Category Archives: fifth amendment

Depends on what you mean by justice: 50 years of Brady

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It’s a brilliant concept, if you think about it: an adversarial system in which one side – the one trying to steal the liberty of the other – has to show all its cards up front. “Here”, they have to say “this is what we have against you and, oh, by the way, in the interests of justice, here’s what we have that might show that you didn’t do it.”

It’s the ultimate salvo in an open and fair system; where the goal is rigorous examination of the allegations, no tricks and traps by the government and an outcome that can then be reliably relied upon.

Justice. Such a grand notion; an admirable ideal. It is justice that prompted Brady v. Maryland – an unworkable, but yet noble attempt at drawing lines and taking stances:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.

Perhaps it was a bit optimistic, but they can hardly be blamed for wanting the system to be above board; honest.

But it all got lost somewhere down the road. Why? Who knows. Politics, legislators baying for blood, a public with passions aroused – “tough on crime”, an overburdened system and overworked lawyers with a taste for resolution and no stomach for a fight? But it happened. And the calling was no longer “justice”, it was “convictions”.

Justice is never personal; winning always is. And when the nature of the game that one side is playing changes so dramatically that it becomes personal, the stakes are raised. Raised stakes lead to seeking the advantage and then Brady – and its very ideals – get turned on its head. Now the fox is the gatekeeper, not just the guardian: how do you know if something is exculpatory if they don’t turn it over? And the arbiter of what is “exculpatory” is that very prosecutor whose job it is to administer justice. Statements that cast doubt on the complainant’s version? Not believed by the prosecutor, so not exculpatory. You can imagine the machinations.

And when the goal becomes winning and convictions rather than justice, you get stories like this.

[Prosecutor Keller] Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered.

…

“When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said. According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

Did you get all that? Prosecutor Keller Blackburn is miffed that the legislature reduced penalties for low-level crimes, not because it offends justice, but because it makes his job harder. Prosecutor Keller Blackburn is more concerned with warehousing his fellow citizens, guilt or innocence be damned, because this makes it more difficult for him to put the squeeze on defendants.

Tough penalties were the worst thing this country did in the name of justice. It did exactly the opposite: it forced the hands of unwilling prosecutors and provided great ammunition for the sadistic ones. The greater the exposure in jail, the greater the chance of putting someone away for a disproportionate amount of time.

People ask why I do what I do. This is one reason. Not because I condone crime; not because I like it. But “justice” is hard to come by in the American system. Because of prosecutors like Keller Blackburn. Because there is no oversight of prosecutors. They can get away with almost anything because law and order and criminals and other buzzwords. And if ever found to have violated the Constitution, there is no punishment. Just a stern wag of the finger and be set free to do the same again and again, leaving how many untold victims in their wake while they pursue their quest of “convictions”.

Brady was a valiant effort. Too bad justice doesn’t mean what it used to.

[I swear to God if one of you says "hey, not all prosecutors are like that", I will tie a peacock to your butt and sprinkle birdseed on your head. Of course they aren't.]

H/T: SL&P.

 

The Cost of Tsarnaev: the inexorable march toward totalitarianism

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I'm just a man with a bag. Blog? Blag?

I’m just a man with a bag. Blog? Blag?

Consider:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, [...]; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; [...].

Fifth Amendment to the Constitution of the United States; and add to it:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.

…

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

Miranda v. Arizona, while leads to:

We now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona (why is it always Arizona?) and explain how we come to:

Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.

L.A. Times, 4/25/13.

Tsarnaev, a citizen of These United States, “asked” for a lawyer. His lawyer. His right to a lawyer under the Fifth Amendment to the Constitution of the United States of America as explained by Miranda v. Arizona and Edwards v. Arizona. Your right to a lawyer. My right to a lawyer. A right. Not a request, not a variance, not an indulgence. A Right. Fundamental Right in the Pursuit of Life, Liberty and Justice and the American Dream. An inimical right. A right that cannot be taken away without amending the Constitution by approval from 75% of these united States.

And yet. And yet. That Right was ignored. Because we don’t like the guy asserting the right. Good thing we’re all in the law’s good graces. Good thing we’ve never done anything the law didn’t like.

