Category Archives: criminal law principles

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.

—–

Your phone will protect you only as much as the courts let it

iphone-5s-fingerprint-scanner-970x0

Press here to turn over all your secrets1.

The other day Apple announced its latest iPhone which would come equipped with some sort of biometric fingerprint scanner [warning: autoplaying video], permitting users to unlock their phones with simply a touch.  iTouch, it’s called. Putting aside the obvious jokes, there was quite a bit of stir caused by this announcement on the internet, given the current spotlight on privacy invasions. This, some argued, was the end of everything: fingerprint on the iPhone means fingerprint to Apple, which means fingerprint to the Federal Government, which means fingerprint to NSA, which means…something. I don’t know what exactly.

It’s understandable. The NSA apparently can use the apps we put on our phones to hack into our phones or something. It’s a terrible invasion of privacy. Except the fingerprint as “Open Sesame!” is a bit flawed because Apple explicitly stated that the fingerprint was encrypted and stored only on the chip and not uploaded to the cloud or the internet or wherever. So the argument then becomes, if the government is going to hack into your phone to get your fingerprint, aren’t they in there already? What the hell do they want your fingerprint for?

Let us assume for some reason that they do get your fingerprint. What are they going to do with it? Put in an arrest warrant that your fingerprint matched one found at the scene of a crime? Aren’t they going to have to explain how they got your fingerprint? Either the government hacking into your phone is “legal” or not: the method by which they do it is irrelevant.

But there might be another problem associated with the fingerprint, writes Marcia Hoffman in Wired. While titled “Apple’s Fingerprint ID May Mean You Can’t Take The Fifth”2, the import of the article is clearly that this new fingerprint technology somehow reduces your privilege against self-incrimination if you choose to use it.

Because the constitutional protection of the Fifth Amendment, which guarantees that “no person shall be compelled in any criminal case to be a witness against himself,” may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember).

To cut to the chase, the argument is thusly:

The fingerprint is not an act or a statement made verbally, forcing someone to reveal “contents of one’s mind”, therefore pursuant to Doe v. United States (II), it is not a “testimonial” statement that is incriminating and the act of forcing you to use your finger to open your phone is not privileged and you’re screwed. Damn you Apple, government stooge!

But, as most lawyers will tell you, there’s a big fat “maybe” attached to this argument she makes3. The ‘maybe’ is that it all depends on the facts and circumstances of the case. As Hoffman herself admits:

There are the password cases where a federal judge has ruled that an individual cannot be forced to turn over the password to decrypt files on one’s computer. Up until now, most people use 4-digit pin codes that can easily be hacked into by the Government.

But your fingerprint is different, she argues, because it isn’t something in your mind. It’s more like a key than a wall safe combination, relying on the argument of the court in Doe II.

But you can readily imagine a scenario where forcing you to use your fingerprint incriminates you: it ties you to the phone in question and it may lead police to information they didn’t know existed. See Doe I.

And then there’s the essential difference, at least in my mind4: the fingerprint is an inseparable part of my physical being, like my mind. The closest analogy I see in current practices is DNA comparison, which has been held to be non-testimonial. But DNA is not widely accepted as a method to lock and unlock private materials, except perhaps in science fiction.

A fingerprint, on the other hand, despite its unreliability can become widely used for just that. And then the argument can be made that it’s more akin to another scenario that’s prohibited: forcing you to participate in a criminal prosecution. Because there’s Rochin v. California, in which the Supreme Court held that it was a violation of Due Process to forcibly extract the contents of Rochin’s stomach and then used the pills found therein to prosecute him for possession of drugs.

There’s also the notion that there’s a reasonable expectation of privacy in the contents of one’s cell phone and that the government needs probable cause to seize and search it, however they unlock it.

And if all it takes for them is to get your phone unlocked – and they can hack into a passcode – then look about you. Your fingerprints are everywhere and you have no expectation of privacy in them. Don’t want to comply with being forced to turn over your fingerprint? Fine. They’ll just follow you and seize everything you touch and lift your print off that.

The problem with Hoffman’s piece is that it misplaces the problem with the Fifth Amendment privilege. It isn’t in the key or the fingerprint, it’s in the law that doesn’t care to protect us.

A game of thrones

Andrew Cohen at The Atlantic wrote this must-read article yesterday on judicial elections, which remarkably includes a lengthy comment from Justice Don Willett of the Texas Supreme Court1, who himself is a master politician and has managed to get himself elected a number of times.

(Un)surprisingly, Justice Willett is no fan of judicial elections and has some harsh words to say about the process. The request for comment from him was prompted by this frightening ACS study [PDF] on “the effect of campaign contributions on judicial behavior”.

The bottom line, if you haven’t guessed already, is that judicial elections are bad because judges are more likely to vote for the interests that got them elected in the first place. You can read the study if you want all the numbers. They’re horrifying.

Judge Willet writes:

No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

But it works. That’s the game and he plays it. He wants to be on the biggest stage in Texas and he gets to do it by courting important people who spend money to get him elected. And then, well, why else are they burning cash supporting him? Whether he intentionally or subconsciously doesn’t vote in their favor is beside the point. Wouldn’t they be getting some return on their investment? Why else would they repeatedly spend money?

But really, sitting back and looking at the system right now is fucking depressing.

There’s no funding of indigent defense, no repercussions for abuse of prosecutorial authority, no ethics in elected public defender positions, jurors who want to convict to vindicate OJ and judges who admit to playing the game just to keep their jobs. And what does judicial selection bring? More of the same. While not necessarily as infected as judicial election, the selection process is also inherently biased. After all, governors and presidents select judges. And they select along mostly political lines, so conservatives pick judges who will tend to lean that way and vice-versa. Is it any wonder, then, that the Supreme Court’s approval rating – if such a thing is to be believed – is so…divided?

So we are faced with a system where every single puppet-master is inextricably tied to his or her ideology.

Meanwhile everyday people are subjected to the machinations of those with power or those who want power. But they’re too busy watching Game of Thrones, rather than realizing that they’re the very people their favorite characters are trampling underfoot.

[For further lamentations on the sad state of Texas judicial elections, see this timely post at Grits for Breakfast.]