Category Archives: judges

Who is a reasonable man?

The law is so very concerned with reason and reasonableness. The Fourth Amendment doesn’t apply if a search is “reasonable”. Actions of parties suing others are judged by what a “reasonable person” would do. Prosecutions have to be proven beyond a “reasonable” doubt.

If you read my post on the latter, you will no doubt have learned that “reasonable”, in the law, is an undefinable term. When you tell a person that “reasonable doubt” means “doubt for which you can assign a reason”, you are telling them the same thing, just backwards and it does nothing to further illuminate this elusive meaning.

The application of reasonableness in Fourth Amendment law is gaining traction in recent years and this demands that we ask the question: who on the Supreme Court is reasonable? Cristian Farias, writing at Slate, points out that when the Chief Justice of the Supreme Court of the United States has never, ever, ever in his life been so much as pulled over by a cop for the measliest of traffic violations, how will he be qualified to decide if a police officer unreasonably lengthened an encounter in order to expand an illegal search?

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

This lack of experience with something so frequent and routine as a traffic stop has already affected the way he has ruled in other car search cases:

Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided [PDF] that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.

“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”

Scott Greenfield, following up on a conversation Cristian had with Orin Kerr, fabled lawprof and Fourth Amendment scholar, answers the question: what experience, then, is necessary? In order to decide a ruling in a murder case, judges need not be murderers.

What experience does Chief Justice Roberts bring to our table? From government lawyer to judge, it’s not the experience that the rest of us have, yet this informs his sense of reasonableness. If we were all Supreme Court justices, maybe this would suffice, but we’re not.

There may be no perfect experience for a justice to possess to decide every case before him, but it’s fair to say his experience ought to be better than the experience of watching reruns of CHiPs or Adam 12.  It’s hardly unreasonable to expect some real-world experience from the folks who will decide that our lives are expendable. After all, it’s our time, our lives, at stake here, and the person who will tell us what’s reasonable ought to have a clue how it affects us.

The greatest complaint among defense lawyers when it comes to the appointment of judges has been that politicians routinely nominate those who’ve never worked a day in the real world, instead picking among life-long law professors or government policy lawyers. Those who operate in a world entirely unlike the one whose interactions they will have to adjudicate. The universe from which judges are selected is one where there is little diversity of background and life experience and that background comprises only a small percentage of that of the American population as a whole.

Meanwhile, judges are quite quick to assume certain truths about the difficulties of policing in America and the dangers faced by officers. Their opinions seem to place great weight on ensuring that officer safety is protected and that their decisions enhance the crime solving function instead of hindering it. In other words, they come from a rather strong law-and-order perspective. Their assumptions seem to be that police are almost always in the right and that any interaction that a lay person has with law enforcement is the subject’s fault and tinged with some indicia of guilt.

I’ve written before why it’s easy for people in their position to feel that way and how powerful and addictive a drug living in a cocoon of moral superiority and ignorance is.

If I were to come to your house and tell you what a reasonable temperature is for cooking a steak, would you listen to me, knowing full well that I’ve never eaten, much less cooked steak in my life?

Why should we, then, trust Justice Roberts to tell us whether it is reasonable for a police officer to detain me for 5 or 10 or 20 minutes on the side of the road, while that number just happens to correspond to however long it takes a drug sniffing dog to arrive to ferret out the drugs in my car?

To me, that sounds completely unreasonable.

Tsarnaev: a hearing in futility and the neverending charade

kangaroo-court-1

Just when you thought that the window-into-the-criminal-justice-system’s-foibles that the Tsarnaev case couldn’t get any window-into-the-criminal-justice-system’s-foibles-ier, the First Circuit ups and practically shoves an opinion in our faces that screams “CHARADE! CAN YOU SEE IT? THIS IS A SCAM!”

You might remember from my earlier posts that after being denied a change of venue three times, Tsarnaev filed a second Writ of Mandamus in the 1st Circuit, asking them to stay jury selection and move the trial to another jurisdiction. The 1st Circuit finally ruled [PDF]. The headlines will be: “First Circuit grants argument in venue change!”

The reality is that they’ve already told you how they’re going to rule.

In addition to the Second Petition, three motions are pending before this court. First, petitioner seeks a stay of jury selection in the district court, which the government has opposed. Petitioner’s motion to stay is denied as without merit by two judges of this court.

The First Circuit will listen to arguments on whether the jury selection and the whole trial should be moved to another jurisdiction one week from today but they won’t stop jury selection until then. We don’t know how many jurors will be questioned between now and then and if enough will be accepted to seat a whole jury.

Do you really think that next week, the First Circuit is suddenly going to say that, yes, of course, the trial should be moved? Absolutely no chance at all of that happening1.