The putative explanation – the “public safety exemption (note how it’s no longer an exception, but an exemption) to the Miranda rule”, which as has been covered here there and everywhere, is not exactly applicable.

But even if it were applicable, as explained here, there and everywhere, it is an exception to telling someone of their rights. It cannot make that right disappear. The Quarles exception says “we don’t have to tell you of your rights”, but those rights still exist. As far as I know, there’s no 48 hour exception to the existence of the Constitution. But I’ve been wrong before.

They exist because they are there. They are in the Constitution and the the last time I checked the Constitution couldn’t be amended by Executive Fiat. And just because Eric Holder says they can be, doesn’t make it true.

The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again. Because if we don’t today, tomorrow they’ll take away more. If today, it’s okay to pretend like my right to counsel doesn’t exist, then maybe tomorrow my right to free speech doesn’t exist. Maybe tomorrow the government will have license to spy on me wherever I go, without my permission; reading my text messages and my e-mails because terrorism. Maybe tomorrow a high profile, well-respected and intelligent Federal Circuit Court of Appeals judge will suggest that we give up a little more privacy for perhaps a little more security. Maybe. Oh wait. That’s not tomorrow. That’s today:

I am not suggesting that privacy laws be repealed. I don’t think that they do much harm, and they do some good, as just indicated. But I don’t think they serve the public interest as well as civil libertarians contend, and so I don’t think that such laws confer social benefits comparable to those of methods of surveillance that are effective against criminal and especially terrorist assaults.

More than effective: indispensable. How much more havoc might the two Boston Marathon bombers have wreaked had they remained unidentified for weeks? The critics of surveillance cameras invoke the specter of the telescreen, a two-way television that thus operates as a surveillance camera, which figures in George Orwell’s great novel “Nineteen Eighty-Four.”

But the critics miss two important distinctions. The first is that the telescreen is inside people’s homes — in every room, and monitored by state security personnel (“Big Brother is watching you”). The second distinction is that the nation in Orwell’s novel — “Airstrip One” (actually England) — is a Soviet-style totalitarian dictatorship. (Coincidentally, England today apparently has more surveillance cameras than any other nation, some 4 million.)

Our government is not totalitarian, and surveillance cameras, when indoors (in retail stores for example), are generally invited and controlled by the owner of the premises. The surveillance cameras installed by the government are, by and large, in public areas, mainly streets, where privacy is anyway limited by the fact that one is visible and audible to other people.

I will politely decline Judge Richard Posner’s invitation to build a Panopticon. For a man purportedly so intelligent, Judge Posner’s arguments are presented as so naive and optimistic and thus terribly dangerous. Remember, Oceania has always been at war with Eastasia. Posner, who is not to be confused with – and I was hoping more intelligent than – Eric Posner, is a famed judge who has taken to embedding pictures into his judicial opinions. But, via Glenn Greenwald, I’d like to introduce him to Thomas Paine:

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

And of course, John Adams in his infamous defense of the British soldiers. We must be extra vigilant in times like, in the face of gentle nudges in the opposite direction by learned people like Judge Richard Posner (or even the barbaric ham fisted grunts of the ilk of Rep. Louie Gohmert).

I’ll let Greenwald close:

This is not a platitude they were invoking but an undeniable historical truth. Governments know that their best opportunity to institutionalize rights violations is when they can most easily manipulate the public into acquiescing to them by stoking public emotions of contempt against the individual target. For the reasons Paine and Adams explained, it is exactly in such cases – when public rage finds its most intense expression – when it is necessary to be most vigilant in defense of those rights.

We have already seen the cost of Quarles. What will be the cost of Tsarnaev?

 

Give an inch and now they’re suggesting forced interrogations

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herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

—

Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

—

Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

The cost of Quarles: from Tsarnaev to you

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It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

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¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

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N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

This month at the Supreme Court: blockbuster session

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not an actual judge

not an actual judge

I’m reviving a series I briefly dabbled in, back in 2008, called ‘This Month‘, which serves to preview the cases assigned for oral argument in the CT Supreme Court in the upcoming month. I may also include cases of special interest in SCOTUS, depending on whether I’m in the mood. I’ve also added a permanent link to this post in the sidebar, alongside the above picture, so you can find it at any time. The link will be updated every month to the most current ‘this month’ post.

