a public defender

It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

Okay so it wasn’t so much a tree as it was a hotel room and they weren’t kissing but rather “doin’ it”. Apparently, during the trial of Roberto Dunn, two jurors were “deliberating each other” (euphemisms solely mine) and two deputies who were charged with guarding the jurors were also “taking sexual liberties” (that’s a quote).

The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.

Since the last post was mostly tongue-in-cheek, I couldn’t include #11: be honest, or intellectually honest.

The legal profession, despite the number of students graduating from law school every year, is small and insular. The local bar is small. The attorneys who practice in your given field are even smaller. And when you deal with the same attorneys over and over again, there is nothing more valuable than your reputation and your integrity.

Which is why it is imperative that you be honest. That you be intellectually honest. Opposing counsel and judges can see through your prevarication.

The law is not always friendly to you or your client or the position you want to take. It happens to all of us. That doesn’t give you a license to lie, or to make up arguments that ignore the law or the facts of the case.

how did I end up back here?

One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.

Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden¹. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.

The 11th Circuit has stayed Davis’ execution – set for Monday – and asked both parties to brief whether Troy can file a successive petition. They also included this interesting question:

It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.

If someone has a copy of the order, please let me know. I’d like to link to it.

I was going to write about the silly comments made by the attorney for the Judge that presided over Hood’s original trial, but that has been pre-empted by this late breaking news that Hood’s execution, set for tomorrow, has been stayed.

Tuesday’s reprieve was granted over a technical issue regarding instructions given to the original jury, and a hearing will be scheduled on that issue.

Btw, I love how instructional error is called a “technical issue”.

Now here are the asinine comments:

Earlier in the day, [attorney for Judge Holland] Mr. Boyd said Judge Holland is “saddened” and “disappointed” by the allegations of an affair at the time of the trial.

He also criticized Mr. Hood’s attorneys for filing a civil action in the case in an attempt to elicit a stay of execution from Texas Gov. Rick Perry, or to force consideration of new appeals in a criminal court.

“This is not about getting money damages for Hood or his estate,” Mr. Boyd said of the civil action. While lauding their “creativity,” Mr. Boyd noted that the case happened 20 years ago and in all those years, “nobody has filed a grievance between either of these two people.”

Right, it’s not about money, but “just the small matter of his life”.

Sorry Judge Holland, but I am “saddened” and “disappointed” by your attempts to obfuscate and to possibly deny this man a fair trial before his life is taken by the State.

Judges are supposed to recuse themselves from cases if there is even the slightest appearance of impropriety. Sleeping with the prosecutor in a capital case goes far beyond that. Everyone knows that there are some judges who are in bed with the State, but when it actually happens – literally – it should be enough to stop the trial or reverse the conviction.

The Judge that ordered the depositions of the judge and prosecutor was quite right in saying:

he was interested in preserving the integrity of the judicial system

Good to know that not all judges in Texas are like Judge Holland.

So seems to be the State of Utah’s motto. In the midst of a capital case, the A.G. is seeking sanctions against defense lawyers because, get this, they argue that a third of the claims have already been decided by other cases.

[Defense attorney] Brass and attorney Richard Mauro, who represents [the other defense attorney] Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for [defendant] Archuleta.

Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”

Makes a lot of sense. You raise every avenue of challenge, even if previous cases have decided the issue. Maybe they’ve been decided by state courts, but not by Federal courts. In all post-conviction cases, especially capital cases, it is all about preservation of issues.

But this is not surprising. Since AEDPA, State prosecutors have been on a crusade to curtail post-conviction avenues and rights of criminal defendants. Claims of “abuse” are pretty frequent. Given that courts throughout the country have repeatedly held that habeas corpus petitions are the appropriate venue for challenging trial counsel’s performance (and raising other Constitutional deficiencies), I would sincerely hope that they suggest a viable alternative or let it go.

But back to the curiosity here. What the prosecutors are, in essence, saying is that once a point of law has been decided a certain way, it can never be changed. Not only is this not what stare decisis means, but if such were indeed the case, then almost all issues would have been decided decades ago and we might as well disband all appellate courts.

Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.

Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.