So why are they granting a hearing in the first place? It seems because they have to:

Our concurring and dissenting colleague has requested oral argument and argument may be granted at the request of a single judge. Accordingly, we will hear argument on the Second Petition on February 19, 2015, at 10:00 a.m.

The panel that issued this order consists of three judges. Out of the three, only one would have granted the stay of jury selection and only one wants to hear oral argument on whether the case should be moved. The lone dissenting judge is Juan Torruella, all of 81 years and a Reagan appointee. He makes the rather obvious point that if a hearing is to be conducted next week on whether the case should be moved elsewhere, then wouldn’t it make sense to halt jury selection until then?

So how do you think the other two will vote come next Thursday? I don’t think Judge O’Toole is worried.

Then there’s also the charade of dancing around the very heart of the matter that’s at the core of this motion for change of venue. Both parties are not allowed to reference items that are sealed below. This means that they cannot reference, in open court, the responses of jurors to questions or to the questionnaire that call into question the ability of Tsarnaev to have a fair trial in Boston.

Judge Torruella again:

Second, while I agree with the order as to the time, place, and length of the hearing, as well as the briefing schedule, I disagree with the restrictions placed upon it by virtue of the sealing order. It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the Defendant to receive a fair trial.

At 81, he’s no fool. He sees this for what it is: a pro-forma hearing with a foregone conclusion. The First Circuit seems to have made up its mind: this trial will happen in Boston, regardless of how fair the jurors are and at the exclusion of the press and the public if need be.

This is justice in America. Some have called it a Kangaroo Court. I call it Thursday.


Provoking prosecutorial oversight

Slate has published an interview with Fordham Law professor John Pfaff (Twitter) that is both very good and very bad. I suspect they contacted him because of his post at PrawfsBlawg (guys, it’s been, like, 10 years. Can we change that name now? Seriously please?) in which he thinks about prosecutors.

Thinking about prosecutors is a very good thing – we here at APD do it often – and it seems that John Pfaff recognizes that thinking about prosecutors is an important thing and he seems to do it often and do it well:

The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.

The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.

The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.

In fact Pfaff has been at this for a while. Here’s a paper he wrote in 2009 and here’s an accompanying piece in, of all things, Slate in 2009. Here’s another one from 2014. His point is that while a lot of us have been focused on the war on drugs as the main driving force behind America’s incarceration problem, it is but one factor. He urges us to look at prosecutors more skeptically and question their unchecked power and their exercise of their discretion in determining who to charge and with what crimes.

This is, of course, not a novel idea: it stands to reason that if prosecutors are overzealous and heavy-handed and throw around their power, they will charge greater numbers of people with more serious crimes and use the threat of incarceration to get potentially innocent people to plead to lesser offenses and thus boost prison populations, despite actual crime dropping.

Whether there is a direct correlation here is beyond my mathematical abilities, but intellectually one cannot escape coming to the conclusion that this theory holds water. Anecdotal, experiential evidence supports this theory. Every criminal defense lawyer has encountered a prosecutor or three who insists that – despite damning evidence to the contrary – a dismissal shall not be forthcoming and a defendant must agree to accept some responsibility whether real or imaginary. Every criminal defense lawyer has encountered a prosecutor who refuses to forgo a prosecution despite it being the morally correct path to take. Statutory rape cases are the prime example of opportunity for abuse. Additionally, in CT alone – a very small state – there are 1532 offenses one could commit that would land one in jail.

“A pound of flesh” isn’t a phrase thrown about in criminal justice circles because the participants are avid meat eaters.

The Slate interview with Pfaff is a good thing, however, because it highlights the problem with a lack of oversight of prosecutors to the lay individual1.

So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.

But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.

There is, as far as I’m aware, no oversight of prosecutors anywhere. Grievances are rarely filed, if ever. There are no boards who review the performance of prosecutors and internal investigations are pro-forma if they are ever performed.2 Even those who are found by courts to have engaged in unethical behavior are rarely punished and not only continue to keep their jobs, but also get promoted and become judges.

The greater the awareness of this issue and the greater public interest we can generate, the better it is for everyone.

But let’s not call prosecutorial oversight “provocative” shall we? What’s so provocative about suggesting that prosecutors are sending more people to jail and thus our prison populations are increasing across the country?3

This is why this piece is very bad. It sets up Pfaff’s theory as some sort of ground-breaking, dangerous, novel idea. It reveals another pet subject of ours here at APD and that is the complete and abject genuflection that the media engages in at the altar of law enforcement.

Most media representations of the justice system are from an solidly “law and order” position: all crime is bad, all criminals are bad, whatever police say is true and every person deserves the punishment they get.

When that is the underlying theme of every story written about the justice system, it isn’t hard to see why an idea that questions the righteousness of those on the “law and order” side of the justice equation would be treated as “provocative”.

