Category Archives: criminal law principles

Conviction integrity starts with prosecutors

I had to double check1 to make sure I wasn’t reading an article in The Onion a few weeks ago when, apparently without irony, the Chief State’s Attorney Kevin Kane argued in the New Haven Register that the way to ensure “conviction integrity” was to give his prosecutors broader, unchecked power to conduct investigations and arrest citizens of Connecticut.

His editorial was in apparent response to an editorial the week before by Professor David R. Cameron of Yale, who argued that we needed a “conviction integrity unit” to ensure adequate and effective review of convictions in Connecticut.

Prosecutor Kane’s proposal involves “reforming” the grand jury process. His proposal – which has been the subject of bills submitted to the legislature for a few years now – would essentially make it easier for prosecutors to conduct investigations by forcing people to appear before individual judges in each judicial district and give testimony concerning any felony. His also wants to arm his prosecutors with the power of the investigative subpoena, which would be little more than carte blanche for prosecutors to command the appearance of uncooperative citizens and force them to bring papers and effects, all in the “interests of justice”.

That is the standard proposed by prosecutors for several years running in their quest to obtain the power to issue investigative subpoenas. Try to decide for yourself if you should do something “in the interest of justice”. I can say without reservation that every single person reading this has a different definition of what that means. As amorphous and flexible a standard as “probable cause” is, I have yet to hear of a burden of proof as indescribable and incomprehensible as “interest of justice”.

What is missing from either proposal is the recognition that perhaps the best way to avoid wrongful convictions in the first place is to ensure that people don’t get, you know, wrongfully convicted.

Prosecutor Kane seeks to minimize the number of wrongful convictions and touts the fact that of 100-plus cases analyzed by his office and the Innocence Project, there were no errors uncovered.

Of course, this assumes, as Prof. Cameron points out, that every wrongful conviction case will have DNA evidence that exonerates. Logic will tell you that this is impossible. In fact, most students of the system are unable to give accurate estimates of the numbers of wrongful convictions for that precise reason: without an identifiable marker such as DNA, it is virtually impossible to estimate one way or another how many people are wrongfully convicted.

A further complication, of course, that neither addresses just what we mean by a “wrongful conviction”. You ask the lay person and they’ll tell you simply enough that it involves a person who’s innocent being convicted of a crime.

But dig deeper: guilty of what, exactly? The real world and the actions we take are open to several interpretations. Our penal code has sought to codify most conceivable illicit acts, and by virtue of being overinclusive, necessarily has more than one provision that applies to any given criminal activity. So, what then, is a wrongful conviction? Are we to limit that term to only those who are innocent of any form of wrong doing? Or must we be more realistic and expand that term to include people who are guilty of something lesser but are, for one reason or another, convicted of something more serious?

If Professor Cameron and Prosecutor Kane wish to shore up the integrity of the criminal justice system, I have some suggestions that can be implemented upfront. First, stop over charging. There are a hell of a lot of people who are in prisons today serving bloated sentences because some prosecutors over charge in an effort to get leverage.

They have that leverage because of the second item on my list: mandatory-minimums. Mandatory-minimums are legislature set floors for incarceration periods and are almost universally hated because they homogenize crimes and individuals accused of crimes. They seek to treat all crimes of a certain type as the same, regardless of any mitigating circumstances. In the name of “truth in sentencing” and “tough on crime”, mandatory-minimums have eliminated the ability for judges to make nuanced decisions in every case and instead have given some prosecutors a hammer with which to bludgeon a plea out of frightening defendants.

If you’re charged with a crime which would result in a sentence of at least 5-10 years after trial, would you adamantly maintain your innocence and take the risk or would you take the plea offer that involves a sentence of only 1 year, What would you advise your daughter to do?

Our prisons are full of people who take plea deals in exchange for a “lesser” sentence because the alternative is so harsh. Our system is coercive and some of our prosecutors use that to full effect. If Prosecutor Kane wants to ensure integrity in our system, maybe he should start there. Maybe he and his office should oppose mandatory-minimums.

Maybe we should have more prosecutors who are willing to drop charges when they acknowledge that they probably couldn’t convince a jury beyond a reasonable doubt of an individual’s guilt. Maybe prosecutors who do dismiss questionable cases shouldn’t be shamed and reprimanded by their colleagues and superiors.

Here’s a novel idea: Maybe prosecutors who engage in misconduct should have to suffer some consequences. The Center for Prosecutorial Integrity estimates that there have been approximately 16,000 cases of prosecutorial misconduct since 1970. The National Registry of Exonerations maintained by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law estimates that official misconduct played a role in 43% of wrongful convictions.

What, exactly, happens in Connecticut to prosecutors who are reprimanded by appellate courts for engaging in misconduct? Is there remedial training? Integrity in the convictions obtained through the system isn’t limited to whether “we got the right guy”. Life, shockingly, isn’t as black and white. Integrity comes when we give meaning to the word “justice”. And justice comes in many forms. But how are we to have faith in the integrity of the system when justice is a punchline and prosecutors keep score of their wins and losses?

Because the joke, of course, is that when we have lost faith in the system, we are all losers.