I also wonder if the Utah A.G. practices what it preaches. I suspect the A.G. has not rolled over on any cases where there is “caselaw on point”. I bet they still defend post-conviction challenges and other criminal prosecutions. They may do so even in cases where the law is squarely against them. I’ve seen it happen here. It’s annoying, but it’s the way it is. It doesn’t mean that lawyers should be subject to sanctions for merely advocating strongly on behalf of their client and preserving all legal claims. Sanctions are serious – they should be thrown about willy-nilly when defendants do something that irk prosecutors. Sanctions should be reserved for the worst violators of the rules of conduct.

What this disturbing litigation has also caused, perhaps intentionally, is a declining desire on the part of Utah criminal defense lawyers to take on capital cases.

Mauro said the state’s case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they’ll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.

It’s not only those that are wrongfully convicted – those that have been convicted with the assistance of some Constitutional defect. Post-conviction isn’t about getting another shot at the apple; rather it is about making sure that when the State convicts an individual and takes away his/her liberty, it does so in a Constitutionally sufficient manner.

That is of paramount importance – and the A.G. doesn’t seem to care.

Update: The A.G. seems to be in the news for something else as well. This time, the A.G. doesn’t seem to care about the presumption of innocence. The A.G. redesigned his website and launched it anew with a video of the arrest of a sex assault suspect. [He also has a blog.]

Legal Blog Watch reports:

The video shows the Utah Internet Crimes Against Children Task Force assisting local police as they arrest a 26-year-old man suspected of arranging to have sex with an underage girl he met online. Actually all it shows is two men escorting a man in handcuffs through a parking lot. That is followed by the comments of a local sheriff’s detective, who says, “If I was someone who had a daughter, I’d be very scared about what’s going on,” and of a local police officer, who says, “It’s crazy that we have guys like this that would do this type of thing.”

No reason to let the presumption of innocence get in the way of good TV. But the local chapter of the ACLU sees it otherwise. ACLU lawyers showed up at Shurtleff’s press conference announcing the site to register their protest. “We are concerned that by posting the arrest video of an unconvicted person, the attorney general is more interested in political grandstanding than protecting the public,” ACLU lawyer Marina Lowe told the Deseret News. Added ACLU attorney William Carlson, “Guilty before charged.”

From the very same state that gave us Gideon v. Wainwright comes the news that their public defender system is in dire straits.

A judge in Miami ruled today that the public defender system is so overburdened and crushed by caseload that they can stop accepting some cases until the situation improves.

Circuit Judge Stanford Blake found that Public Defender Bennett Brummer’s office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.

“The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused,” Blake wrote.

“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” the judge added.

Starting mid-September, around 2000 cases a month will have to be shipped out to private counsel, because public defenders are unable to handle them.

The state (and state’s attorneys) of course hates being told what to do:

“This is a political matter that should have stayed in the political system,” Rundle said. “No one should create a constitutional crisis that jeopardizes the integrity of our criminal justice system.”

Maybe the funding of public defender systems is a political matter, but the representation of over 2000 defendants a month is certainly not. It is a legal and constitutional issue and every defendant should receive competent representation. If the political system that this prosecutor seems so fond of actually contributes to the situation that has resulted, then why should fixing this problem be left up to them? It’s like saying sentencing should be left up to defendants.

There was nowhere else for the public defenders to turn. The Court stepped in and did what it had to and what it should have.

Scoplaw, one of those hard-working public defenders in Miami, weighs in.

More from Boumediene:

Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as “the great and efficacious writ, in all manner of illegal confinement”); see also Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at its core, an equitable remedy”); Jones v. Cunningham, 371 U. S. 236, 243 (1963) (Habeas is not “a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”).

Plenty of other commentators have far more intelligent comments and insights on Boumediene [pdf] than I have to offer, so I will direct you to them (see this SCOTUSblog post for a collection of links as well).

I do want to leave you with this quote from Justice Kennedy’s opinion, via Orin at Volokh:

Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

There is a reason it is called The Great Writ.

Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.

The question I’m currently considering, however, is whether there is a need – or does anyone have the responsibility – to preempt habeas corpus petitions by stopping the damage while it occurs.

Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?

A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?

Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here – cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.

Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can – or should – be done during a trial?