The reason for reviving this is this upcoming April term, in which the court is scheduled to hear at least four cases that can have significant and profound impacts on the state of individual rights in Connecticut: State v. Kelly; State v. Brown, Brown v. Commissioner and State v. Santiago, impacting, in turn, the Fourth, Fifth, Sixth and Eighth Amendments.

The following is the listing of criminal cases scheduled for oral argument in the CT Supreme Court by date.

Monday, April 15 @ 10:00am: State v. Richard Annulli. [Briefs available here.] The defendant was charged with several sex related crimes. During the trial, he wanted to cross-examine the complaining witness to show that she was lying by questioning her about another separate instance in which she allegedly lied to the police in order to get someone else arrested. The trial judge, after hearing what that evidence would be, disagreed with the defendant’s characterization that she “lied” and thus did not permit the defendant to question her about that. The Appellate Court affirmed the conviction and the Supreme Court will review whether his Sixth Amendment right to confront one’s accuser was violated by the trial court. There is also a claim that the evidence was insufficient, but that’s going nowhere.

Tuesday, April 16 @ 10:00am: State v. Jeremy Kelly. The link to the left is to a separate post for this case. I don’t often engage in hyperbole but it is my opinion that this is one of the most important cases the CT Supreme Court will have to deal with for a while (except that other case coming up on April 23). This case involves the ability of the police to seize or detain groups of people when they have a reasonable suspicion to stop only one person out of that group. The implications of permitting such an “automatic companion” rule are staggering, especially for policing in minority neighborhoods, given the dubious “stop and frisk” tactics that are already employed there.

Wednesday, April 17 @ 10:00am: State v. Brown. [Briefs available here.] One of the fundamental concepts of the privilege against self-incrimination is that you have the right to remain silent. The police, pursuant to Miranda v. Arizona, generally advise a suspect of his rights. So, if a person chooses to invoke his rights and remain silent, that fact cannot be used to show that he is guilty. See Doyle v. Ohio. The question in Brown is whether post-arrest silence can be used against the defendant if the defendant first puts on evidence that he was co-operative with police and answered their questions. Has he, in essence, “opened the door” to harmful questioning? Once he does that, can the prosecutor show that when asked by the police how much he (in this case) had to drink, the defendant remained silent? The Appellate Court said yes and the Supreme Court will decide if that important protection of Due Process has an exception of these circumstances.

Interestingly enough, on the very same day, the United States Supreme Court will hear oral argument in Salinas v. Texas, in which the issue to be decided is whether the pre-arrest silence of a suspect can be used to show his guilt. [Greenfield has more here.]

Wednesday, April 17 @ 11:00am: State v. Stephen J.R. [Briefs available here.] The defendant, who was accused of sexually abusing the minor victim on four occasions, was charged with eight counts of sexual assault in the first degree and eight counts of risk of injury. At trial, the victim testified that the defendant abused her on “three or four” occasions and that she was forced to engage in two sexual acts each time. The defendant subsequently was convicted of all sixteen charges. He argues that the victim’s testimony was too vague to support the guilty verdicts on all sixteen charges, as she described generally what happened each time the abuse occurred but did not differentiate between the incidents. In addition, the defendant contends that the trial court, after conducting an in camera review of the records of the department of children and families pertaining to the victim and her family, improperly failed to fully disclose all of the relevant records. Finally, the defendant asserts that the prosecutor, during closing argument, improperly appealed to the emotions of the jury and thereby denied him a fair trial.

Thursday, April 18 @ 10:00am: O’Neil Brown v. Commissioner. [Briefs available here.] A case that will decide the applicability of Padilla v. Kentucky here in Connecticut. Padilla said that it was a lawyer’s responsibility to advise a defendant about any immigration consequences of a guilty plea. While Padilla was an important case for defendants going forward, the question here is whether it applies retroactively to people whose convictions are final and who may be awaiting deportation. While SCOTUS has said no, Chaidez v. US [PDF], they have also said that states are free to provide retroactivity under state law, Danforth v. Minnesota. Further, last year the Connecticut Supreme Court also said too bad you’re shit out of luck to a guy who sought to vacate his 1999 conviction because he was facing deportation in 2010 and no one told him that he could be deported. He relied on CGS 54-1j, but the Court said no, that only provides relief within the first three years. So O’Neil Brown is critical for defendants who may have pled guilty without any knowledge of the negative deportation consequences of that plea.

