criminal law principles
Just a little guilty
Aug 27th
Due to unforeseen commitments, I’ve missed out on a great discussion in the blawgosphere between Scott, Scott, KFPL, Jr., Scott again and then KFPL, Jr. again on the presumption of innocence, actual innocence and not guilt and whether juries should be given that third option of finding a defendant “innocent”.
The gist is this: a defendant, found guilty by a jury, has his conviction overturned on appeal on grounds of insufficiency of evidence. Does he have a right to compensation under the wrongful conviction statutes? If not, why not?
I’ve written about this before and I think it comes down to the distinction between factually innocent and legally innocent. Compensation statutes are geared more toward (and public support of such statutes is based on) factual innocence. Legal innocence (which may very well be the same – and as Scott argues, and I agree, is the same), to the minds of the legislators, is something different.
This distinction places a tinge of guilt on the “legally” innocent: He’s guilty, but they couldn’t prove it.
Which, if you think about it, is exactly the same as the presumption of innocence. He’s not guilty until he’s found guilty. Some lawyers like to ask that question of prospective jurors: “If you were to vote today, how would you vote?” The correct answer, of course, is not guilty, because there has been no evidence presented of guilt.
But that’s perhaps where the problem lies. That we, as lawyers, create and perpetuate these two worlds, where factual innocence and legal innocence are two separate and distinct beasts. That we revere factual innocence and look upon legal innocence as an acceptable alternative.
They aren’t – and shouldn’t be – different. Innocence means just that. Innocent. Whether it is because the state couldn’t prove that you were guilty or because, as all-seeing superbeings we “know” that you weren’t guilty.
The second, as you can see, is an impossible scenario. No one truly “knows”, unless you were there (and even then, given the eyewitness ID failures, it’s hard to believe that someone will always “know”). Requiring someone to show that they are factually innocent, is in most cases, like asking someone to prove that God doesn’t exist. You simply can’t prove that negative.
Indeed, the bulk of scientific evidence and theories is based on hypothesis. How little of it is actually proven? Has anyone actually seen a black hole? Yet we know they exist.
Both physics and astronomy are sciences. So is the law.
Being found not guilty is the same as being found innocent. Let’s not confuse the issue further.
Legal fictions: collateral consequences edition
Aug 26th
Back in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been stuck in my craw for a week or so now: collateral consequences that really are direct consequences but no court will acknowledge that.
Most specifically, I’m referring to immigration consequences of pleas – and no, not illegal immigrants. There are plenty of legal residents of this country that get deported after obtaining convictions. The standards for deportation are so low: almost anything can be an aggravated felony that results in deportation (yes, even possession of marijuana).
But that’s not the problem. If you’re aware of that pre-trial, you can deal with it or make an informed decision. What really gets me is when defendants have absolutely no clue that if they plead guilty to a particular crime, they will face almost certain deportation and courts simply throw up their hands and say “too bad!”
The law in this area is absolutely terrible and almost all of it because immigration consequences are deemed “collateral”. There is very little more direct (besides the actual incarceration) than facing deportation as a result of a conviction. In most cases, it is the legal resident who has lived here his entire life, whose “home” country has no connections for him, who gets screwed.
In fact, the law is so terrible that attorneys have zero obligation to actually inform their clients about the immigration consequences of their convictions. They can say absolutely nothing about a possible deportation and yet they would have performed adequately. It is only if there is a misrepresentation about immigration consequences will courts look at the performance of attorneys.
There is nothing more absurd than protecting an attorney for failing to advise his client about a very real and very important consequence of a conviction. Yet, this is prevailing law of the land.
As an attorney, wouldn’t you want to know if the conviction will result in deportation? How difficult is it to ask if the client is a citizen and if not, know and understand the consequences of a conviction. It is our job as counsel to adequately and effectively advise our clients about their options and the consequences of their actions. Certainly the very real possibility of deportation is something that we should add to our checklist of things to do. Sure, immigration law is complex, but as with all things, it becomes clearer once you familiarize yourself with it. It should be made a part of every attorney’s training and practice.
The courts certainly aren’t going to help our clients in this arena; shouldn’t we?
CA bans uncorroborated jailhouse testimony
Aug 13th
Uncorroborated testimony in criminal cases has always been a source of problems and worries. Think about it – you, as the jury, are being asked to believe one person over another, based solely on the tightly controlled testimony presented in court. It amazes me, and I know Miranda agrees, that any jury actually convicts based solely on the testimony of the complainant. How is there not reasonable doubt in every case?
