Category Archives: ethics

Everyone pays for prosecutorial impropriety except prosecutors

On January 12 this year, Lucas Betancourt, a felon convicted of various forms of kidnapping, burglary, robbery and attempts thereof received word that his request to a judge to have his convictions vacated and reversed had been granted [PDF]. The sole basis for the granting of his petition and the reversal of his convictions? Unsurprisingly: prosecutorial impropriety. Specifically that the prosecutor had violated her1 obligations pursuant to Brady v. Maryland, United States v. Bagley and Giglio v. United States. As summarized by The Open File:

One of the chief witnesses that [prosecutor Gail] Hardy used to obtain Betancourt’s conviction eleven years ago was an alleged co-conspirator, Felipe Buitrago. He was central to the case partly because the victim could not identify the perpetrators. Six months before Betancourt’s trial, Buitrago had pled guilty to his own role in the crime and been sentenced to five years in prison, followed by five years of probation. This much, Betancourt’s defense was aware of.

Of course, what the defense wasn’t told is that Hardy and Buitrago had “entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence,” after he testified at Betancourt’s trial.

In sum, here’s what happened:

  • On direct, Hardy did not elicit from Buitrago that they had a deal in place in exchange for his testimony.
  • On cross examination, Buitrago was extensively cross-examined regarding any incentives from Hardy, including sentence modification.
  • On cross examination, Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification.
  • Hardy did nothing to correct this false testimony.
  • In fact, Hardy argued during closing argument that Buitrago was reliable and there was no evidence established to doubt his testimony.
  • 9 months after Betancourt was sentenced to twenty-five years to serve,  Buitrago filed a sentence modification.
  • Hardy agreed to have the sentence modification heard.
  • Hardy agreed to the modification.
  • Hardy agreed to modify the sentence by 50%.
  • In order to effectuate such a massive modification, Hardy had to substitute the charges Buitrago had pled to, to ones that did not carry mandatory-minimums, which she did.
  • She stated during the modification hearing that Buitrago’s testimony had been crucial to Betancourt’s conviction.

Once again, a conviction – usually touted as a victory for justice – had been obtained by unsavory and unfair means; by cheating. So who’s going to pay for this? Certainly Betancourt because he served many years in prison for something he may not have done. But who else? Not Buitrago. He got his 5 year sentence cut in half. Certainly not Gail Hardy, who was in Waterbury when this happened2 and who has since gone on to become the chief prosecutor in Hartford. If there have been no sanctions or repercussions for Terrance Mariani or Sharmese Hodge then why would there be any for Ms. Hardy? If Andrew Benson can mock the defense during his closing argument and pretend to be asleep and go on to become a judge in Maine, why do you think anything would happen to Ms. Hardy for allowing her witness to lie on the stand?

Almost one whole year ago, I wrote a series of posts about the lack of accountability for prosecutorial impropriety in our system and the fact that it was a conversation we desperately needed to have. The first post was inspired by a string of reversals because of impropriety that resulted in no sanctions for the offending prosecutors. The second was an attempt to explore options for holding prosecutors accountable.

A full year has gone and we are no closer to finding a viable solution. But that doesn’t mean that misconduct has disappeared. Quite the opposite. It has continued unabated but we know who pays for it: we do.

We pay for it in the form of tax money that is used to fund compensation accounts for the wrongly convicted. Just this month, the claims commissioner J. Paul Vance Jr. has made two sizeable awards to 5 different people who were wrongly convicted: $4.2 million each to Carlos Ashe, Darcus Henry, Sean Adams and Johnny Johnson and $6 million to Miguel Roman, totaling in excess of $23million this year. This money comes out of our pockets. Of course, I don’t mind paying, because I think this is just compensation and then some for spending 18 years in prison. You couldn’t give me $4million if the condition was to spend a year in prison, let alone 18.

Yet the first award by Vance has given rise to a controversy and been the subject of criticism, because he didn’t find that they were actually innocent, merely that the charges were dismissed on grounds consistent with innocence. To some – notably agents of the state – that’s not enough:

Senate Minority Leader Len Fasano, R-North Haven, who has been in contact with the murder victim’s family, said Vance’s decision was an outrage.

“It is clear they need to be found innocent for damages. I think Paul Vance is absolutely wrong. I think he has no justification for it legally,” said Fasano, a lawyer whose district abuts New Haven. “I think what we should do in the event we have a claims commissioner who apparently has misread the statute, we should allow an appeals procedure.”


