a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and - above all - repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes - and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same - wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives - and our jobs - would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try - for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

Judges do things that are disliked by either party all the time. You take it in stride and you deal with it. There are some actions, however, that leave you so dumbfounded that you don’t know what to say, let alone what to do.

Sometimes they come from so far out in left field, that the only response is .. Only in Texas..?

Take Judge Carolyn Marks Johnson, for example. She was presiding over the DUI trial of Casey Price and things seemed to be going well. Evidence was presented by both sides and the jury was given its charge.

Suddenly, though, after the jury retired to deliberate, something came over the Judge. Perhaps it was ennui, perhaps the sanity switch finally settled into the off position.

While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.

Offensive certainly and undercutting the appearance of impartiality, but not unheard of. Then the crazy-meter really kicked in:

Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.

The judge also said if Price tested positive, the results would be given to the jury, says LaValle.

To say that this was highly improper and had no basis whatsoever is an understatement. It’s bad enough that this judge decided sua sponte that she had the authority to order randon drug testing of a defendant - note that this was a DUI trial - but the bit about giving the results to the jury is preposterous.

Over the vigorous objection of defense counsel and the scared silence of a rookie prosecutor, the Judge ordered the testing.

Then something happened that must have given the defense a glimmer of hope that the Judge would come to her senses: the jury returned its verdict - not guilty.

Of course, when a Judge is far our in left field, nothing will stop him/her. Having already committed to this outrageous course of action, the Judge carried through with it.

Price was required to take the drug test, which came back negative. A further slap in the face - and indicative of the vindictive nature of this judge - was the fact that when the results finally came back a few hours later, the Judge was gone.

So what was the point of the drug test if the Judge wasn’t going to stick around to find out the results?

It seems that the Judge had made up her mind that the defendant was guilty of DUI and if the defendant was guilty of DUI, then surely the defendant must be guilty of taking other illicit substances. Such abuse of judicial power is astonishing and since judicial oversight organizations rarely do more than slap the wrist of offending judges and banish them to undesirable locations, the only thing that might get her actions noticed is a lawsuit:

[Defense counsel] has, however, filed complaints with the Texas attorney general and with the U.S. attorney accusing Johnson of the crime of official oppression, arguing that once the not-guilty verdict arrived she had no jurisdiction or right to enforce custody of Price.

He also filed a lawsuit in state district court Thursday seeking $1 million in actual and another $1 million in punitive damages — from Harris County, the sheriff, the district attorney and Flores, and Judge Johnson.

This was the perfect storm for Price: an overzealous judge and a mute prosecutor. (The prosecutor’s inaction here should not be overlooked. As they like to remind us, they are charged with the administration of justice. There is nothing worse than a prosecutor standing by while a judge eviscerates the judicial system and fundamental notions of justice and freedom. I certainly hope this rookie got a stern talking to.)

Lucky for her, this jury found her not guilty, otherwise who knows what sort of sentence she would have gotten from this judge.

For reasons that aren’t important, I was engaged in a discussion of Connecticut’s Supreme Court and the tone of recent opinions.

This led to a discussion of retired Justice Berdon, Gov. Lowell Weicker’s first nominee to the Supreme Court, and a prolific writer who wore his opinions on his sleeve (and pen). I then engaged in a quick survey of CT Supreme Court dissents since 2000 to see if the Court has changed since his departure.

First on Justice Berdon. His outspokenness was recognized as early as 18 months into his tenure on the highest court.

Justice Berdon, Mr. Weicker’s first nominee to the court, has emerged in the last 18 months as one of the most outspoken dissenting voices in its history, legal experts say, skewering the majority — often in disparaging terms — time and again. Of 147 cases Justice Berdon heard through last month, he issued his own separate dissenting opinion 39 times, an unprecedented number on this court.

“A couple members of the majority haven’t liked my choice of words,” Justice Berdon said in an interview. “But I’m going to say exactly what I think and what I feel should be said.”