I have never understood why the media isn’t more skeptical. They are clearly so when it comes to other forms of governmental power and abuse: the military, state secrets, who’s making how much and which contract was given to which relative. So why do the police and prosecutors get a “can-do-no-wrong” pass? Why are press releases from the police blotter routinely printed verbatim? Why isn’t it equally normal to wonder if the accused in a particular case was given a just sentence or whether the prosecutor really needed to purse a more serious charge when a lesser one would have sufficed?

If judges, defense lawyers, grievance committees, legislators and the media won’t challenge the authority of prosecutors and demand oversight, then who’s left? That’s right: prosecutors.

It depends on what you mean by a fair trial (updated)

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial1, a right to a fair trial2 and a right to a trial by an impartial jury3.

Concurrently, the public and the press have a First Amendment right of access to courts and to trials4. These rights combine to form a “presumption of openness”5 and access to courts and judicial documents.

The core value of this right to a public trial is:

Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

“[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp.

An impartial jury is one which comes into a trial without any preconceived notions and can put aside whatever biases they may have formed and decide the case based on the evidence presented to it. Just because jurors have been exposed to news coverage doesn’t mean that the defendant is deprived of due process6. Jurors are not required to be “totally ignorant of the facts and issues involved” and prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance7.

Sometimes, however, these core rights are at loggerheads. This is when the public’s right of access and the media’s right to report on court proceedings creates an atmosphere of publicity in which it is impossible to find and seat impartial jurors. This happens in high profile cases where there is such extensive media coverage with inflammatory information and facts that create irreversible biases among potential jurors. In a case like that, the defendant need not prove that each potential juror is actually biased against him, but whether the pretrial publicity constitutes an “extreme circumstance where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”8 Since this would be done pretrial, most defendants would seek to have the trial moved to another location where there isn’t such publicity, or wait a long time for the prejudice to abate.

This Constitutional lesson is currently being enacted for the American public in Boston, where Dzokhar Tsarnaev is being tried in a capital case for the Boston Marathon bombings.

That there is immense pretrial publicity in this case is undeniable. The Boston bombing was the top MA story of 2014. This has already prompted Tsarnaev’s lawyers to file three motions for change of venue. [UpdateThe first two were rejected All three have now been rejected [PDF] as was a subsequent Writ of Mandamus filed in the 1st Circuit Court of Appeals [pdf] which that court denied [PDF].9 This is because courts like to think that jury selection can weed out the partial jurors and uncover those hidden gems who can profess to be impartial. In fact, it’s one of the minimization mechanisms required as an alternative to a change of venue.10

It is with that in mind that it seems the district judge and the court of appeals denied Tsarnaev’s first attempts at changing venue.

Then came jury selection, which has been an unmitigated disaster. According to his third Motion for Change of Venue [PDF] and his Second Writ of Mandamus [PDF], juror questionnaires and jury selection have uncovered irreparable biases:

[A]n extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified “connection” to the case, or both.

Fully 68 percent of prospective jurors already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.

Even more striking, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.

The news media has done an equally impressive job of documenting the utter futility of seeking impartial jurors and the investigations of potential jurors’ social media accounts have uncovered biases that may have otherwise remained hidden. In fact, a new poll published today in the Boston Globe reveals that almost 90% of people think he is guilty or probably guilty.

guilty3

11 days of selection have passed, 142 jurors have been questioned and we still don’t know how many, if any, have been selected11.

The First Circuit ordered the Government to respond to Tsarnaev’s Writ today. Whether it rules today and in what direction remains to be seen, but all of this does raise the question:

What do we really mean by a fair trial? Given the juror responses and the polls conducted, it seems obvious that everyone thinks Tsarnaev is guilty. Then why are we persisting with this charade in Boston? Our rules of law require that a decision be made only on the basis of the evidence presented in court. Yet if this trial is permitted to remain in Boston it will become clear that what we mean by “Fair Trial” is merely an “appearance of a fair trial” without regard to reality. Fair trial would mean “a fair trial to the extent that we can provide one under the circumstances”. The right decision here would be to move the trial but can we get past the legalese and make that difficult decision?12 Or is it going to be “good enough” for us to say that “well, we know he’s really, really guilty, so seriously, c’mon guys, the Constitution doesn’t count here”?

The Tsarnaev case has already once delivered a beating to a core Constitutional right. Will there be a second?


Dispensing with the sham: prosecutors serving as judges

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A judge usually wears many hats: jurist, prosecutor, defense attorney. A judge has to evaluate the strengths and weaknesses of a case in pre-trial negotiations, make offers, impose just sentences, etc.

Prosecutors usually end up being judges once they advance far enough in their careers and have schmoozed the right politicians.