“Here, there is absolutely no evidence as yet in the record to show that these claimants are innocent,” wrote Assistant Attorney General Terrence M. O’Neill, whose office readily concedes the men deserved a new trial. “While there can be no doubt that a significant prosecutorial error constituted a significant defect in their prosecutions, that defect does not, in and of itself, establish innocence.”

So, clearly, the solution is to fault the commissioner and the system for allowing him to conclude that their dismissals were consistent with innocence:

Without commenting on the appropriateness of Vance’s decision, Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee, said he expects the law to be reviewed this session with an eye toward creating a venue for the state to appeal.

Certainly no one is asking: what of the prosecutor? What is to be done about the misconduct that leads to these unfair convictions? Why do we not have a system in place to review prosecutors whose conduct has been held to be improper and determine whether they need some sort of remedial training or suspension? Do we continue to pay the compensation of men who have had their liberty wrongly snatched away by an overzealous or unethical prosecutor?

Or do we say the American justice system is much more than the results that it spits out. That we care as much about fairness as we do about guilt or innocence? That it is not enough that for every instance of impropriety we reverse a conviction and then ignore it, pretending it never existed, leaving those that committed the injustice free to do so again.

It’s time to give process its due.

  1. Gaily Hardy, current State’s Attorney for Hartford, whose name is missing from the decision reversing the convictions but was uncovered by The Open File.
  2. For those who don’t know, Waterbury’s chief was John Connelly, who is now deceased. Waterbury has sent the most people to death row in CT by a LOT ( There were some noises about him and there was a federal probe ( and he resigned his post right before the Criminal Justice Commission was getting ready to take some action ( When Hardy came to Hartford, as an outsider, there was a lot of outrage ( Waterbury is also where weird stuff like state police wanting an arrest warrant for a judge who refuses to issue another arrest warrant happens (

Implicit biases, subtle racism and privilege: a West Hartford tale

Two days ago, a Hartford Courant Communities reporter Kristin Stoller posted an article, which was essentially a police puff piece, touting the decrease in DUI arrests in the suburban town of West Hartford, despite an increase in patronage of West Hartford’s restaurants.

What seemingly was an unobtrusive, nothing sort of article in fact serves as a lesson to us all about our inherent biases and a shocking reminder of the level of racism that still permeates our society and a sad story of the state of journalism today. First, some background. West Hartford:

The racial makeup of the town was 79.6% White, 6.3% African American, 0.2% Native American, 7.4% Asian, 0.03% Pacific Islander, 3.8% from other races, and 2.7% from two or more races. Hispanic or Latino of any race were 9.8% of the population.

The median income for a household in the town was $80,061, and the median income for a family was $106,089 as of a 2011 estimate.[24] Males had a median income of $69,888 versus $56,162 for females. The per capita income for the town was $45,453.

West Hartford abuts Hartford, with the border running in the middle of Prospect Avenue. Regarding Hartford:

The racial makeup of the city was 29.8% white, 38.7% African American or black, 0.6% Native American, 2.8% Asian, 0% Pacific Islander, 23.9% from other races, and 4.2% from two or more races. 43.4% of the population were Hispanic or Latino, chiefly of Puerto Rican origin. Whites not of Latino background were 15.8% of the population in 2010, down from 63.9% in 1970.

The median income for a household in the city was $20,820, and the median income for a family was $22,051. Males had a median income of $28,444 versus $26,131 for females. The per capita income for the city was $13,428.

West Hartford is a far more racially homogenous town and it is far more affluent than Hartford. This has been a source of conflict for many years, with the residents of WH aggrieved that they have to live adjacent to the poor, minority city of Hartford1.

Which is why some of the comments in Stoller’s column by the Assistant Police Chief of West Hartford Daniel Coppinger were troublesome. For instance, he said:

“Patrons like West Hartford because they feel safe. It’s safer, it’s cleaner.”

Okay. Well. I get that people like that it’s cleaner. And safer too, I suppose. I like safe places. But safer than what?

“Cab drivers like it because of the same reasons. The people that they are picking up and bringing places aren’t stiffing them on cab fares. They are a nicer cliente to transport around.”

If the coded language hasn’t hit you in the face, let me spell it out for you. He’s referring to people from Hartford and probably referring to racial minorities. I can’t be sure, of course, because Stoller didn’t ask him what he meant by any of that. Instead, she moves on to an example of the type of problems the town does have: a drunk, probably white woman, who was adamant that she drive, who got into her car and rammed two other cars, who was then successfully detained.