Justice Berdon, a soft-spoken man who wears bow ties and so reveres Adlai Stevenson that he named his only son Peter Adlai Berdon, said he believes that there is an obligation to dissent in many cases. A cynical public must be shown that justice is being done, he said, and that issues are receiving a real public debate.

“It’s important that if you disagree with the majority, you don’t merely go along to tag along,” he said. “You have an obligation to put in your views and words so the the public can know what the other side is. It’s a constitutional obligation.”

And he did it with such bite:

One might debate, though, whether there is a constitutional requirement to criticize one’s colleagues with such obvious relish. In one dissent last year, for example, in a case challenging the method used in reapportioning State House and Senate seats, Justice Berdon began with the pronouncement that “today the majority trivializes the State Constititution,” and went on to disparage the majority’s “simplistic” reasoning and its “confusion and failure to understand the case that is before us today” and giving “at best, a cursory review” of the facts of the case.

Now let’s turn to the Court since his departure in 2000. Since then, in eight years, there have been only 55 dissents in criminal cases. Compare that to the 39 dissents in 18 months.

Of those 55 dissents, 19 were penned by Justice Katz. Also in that 8 year span, the Supreme Court heard (more than a few times), the appeals of Michael Ross, Richard Breton, Todd Rizzo, Ivo Colon, Russell Peeler and Courchesne, all capital appeals.

In the last three years (2006-2008), there have been only 8 dissents in criminal cases - and only 2 from 2007 onwards.

Back to Berdon. That NYTimes article I linked to above predicted a liberal turn to the CT Supreme Court:

Some students of the court say the early suggestions are that Justice Berdon may be pointing the way toward a stricter defense of civil rights, and that if other Weicker nominees follow that trend, Connecticut could emerge with one of the more liberal courts in the nation. Justice Berdon, who is 63, faces mandatory retirement in 1999, when he turns 70, but Justices Katz and Norcott, and Mr. Palmer, if he is appointed, could serve for decades.

And it may have been, during Justice Berdon’s tenure. But after his departure, it seems that the Court has returned to what it was prior to his appointment:

The Connecticut Supreme Court, the state’s highest appeals panel, has not been a place of flash and dazzle. Known until the 1960’s by the unfortunate formal title of the Supreme Court of Errors, the seven-member panel has been seen as a conservative, often technical-minded body that generally shuns sweeping constitutional pronouncements in favor of unanimous, bland consensus.

What does all of this mean? Well, very little. The dissents in the last eight years are varied: a “liberal” judge like Justice Katz has voted against defendants twice, whereas “conservative judges” Sullivan, Palmer and Zarella have voted for defendants 8-9 times.

Where it interests me (and possibly you) is in the capital arena. The Court’s decision in State v. Courchesne will mark the first time in a long, long time that the entire Supreme Court panel sat on a capital appeal with the constitutionality of the death penalty before it. Of further interest is that of the current 7 members, only 3 have ever expressed an opinion on capital punishment: Justices Katz and Norcott have frequently dissented and Justice Palmer has voted to uphold the death penalty once.

Justices Rogers, Vertefeuille, Zarella and Schaller have not yet had the opportunity to decide the constitutionality of the death penalty - and it certainly will be interesting to see where they stand and how they come down on the issues.

There are quite a few important and interesting issues pending before the Supreme Court right now and the next year or so will be quite telling as to how the Rogers Court has shaped up. Will it sink further into the abyss of congenial consensus or will a Justice Berdon emerge?

On that note, it is only fitting to leave you with this sad concluding paragraph from Justice Berdon:

This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one –  Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote, 24 Connecticut is not among those enlightened states and nations to put an end to the death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.

State v. Griffin, 251 Conn. 671, 741-42 (1999).

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend - and that voice of prosecutorial reason Joshua Marquis - in making its point.

