judges
Taxing the system
Mar 11th
“We should just put everything on the trial list. That’ll learn ‘em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).
The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.
It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.
An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.
When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:
Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.
Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.
Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.
[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.
Do it when you’re arrested, not when you’re defending someone else’s liberty.
There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.
My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.
[H/T: Bobby G.]
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
—————————————–
Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
Ayyy!
Aug 16th
making impropriety cool since 1974
It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.
This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.
Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:
The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.
To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:
Sanctioning misconduct
Aug 15th
In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment.
I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.
But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.
But I digress.
For your eyes only: prosecutors really can’t look at privileged documents
Jul 17th
From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.
Just how egregious was this violation of the attorney-client privilege? Judge for yourself:
During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege.
This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:
The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.
What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :
An ode to the Kitchens sink: a tragicomedy
Jul 17th
Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought
it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved
And so the court issued
its seminal holding
in the case of
State v. Monica Golding
The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed
In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl
And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent
And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective
Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”
If you do not object
or even stand silently by
as erroneous instructions
the jury must apply
If you do not state
with exacting precision
the specific problems
with the court’s instruction
The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might
The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed
You must be prescient
You must be attentive
because the Court has become
anal retentive
And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?
Ask for copies
and then ask for time
and if you forget
just remember this rhyme
One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.
And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:
This, that and the other
Jun 20th
Here are some stories that are deserving of more attention than 140 characters provides, but not interesting enough to get me to write a whole post about them:
- In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?
That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.
- Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:
Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.
Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:
The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.
Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.
Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.
- Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:
Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.
The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.
Among their findings to be published next weekin the Loyola of Los Angeles Law Review:
The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.
A death penalty prosecution costs up to 20 times as much as a life-without-parole case.
The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.
Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.
The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.
- Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:
Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.
In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.
In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.
Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.
- An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.
And you say I don’t post anymore.
The engine that just didn’t give a f*ck
Jun 16th
mom ran you over in a car? dad beat you? GTFO
[Yes, I'm mixing my children's stories here in order to come up with this creative title, but 'Justice Thomas is an effing hypocrite' just doesn't have the same oomph.]
On the twentieth anniversary of Justice Thomas’ confirmation to the highest court in the United States, USA Today has this “retrospective” piece on the work of the Silent Assassin. Focusing primarily on his work in criminal justice cases, the article lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes. And no story of this ilk is complete without a quote that makes you groan and your eyes roll so far into the back of your head that you’re not quite sure if you’re awake or dreaming:
Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, “But for the grace of God, there go I.”
During his confirmation hearing, Thomas explained that he would identify with defendants: “So I can walk in their shoes and I could bring something different to the court.”
It’s okay. Gagging on whatever you’re eating/drinking/throwing a fist through your monitor is an acceptable reaction. I’ll wait till you call 911/poison control/customer service. Back? Feel better? Didn’t think so.
That the same man could utter the words quoted above during his confirmation hearings and then spend 20 years on the bench imposing his morality and punishing others for not being as stoic as he is reflects two things: 1) a truly distorted view of himself as a hero figure; and 2) the utter uselessness of confirmation hearings.
The USA Today piece focuses on Thomas’ opinions in recent cases like Connick v. Thompson and Cullen v. Pinholster. On Pinholster:
Thomas wrote: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”
In her rendition of the facts, Sotomayor noted that it was Pinholster’s mother who ran him over as child. Regarding the stepfather, Sotomayor offered no “nearly so” caveat: “Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board,” she wrote. “There was so much violence in the home that Pinholster’s brother dreaded coming home each day. Pinholster’s half-sister was removed from the home as a result of a beating by his stepfather.”
Thomas allegedly has this on his office wall: “If you do the crime, I’ll damn well make sure you do the time. Constitution? What Constitution?”* The article collects quotes from legal beagles like Jeffery Fisher and the inimitable Orin Kerr, who, due to the possibility of appearing before said Justice have to employ the use of euphemisms in describing his “jurisprudence”:
“When he steps in the shoes of people,” says Stanford University law professor Jeffrey Fisher, “he’s more likely to say tough-love is necessary and you have to take responsibility.”