There are other bizarre quotes in there too, about how they’ve used local town ordinances to strictly control the types of establishments that are allowed to serve alcohol and some “friction with folks who wanted to be nightclubs, do bottle service and be 21 and over” according to another Assistant Police Chief Bob McCue. He also said: “If folks are interested in that nightclub feel with bottle service and cover charges, go to the city, or go to a casino.”

West Hartford clearly doesn’t want dirty clients, or unsafe people, or people who aren’t nice to cab drivers, or who stiff cab drivers or who want bottle service, or nightclubs, or be 21 and over, or pay a cover charge.

If all of that seems like offensive coded language then you’re not the only one. Because a bunch of local Hartford people started questioning the language used by Coppinger and McCue, challenging Stoller and the Hartford Courant to explain just why the use of this language hadn’t been questioned when writing this article.

Then the unthinkable happened. The first quote by Coppinger disappeared. It’s not there; check the article. It’s disappeared by magic, as if it never existed. There isn’t a mention that the article has been edited, there isn’t an explanation for why it was taken down and there has been no response to repeated attempts to find out who edited it and why.

This poses so many questions: the most obvious is, why was this nefariously edited? Who decided this? Clearly, ethics in journalism mean nothing if this is permitted to stand unexamined.

But there are greater issues to think about here, issues that impact the current state of society in America: the issue of inherent or implicit bias in the way we see the world, the privilege we experience depending on the color of our skin and our social class and the subtle aggression and racism toward people of color that is a feature of every American institution.

Why did Stoller not raise an eyebrow when faced with these quotes? Is it because she, just like Coppinger, views the world in the same way? Is it because it is an unspoken code among racial or class majorities? Did she instinctively know what he meant, agreed with it and saw no reason to question it? Because that’s the world in her view? In other words, was this a product of her implicit biases?

Also known as implicit social cognition, implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.  These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.  Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.  Rather, implicit biases are not accessible through introspection.

The implicit associations we harbor in our subconscious cause us to have feelings and attitudes about other people based on characteristics such as race, ethnicity, age, and appearance.  These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages.  In addition to early life experiences, the media and news programming are often-cited origins of implicit associations.

It’s critical to understand that the biases exist subconsciously. I have no doubt that if asked, Stoller and Coppinger will strongly attest that they are not racists, believe that to be true and act in accordance with that truly held belief. I am certainly not saying that Stoller and Coppinger are racist. I believe they are not.

But we all have biases. I do, you do2 and by extension so do Stoller and Coppinger. That’s what makes biases so insidious. We don’t know they exist and we don’t know that they affect and alter our behaviors and interactions.

Think about the impact of implicit biases in the educational system or in politics or in the criminal justice system. Policing has increasingly been viewed as racist or biased against racial minorities, yet most police officers would not be called racists by their friends or family. However, our policies are such that they affect the way we arrest and prosecute individuals, the way we offer plea deals or sentence defendants after trial. It affects the way we view claims of racism by others or we evaluate the life experiences of others.

To someone who has grown up with privilege – as the term is used today – combined with an implicit bias reinforced by one’s immediate society and the media that one chooses to watch – again influenced by that subconscious bias – there is absolutely nothing wrong with a town not wanting people who aren’t nice clientel to cab drivers.

But it affects everything. For a police officer, it affects the way they conduct stops and whom they stop and whom they cite. For a reporter, it affects the way they reproduce quotes and whom they turn a critical eye toward.

If we truly want to make society a more progressive place, a more inclusive and tolerant place, we must learn to recognize these biases when we are alerted to them, try and correct for them and gain an understanding that these are not flaws in our character, but a negative side effect of the environment of our existence.

What’s offensive about the article isn’t the quote – that would have served as an interesting study of the biases and subtle racism that exist, but rather its clandestine removal. The worst thing one can do is to ignore the existence of the bias or even give in to it, because that serves only to reinforce it.

  1. This problem is not exclusive to Hartford/West Hartford and exists as a part of CT’s identity.
  2. Take this test to find out yours.

Bill Cosby and the unwritten agreement

This whole Bill Cosby’s mysterious unwritten plea agreement slash non-prosecution agreement slash immunity promise slash missing scrolls saga is a very fascinating law school hypothetical.

There was some promise made to Cosby about not being prosecuted, as former prosecutor Bruce Castor has said and is expected to tell a court under oath. Apparently he promised Cosby that he won’t be prosecuted, so as to remove any possibility that Cosby would invoke his Fifth Amendment privilege during a deposition in civil trial. Had such a promise not been made, Cosby likely wouldn’t have testified, because he would have been put in a position of incriminating himself, something the Constitution prohibits.