Anyway, we have to start somewhere – and that’s where CA has started. The CA Senate passed a bill today (by a bare majority, no less) that bans the use of uncorroborated jailhouse testimony in convicting defendants.
Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero’s bill would help prevent wrongful convictions.
Whether it prevents wrongful convictions or not remains to be seen, but he’s got the part about the incentive to lie right. What greater incentive is there than to get a reduction in one’s sentence; a chance at escaping the hell-holes that are correctional institutions a little quicker?
Well, a “snitch” can be cross-examined, you say. True, but the lawyer doesn’t always have all the ammunition he needs. Prosecutors frequently enter into no agreement with the “snitch” other than a wink and a nod, so the snitch can “truthfully” deny any reciprocity when asked during cross-examination:
“Isn’t it true that in exchange for your testimony today, you are receiving a sentence modification?”
[With a straight face] “No. The State has not promised me any modification. I am doing this out of the goodwill that overflows from within my heart.”
“You don’t expect to receive any consideration from the State in exchange for your testimony?”
“I can expect anything, doesn’t mean I’ll get it” OR “No.”
Then what? You’re stuck and sure as heck, three weeks after your client is convicted, the snitch quietly has a hearing where his sentence is reduced by half.
This bill eliminates the problem. No corroboration, no testimony, no incentive to lie.
Now if they could only fix that damn co-defendant’s testimony doesn’t require corroboration rule, we’d have something.
Right of allocution subject to cross-examination
Jul 27th
The Supreme Court of California, on Thursday, issued a rather curious opinion, holding that a defendant has no right of allocution unless it is subject to cross-examination by the prosecution. Granted, this was a case of statutory interpretation and thus, has no bearing on any other State, it is still indicative of some trends in the criminal justice system nationwide.
The right of allocution, which has its roots in common law, is the right of a defendant to make a statement to the court on his own behalf and present information in mitigation of sentence. It started out as the ancient common-law practice of inquiring of every defendant if he had anything to say before sentence was imposed.
Back in the day, when death was the only punishment and defendants had no counsel, it was used to beg for mercy. In modern times, the right had evolved to permit a defendant to plead for a more lenient sentence and to fit with our modern sense of justice and the (now antiquated) desire to rehabilitate. At one point in the not-so-distant past, we treated defendants as individuals and allocution was an opportunity – a final opportunity – for the defendant to explain to the judge, in his or her own words, why he should get a certain punishment and not any other.
A defendant will stand before the court, allocuting (and thus elocuting), only if he is a convict. Which is why it is curious that the California Supreme Court chose to construe its statute in the way it did. Not because it is not a reasonable interpretation of the Statute, but because, in my opinion, there was really no need to do so.
Most judges are smart enough to know when the defendant is being sincere and when not and I’ve often seen judges here in CT expressly disagree with some of the “mitigating” statements made by defendants during allocution. Sometimes, only sometimes, do these statements have any impact on the sentence to be imposed.
More than anything, it is an avenue for the defendant, who is about to have his freedom and liberty taken away for (often) a long period of time, to feel like he had an opportunity to say something to the Court. More often than not, what the defendant says in court is heavily controlled by counsel and happens only under the narrowest of circumstances.
But it would behoove us to remember that these are not cattle or numbers. These are people, who have done bad things and who will have to pay for them. Before we send them away for significant stretches of time (and forget about them), we should grant them this much: the opportunity to speak unfettered by the constraints of evidentiary rules. It will almost certainly have no impact on the verdict or the sentence to be imposed.
By requiring such statements to be made under oath and subject to cross-examination, the California Supreme Court has offered the criminal justice system another opportunity to dump on defendants and to rub their nose in the fact that they are now criminals and nothing they say can or should be trusted.
Maybe it is a fundamental difference in the way we view defendants. I don’t view them as bad people, but rather as people who have made bad decisions. As such, every person should have the opportunity to say something to appease his or her mind.
In Connecticut, the right of allocution is provided for by Practice Book Section 43-10. Justice Berdon explained1 why the right is so important:
Modern day justifications for preserving the practice focus on tailoring punishment to individual circumstances, providing an avenue through which a defendant may ask for mercy based on factors that might not otherwise be brought to the court’s attention, and promoting safety, certainty and equity in sentencing and the judicial process overall. The opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances. . .