This is a post that has been in the making for a long time. It is incomplete and at times will be incoherent. These are questions, however, that I think are worth exploring and attempting to answer. So bear with me on this Sunday as I ramble.

Anyone who has followed this blog for the past year will no doubt be aware of several high profile criminal justice stories in CT: the Cheshire incident, the David Pollitt incident and the more recent New Britain incident. Starting with Cheshire, reform of the criminal justice system has been on the minds of many residents of this State, mostly pushed forward by our esteemed legislature and Governor. We were once on the path to reducing our prison population and now we are growing and bursting at the seams with no relief in sight.

Prison sentences have been beefed up to unimaginable levels in the name of public safety, rehabilitation programs have been abandoned and common sense no longer prevails.

Yet there are people who do not feel this is enough. Read the comments to any Courant article on criminal justice and you will see that there are people who feel that any sentence short of life is inappropriate.

This State, fueled by the vote-seeking legislators, has become gripped in what might be the biggest “tough on crime” wave in the country.

The paradox, however, is something that I have long suspected.

Here’s another installment of “Judge for a day”. The setup, for new readers, is simple. I give you a factual scenario, you tell me what sentence you’d impose as a judge.

The facts are as follows: Defendant is involved in a DUI accident. It is probably his fault. The other car is damaged and the occupants of that car suffer serious injuries, but none that are life threatening or that will result in permanent loss of limbs or functions. The defendant is a young adult with no prior record and good family structure and employment history.

What’s your sentence?

Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.

True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.

Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.

To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have somenoe with no appropriate training making these judgments and thereby controlling the destiny of a defendant.

When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine¹ [pdf]. If he fails to admit² [pdf], then he has violated his probation.

So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.

Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (See State v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.

There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).

It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.

Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.

The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.

While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found.  The outcome is generally not good.

So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.

I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?

1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).

Alternative title: “Our standards are so low”.

Remember David Pollitt? [Previous posts here, here, here and here] Yeah, he’s the guy whose release from prison after maxing out from his sentence had his rich neighbors in an uproar. They didn’t want him living in their cul-de-sac, so they staged protests and feverishly dialed into “Idol Governor”, simultaneously pressing 0 for the operator (I guess 1 for complete abrogation of the rule of law and 2 for abandonment of common sense weren’t enough. They went straight for the operator Governor).

So the Governor, as any good Governor would do, stepped in and asked the chief prosecutor attorney general to intervene to see “if we could have this here guy locked up longer than his sentence”, because well, “I’m the Guv’nor dammit and I should be able to”^.

Thankfully, the only person who could actually make Mr. Pollitt go back to jail remembered that there’s something called the law, which is written in these things called books, to which we do something called follow.

Judge Susan Handy was rather skeptical of the legal basis for this “request” from the Governor and reached back into obscure legalese to pull out a rarely heard term called “Illegal”. Never heard of it.

Anyway, whatever this “illegal” action was, it was coupled with some other bizarre phrase known as “standing”. I guess if you aren’t standing, you can’t do something illegal. My head is spinning.

[insert deafening silence, followed by sound of crickets chirping]

So. The point of this nonsense post is that this past Thursday was the 50th Anniversary of Law Day. Judge Handy received an award from the New London County Bar Association. In keeping with the tradition that lawyers are the most uncreative people on Earth, who have an affinity for campy, cheesy names, the award was called the Liberty Bell Award. Because, I guess, someone rang Liberty’s bell.

“I am both humbled and, I have to say, completely overwhelmed, to receive an award for simply doing the job you entrusted me to do,” said Handy, who was appointed to the bench 15 years ago and serves as presiding judge for criminal matters in the New London judicial district.

Let’s be clear: this post is not about Judge Handy at all. She obviously did the right thing. What disturbs me is that doing the right thing now leads to awards and needs to be recognized. How skewed has our notion of justice become that a judge who follows the law and does the most obvious thing has be to feted.