Some prosecutors remain prosecutors even after they take the bench and Missouri is ensuring that they get ample practice in maintaining their bent1.

Neil Bruntrager, general counsel for the St. Louis Police Officer’s Association, works part time as a judge where police officers from county jurisdictions sometimes testify against defendants.  “There has never been a conflict. If there was I would remove myself,” Bruntrager said. “If anything, being a defense attorney makes me more sympathetic as a judge in terms of scrutinizing the evidence.”

St. Louis County and the Circuit Attorney’s offices both have full time prosecutors that are allowed to work part time as municipal judges. While prosecutors can do it, state law says public defenders cannot.

Here, have a look at how ridiculous it can get:

Attorney Ronald Brockmeyer works as a St. Charles divorce and criminal defense lawyer during the day, but by night he works part time prosecuting traffic violators in Dellwood. He also works part time as a judge in nearby Breckenridge Hills.

“I don’t think that’s a conflict at all,” Brockmeyer said. “Not at all.”

Brockmeyer makes $600 a session and isn’t alone in wearing multiple hats.

I’m the judge in Ferguson, a judge in Breckenridge Hills, a prosecutor in Florissant, a prosecutor in Vinita Park, and prosecutor here in Dellwood,” he said.

The defense attorney is a prosecutor and a judge and a prosecutor is always a prosecutor and a judge but never a defense attorney and a lawyer for cops is a prosecutor and a judge but never a defense attorney and public defenders are always defense attorneys but never judges and defendants are always screwed.

Justice.


Yet another example of unsanctioned prosecutorial misconduct

I wrote last week about the double standard in sanctioning defense attorneys while scores of prosecutors nationwide engage in deliberate and willful misconduct that deprives individuals of their Constitutional rights without any consequences whatsoever.

A helpful reader sent me a link to this CT Supreme Court opinion from 2012 that I’d missed, as a further example. In this case, the defense argued that in order to convict him of aggravated sexual assault and aggravated kidnapping (both require the use of a firearm), the jury must be instructed that he actually possessed such firearm. The operative language of both statutes is similar and it is this:

(1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon

The reason for this argument is that it is an affirmative defense that the weapon was inoperable. Thus, it would make no sense for the affirmative defense to be applied to someone who had an inoperable gun, but unavailable to someone who had no gun at all.

The Court agreed with the prosecution that the defense had not preserved this argument and thus declined to consider it. And then it dropped this footnote:

[W]e feel compelled to note that in the section of her appellate brief addressing this issue the state’s appellate counsel, Assistant State’s Attorney Melissa L. Streeto, purported to provide quotations of §§ 53a-70a (a)(1) and 53a-92a but inserted commas supporting her statutory construction without any indication that alterations had been made.

In response to questions at oral argument regarding the accuracy of these quotations, she explained, in justification of the improper insertions, that “I put those there because that is how the statute should be read.

No matter how a statute should be read, it is for the legislature—and not counsel—to determine how the statute should be written. We strongly disapprove of the tactic employed here, which was at the very least misleading, and we remind counsel that they are obligated to indicate, through the use of brackets or explanatory parentheticals or otherwise, any modification to quoted materials.

Contrary to Assistant State’s Attorney Streeto’s suggestion at oral argument, and notwithstanding her apology for misleading the court, this obligation is not met by including unmodified copies of the relevant texts in an appendix.

A prosecutor, in reproducing something as basic as the text of a statute – something that everyone has free access to – which she must’ve known the parties would be familiar with, decided to pass off as accurate her own interpretation of the statute.

Then, upon being questioned, had the hubris to state “that’s how the statute should be read”.

This is what happens when prosecutors are allowed to run rampant without any oversight. Once again, I’m fairly certain, despite the Supreme Court’s concern and strong disapproval of this “tactic” that was “at the very least misleading”, she was not punished or reprimanded, let alone referred to the grievance committee.

When prosecutors apologize, everything is okay, because they didn’t really mean to deprive you of your Constitutional rights. After all, they’re in it for justice.

A double standard in prosecutorial misconduct

Last week, in a Connecticut courtroom, something unprecedented happened: after a jury returned a guilty verdict in a trial, the judge, from the bench, suspended the defense lawyer for 20 days from the practice of law, for twice-violating a court order.

The lawyer is long-time New Haven attorney John Williams, who is a former law partner of Norm Pattis, so I’ll refer you to Norm for a defense of Attorney Williams.

Apparently, Williams’ client was tried in Federal court for the same offense and acquitted and then returned to State court for another trial. The judge ruled that the acquittal could not be entered into evidence and the jury could not be told about it.

Twice, Williams slipped up and mentioned the acquittal – once during cross-examination and once during closing arguments. After the verdict the judge announced his: a suspension for 20 days1.