Aside from its practical role in sentencing, the right has value in terms of maximizing the perceived equity of the process. The right of allocution affords a criminal defendant the opportunity to make a final plea to the judge on his own behalf prior to sentencing. . . . Ancient in law, allocution is both a rite and a right. It is designed to temper punishment with mercy in appropriate cases. Allocution provides a defendant the opportunity to meaningfully participate in the sentencing process and to show that he or she is a complex individual and not merely an object to be acted upon.
(Internal citations and quotations ommitted.) Interestingly, the CT Supreme Court has held that there is no right to allocution during the penalty phase of a capital trial2.
This CA decision leads me to wonder if the CA court would require victim statements to be made under oath and subject to cross-examination. The modern trend has been to allow greater participation of victims in the criminal justice system (something that I have not always agreed with) and to make it easier for the defendant to be labeled a criminal and herded along with the rest of his brethren. But one of the complaints I hear from clients is that the victim spoke during sentencing and made several, unsubstantiated, untrue statements.
I doubt the CA court would require any such thing. Victims have powerful lobbies now. The defendants have only us.
1. State v. Strickland, 243 Conn. 339 (1997)
2. State v. Colon, 272 Conn. 106 (2004)
H/T: Bashman
Cops lie and people die
Jul 7th
Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.
They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.
To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.
“I don’t even know a Martha,” Ledesma lied.
Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:
The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”
To the gang, Puebla was a snitch and needed to be dealt with.
“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”
Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.
Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.
While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.
The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.
So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.
TMYK: Due Process edition
Jul 1st
Apparently, it is not a violation of due process in the state of CT if there is not an adequate factual basis for a plea stated on the record. See Paulsen v. Manson, 203 Conn. 484 (1987). Who’da thunk it?
Castle doctrine come home to roost
Jul 1st
You may have heard, you may not have. A Texas grand jury has decided to “no-bill” Joe Horn (no, not that Joe Horn). Prosecutors sought to indict Horn after Horn killed two men who were fleeing after committing a burglary.
Except it was not his own house. Wouldn’t you know it, such a thing is permitted in Texas. The relevant statutes are here. I’ll pare it down for you:
A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property. Actually, upon further reading of the statute, it seems that this last one is not a requirement. So, in Texas, you can kill someone you believe is robbing your neighbor without having the neighbor’s permission to protect his house. Don’t we all feel like men now?
Bennett thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you why.
Let’s take the “immediately necessary” portion of the statute. Here’s why this was not immediately necessary: He was on the phone with police who were on their way to the scene.
“I’ve got a shotgun; you want me to stop him?” Horn asked the dispatcher.
“Nope. Don’t do that,” the dispatcher replied. “Ain’t no property worth shooting somebody over, OK?”
Horn was clearly upset by the dispatcher’s response.
“I’m not gonna let them get away with it,” he said. “I can’t take a chance getting killed over this, OK.”
Despite the dispatcher’s protects, Horn said “I’m gonna shoot! I’m gonna shoot!”
The 911 dispatcher warned Horn to stay inside at least a dozen separate times, telling him, “An officer is coming out there. I don’t want you to go outside that house.”
He did not heed that request. He went outside and shot the two men in the back – firing three shots. Police arrived seconds later.
They weren’t on his property, they weren’t coming to his property. He was in no imminent danger.
Let’s look at the other element of the statute, that he reasonably believe that the neighbors asked him to watch over their property. The statute reads “has requested”, not “would have requested”.
“I really don’t know these neighbors,” Horn said. “I know the neighbors on the other side really well … I can assure you if it had been their house, I’d already have done something.”
Sure, today the neighbors may be glad (or perhaps not), but the question is did they give him permission at the time? Seems not to be so.
Then there’s the unfortunate matter of race. Both victims were illegal aliens of the hispanic persuasion. Horn is white. Harris County is predominantly white. I wonder what the makeup of the grand jury was?
[As an aside - where are you, victims' advocates? Every news story is parading the fact that one of the victims here was a criminal. So if they're criminals their lives aren't worth the same as others'? That's what really, really annoys me about this...]
Others may disagree – and it may seem incongruous coming from a defense attorney – but I don’t care. I don’t like the castle doctrine and I’m even more leery of using deadly force to protect property. I’ve always had trouble with this legal quirk and I always will.