Monday, April 22 @ 10:00am: State v. Pires. The issue in this case is whether the defendant properly invoked his right to represent himself and whether that right was violated. The Appellate Court said no and the Supreme Court will review that decision.

Monday, April 22 @ 11:00am: State v. Mitchell Henderson. In 1993, the defendant was found guilty of several crimes and due to his extensive criminal record, was also found to be a persistent serious felony offender and a persistent dangerous felony offender, both of which triggered a greater punishment than normal. As a result of this, his sentence was lengthened or “enhanced”. In 2007, our Supreme Court decided that any such “enhancements” must be based on facts that are found by a jury beyond a reasonable doubt, rather than by a judge. So Henderson argued that his enhanced sentence is illegal because the facts weren’t found by a jury. The Appellate Court said no, the 2007 rule doesn’t apply backwards. The Supreme Court will now review.

Tuesday, April 23 @ 10:00am: State v. Eduardo Santiago. [Briefs available here.] This is the other big one this month, which will decide whether the prospective repeal of the death penalty is Constitutional or whether the entire death penalty needs to be scrapped or whether the repeal needs to be repealed. Keep in mind that the hearings on the racial and geographic disparity in the application of the death penalty are still pending.

Wednesday, April 24 @ 10:00am: State v. Milner. Here’s another fascinating case (and the last one of) this term. Milner was placed on probation in 2005. Sometime later, he was charged with a new crime and as a result of that, also charged with violating his probation. He apparently had a hearing on the violation of probation (VOP) first and a judge decided to revoke his probation and sentence him to jail. He appealed that judge’s decision. While that appeal was pending, he pled guilty to one of the new charges that formed the basis for the violation of his probation. He didn’t appeal that conviction (he couldn’t, really, because you typically can’t appeal from a guilty plea), but he did challenge its legality by filing a habeas corpus petition. The Appellate Court held that it wasn’t the same, his conviction was final and so his pending appeal (from the VOP) was moot. The Supreme Court will decide if that’s the case.

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If you have the briefs in any of these cases, please email them to me. If you’re going to see oral argument in any of these cases, please leave a comment with your observations.

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A prior restraint on due process

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[Fair warning: the only things I know about the First Amendment are what I learn from reading Popehat and Randazza and that it's a good thing.]

See updates below.

A story that I first read here at Reason last week is increasingly gaining steam and it is this: In the pending case of the People of Colorado vs. James Holmes, the trial judge entered a pre-trial order ‘Limiting Pretrial Publicity’ as well as several “gag” orders preventing prosecutors, defense attorneys and law enforcement officers from discussing certain details of the case with the press.

In July 2012, a reporter at Fox News named Jana Winter published a “scoop” about a diary penned by the Aurora suspect James Holmes. Here is what she “revealed”:

“Inside the package was a notebook full of details about how he was going to kill people,” the source told FoxNews.com. “There were drawings of what he was going to do in it — drawings and illustrations of the massacre.”

…

A second law enforcement source said authorities got a warrant from a county judge and took the package away Monday night. When it was opened, its chilling contents were revealed.

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Both of FoxNews.com’s sources said the intended recipient of Holmes’ notebook was a professor who also treated patients at the psychiatry outpatient facility, located in Building 500, where the first suspicious package was delivered. It could not be verified that the psychiatrist had had previous contact with Holmes, who was a dropout from the school’s neuroscience doctoral program and had studied various mental health issues and ailments as part of his curriculum.

So, recently, James Holmes’ attorneys filed a motion with the court seeking to disclose the source of the leak. The gag order, of course, applies only to the parties to the proceeding and most certainly not to the press, see Nebraska Press Association vs. Stuart. For a judge to prohibit the press from writing about a public case would be a prior restraint on speech and that is almost universally prohibited.

Continue reading →

Reciprocal discovery: should we have to?

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The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine. Continue reading →