Category Archives: ethics

Waiver by budget cut

You’ve just been arrested by the Federal Government and you’re shuttled off to a prison in a remote location, hours away from your home and your state. You are adamant that you’re innocent and you have lots and lots of thoughts about how the Government is persecuting you. You sit down to write these thoughts with pen and paper, but then the counselor who supervises you tells you that you can access email!

Email! The modern pen and paper; the standard mode of written communication in this day and age. You are delighted because your penmanship is atrocious and because it would take you hours to write all your thoughts and weeks to get your thoughts to your lawyers and weeks further still for them to write letters back. But email is instantaneous. So you fire up the email system and click accept and begin banging away at the keyboards.

You send these confidential thoughts about the defense of your case to your lawyer and, apparently, the prosecutors.

Yes. Federal prosecutors have readily admitted in several cases that they are monitoring suspects emails to their lawyers, reading them and then using that information to strengthen their case against those suspects.

Talk about system stacked against you: you’re charged with a crime by the Government. You have your liberty taken away by the Government. You have excessive bails set by the Government so you can’t leave. You are given limited and controlled access to your lawyers by the Government. And then, they monitor everything you say and then use that against you. How can they do this?

Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

Budget cuts. That bureaucratic, administrative go-to. The liberty that this nation pretends to hold so dear won’t be lost by war, or a bloody coup, but rather in slow, incremental steps by bureaucracy.

It is “too expensive” to set up a filter in the email system to enable a bypass of emails sent to specific email addresses, something that can be done for free in as clunky an email system as Outlook.

Some judges, however, are supporting this practice because they claim that defendants sign waivers when they use the system:

But a judge, Charles A. Pannell Jr. of the United States District Court in Atlanta, ruled in 2012 that by using Trulincs, Mr. Wheat “consented to the monitoring and thus had no reasonable expectation of privacy.”

This is consent of the same nature as you consenting to Facebook using your photographs or God knows what else we’ve all agreed to when we’ve hurriedly hit the “accept” button on terms of use on over a hundred thousand websites that we regularly frequent.

It’s coercive and, given the state of society today, we don’t really have a choice. Now imagine that coercive situation, but you’re in jail.

Comparing it to old-fashioned communication, however, shows how consent is a red herring. Letters written to lawyers are marked privileged and are not read. They can be, however. There’s nothing stopping correctional officers from opening those letters. They choose not to, because of a department wide policy and the general sense that doing so would violate confidentiality.

So either there’s a legal principle that bars them reading letters and that same legal principle should bar them from reading emails, or there’s a policy that prevents them from reading letters and they haven’t extended that policy to emails, but which shows that there’s no functional difference between the two modes and it’s merely a matter of convenience.

This is one of those things that, if pushed to a head, would necessarily spell trouble for the prosecution. We’ve had just that happen here in CT, where prosecutors read confidential word documents about the defense of the charges. A day after argument before the Supreme Court, he was ordered immediately released.

Sure, it’s good advice to never discuss confidential matters via modes of communication that have the potential to be monitored, but that applies to everything, including in person visits. But just because the Government can invade your confidentiality, doesn’t mean that they have the right to do so.

Fighting John Murphy: It gets worse

Everyone’s heard of Fighting John Murphy by now: the judge who acted like an immature tyrant and punched a public defender in the hallway.

He’s agreed to go to anger management and take a paid leave of absence, despite this glowing, fawning biographical piece in the Wall Street Journal that highlights his extensive military history.

Unsurprisingly, the chief judge of his judicial district hasn’t taken too kindly to Fightin’ Murphy’s actions and has issued a strongly worded statement.

Surprisingly, Judge Kopf of Hercules and the Umpire authored two posts yesterday, both seeking to minimize and absolve Fightin’ Murphy of responsibility in this fracas. The first one alleges that the PD laid the bait and the judge took it. Which is just completely absurd if you’ve watched the video. When he got pushback, he clarified that the judge’s behavior was unacceptable, but understandable given the context that the public defender was an “ankle-biter”.

I don’t know what that means. Is that euphemism for a zealous advocate for one’s client? Then I’m an ankle-biter too. Does that give a judge license to humiliate me in open court and then threaten to beat me and then actually lay a hand on me?

This mentality of Fightin’ Murphy and the implication of the “context” of Judge Kopf is evidence of an all-too familiar prevailing sentiment of the public and court personnel toward public defenders. We are scum, lower than the clients we represent and, as Rodney Dangerfield said, we don’t get no respect.

To try to justify Fightin’ Murphy’s actions is to perpetuate that myth that we are annoying irritants, who are relegated to the ankles of the giants that roam the courtrooms: the judges and prosecutors. They are the ones doing good; we are miscreants who are so low that we can never reach beyond their feet.

But you know who’s the only one who’s ethically challenged? Fightin’ John Murphy. The video that has gone viral is only a few minutes long. When you watch the entire video, you will see that the judge does something insidious: he gets the lawyer banished from the courtroom and then returns and proceeds to talk to the represented defendant and tries to get him to waive his speedy trial rights – something that the lawyer refused to do. Luckily, the client refused as well. He then proceeds to talk to the next defendant, also represented by Weinstock.

[Video is below the fold. Sorry, but it autoplays, so be warned.]

A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

Judicial thuggery: FL judge assaults public defender (Update)

[2nd Update: A second post, highlighting further ethical violations by the judge.]

[Update below]

An outrageous video out of Brevard County, Florida (why is it always Florida?), in which a judge is seen verbally abusing a public defender who is ready for trial and refuses to waive his client’s right to a speedy trial, and then, according to the audio and witnesses, assaults the public defender in the hallway.

Here’s the mind-boggling video:


Here is the dialogue:

“If I had a rock, I would throw it at you right now,” Murphy said.  “Stop pissing me off.  Just sit down.  I’ll take care of it.  I don’t need your help.  Sit down.”

“I’m the public defender, I have the right to be here and I have a right to stand and represent my clients,” Weinstock said.

“Sit down,” Murphy said.  “If you want to fight, let’s go out back and I’ll just beat your ass.”

“Let’s go right now,” Weinstock said.

That’s completely reprehensible behavior from a judge. Granted, Weinstock probably shouldn’t have taken him up on his offer, but sometimes you need to stand up for yourself.

The incident continues, because a man wearing robes who doesn’t know how to behave in court, certainly has no qualms about escalating when in the hidden recesses of his power palace:

Weinstock’s supervisor told Channel 9 Weinstock thought they would just talk out the problem, but he said there were no words exchanged, just blows thrown by Murphy.

“The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck,” said Blaise Trettis, public defender of the 18th Judicial Court. “There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

The judge wasn’t arrested and wasn’t immediately reported for disciplinary action. Both of those are unacceptable. The ethics committee shouldn’t need anyone to report this to them to start an investigation. And the state’s attorney’s office needs to review the video and conduct interviews immediately to determine if criminal charges should be filed. This isn’t just an assault on an individual, this is an assault on the system itself.

Judges, of all people, are supposed to understand and believe in our judicial system, what with them being the guardians of justice and whatnot. They should have a firmer grasp on the roles each party has to play in the adversarial system. His behavior here shows that he thinks there are laws for everyone except him.

This person doesn’t deserve to wear the robes and have the power to decide the fates of countless others before him, who are, in reality, just as disempowered as the public defender.

Do you believe, for one second, that if the public defender had put his hands on the judge, that he wouldn’t have been tased, handcuffed and put in lockup by the marshals before you could dial 911?

When judges like these start to believe in the myths about their own greatness and power, you get judicial abuses like these that aren’t just metaphorical.

Update: Looks like Judge Kopf has posted on this and in his post he lays the blame on the public defender for setting up the bait and the judge for taking it. I think his perspective might cloud his judgment here a bit, unless you consider refusing to roll over on your clients’ speedy trial rights a “bait”, in which case, I guess it makes it obvious that some view this as no more than a game.

SC public defender forgets meaning of adversarial

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What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

Prosecutor threatens defense attorney with warrant for failing to help incriminate client

We’ve always known that the prosecutorial function requires somewhat of a solipsistic world-view, but failing to do one’s own job and then demanding that the defense do it for you is another realm entirely.

Charlie Rubenstein, Cincinnati prosecutor, may have an inadequate understanding of the adversarial process of the criminal justice system and seems to have never heard of the burden of proof resting on him. Rubenstein was prosecuting a man named Terrance Jones for the high crime of stealing candy from a store. This being 2014, there was a store surveillance camera which recorded the incident. Rubenstein, laboring under the mis-impression that convictions come walking in through the door without having to work for them, neglected to obtain the security footage.

Ray Faller, public defender and human with at least half a brain apparently, got his investigator to go to the store and obtain a copy of the surveillance video. The stores, as stores do, then erased the video so it could record the next robbery.

Rubenstein, ever so demanding, demanded that the defense turn over the video that purportedly incriminated Jones. Faller, as any good lawyer would do, told Rubenstein to go fuck himself.

So, like every misdemeanor prosecutor who’s been told to go fuck himself, Rubenstein flexed his muscle and got his pal and former co-worker Judge Lisa Allen to sign a search warrant for Faller’s office. In it, he claims that the video is evidence and the defense was hiding evidence and thus were guilty of “tampering with the evidence”.

The case settled and the warrant was never executed, but the idea that the warrant was sought and issued is a tremendously frightening one.

The surveillance video has evidentiary value, certainly, but it is not the job of the defense to provide that to the prosecution, when the prosecution had the opportunity to obtain it itself.

With the prevalence of 24-hour security cameras everywhere, retention of footage has become a big issue. The prosecution routinely secures footage when it believes it will be helpful, but not when it believes it to not be so or when it may be exculpatory. When asked to obtain video that might show the defendant was innocent, the prosecution routinely shrugs its shoulders and points out that it has no control over store owners and can’t legally be required to obtain the footage.

And yet Rubenstein thinks that a defense attorney is obligated to help incriminate his own client by turning over video of an incident that he himself failed to get.

The chilling effect of this line of thinking is obvious: defense attorneys would be extremely hesitant to conduct an investigation of their own because they would automatically have to turn over whatever they uncover that would incriminate their clients. This would cause a conflict of interest in all criminal cases: either fail to investigate and run afoul of the rules of professional conduct or investigate, refuse to turn over evidence and be subject to arrest or turn over incriminating evidence uncovered and violate the duty of confidentiality and zealous advocacy to the client.

In other words, Rubenstein’s thuggery serves to remove the defense attorney entirely from the adversarial process, leaving him free to steamroll pro-se defendants.

H/T: ABAJ

 

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

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Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.