 

The lawyer joke’s on you

“First thing we do, let’s kill all the lawyers” says Dick the Butcher in Henry VI, part 2. Some say it’s a lawyer joke, some say it’s a compliment to lawyers and, as all lawyers will probably guess, the right answer is both or depends.

But the reality cannot be escaped that we are the butt of many, many jokes. A simple Google search for “lawyer jokes” returns 5.5 million results.

As I write in my latest CT Law Tribune column, however, the joke’s on you if you dislike lawyers. From the denial of promotion to Debo Adegbile to this faux-outrage over Hillary Clinton’s defense of a “guilty” rapist, our modern trend of equating defense work with the crime itself is dangerous, shortsighted and incredibly stupid.

The truth is, as I’ve written before, we don’t just represent the rights of guilty people. In fact, through people accused of crimes, we represent the rights of everyone in society. Sit back for a minute and think: who is most likely to encroach on your individual liberties? And who is there to stand against that incursion?

You can thank me later.

Updates: Illinois v Martinez and the 13 year erroneous release

Two good news updates today:

First, SCOTUS finally issued its opinion [PDF] in Martinez v. Illinois, which you will remember as the case in which prosecutors declined to participate in a trial after the jury was selected, and the Illinois Supreme Court called a mulligan. SCOTUS, per curium, smacked down Illiniois, reaffirming that, yes, double jeopardy means double jeopardy.

Second, Cornealius “Mike” Anderson, who didn’t report to jail 13 years ago and no one came looking for him, was allowed by a judge to remain at liberty, thus providing a lone ray of justice in this justice system:

Judge Brown said that rather than Anderson being granted parole, he would get credit for the 4,794 days between when he was convicted and when he was arrested last year. The judge also lauded Anderson’s “exemplary” behavior during his 13 years of freedom. 

“You’ve been a good father. You’ve been a good husband. You’ve been a good taxpaying citizen of the state of Missouri. That leads me to believe that you are a good and a changed man,” he said.

“You’re a free man,” Brown continued, telling Anderson to go back to his family.

Should I Wurie about my cell phone or is there no need to get Riled up?

I don’t want to hear anything about the “puns” in the title. Just shut it.

As you’re no doubt aware, the Supreme Court of the United States heard argument yesterday in two cases, Riley v. California [PDF] and United States v. Wurie [PDF].

As I wrote about extensively in this March 28th column in the Connecticut Law Tribune, the issue in these two cases is under what circumstances can police search the contents of your cell phone after they arrest you and what is the extent of those searches.

We’d all feared what a disaster the oral argument might turn out to be, given that the Court is made up of all really old people. Well, we need to put that aside because the Court came prepared. Aside from one really bizarre exchange about phone encryption, they were mostly spot on about the phone, the amount of content the phones have and the potential for danger if they permitted a blanket rule allowing searches.

When everyone is a criminal, you don’t need the Fourth Amendment

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

The Fourth Amendment to the Constitution of the United States. By now, it should be painfully obvious that the Fourth Amendment doesn’t apply to anyone, because there are no more “people” left in the United States, only criminals and potential criminals. Our government spies on us willy-nilly, our legislators erode our rights on a daily basis under the banner of protecting the children and our courts continually perpetuate the notion that there are two groups in the US: “us” and “them”. It is also becoming increasingly clear that “us” refers only to law enforcement and “them” is anyone else.

Yesterday, in Navarette v. California [PDF], Justice Thomas wrote a 5-4 decision in which he upheld a police officer pulling over a car and then finding marijuana.

Now, as Popehat explains, the law before Navarette was as follows:

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.

Even judicial opinions spin their facts (updated)

[Update below] What, really, is a fact? The word, which seemingly should have one simple definition, in fact does not.  For example, in science, a “fact” is an observation that has been repeatedly confirmed and for all practical purposes is accepted as “true.” In law, on the other hand, a “fact” is what 6 people say it is. In other words, it’s not a validation of what actually happened, but what reasonably could have happened. A fact is also determined based on a rather narrow, limited universe: some things aren’t taken into account and conclusions are made by ignoring other, contradictory events.

One example of this is if you read any appellate court opinion by a Connecticut court written in the last decade or so, almost all of them will have a recitation of the “facts” that begins with the following sentence:

The jury could reasonably have found the following facts

Invariably, this recitation is skewed toward the interpretation of those “facts” that supports the court’s eventual decision. If you need to uphold a questionable stop of a car on the road, highlight the helpful police officer’s testimony while downplaying or even ignoring frame-by-frame video evidence.

Two days ago I wrote a post about a juror who demonstrated that she believed the defendant to be guilty even before the presentation of evidence and who was “bullied” into stating that she could be fair despite those prejudicial beliefs. At the time i wrote the post I didn’t read the opinion. A helpful commenter has provided a link to the opinion. It perfectly illustrates the point I’m making here. First, let’s remember from my post that the transcript revealed that the juror made several assertions that she would not be able to be fair:

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

So let’s go take a look at the opinion. Find the Control and F keys on your keyboard. You’re going to need them. In the opinion, the judge explains that the trial court, before the evidence, explained to the panel that the case involved allegations of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. At the time jury selection occurred, both the prosecution and the defense questioned the jurors including Juror 112, who did not indicate any problem with judging the case fairly.

Then it starts getting messy: