Category Archives: criminal law principles

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.]

How do you solve a problem like Brady? Liu-k no further.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don't get it.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don’t get it.

Scott wrote yesterday about a blisteringly ineffectual 4th Circuit opinion in U.S. v. Bartko [PDF], which was notable not only for its lengthy reprimand of the Brady practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about the numerous Brady violations it noted. Via Scott:

And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty. But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:

“We do not mean to be unduly harsh here.”

But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.

“Whatever it takes, this behavior must stop.”

Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.

As noted repeatedly here on this blog and almost everywhere else where someone with half a brain cell writes about criminal law, the problem with Brady is that it’s essentially unenforceable as long as there is no oversight and no will on the parts of judges to do the really hard thing: punish prosecutors for violating their duty by reversing convictions and referring them to grievance committees.

Maybe, though, just maybe that is catching on. First there was Judge Sheldon’s blistering opinion a few months ago, reversing a conviction for “a deliberate pattern of improper conduct” by the prosecutor.

Then, there was this recent story out of Alaska that involved a suspension of a former prosecutor for hiding exculpatory evidence in a murder case:

Judging evil: what if pedophilia is an “orientation”?

Almost 4 years ago, I wrote this post pondering whether pedophiles have free will. In that post I said:

there is a very interesting question here. If the science does prove at some point down the road that pedophiles really are not in complete control of their urges and these urges are the result of a brain malfunction – an organic disorder, if you will – must we change our attitudes toward those that commit these crimes?

I further wrote that the discussion was about mens rea – the intent requirement inherent in almost all criminal statutes. That post was written with Klüver-Bucy Syndrome in the background and so it focused on societal responses to acts deemed abhorrent but which were committed by people without the ability to control their urges. I left for another day the thornier question of how society should treat those for whom pedophilia seems to be an “orientation”, just like heterosexuality is an “orientation”1.

Before going further, it is important to note two things: 1) that pedophilia is the term for attraction to young people; not the term for acting upon that attraction. That is called sexual abuse. 2) I am not writing to explore the possibility of legalizing child molestation or sexual abuse. As I’ve stated before, there are very good reasons why society should and must continue to criminalize acts of sexual conduct with pre-pubescent children2 If you have gotten that (#2) from what I’ve written so far then I suggest that you either re-read the above or click here to go somewhere else.

Disentitling your rights

In doing the math for this post on the rate of success in the CT Supreme Court, I ran across this opinion, again by the Chief Justice, in the matter of State v. William Brabham [PDF]. It’s one of those opinions that’s a slow boil, so I put it on the backburner, until my outrage was sparked again1 by this recent opinion from the CT Appellate Court in Saksena v. Commissioner [PDF].

If you needed more proof of the fact that our “Constitutional rights” are but a mirage, provenanced from the goodwill of those entrusted with the enforcement and application of those rights. They are more grants of favor by judges than inexorable and inimical fundamental rights.

How else would you explain the frequency and ease with which violations of these fundamental rights are dispensed with, overlooked and excused?

Take, for example, the aforementioned Brabham. Brabham was, to be sure, a lout. He was also an absconder. He wasn’t, shall we say, the most honest person. He was charged with larceny and burglary, so he decided to do what seemed logical: run. Then:

After the jury returned its verdict, but before sentencing, the defendant posted bond and fled to London, England. As a result, the defendant failed to appear for sentencing on September 22, 2000. He later was rearrested and returned to Connecticut. The defendant’s sentencing  was set for March 26, 2004, but before that date, he once again posted bond and fled to London, England,  and again, did not appear for sentencing. The defendant again was rearrested, and on November 18, 2008, he was sentenced to a total effective sentence of fifteen years imprisonment. This appeal followed.

On appeal, he claimed, among other things, that the State had failed to prove his guilt beyond a reasonable doubt and the judge had failed to properly instruct jurors. So these arguments, if successful, would undermine the reliability of the conviction, implicating due process.

But he ran. And we don’t like people who run. And the fact of his running apparently outweighs the reality of his conviction being unconstitutional. There is such a thing as the fugitive disentitlement doctrine.

What it means, basically, is that if you’re charged by the State and a jury convicts you, no matter how erroneously or unlawfully, your illegal, tainted conviction will stand because fuck you. No one shows up the State and gets away with it.

Keep in mind that Brabham wasn’t on the lam when this appeal was heard: he was in custody serving an obscenely inflated sentence2. There is an argument to be made that a defendant who is on the run isn’t entitled to an appeal while he’s on the run. Fair. I disagree in principle, but in effect, I might be inclined to agree. This is not that case. Here, he’s in the State, sentenced to an outrageous sentence (see footnote 3 above).

The court listed the 43 rationales for “fugitive disentitlement”. They are:

(1) the judgment on review may be impossible to enforce because the prisoner has escaped, (2) the  prisoner’s escape disentitles him to call upon the resources of the [c]ourt for determination of his claims, (3) dismissal will [discourage] the felony of escape and [encourage] voluntary surrenders, and (4) dismissal will [promote] the efficient, dignified operation of the courts.

The court rejects the first three rationales and instead adopts the FDD for that fourth reason “efficient, dignified operation” of the courts.

Seriously. Are you laughing yet? I don’t even know what that means. The court then makes up some nonsense about how since he was gone for so long, a few exhibits went missing so they can’t rule on whether the state actually proved beyond a reasonable doubt that he was guilty of breaking into some dude’s office. Seriously. Do you see what we have to deal with here in Connecticut?

[Yes, okay, he shouldn't run. Yes, okay, there has to be some disincentive. But those rationales were rejected by the Court.]

But that’s not all. That merely brings us to Saksena v. Commissioner, which I mentioned above. That’s a habeas corpus case in which the opinion lists the only claim as being that he was not properly advised of immigration consequences pursuant to Padilla v. Kentucky. Until you look at the footnotes4. Footnote 1 says:

The petitioner also claims that the habeas court erred when it proceeded to trial without him present in contravention of his due process rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, Practice Book § 23-40, and General Statutes § 52-470. For reasons set forth in this opinion, we conclude that any error by the habeas court in proceeding to trial without the petitioner present was harmless.

My laughter has turned to tears. In case you don’t get the irony in this, let me spell it out for you.

Habeas Corpus is Latinese for… you have the body. It is a Latin phrase literally commanding the warden to present the physical body of the petitioner and answer why his conviction is legal.

I swear to God sometimes I think I’m living inside an Onion article. In Saksena, he was transferred to ICE custody for deportation purposes and was held in MA. They’d transport him to CT for his trial if the CT judge ordered it, but the CT judge refused to do so5. So, Saksena’s “bring the body” trial was held without the body.

And of course, the Constitutional violation doesn’t matter because he was guilty anyway.

 

Blech-er: confronting the venomous

Odious people tend to up the ante the most when they’re schilling something: like NY Law Professor Robert Blecker1, who’s got a book out about the death penalty. So naturally he takes to the beatified pages of CNN’s op-ed section to write an unholy screed about how lethal injection is just too easy.

When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer’s quick but painful death? By ensuring death through anesthesia, however, we have nearly severed pain from punishment.

An unpleasant life in prison, a quick but painful death cannot erase the harm. But it can help restore a moral balance. I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.

So what is his solution?

Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best. It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.

Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned. This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections. Anger and responsibility seem to lie everywhere elsewhere — that is, nowhere. And where we cannot fully escape responsibility — as with a firing squad — we diffuse it.

Both Greenfield and Gamso have taken this on today, with Scott pondering the value of televising and making executions a public spectacle once again:

But it’s made me consider whether the issue would be best brought to a head by putting executions on the television, prime-time, hosted by someone who used to be on MTV, so that all the agnostics who are kinda for it without having to give themselves headaches by thinking too hard can watch it in high-definition.

and Gamso echoing Scott in that maybe, just maybe, we all don’t have this bloodlust of Blecker:

Except, you know, maybe not everyone’s so hot to kill.  Maybe not everyone thinks matching evil for evil is a moral command.  Maybe some of us absorbed the lesson that two wrongs don’t make a right.  Maybe mercy is a higher value than retribution, more something we should at least aspire to.  And maybe those folks who just don’t trust the government to get it right have something there.

They both recognize – correctly – that not everyone is like Blecker and there are those2 who are moving in the opposite direction.

But there are more Bleckers out there than Gamsos and Gideons and Greenfields. The death penalty is still heavily favored across large swathes of the country. So who, exactly, are the Robert Blecker’s of the world? And what can be done about them? Let’s start with Blecker himself. From his “bio“:

With a gleam in his eye, Robert Blecker, a nationally known retributivist advocate of the death penalty, has managed to alienate both sides of the debate on the politically divisive and morally complex issue of capital punishment.  But his position as designated outcast is nothing new, nor is his strongly held conviction that the most vicious and callous offenders deserve to die and that society is morally obliged to execute those “worst of the worst” criminals.

His entire bio is a manifesto of his “outsiderness”, his “unpalatable” positions and his “radical” agenda.

His positions, however, are hardly radical when it comes to the death penalty. Retribution is a such a simple emotion and requires little to no thought. It is base, unadulterated and intoxicating.

“You hurt me so I hurt you.”

Forgiveness is difficult. It takes understanding. It takes swallowing of pride and absorbing the wounds of pain and humiliation. Revenge is easy. As with anger, it consumes and obfuscates. It takes over one’s entire existence.

And so people across the country succumb to its allure. “Hang him by his penis“, they shout. “All murderers should be executed.

These are our jurors. Our death penalty jurors. Some of whom might even be death-qualified. So what do we do about the Bleckers of the world? How do we confront that which is so venomous, just as Blecker would have those condemned confront the guns of a firing squad?

A commentator on a national listserve pointed out that one might be able to look at Blecker’s philosophy itself to counter this wall of rage and retribution.

Blecker makes much of executing only “the worst of the worst”.

Yet we all know that there’s no such thing. That “the worst of the worst” is an euphemism for the defendant du jour. There’s always someone, somewhere, who’s done worse. Or appeared to do worse.

In Lockett v. Ohio, the United States Supreme Court held that the decision to sentence someone to death must be based on an individual assessment of moral culpability.

The decision to vote for death is a deeply personal, moral and individual one. Even people like Blecker must be forced to admit that not every case is “the worst of the worst” otherwise that distinction will have no meaning to him.

The death penalty is a punishment imposed on an individual, not on an act. Acts may be the “worst of the worst”, but as applied to people, that term is meaningless. Because people are damaged and broken and flawed and disabled and mentally ill and provoked and oppressed and angry.

In the end, this approach perhaps covertly reinforces the abolitionist position all along: that no matter what people do, they are still people, individual human beings who don’t deserve to be summarily executed in anger, or in the name of some collective good.

So, Robert Blecker, you’re closer to a true abolitionist than you thought.

Clarifying the problems with mandatory-minimums: why it’s okay to let them go

Over the weekend, Susan Bigelow at CT News Junkie had a fantastic op-ed piece arguing that Connecticut should follow AG Holder’s lead1 and revisit its use of mandatory minimum sentences.

Susan writes:

Just as important as efforts on the federal level, however, are criminal justice reforms we can and should implement here at home. The number of prisoners held in Connecticut’s facilities has, for a number of reasons, dropped from all-time highs in 2007 and 2008, but those levels are still high considering the drop in violent crime that’s occurred over the past decade. Also, the parole reforms enacted after the Cheshire murders in 2007 have contributed to the reversal of recent declines in prison population, meaning fewer prisoners are being released.

That’s accurate, with some recent reporting by The CT Mirror showing that numbers have gone up and overcrowding is a problem again, driven in large part by “reforms” to parole laws. Susan argues that in the next legislative session, we should “reform” mandatory-minimums or,  better yet, do away with them altogether.

There’s nothing to reform. Mandatory-minimums are a dangerous power to give to prosecutors. The results of that power being wielded in a heavy-handed way are evident in the war on drugs. It’s taken decades for the Attorney General of the United States to recognize that mandatory-mininum sentences have a terribly disproportionate impact on racial minorities.

In Connecticut, mandatory-minimums apply if you’re selling drugs within 1500 feet of a school or public housing project. Repeated efforts over the last few years to reduce that “drug-free zone” to 200 or 300 feet have failed.

Take a guess as to who is most impacted by this mandatory-minimum sentence2? You know where you can’t stand without being within 1500 feet of a school or public housing project? That’s right. Connecticut’s urban cities (that’s a post from 2007, by the way. We’ve been dithering over this common sense reform for six fucking years).

Mandatory-minimums are also dangerous because they are a chain that binds the hands of judges who seek to do justice and are a weapon in the hands of prosecutors who want to be unreasonable and unjust.

In Connecticut, prosecutors determine the charges to be filed and pursued. A judge, short of dismissal of a charge for legal reasons, cannot alter the charges filed by a prosecutor. Judges, on the other hand, can indicate a sentence they would impose, which can differ from a prosecutor’s recommended sentence.

So let’s say that a judge thinks an assault charge is worth a prison sentence of two years; the victim doesn’t want to the defendant to go to jail and there is no real long-term injury to any party. The defendant is a young man, with little or no criminal record and the state’s case is iffy at best.

But a gun was used in the assault, so the prosecutor charges Assault in the First Degree, which carries a mandatory sentence of 5 years. Now, no one thinks that a 5-year sentence is appropriate, except the prosecutor, but no one can do anything about it, including the judge and/or victim. Maybe the prosecutor doesn’t like the defendant, maybe she doesn’t like the defense lawyer, maybe she doesn’t like the judge or doesn’t like the system. Who knows.

But the point is that the prosecutor can hijack “fairness” in the process by “sticking” on a mandatory-minimum.

Mandatory-minimums are set by the legislature, based on precise calculations made using actuarial tables and deep meditation pulling numbers out of their ass. Most don’t have any experience in the day-to-day operation of the criminal justice system and base their ideas of “justice” and “fairness” on fairytales Law and Order. To be fair, when we’re resolving cases, we also pull numbers out of our ass, but at least our asses are attuned to the range of widely accepted resolutions.

But legislators, in someone’s infinite wisdom, have selected arbitrary numbers and have decreed not only maximum punishments, but also minimum punishments, sometimes in abject disregard for the realities of the criminal justice system.

Eliminating mandatory-minimums would do only one thing: eliminate the minimum. It would do nothing to the maximum. But it would allow judges the flexibility of making fair determinations of the appropriate sentence to be imposed, not hindered by an over-charging prosecutor. If a case is “worth” 2 years, a defendant should get a sentence of 2 years. But if a case is worth 8 years, he will get 8 years. Eliminating mandatory-minimums does nothing to alter that possibility.

Instead of a range of 5-20 years, the range simply becomes 0-20 years and a judge is free to sentence anywhere between those two numbers.

Finally, as I’ve said before, CT’s mandatory-minimum scheme has a weird interaction with its juvenile sentencing scheme, resulting in 14 year old children being tried in adult court as adult criminals and sentenced to mandatory ten years in jail. Juveniles – children – are different than the rest of us. The science is incontrovertible and established and even the United States Supreme Court has acknowledged this distinction. They deserve a second chance. While states across the country are considering altering their laws to comply with the Supreme Court, a bipartisan bill that would have done just that was defeated in the State legislature.

Because people are afraid:

“There seems to be some notion that mandatory minimum sentences make us safer and that moving away from them makes us less safe,” [State Rep. Gary] Holder-Winfield said, highlighting a stale leftover from the tough-on-crime rhetoric of the 1980s and 1990s. More people in prison doesn’t equal a safer or more just state, especially not when so many lives are being destroyed in the process.

People who commit crimes should be punished. But they should be punished fairly and proportionate to their crime. They should also be punished in a manner that is proportional to others who have committed similar crimes. They should also be punished in a manner taking into account their individual facts and circumstances.

Smart on crime means all of that. It means treating people as human beings. “Tough on crime” means being afraid of everything that isn’t you and condemning vast numbers of people because you’re scared. Tough on crime is simply continuing the narrow-minded racist policies that got us where we are today: staggering numbers of children and low-level non-violent drug offenders serving significant prison sentences, while our jails burst at the seam, corrections swallows the largest portion of our state’s budget and a trail of destroyed lives and families in its wake.

It’s time to stop being stupid on crime and start being smart on it. Eliminating mandatory-minimums is a step in the right direction.

