now. Imagine you’re the CT Supreme Court. A court that has increasingly become reliant on procedural rules to deny VeryBadPeople new trials. A court that has become so reluctant to judge whether rights have been violated that it makes a tortoise stuck in its shell look like Evel Knievel.

So what do you do? Well 5 of them decided that his “request” wasn’t “a clear and unequivocal invocation” of his right to self-representation.

At this point, I’m just inclined to throw up my hands and say “I don’t even know anymore”. How can “he indicated now that he wishes to represent himself” not be a “clear and unequivocal invocation”?

I mean, surely there must be some rules in place to deal with situations where unsophisticated defendants make fumbling assertions of their individual rights, much less so clear and unequivocal?

Why yes, yes there are. Articulated by this very court, just last year in State v. Jordan:

Although a clear and unequivocal request is required, there is no standard form it must take. “[A] defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to [that] request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.”

Ask the damn question. If a lawyer or defendant tells you he wants to represent himself, how long does it take to ask him a few questions? Really? Why is everything a game?

Chief Justice Rogers, who wrote Jordan, dissents in Pires [PDF] saying essentially the same thing she said before: that requests for self-representation can be made through counsel and that this is as clear as they come.

The unfortunate reality, however, is that the die has long been cast. The lasting legacy of the “Rogers court” will be their systematic destruction of modes of review. For those who don’t know what I mean, I’m referring to the methods by which appellate courts, whose job it is to ensure that trials were conducted fairly and according to the law and rules of court, determine whether that was done.

If improper evidence was admitted, a new trial may be warranted. If Due Process was violated, a new trial may be warranted. If a judge or lawyer makes a mistake that results in the violation of rights, remedies must be issued. We used to value the protections built into our system more than we valued the result. But now, we value procedure over all else.

So if you are on trial and the judge admits some very improper and damaging evidence against you, evidence that the jury should have under no circumstances heard or considered, and your lawyer didn’t object either because she was asleep or frenzied or scared or incompetent, our appellate courts will refuse to remedy that wrong, because proper procedure wasn’t followed.

It’s akin to doctors refusing to perform surgery because there isn’t a signature on the requisition form for the lightbulbs that are in the operating room.

There is a silver lining, though: maybe someday soon the Court will start to get it. There are fresh faces on the court and more to come. Maybe people will start to realize how narrow appellate review has become. That maybe elevating finality and form over substance has negative consequences for society as a whole.

Well, if not, then we can always go have a drink at the Restaurant at the End of the Universe.

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