“Let’s imagine if Judge Handy had not ruled as she did,” [Chief Court Administrator Judge Barbara] Quinn said. “A man who had completed his prison sentence would have been unjustly held. The neighbors and some politicians would have rejoiced, along with many members of the public. I would submit to you, however, that the damage to the constitutional rights of every member of the public would have been shaken to the core.”

Why must we imagine? It should be unthinkable that she would rule any other way. This should have passed silently in the night - yet now we have to beat it over people’s heads that she did the right thing.

Congratulations, Judge Handy and I hope this keeps giving you the courage to do the right thing. What worries is me is now I don’t know how many judges would have done the opposite.

^Obviously she did not say that. I don’t know what she said. That was an attempt at humor.

Since the first installment of “Judge for a day” was so successful, I’ve decided to bring it back for another round. This time, ripped right from the headlines. By now, most of you have heard of Susan M. LeFevre. LeFevre, also known as Marie Walsh, was arrested in her “hometown” of Del Mar, San Diego. Problem is, she was on the lam for 32 years. LeFevre, as she was known back in Michigan, was sentenced to a 10 to 20 year sentence back in 1974, for sale of heroin (although differing stories are emerging about her role).

One year later, she ran away from the prison, at the age of 21. Now 53, she is married with children, living a law-abiding, successful life. Now, she faces the remainder of her sentence and a corrections spokesperson said that it’s most likely that she’ll be required to serve 5 1/2 years of the time she owes.

Pretend, however, that you are the prosecutor/judge that has to decide what to do with her. She obviously escaped from prison and owes time. Since then, however, she has lived a law-abiding life and has raised a family. This was also 32 years ago. She is now 53. Important to note, also, is that her co-defendant was released on parole after serving two years of the same 10 to 20 year sentence. He was sentenced on the same day as her.

What do you do? Do you go after her hard for the escape? Or do you take into account her life and her family and the nature of the crime (drugs, after all) and her age at the time of the crime and offer to re-negotiate the deal and sentence her to something lesser, like probation and community service?

After all, one of the purposes of imprisonment is rehabilitation and prevention of future crime. She’s already shown that she’s no recidivist, so is there any point to incarceration now?

What would you do and what do you think is the just outcome in this case? I’ve already tipped my hand as to what I think should happen.

 Loading ...

Images from Michigan DOC and AP

The question mark is because I can’t tell from this piece what the heck actually happened. Shoddy, shoddy writing.

Under pressure to respond after two deadly home invasions in the past nine months, the state Senate voted early this morning to strengthen the state’s criminal law and allocate $10 million for enhanced crime-fighting.

The bill passed by 32 to 3 at about 2:20 a.m. Thursday after the Senate Democrats withdrew a previous amendment that had prompted a sharply bitter debate with Republicans. The final version gained bipartisan support after lawmakers said the bill would authorize a judge to double the penalty following a second violent crime and triple the penalty after a third offense - up to a maximum of life in prison for a violent felon.

The debate on the three-strikes bill had the usual rhetoric from the Republicans that criminals are not being punished. The Dems responded with “bumper sticker politics”.

So what happened, exactly?

Earlier in the evening, the Republicans had verbally pummeled the original bill on the Senate floor, saying that it would actually weaken the state’s laws for violent crimes. Following that clash, Democrats — who hold the majority in the chamber — suddenly postponed the debate and called for a recess shortly before 11:30 p.m. The chamber reconvened later, and the “three strikes” debate pushed the vote past 2 a.m. Thursday.

“This is an extraordinary change in our public policy,” McDonald said, adding that criminals “will be punished in extraordinary ways.”

But Sen. John Kissel, an Enfield Republican, said the original bill was so badly written that it would not accomplish the legislature’s tough-on-crime goals and, in fact, would backfire.

“I guess I’m missing something,” Kissel said. “It actually is weaker addressing persistent dangerous felony offenders. … This amendment pushes us backward. How can this be tougher on criminals? It’s not.”