…
“He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them,” says George Washington University law professor Orin Kerr [...]. “The themes you see in his criminal law cases are the themes that you see elsewhere. He says, ‘If you do wrong, you have to take the consequences.’”
Delicately put. In other words (my own): he just doesn’t give a fuck. He thinks he’s better than you and is not afraid to tell you so. He’s on the Supreme Court and you’re just a convicted murderer-scum-of-the-earth. It’s not that Thomas exhibits a failure to understand the nuances and circumstances of individuals’ lives or to appreciate the different shades of gray that make up each human. He’s too smart not to get that. He just intentionally disregards them. Quoth Gamso:
Suck it up is his mantra. Whether you deserve it or not. Them’s the breaks. If your life sucks, live with it. If someone hurts you, too bad. No remedies. No relief. No comfort. No apologies.
So what if you spent decades in prison for a crime you didn’t commit, almost got executed for it? That’s life. Why should the people who cheated to put you there have to pay for what they did? Some people are winners, others losers.
And who cares about the losers?
Not Justice Thomas.
*That’s not a direct quote. In fact, I may have made it all up. Actually, I’m pretty sure I did.
Arrest warrant for judge rejected…if it existed in the first place
Mar 29th
Updating the humdinger of a story from last Friday, wherein a State Trooper was allegedly seeking an arrest warrant for a judge who failed to sign an arrest warrant, there are two conflicting sets of stories out today. First, we have the Waterbury Republican-American, which reports that the trooper did indeed submit an arrest warrant application, but it was rejected (by whom, we don’t know), and that now the Chief State’s Attorney’s Office is “reviewing the allegations” that were made in that application:
A state trooper’s arrest warrant application that charges a Bantam Superior Court judge with coercion and hindering an investigation has been rejected, but the allegations it raises have been forwarded to the Chief State’s Attorney’s Office for review. … On Friday, state police spokesman Lt. J. Paul Vance declined to say why the application was denied or by whom. Vance said the document, stamped in bold with the words “arrest warrant application” at the top, is not considered an application for arrest unless and until it is signed by the investigating trooper and a supervisor.
BUT then we turn to the Register-Citizen, which has a different story. According to the R-C, no warrant was ever submitted by any police agency to any prosecuting authority:
State police want to arrest judge who refused to sign arrest warrant
Mar 25th
Unless the victim was also arrested. You can’t make this shit up. And if it were April 1st today, I might laugh it off as a clever joke. But it’s not and apparently neither is this.
Here’s the lowdown, from the two meager paywall inhibited articles that I could find. State Trooper from Salisbury, CT (where watching paint dry is exciting) Mark Lauretano apparently submitted an arrest warrant for a man who got into a bar fight with someone else. The “victim” of the fight (meaning the guy who got beaten up worse), was obviously not arrested, as these things go. Judge Klatt, upon reviewing the information in the warrant declined to sign it, apparently until the “victim” was also arrested.
Judge Klatt, a former prosecutor from Death Valley Waterbury, CT, should have known better. You simply do not refuse the State Police what they want. So instead of, I don’t know, reviewing the information again to see if maybe the Judge had a point, Lauretano does the logical thing and is now seeking an arrest warrant for the Judge herself*.
Because, you know – no, actually I don’t know. He claims that:
Reasonable gibberish
Mar 22nd
(alternate tagline: because juries never convict anyone anyway)
“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.
Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.
Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:
The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4
Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6
Guilt by convenience
Nov 17th
[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]
So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:
“This is America. Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.
“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.
Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.
He was too slow with that training. Because this happened:
In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.
Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.
According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.
Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.
Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:
Clowning around in Georgia
Nov 12th
Why is it always Georgia? The latest, via Volokh, from the Georgia Peach State:
The record in this case establishes that the prosecutor, in the final moments of her concluding argument on behalf of the State, “clicked” her fingers at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor “popped out a cake out of a grocery bag” complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory words to “Happy Birthday.”