But it wasn’t in writing. God knows why. There wasn’t a written immunity agreement; it apparently isn’t on record anywhere except in the minds of Castor and Cosby’s lawyers. Maybe they have it in their files.

But the existence of a verbal agreement between prosecutors and defense attorneys isn’t uncommon nor is the fact that it wasn’t memorialized fatal to his claim. It would’ve been cleaner and nicer to have it in writing, but the fact that a promise was made and immunity was granted – in some form or other that caused reliance on that immunity – is the key. If there was such an agreement and Cosby relied on that agreement, then contract law dictates that the agreement be upheld.

The question, of course, is why didn’t they just get it in writing? I don’t know. It is spectacularly stupid in hindsight and does create grounds for valid skepticism that such an agreement actually existed.

But lawyers don’t fabricate agreements in court filings [PDF] and those with whom the agreement was made also don’t support the existence of an agreement if there wasn’t something to it. If there was no such agreement, or no such understanding, how easy would it have been for Castor to say to the media: they’re nuts, there was no such promise.

Is this verbal agreement enough? Does immunity have to follow a very certain formal structure? Will we ever know why these idiot attorneys never got it in writing? No clue, but I bet many law students will grapple with these issues next semester.

Are there viable solutions for prosecutorial misconduct?

Just last week, I wrote a lengthy column in the Law Tribune outlining the many instances of prosecutorial misconduct occurring over the last month and a half or so, all of which seemingly went unpunished. In it, I didn’t propose any ideas to eliminate the problem. Just that same day, however, news broke of yet another instance of egregious misconduct by a prosecutor in California – a man named Robert Murray – who fabricated two sentences and added them to a defendant’s statement to police:

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Murray called it a “joke”:

The panel found that Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges that carry a life sentence, and distributed it to defense counsel at a time when Murray knew defense counsel was trying to persuade Palacios to settle the case.

The court cited the changes made by Murray in the transcript as follows:

(Detective): “You’re so guilty you child molester.”

(Defendant): “I know. I’m just glad she’s not pregnant like her mother.”

Murray placed the falsified admission of guilt into the English transcript translation of Palacios’ interrogation that was done in Spanish.  For nine days, Murray kept quiet about his fabrication. It was only after defense attorney Ernest Hinman confronted Murray about the altered version. Murray said he meant it only as a joke to be kept between the two men.

His immediate supervisor, Kern County District Attorney Lisa Green said she was disappointed… in the appellate court ruling [PDF]. California AG Kamala Harris’ office appealed the dismissal and continues to defend it.

Instapundit (and Law Prof) Glenn Reynolds picked up on this and my prior post and wrote a powerful column in USA Today excoriating unethical prosecutors. But he too noted the problem with the current idea of sanctions: that prosecutors are immune from civil liability:

Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.

That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.

Indeed we do. Misconduct is an area that gets prosecutors angry and swarming, because it is an allegation of dishonesty and ethical failures. It’s an incendiary topic and well it should be. When a prosecutor commits misconduct, individual defendants aren’t the only ones who lose: the ideal of justice does as well. So while it is a delicate subject, it shouldn’t be taboo. While we must be careful not to accuse every prosecutor we dislike of engaging in misconduct, we should not be afraid to stand up against those who do and demand action against them for it.

I’ve pondered many solutions for years and Glenn Reynolds lists them in an easy to digest paragraph:

First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.

I’m going to examine some ideas in turn now.

  1. There is a counter-argument that if we make this a condition, appellate judges will be even more reluctant to find misconduct by prosecutors. It is a legitimate concern, but one that is, I think, overblown.

Provoking prosecutorial oversight

Slate has published an interview with Fordham Law professor John Pfaff (Twitter) that is both very good and very bad. I suspect they contacted him because of his post at PrawfsBlawg (guys, it’s been, like, 10 years. Can we change that name now? Seriously please?) in which he thinks about prosecutors.

Thinking about prosecutors is a very good thing – we here at APD do it often – and it seems that John Pfaff recognizes that thinking about prosecutors is an important thing and he seems to do it often and do it well:

The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.

The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.

The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.