Out of 21 violent crimes mentioned in the original bill, the maximum prison sentence would actually be reduced for eight of them, Kissel said. That includes second-degree manslaughter with a firearm, among others.

Oh well, that’s interesting. Pray tell us, Courant, why these sentences would be reduced and what other crimes?

No? That’s not important to the narrative? Oh. Okay. Well, then tell us what the final version of the bill was.

Besides streamlining the law, the bill provides money for more prosecutors, public defenders and probation officers, along with expanding the state’s “cold case” unit and providing additional re-entry programs for criminals who are released from prison.

“So many people fail on probation,” said Senate Majority Leader Martin Looney, a New Haven Democrat. “So many people fail on parole.”

But McKinney said he was stunned when he read the original five-page bill. Currently, a criminal could receive 40 years in prison for compelling someone to have sex at gunpoint. The bill, crafted by Democrats, would reduce that penalty to 20 years, he said.

Wait. I’m confused. Is this the original version, the amendment that was scrapped or the final version? Don’t know? I don’t either. Good job there, Chris Keating, Capitol Bureau Chief. Now I know less than I did when I started reading your story.

Can you condense all of this into bullet points for stupid old me?

# $5,492,000 to improve supervision of sex offenders who are on probation, including upgraded lie-detector and global-positioning-system (GPS) technologies. The money also would be used for truancy prevention and helping officials serve warrants on probation violators.
# $2,147,000 to hire more parole officers and prison guards, along plus expanding the use of GPS technology to track criminals who are on parole.
# $910,000 for the state Department of Mental Health and Addiction Services to provide supportive housing and for improving the women’s jail-diversion program, among others.
# $681,000 to the Division of Criminal Justice for more prosecutors and better computers.
# $514,000 to hire more employees for the state police major crime squad.
# $252,000 to the Public Defender Service Commission for lawyers to handle more prosecutions and aide indigent criminals.

Yet nothing on penalties. Sigh.

Oh, by the way Chris Keating, Capitol Bureau Chief, the correct term would have been “indigent defendants“, not criminals. Unless, of course, this bill removed the presumption of innocence. Which I have no way of knowing whether it did or not, because I didn’t understand anything you wrote.

Anyone have a link to the actual bill that was passed?

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

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

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

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

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

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

In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:

At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?

In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?

I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.

What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.

This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?

Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?

One of the first polls I put up on this site was “Would you ’snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small - 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.

Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?

[PS: Scott, this is my 5th post today. No more complaining.]

 Loading ...

Image courtesy 3×0=3 (LVSFRD). License details here.

A very strange story of out Florida, courtesy of the inimitable Howard Bashman. The story goes thusly:

The underlying case began as an appeal from a criminal conviction. The appeal was originally argued before a panel that ultimately decided by a vote of 2-1 to overturn the conviction. Before that ruling was issued to the parties and docketed, the decision was circulated within the appellate court to all active judges. At that point, a majority of the non-recused active judges voted in favor of rehearing en banc.

Following rehearing en banc, the full appellate court voted 10-4 in favor of affirming the convictions. The defendant asked the appellate court to certify for review by the Florida Supreme Court the question whether specific guideposts should exist for determining whether and how a case should qualify for en banc review at the behest of an intermediate appellate court’s judges. In June 2006, the appellate court denied the criminal defendant’s request to certify issues for review by Florida’s highest court.

When denying the request for certification, the Court of Appeal issued a per curiam opinion providing reasons for the denial. In addition, Judge Michael E. Allen issued a concurring opinion in which he explained why he voted for rehearing en banc. Allen wrote that he concluded that one of the judges in the majority on the original panel had made a mistake in failing to recuse because published press reports and that judge’s own background gave rise to an appearance of partiality. In his concurring opinion, Allen quoted in full three separate news reports to support the assertion that an appearance of partiality existed.

The Florida Judicial Qualifications Commission instituted disciplinary proceedings against Judge Allen.