This was during the closing arguments of a murder trial, where a couple were charged with the death of their son Josef. The defense lawyer, apparently one of the “top 5 defense attorneys in Georgia” didn’t object. Sorry, Manny “Top 5 defense attorney in Georgia” Arora, but you’re an idiot. How any defense attorney worth the paper his degree was printed on could restrain himself from jumping up from his seat, and protesting the blatant appeal to jurors’ sympathies is beyond me. But maybe I don’t think this way:
Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the “Happy Birthday” song during closing argument. Specifically, Arora thought that the “Happy Brithday” song was so “preposterous,” “absurd,” and “over the top” that “it would turn the jurors off,” and that he should not call any more attention to it by objecting to it.
“Strategic decision” is the language that full-of-themselves lawyers hide behind when they realize that they’ve – to put it simply – royally screwed up, but don’t want to take the hit to their reputation. It’s also the language that courts use to coddle these lawyers. Anyone who’s ever honestly practiced criminal law and who puts the client’s interests before their own will see this for what it is: bullshit. But then again, I guess one doesn’t get invited to be “a legal analyst for Atlanta’s ESPN radio affiliate 680 The Fan and regional television show Sports Nite” and “a frequent guest on CNN, Fox News, ESPN” and be “quoted as a legal expert in the New York Times and USA Today” by admitting that they screwed the pooch while defending the liberty and freedom of two individuals. If you were a real lawyer, Manny “Top 5″ Arora, you’d admit your mistake and not hide behind a legal fiction.
What’s more disturbing is that the court approval of this argument is undermined by the instructions given to the jury by the trial court:
Politicizing judicial elections (updated)
Oct 26th
[Update: apropos of this post, I just stumbled across this Slate piece, chronicling the horrific partisan commercials in judicial election campaigns this year. A terrific, must-read entry. H/T. Radley Balko (will this get me a link now?)]
It’s election season, which means we’re all subjected to those horrible bipartisan attack ads, each side proclaiming that the other is a vicious child molester who eats babies for dinner while swimming on corporate money, stolen from the pockets of hard-working, salt of the Earth middle Americans.
That’s de rigueur and to some extent, we’re all immune to it. But what happens when that same poisonous tact starts to infiltrate the re-election of a Supreme Court justice? That’s exactly what’s occurring currently in Illinois, where the retention campaign of Supreme Court justice Thomas Kilbride has been met with some vicious attacks ads on the radio, leading him to fundraise millions of dollars to mount his own campaign. Oh, and he’s running unopposed. There. Is. No. Other. Candidate.
While listening to this story on NPR this morning, I was a little befuddled by this fact. The reporting did not explain it at all and only when I came across this website, did it become clear: in order to retain his seat on the Supreme Court, Kilbride must get 60% of the vote. The pro-business Illinois Civil Justice League is trying to ensure that he doesn’t.
Ed Murnane leads the pro-business Illinois Civil Justice League, Kilbride’s leading critic. Murnane rallied the business community after Kilbride voted this year against limits on medical malpractice claims.
“It became obvious that Thomas Kilbride not only had the worst record on civil issues,” Murnane said, “he also had a terrible record on criminal issues, and we thought the voters of Illinois who are being asked to send him back to the Supreme Court for 10 more years needed to know about his record.”
Those radio ads? Incendiary fear-mongering of the worst kind: the misleading kind
Good enough for government work
Sep 2nd
The Blagojevich trial (and subsequent mistrial) has provided plenty of fodder for discussion among the press, the blogosphere and the nation in general. But it seems as though a bit of the madness that allows him to polish his hair using shoe-polish has seeped into the rest of the world as well. Take this Time article for instance, which uses the fact that the government was unable to convince 0.004% of the population of Chicago, to describe the ill that ails our criminal justice system: hung juries
After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.
So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.
I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?
“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”
Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”
That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.
Close enough for government work.
The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.
How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.
Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.
And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.
It may be close enough for government work, but when it comes to justice, there should be no such thing.
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