The Georgia Supreme Court issued a 4-3 opinion today, essentially affirming Troy Davis’ conviction. Troy Davis, you will remember, was granted a stay of execution by the Georgia Board of Parole and received a letter of support from The Pope.

EyeID explains:

According to the court, statements by a slew of witnesses who claimed that they had lied at trial under police pressure were insufficient to support a finding that a different result would likely be reached if the case were subjected to a new trial — in a case in which the only evidence presented was the apparently coerced testimony of the same witnesses. As a result of this inexplicable finding, the Georgia Supreme Court refused to stand in the way of the execution of a man who insists he is, and whom many believe to be, innocent.

Here’s a sampling of the recantations:

I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night.
[…]
After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.

and another:

I nodded and repeated what they said, whether it was true or not…. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail.

It really is remarkable that the Ga. Supreme Court did not find that these recantations would result in a different outcome if Davis were granted a new trial.

An absolutely mind-boggling and repulsive decision.

Two separate news items of note on the death penalty in Connecticut today. The first is a hearing in the judiciary committee on a bill that sets absurd time limits on the filing of appeals and habeas corpus petitions. S.B. 320 is a resurrection of an almost identical bill that failed in the last legislative session. The bill would require both the defendant and the state to file its briefs within 4 months of the imposition of the sentence and it would require the Supreme Court to schedule oral argument no later than 6 months from the date of the imposition of the sentence. These time limits are absurd and arbitrary and unworkable. There is no way that all issues that need to be raised in capital cases can be raised in two months.

Further, it requires all habeas corpus petitions in capital cases to be filed within 180 days (or at the same time that oral argument is scheduled) of the imposition of the sentence and a hearing on such a habeas petition shall be held within 180 days of the filing of such a petition.

However, a subsequent petition will not be barred if (1) the facts underlying the claim were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence prior to the filing of the earlier application, and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would have reasonably led the original trier of fact to have either found the defendant not guilty or not sentence the defendant to death. The court shall hold a hearing on such subsequent application not later than one hundred eighty days after the filing of such application.

Written testimony submitted to the Judiciary Committee is available here. This bill is opposed by the ACLU, the Public Defender’s Office and the State’s Attorney’s Office.

The second news item was a discussion on the state of the death penalty in Connecticut on NPR’s “Where We Live“. The guests include Waterbury State’s Attorney John Connelly, Yale Prof. John Donahue, who conducted the disparity study, Helen Williams – the mother of Richard Reynolds’ victim, Robert Nave – the director of the Connecticut Network to Abolish the Death Penalty, New Jersey Senator Christopher Bateman and State Rep. Michael Lawlor.

Connecticut is one of 2 states in New England that still has a death penalty. New Hampshire is the other—but recently that state has created a commission to study the process including whether the death penalty actually deters crime, just as New Jersey did prior to its abolition of the death penalty.

The discussion included the cost of the death penalty vis-a-vis life imprisonment, its deterrence value and who the focus is on. Quotes from citizens include comments about the fallibility of the justice system as demonstrated by the DNA exonerations and whether we should take that risk with the one truly irreversible punishment. It is an hour long, but definitely worth listening to.

Connelly and even the host keep trumpeting the “fact” that the majority of citizens are in favor of the death penalty. Lawlor mentions that when CT citizens are given the choice between the death penalty and life imprisonment, the opinions are more even.

Then the discussion turns to the hearing scheduled in the judiciary committee and Connelly characterizes it as appeals and habeas corpus petitions filed “ad nauseam“. Where he gets this, I do not know, but apparently NPR didn’t see it fit to have anyone from the defense bar to mention that there is a statutory right to a direct appeal and a Constitutional right to habeas corpus.

Lawlor then says it like it is: This is a political issue and whether abolition proceeds depends on opinion polls and what people think about it. He says they will look to New Jersey’s upcoming elections to see whether the abolition will be an issue there.

Courtesy of NPR, the audio is available below.

 Standard Podcast [51:59m]: Play in Popup

It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff – and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am – State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am – State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day – State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor – killing in an especially depraved, heinous, cruel manner – had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

Update: Here’s a copy

CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).

In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.

“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”

This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:

“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”

Previous coverage here, here, here and here.