As the police dispatcher said, no property is worth taking someone’s life and certainly not in cold-blood like Horn did.
I wrote and rewrote this last sentence several times as I tried to sympathize with Mr. Horn, just as I do with a majority of my clients. Don’t get me wrong, I would defend him to the best of my ability, but I’m not going to like him or feel bad for him.
Perhaps I’m just blinded by my hatred for this doctrine, but I can’t find it within myself to see his point of view. Maybe some other day, but right now I can’t. If that makes me a bad person or bad lawyer, so be it. What a slap in the face to the justice system and our notions of due process.
Undoing Gideon’s promise
Jun 30th
As public defender offices across the country are cutting budgets and closing up shop, and at the same time that SCOTUS gave fresh guidance on when the right to counsel attaches, it is important to reflect on the place of the public defender in our criminal justice system today.
With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ’06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.
That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.
The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen. There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).
What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal – and often counterproductive – defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.
The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.
And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
Justice Clark, concurring in Gideon:
That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.
To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!
It’s an opinionated week!
Jun 26th
Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.
Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.
Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).
Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.
Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping – a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.
Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint – a B misdemeanor.
The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.
Roth-very narrow
Jun 23rd
SCOTUS today issued its opinion in Rothgery v. Gillespie County [pdf], which has caused some discussion in the blawgosphere. The prevalent theme in this discussion is a sense of being unfulfilled. A sort of “that’s it?”
There’s also some confusion as to what the decision really means.
Only one thing is clear: It is narrow. Very, very, narrow.
Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
So the decision was on a small, technical issue and the case will be sent back to the Fifth Circuit to determine whether any of Rothgery’s rights were actually violated (remember, this is a 1983 case).
So if they’d left it at that, it’d be fine. But then there’s this other business (from J. Alito’s concurrence):
As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.” The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right . . . to have the Assistance of Counsel for his defence”). It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching”.
Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177–178
So the criminal prosecution commences for Sixth Amendment purposes when there is an arraignment (or in Rothgery’s case – a presentment to a magistrate), but that doesn’t necessarily mean that the defendant be afforded counsel?
As Justice Alito’s concurrence notes, a finding that the right to counsel has “attached” means only that counsel must be present for “critical stages,” which are events where counsel needs to be present to preserve rights related to the forthcoming trial. There is, to date, no Supreme Court precedent that requires appointment of counsel for indigent defendants to protect rights other than trial.
So, we have no concrete decision on what is that first “critical stage”. Does the right to counsel attach only for critical stages, so in between these “critical stages”, there is no right to counsel? Or is it a critical stage from that first event all the way through to trial?
Obviously, I think the answers to these are fairly simple. There is an initial stage, say the arraignment, where a criminal prosecution is commenced. Anything that happens after that is with an eye toward a trial. So after arraignment, indictment or whatever it is in your local jurisdiction, right to counsel should attach (and a substantive right, not this incomprehensible Rothgery “right”). It only makes sense.
Some argue that there is no right to counsel during pre-trial negotiations. That is a red herring. No prosecution is undertaken with the goal of resolving it via plea bargaining. Plea bargaining is something that happens (albeit very frequently) along the way to a trial. During the plea bargaining process, the defense attorney is investigating the state’s case, conducting legal research, filing motions to dismiss/suppress, etc. It’s all with an eye toward the trial. That most cases are resolved via pleas is incidental.
Further, a plea bargain still results in a conviction (mostly) or a dismissal. If there were no right to counsel to assist in the plea bargaining process, then convictions would be obtained without counsel. There would be no one to point out the weaknesses in the State’s case; the whole system would be reduced to prosecutors vs. pro-se defendants. And then if a plea bargain goes south and case proceeds to trial, a defense attorney is placed in the position of having to undo the damage done by the pro-se defendant.
The system would not function. See previous post on IAC during plea bargaining for more.
One final point on Rothgery: The decision does not mandate, as some have suggested, that Texas appoint counsel for defendants every time someone is “presented” at a bail hearing. The decision did not address what Texas (or any other state) must do when a criminal prosecution is commenced. It simply addressed the time at which a prosecution is deemed to commence.
[The Crime and Consequences post linked to above has the throwaway line: "Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, and be done with the whole appointed counsel matter." Such a statement is dangerous and possibly ignores the disastrous consequences of such an event. It merits a whole post, which will follow sometime this week.]
What is our job?