In fact Pfaff has been at this for a while. Here’s a paper he wrote in 2009 and here’s an accompanying piece in, of all things, Slate in 2009. Here’s another one from 2014. His point is that while a lot of us have been focused on the war on drugs as the main driving force behind America’s incarceration problem, it is but one factor. He urges us to look at prosecutors more skeptically and question their unchecked power and their exercise of their discretion in determining who to charge and with what crimes.

This is, of course, not a novel idea: it stands to reason that if prosecutors are overzealous and heavy-handed and throw around their power, they will charge greater numbers of people with more serious crimes and use the threat of incarceration to get potentially innocent people to plead to lesser offenses and thus boost prison populations, despite actual crime dropping.

Whether there is a direct correlation here is beyond my mathematical abilities, but intellectually one cannot escape coming to the conclusion that this theory holds water. Anecdotal, experiential evidence supports this theory. Every criminal defense lawyer has encountered a prosecutor or three who insists that – despite damning evidence to the contrary – a dismissal shall not be forthcoming and a defendant must agree to accept some responsibility whether real or imaginary. Every criminal defense lawyer has encountered a prosecutor who refuses to forgo a prosecution despite it being the morally correct path to take. Statutory rape cases are the prime example of opportunity for abuse. Additionally, in CT alone – a very small state – there are 1532 offenses one could commit that would land one in jail.

“A pound of flesh” isn’t a phrase thrown about in criminal justice circles because the participants are avid meat eaters.

The Slate interview with Pfaff is a good thing, however, because it highlights the problem with a lack of oversight of prosecutors to the lay individual1.

So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.

But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.

There is, as far as I’m aware, no oversight of prosecutors anywhere. Grievances are rarely filed, if ever. There are no boards who review the performance of prosecutors and internal investigations are pro-forma if they are ever performed.2 Even those who are found by courts to have engaged in unethical behavior are rarely punished and not only continue to keep their jobs, but also get promoted and become judges.

The greater the awareness of this issue and the greater public interest we can generate, the better it is for everyone.

But let’s not call prosecutorial oversight “provocative” shall we? What’s so provocative about suggesting that prosecutors are sending more people to jail and thus our prison populations are increasing across the country?3

This is why this piece is very bad. It sets up Pfaff’s theory as some sort of ground-breaking, dangerous, novel idea. It reveals another pet subject of ours here at APD and that is the complete and abject genuflection that the media engages in at the altar of law enforcement.

Most media representations of the justice system are from an solidly “law and order” position: all crime is bad, all criminals are bad, whatever police say is true and every person deserves the punishment they get.

When that is the underlying theme of every story written about the justice system, it isn’t hard to see why an idea that questions the righteousness of those on the “law and order” side of the justice equation would be treated as “provocative”.

I have never understood why the media isn’t more skeptical. They are clearly so when it comes to other forms of governmental power and abuse: the military, state secrets, who’s making how much and which contract was given to which relative. So why do the police and prosecutors get a “can-do-no-wrong” pass? Why are press releases from the police blotter routinely printed verbatim? Why isn’t it equally normal to wonder if the accused in a particular case was given a just sentence or whether the prosecutor really needed to purse a more serious charge when a lesser one would have sufficed?

If judges, defense lawyers, grievance committees, legislators and the media won’t challenge the authority of prosecutors and demand oversight, then who’s left? That’s right: prosecutors.

  1. As lay as an individual who reads Slate can be.
  2. There is this bill raised this year in the CT legislature, but there are no details yet and whether it makes it beyond someone’s draft board remains to be seen.
  3. Though not in CT, apparently, where we’re hitting some record lows.

Reminder to cops and prosecutors: it’s not my job to help you

I swear, sometimes, I think everybody needs to go back to grade school for remedial lessons in English and Civics.

I’ve said it again and again, our system of laws is an adversarial system, as opposed to a “truth-seeking” or inquisitorial system. This means there are two sides in opposition: those that try to put people in jail and those who try to ensure that only those who are guilty beyond a reasonable doubt are put in jail. The system can build trust and work relatively properly only when the two sides fulfill their stated roles and don’t exercise improper influence over the other1.

So that means, for instance, that a public defender shouldn’t be arrested and charged with hindering prosecution because his client failed to return to court at the start of a trial.

An Allegheny County public defender was arrested Monday on charges that he gave inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case.  [He] was arraigned Monday night on charges of hindering apprehension and obstructing the administration of law. Court records show Mr. Capone, who could not immediately be reached, was released on nonmonetary bond.

He was arrested for giving “inaccurate information”? What in Blackbeard’s black beard is that?

