Category Archives: judges

A shocker in Maryland

I was shocked to read the story of Delvon King, 25 year old pro-se defendant in Maryland, who was facing gun charges and about to represent himself at trial. Here’s what happened:

King began jury selection in front of Circuit Court Judge Amy J. Bragunier, the chief administrative judge in Charles County Circuit Court. Apparently Judge Bragunier has a very short fuse and she quickly got irritated with the defendant’s citing to legal precedent1, so she interrupted jury selection2 and sent it over to retired Judge Robert C. Nalley to complete jury selection.

Judge Nalley apparently also wasn’t having any of King’s attempts to defend himself, so right before jury selection began, in the middle of a sentence, Judge Nalley ordered a judicial marshal to administer an electric shock to King.

Yes. An electric shock.

On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.

Impossibility is not a defense

The law, you will have guessed by now, is not concerned much with the English language and its precise definitions. A fall-back answer that’s almost always right, when it comes to the law, is that everything “depends”.

Even something as simple as ‘impossibility’. When you, laypersons, think about the word “impossible”, you usually think of something that’s not possible. But the law isn’t that easy.

There are different categories of impossibility, each with its own definition and applicability: mistake of law, mistake of fact, legal impossibility and factual impossibility. Legal impossibility is where, no matter how evil your intentions are, your acts do not constitute a crime. Factual impossibility is where it is impossible for you to have committed a crime because you misunderstood the facts. A classic example used in law school hypotheticals is that of Sydney Barringer, the guy who died in a most tragic fashion.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

Guilt by association and retconning reality

[This is going to be a lengthy post, so bear with me, but you must read it in its entirety. This has tremendous implications for those who are concerned about the imbalance of power in our society, especially when it comes to the ever-increasing encroachment of the government into our civil liberties and the already alarming abuse of power against minorities.]

I’m going to posit two scenarios. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom?

The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”.

This is all important, as you will see in a second, because the Connecticut Supreme Court yesterday [PDF] in State v. Jeremy Kelly, in its ever expanding love-affair with convictions and a not-so-shocking-anymore disregard for Constitutional protections, engaged in some blatant retconning of “factual findings” with the help of the trial judge to ensure that the “facts” supported their interpretation which supported a conviction.

But first:

You can now be legally detained/seized/stopped on a street by police even if they have absolutely no reason to stop you.

As I wrote in my preview post and then the argument recap post, the police and the prosecution in the State of Connecticut were seeking extraordinary authority to detain/seize anyone lawfully walking down the street in a public place in Connecticut, if they believed that people in the vicinity may have committed a crime. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you.

This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. In Kelly, the opinion at issue, they had the wrong guy they wanted to stop. In other words, they completely botched their job and as a result, we’ve all lost our ability to freely walk down the street without being forced to submit to police authority for no reason at all.

In some other countries, we call that martial law. In America, we call that officer safety.

I would encourage you to read the masterful dissent [PDF] that lays waste to all the majority’s purported “reasoning”. Here’s a sample:

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would  require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.

Oceania has always been at war with Eastasia

What problem is?

What problem is?

As mentioned above, one of the chief conceits in the legal system is that facts exist not as they are, but as a judge or jury finds them to be. This has great value in the way our system operates because it defines a universe according to rules of evidence and the primary goal is to ensure reliability.

In recent months, the Connecticut Supreme Court has shown a greater willingness, on appeal, to consider legal arguments that were not raised before. While this has raised some hackles, I generally view it as a good move.

Never before, in my opinion, however, has the Court engaged in retroactive fact-finding. So here’s the setup from the majority opinion:

The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found.

In other words, the trial court, in finding the need for officer safety, relied on clearly erroneous fact A and then, the Appellate Court ignored the trial court’s error as to fact A and instead said that the trial court was correct because of fact B. The trial court had never explicitly considered fact B.

You will have guessed by now that both fact A and fact B support a conviction.

In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it.

The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court.

The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation.

But here’s where it gets weird. After the case was argued in the Supreme Court, they send a letter to the trial judge and asked:

  1. Did you mean felony warrant for violation of probation?

  2. Did you consider the evidence that they received a tip that the guy was armed and dangerous?

The answers, of course, to both were yes, despite there being absolutely no evidence of that in the trial court’s ruling.

It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal.

This is highly unusual and should trouble everyone. I’m not assuming that there was anything malicious about it – that would be ridiculous – but even with a benign intent to “get to the truth” or whatever you want to call it, giving a trial judge an opportunity to change his responses in order to conform them to what the Supreme Court is clearly looking for really undermines faith in the process and the system.

Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority?

Oh, right.

Oceania has always been at war with Eastasia.

Fighting John Murphy: It gets worse

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

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

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

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

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

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

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

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

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

Judicial thuggery: FL judge assaults public defender (Update)

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

[Update below]

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

Here’s the mind-boggling video:


Here is the dialogue:

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

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

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

“Let’s go right now,” Weinstock said.

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

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

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

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

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

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

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

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

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

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

SC public defender forgets meaning of adversarial

u-think-we-share-2-much-nah.jpg

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

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

The complaint has been filed by Attorney Desa Ballard:

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

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

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.