Jun 15th
The Windypundit, in an effort to get a fellow Chicago blogger blawging, asks indirectly whether our job is to protect people’s rights or to help criminals “get away with it”:
Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:
I can’t help anyone “get away with murder.” No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn’t cheat. That’s not the same as helping you get away with murder.
It is to me, if I’m a murderer.
I don’t think Rob means what he wrote (at least not the way I’m taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don’t do what I’ve always thought they do, because I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.
Pretty much every defense attorney has been asked that question and most of us have fine-tuned our stock responses. They’re variations of the same “I’m defending the Constitution, asshole” meme. But is that what it really is? Losses sting in our business. We see clients sent to jail for decades and we never forget those cases. So wins do mean something. Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?
The invisible “trend”: banned words
Jun 11th
Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…
From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.
The story cites some sort of national trend – and that voice of prosecutorial reason Joshua Marquis – in making its point.
Lori Drew indicted in Myspace hoax suicide (updated)
May 16th
About a year and a half ago, Megan Meier hung herself after a boy she liked and talked to via MySpace turned on her. Turns out the “boy” was a hoax; a fake profile created by Megan’s friend (and also her neighbor), another teenage girl and her friend’s mother, Lori Drew.
[Drew] claims the profile was the work of her teenage daughter and a teenage employee called Ashley Grills.
Last month, Grills, now 19, went on national TV saying that while she was responsible for setting up the fake Josh profile, Lori Drew and her daughter were also involved in the cruel hoax.
The message was supposed to end the online relationship with “Josh” because Grills felt the joke had gone too far. “I was trying to get her angry so she would leave him alone and I could get rid of the whole MySpace,” Grills said.
This is a well-intentioned indictment [pdf]. After all, a girl is dead and it seems that but for the hoax, she would be alive. Yet, there is a problem: The indictment was returned by a Federal grand jury in Los Angeles, while the Drews live in St. Louis, MO.
Local authorities in St. Louis investigated this incident last year, but were unable to find a law that Drew violated, so no one was charged.
Now, Federal prosecutors have their ham sandwich.
In their eagerness to visit justice on a 49-year-old woman involved in the Megan Meier MySpace suicide tragedy, federal prosecutors in Los Angeles are resorting to a novel and dangerous interpretation of a decades-old computer crime law — potentially making a felon out of anybody who violates the terms of service of any website, experts say.
Lori Drew, of O’Fallon, Missouri, is charged with one count of conspiracy and three violations of the anti-hacking Computer Fraud and Abuse Act, in a case involving cyberbullying through a fake MySpace profile.
Volokh Orin Kerr, correctly in my opinion, lists three major problems with this indictment:
Is it a federal crime to violate contractual limitations on use of a computer?… If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?
[T]he crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew’s conscious object to have violated the TOS.
The third hurdle, and perhaps the easiest way for the defense to win, is that the government’s theory requires proof that the goal of the conspiracy was to obtain information…Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her.
Dan Solove at Co-Op is not so sure about the last one, but even if you take that out, I think #2 is a major hurdle. How can they ever prove that a) Drew read the TOS, b) understood that the TOS prevented her from setting up a fake profile to gather information about a daughter’s friend and c) intentionally violated the terms of the TOS? Just won’t happen.
While it would be ideal to have someone on whom to assign blame, it should not come at the risk of stretching the law to fit the circumstances of a particular case. When we start molding the law and stretching it and twisting it to reach one, individual, particularized goal, we start to make it extremely fluid and dangerous in its application.
[Update: Scott has more on this angle here.]
As we see time and again, there are profoundly tragic events that occur in society, for which there is no one who is legally at fault. This seems to be another of those. Of course, that’s no solace to Meier’s family, but this is a very attenuated application of a Federal law.
Photo credit: The Age/AP
Prosecutorial sanctions: Three time’s a charm
May 6th
In keeping with “Should prosecutors be held accountable” week, the 9th Circuit issued this scathing opinion, chastising two prosecutors for egregious violations:
The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed.
The Court concludes with:
This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.
Despite that, the opinion declines to name the prosecutors in question. Fortunately, Mike at C&F is not so shy. He’s going to send a copy of the opinion to the Nevada State Bar Association. Maybe something will come of it. It should.
Can a State copyright its statutes?
May 6th
Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.
Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!
How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.
So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?
Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.
Anyway, anyone see a potential notice problem here?
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