Last year the JQC accused Allen of conduct unbecoming a judge because he criticized fellow judge Charles J. Kahn Jr. in an opinion upholding the bribery conviction of former Senate President W.D. Childers.

Just weeks before Allen was to face a JQC trial last month, the commission added more charges, accusing Allen of lying to the JQC about his motive for writing the opinion when he denied that he harbored extreme animosity toward Kahn.

Judge Allen’s Quo Warranto Petition is available here. Bashman has an excellent analysis of the absurdity of these “charges” here. This is certainly unprecedented. His concurring opinion was certainly relevant to the issue sought to be certified. The JQC seeks to discipline a judge based on his reasons for writing a decision. Under the right circumstances, it seems like a plausible cause of action. However, I doubt these circumstances are those.

“It is hard to imagine a proceeding with more potential for damaging the public perception of the judiciary, or one more disruptive, inappropriate and destructive of judicial independence than the journey into judicial minds proposed by the JQC effort to divine the reason for Judge Allen’s concurring opinion in the Childers case,” [Judge Allen's lawyer] Rogow said.

I have never read an appellate decision and thought “this judge should be disciplined!”. I have certainly disagreed with many appellate decisions, but I have never thought to questions the judge’s motives for writing it. It certainly was an abnormal concurring opinion, but one that certainly was not unethical in my opinion. Do you disagree?

Update: The decision is a must read. It comes in at a whopping 236 pages. (Yes, you read that correctly. 236 pages.) Not only is there an extensive discussion of the history of 6th Amendment jurisprudence, but there is also an extremely fascinating discussion of the Constitutionality of the federal child porn statute and whether its requirement that possession be “knowing” rather than “willful” is sufficient and whether its lack of scienter permits it to survive Constitutional scrutiny. One of the most interesting decisions I have read in a very, very long time.

Original: From SL & P, via Volokh comes this story of a federal judge in New York who reversed [pdf] a conviction after polling the jurors.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.

This led Judge Weinstein to declare a mistrial.

Weinstein wrote that he “committed a constitutional error” by not telling the jury about the sentence.

That knowledge “might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity,” the judge wrote.

In most states, like in CT, juries aren’t told of the consequences of guilty verdicts: what the mandatory-minimum sentence is, what the maximum sentence is, whether the defendant will be sentence to probation, etc.

This ruling has sparked a very interesting discussion at SL & P. S.cotus writes:

I think that Judge Jack sets the issue up in a different way. Rather than say, “Should the jury be told” I think he is asking “Should the judge set aside the verdict based on a clear statement from the jurors, on the record that they would not have convicted if they had known the consequences.” Depending on how you look at it, this is a slightly (or very) different issue.

This isn’t the first time I’ve thought about this issue and it won’t be the last. I can’t decide. My reluctance to embrace juries knowing about sentences stems from tradition, I guess. It’s just what I’ve become used to. Resistance to change or something like that.

But the benefits are obvious. With harsh sentencing and almost anything being a crime, this would be a way for the community - through the jury - to make a statement about what is and isn’t worthy of jail time and whether the sentences set out by the legislature are just and sufficient.

Sure, it reeks of jury nullification, but I don’t think nullification is illegal. It serves a purpose.

Someone at Volokh posted the following rationale:

But we’ve criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of “who is a bad guy.” So, until that changes, we ought to at least let the jury have a shot at letting some non-bad-guy defendants off lightly.

A tangent that bothers me is that a bunch of commenters are all for “full disclosure”. According to them, this would include permitting the jury to know whether the defendant has prior convictions. Seems like they’re seeking a trade-off. Something that might help a defendant for something that definitely hurt a defendant.

It’s an interesting discussion, for which I have no ready response. Thoughts from you guys?

PS: Look at the NY Post headline. Talk about tabloid…

The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.

State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.

But they just couldn’t leave it at that.

The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.

Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.

And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however - or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.

The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.

Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.

One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.

The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.

If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.

Previous, similar thoughts here.