Mr. Capone represented Jeffrey Derosky, 44, of Imperial, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Mr. Derosky was scheduled to go to trial Jan. 12. Four days later, he was found dead of a self-inflicted gunshot wound in West Virginia.

Sorry, I forgot it mention it gets pretty serious. But here’s the crux of it:

A detective with the county sheriff’s office wrote in a criminal complaint that Mr. Capone told a staff member for Judge Donna Jo McDaniel that Mr. Derosky “had not appeared at court.” The judge’s tipstaff told investigators Mr. Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial,” the detective wrote.

Unfortunately, it turns out that he had seen Derosky on the morning of the trial and had conveyed an offer of 5 to 10 years to serve. Derosky and his girlfriend had left, both intending to not return. It doesn’t seem that Capone was aware of their intentions to flee.

But it’s still not clear what exactly happened:

The detective contacted the judge’s staff again and asked them to clarify whether Mr. Derosky had come to the courthouse for trial. Confronted with the information from Ms. Blystone, Mr. Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege,” the detective wrote.

He said Mr. Capone told the judge’s staff that Mr. Derosky and Ms. Blystone had come to court for the trial, he informed them of the plea deal and Mr. Derosky then cursed and said, “I’m out of here.” Mr. Capone told the staff he went to another courtroom and when he returned about 10 minutes later, Mr. Derosky was gone, according to the complaint.

So it seems that Capone rightly told the cop to fuck off and then did tell the staff that the defendant had come to court.

He was charged with hindering apprehension or prosecution. In Pennsylvania, that crime is defined as:

§ 5105.  Hindering apprehension or prosecution.

(a)  Offense defined.–A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:

(1)  harbors or conceals the other;

(2)  provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3)  conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4)  warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5)  provides false information to a law enforcement officer.

I’ve put a strikethrough through those parts that aren’t implicated leaving only those that possibly might be. Those remaining parts, however, are a stretch. First, can it be said that he provided or aided a means of avoiding apprehension or escape? He just told the client the offer, the client said that he’d be back and then he pretended to not have seen the client that day.

Let me tell you. This happens all the time. Clients are late. They show up and then they disappear and you have no idea where they are. Some of them run off when you tell them you’re going to jail. It happens every single day every where in America, multiple times.

My job as a lawyer is to make sure my client doesn’t screwed and even doubly so when he’s doing the screwing to himself. So if I can avoid eye-contact with the judge or go disappear in my office for a few hours and pretend to have forgotten that they’re waiting for my client, you can damn well be sure I’ll do that, because clients that run and stay gone are rare. Most often they’re outside smoking a cigarette, calling their relatives arranging for bail or off for one last decent meal. If making myself sparse for an hour or so while they get their shit together avoids the hassle of a re-arrest warrant and then the subsequent vacating of that warrant, then I’m all for it. Call it judicial efficiency.

(4) is pretty damn stupid to be applied in this context. We warn our clients of their apprehension every day. “Hey, Jimmy Jones, you’re going to jail today.”

Finally, “tipstaff”, whatever that is, don’t qualify as Law Enforcement.

What was the problem here? Clearly, he shouldn’t have pretended to not have seen the defendant when he, in fact, did. But how much different is that than him saying “I don’t know where he is”? What if he had said “I can’t divulge any information without violating attorney-client privilege”? Would that be hindering apprehension? Or are those with guns and gavels simply mad that he dared “lie” to them?

This scenario has been discussed many times in my office and no doubt in other public defender offices across the country. I can tell you that there is a difference of opinion and sharp one at that. There are those who believe that it is not within their job description to do one thing to help cops or prosecutors in arresting and prosecuting their clients. There are others who believe that to omit information such as is the case here is to play with one’s word and trust and potentially expose one to professional sanctions.

Not a single person believes that it rises to – nor should it – a criminal act. That’s nothing more than flexing of the thug muscles by law enforcement and should be denounced from every quarter.

Frankly, I’m more concerned about a system that makes an offer of 5-10 years of jail on the day of trial and then causes a man to take his own life rather than be arrested and incarcerated. Isn’t that the real problem here, worthy of scrutiny?

To make it incumbent upon criminal defense lawyers – at the risk of arrest, incarceration and loss of license no less – to divulge the whereabouts of every client and assist in their apprehension is to make attorneys complicit in the machinery of the prosecution and to fundamentally erode the bedrock foundational principles we pretend to be so proud of.

  1. They must, of course, cooperate with each other, because in the end, that’s how most cases are resolved and rightfully so.

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]