Free after 17 years

Late yesterday afternoon, 4 men walked out of the New Haven, CT criminal courthouse, free men for the first time in 17 years. Earlier in the day, they got to stand in court and hear the judge say that all charges against them were dismissed.

17 years ago, Sean Adams, Darcus Henry, Carlos Ashe and Johnny Johnson were charged with, tried and convicted of the murder of one Jason Smith and the shooting of Andre Clark. They all were sentenced to prison terms of over 75 years.

The main evidence against them at trial was the testimony of Andre Clark. Andre Clark, however, was himself the defendant in several other criminal charges. Prior to the Adams’ trial (I’m going to use Adams as shorthand for all the rest), Clark had pled guilty in that same New Haven courthouse and instead of facing 35-38 years in jail, had entered into an agreement that would cap his sentence at 4 years, with a right to argue for less in exchange for his testimony against Adams.

Clark testified against Adams. Under intense cross-examination, Clark denied that he had pled guilty, or had any deal with the prosecutor or had any expectation of leniency in exchange for testifying. In other words, he flat out lied. No prosecutor uttered a word to correct him.

It’s not like even with Clark, the State’s case was strong. From the Supreme Court opinion reversing their convictions [PDF]:

Finally, the fact that the evidence against the petitioner was hardly overwhelming is borne out by the  apparent difficulty that the jury had in deciding the case. The jury deliberated for ten days before reaching a verdict on the petitioner’s charges. Moreover, the jury could not reach a unanimous verdict on any of the charges against two of the petitioner’s three codefendants, resulting in a mistrial as to them, and before reaching its guilty verdicts as to the petitioner and Henry, the jury requested that the testimony of Ogman, Andre, and Charles Clark be read back. Although not necessarily dispositive of the issue of the strength of  the state’s evidence, the foregoing considerations support the conclusion that the jury viewed the case as a  relatively close one.

Prosecutors have an independent an affirmative duty under Brady v. Maryland to disclose biases that witnesses might have if it could lead to their impeachment on the witness stand. A plea agreement for a significantly favorable sentence in exchange for testimony in another trial certainly qualifies as such. If there was any doubt that he received favorable treatment, it was dispelled at his own sentencing:

Although the court originally set sentencing for February 19, 1999, Andre was  not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December  14, 1996 shooting, including the petitioner’s trial.At  Andre’s sentencing hearing, [the prosecutor] recommended that the court vacate Andre’s pleas on two of the charges  and impose an unconditional discharge on the third charge. In support of this request, [he] observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. . . . He’s been enormously cooperative.’’

But here, there were two prosecutors: one prosecuting Adams and one prosecuting Clark. They set up a sort of “firewall” between themselves, agreeing not to talk to each other about the other’s case. So when Clark testified at Adams’ trial that he had no agreement, that prosecutor didn’t actually know if that was untrue.

But that’s not good enough, said the Supreme Court – and the State agreed on appeal:

Of course, as the respondent now concedes, the state certainly did have a duty to disclose  Andre’s plea agreement, no less than it had a duty to correct Andre’s false testimony denying its existence, because the prospect of a lenient sentence gave Andre an incentive to curry favor with the state and the sentencing judge, an incentive that the petitioner and his codefendants were entitled to explore on cross-examination. See, e.g., State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010) (‘‘[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence’’ [internal quotation marks  omitted]); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir. 1980)  (‘‘[u]nquestionably, agreements . . . to reward testimony by consideration create an incentive on the witness’ part to testify favorably to the [s]tate  and the existence of such an understanding is important for purposes of  impeachment’’)

Having found that there was a Constitutional violation and that the evidence was material to the trial, the Supreme Court had no choice but to vacate the convictions and return the matters to the trial court.

And that’s where we started, as did Adams and his co-defendants. And now they’re back. To start a new life; maybe a different life.

“I’m overcome with joy,” said Johnson’s mom, Gloria, after hugging her son.

“Justice finally prevailed,” declared Adams. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.” He held onto his daughter as he moved through the crowd. “Finally, I get to be with her,” he said. “She was born while I was in jail.”

Darcus Henry has two 14-year-old sons, both of whose lives he’s missed out on.  “I feel like justice is served,” said Henry as he hugged Darcus, Jr.