making impropriety cool since 1974

It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.

This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.

Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:

The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.

To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:

The defendant next contends that the prosecutor violated State v. Singh, supra, 259 Conn. 693, when he argued that in order to acquit the defendant, the jury would have to find that every other witness ‘‘was wrong.’’ He argues that there is ‘‘no distinction between a prosecutor using the word ‘wrong’ or ‘mistaken’ instead of ‘lying’—all are equally improper.’’ The state argues that there is a distinction when such words are used during closing argument. We agree with the defendant.

To improper attempts to bolster the credibility of witnesses:

First, the defendant claims that the prosecutor improperly asked several of the state’s witnesses on direct examination and on redirect examination if they were telling the truth or if they were prepared to tell the truth. This, he argues, was an attempt by the prose-cutor to bolster or rehabilitate the credibility of these witnesses before the witnesses were impeached. The state argues that each of the witnesses had testified that they had pending criminal cases and that they did not want to testify in the present case. The questions posed relating to their truthfulness, it argues, merely were attempts to confirm that despite their reluctance to testify, they still were prepared to tell the truth. We conclude that the questions posed on direct examination were improper attempts at bolstering the witnesses.

and finally to finding that these instances were “central to the critical issues of the case”:

We next consider the fourth Williams factor, the centrality of the improprieties to the critical issues in the case. See id. The defendant argues that ‘‘the prosecutor attempted to obtain a conviction by having the jury consider not the evidence and the charge, but instead, by persistently characterizing [the] defendant’s actions as murder and Rivera as a victim, by bringing in sympathy for Rivera and [by] inflaming the jurors’ passions, by repeatedly emphasizing that his witnesses were credible, by denigrating defense counsel and by arguing that every single witness was lying if [the] defendant was innocent.’’ The state concedes that ‘‘the alleged improprieties affected the central issue in this case, which was whether the defendant murdered the victim or acted in self-defense, but not significantly so.’’ We conclude that the improprieties were central to the critical issues of the case.

And yet, these improprieties didn’t deprive the defendant of his right to a fair trial bec-ayyy! Of course, the Court doesn’t bother to name the offending prosecutor, nor does the Court either impose sanctions or refer the matter to the Grievance Committee for sanctions for this conduct it finds to be improper. The lesson here? Go ahead and do all this stuff we said was improper, because in the end, criminals are criminals and we aren’t going to do anything other than mildly chastise you in a way that will preclude anyone from ever connecting you to this behavior and really, you put a really bad guy away, so we should be giving you a damn award.

Ayyy!

http://www.youtube.com/watch?v=Q_Y0gT-ab90

I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.

But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.

But I digress.

As if this coddling and protection of prosecutors wasn’t infuriating enough, the laissez faire attitude toward such impropriety gets even worse with the complete failure of any entity to impose sanctions on that prosecutor. It is a common refrain heard around the criminal justice system that prosecutors are rarely – if ever – held accountable for their “extremely troubling” acts of misconduct. I mean, c’mon, if a court isn’t even going to name them, then do you think there’s ever be any sanctions imposed?

That’s the subject of a powerful article in the CT Law Tribune by former Chief Disciplinary Counsel Mark Dubois, who comments on Lenarz and the failure of courts to correct this misbehavior:

One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.

Professor (I took one of his classes once, so he’ll always be “Professor” to me) Dubois then points out something that I was unaware of, that’s rather surprising:

Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.

Here’s the relevant Practice Book section:

(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:

(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:

(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;

Prof. Dubois interprets that to mean that once a court has found misconduct and imposed no sanction, the Grievance Committee must not take further action against the prosecutor. But I don’t see where in the rule it says that the Committee cannot proceed with disciplinary proceedings against the prosecutor based on the record created by the appellate decision. I’m assuming the professor knows more than I do in this area, so I invite him to correct my mistake.

Even if that is the case, it certainly does not divest the court of its authority to refer the matter to the Grievance Committee for disciplinary proceedings. And we all know that never happens:

A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.

This indifference approach to ethical violations in the most grievous of settings is another symptom of a system that places finality above all else, that condones the erosion of individual rights and liberties in favor of a more authoritarian society. With the legislature unable to act, it will be up to the Courts – well populated with former prosecutors – to bring accountability in an impartial way. If the Chief Justice is indeed serious about restoring faith and integrity in our justice system, she might want to go further than characterizing the conduct as “extremely troubl[ing]” and actually hold those people who undermine that same integrity responsible.

Don’t hold your breath.

From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.

Just how egregious was this violation of the attorney-client privilege? Judge for yourself:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the  defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received  from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge  that the prosecutor had read materials that were subject to the attorney-client privilege.

This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:

The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.

What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :

We must state, however, that we are extremely troubled by the prosecutor’s conduct in this case. Although the privileged documents were not in the form of  letters or e-mails, it could not have been more obvious on the face of a number of the documents that they were intended to be communications to the defendant’s attorney. For example, one of the documents stated near the top of the first page that ‘‘[t]he following material is confidential and I would ask  that you review it. If this is a case you believe you would have success in defending, I would like to schedule [an] appointment to discuss it.’’ Another document was entitled ‘‘Strategy Issues’’ and stated in the first sentence: ‘‘I think that in the short term, especially for the court appearance on June 8, 2004, that our  objective should be threefold . . . .’’ The first two sentences of another document provided: ‘‘We were asked by our original attorney . . . to keep a log of any  events that we thought might pertain to this case. This document is the result . . . .’’

Oh. Well, I’m sure the prosecutor acted as he would have if he hadn’t read them and didn’t alter his strategy at trial as a resu-what’s that?

Indeed, the record strongly suggests that the prosecutor may have revealed the defendant’s trial strategy to witnesses and investigators. In addition,  consciously or unconsciously, the prosecutor’s knowledge of the defendant’s trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record. Again, the record strongly suggests that the prosecutor drew on his knowledge of the privileged communications  when examining the accusing witness in Docket No [XX] to anticipate and thereby neutralize what otherwise might have been a devastating  cross-examination of that witness.

The Court (at least 4 of the 6 members who sat on this panel) is rightly outraged at these actions by the prosecutor. So much so, that the Court creates a new rule: that there is a presumption of prejudice when inherently confidential materials are disclosed to the prosecutor, intentionally or otherwise, and that presumption is rebuttable only by clear and convincing evidence. The Court then places the burden squarely on the trial court to sua sponte conduct an investigation into this violation and fashion an appropriate remedy that would right the wrong.

The Court concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial  strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also  continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion  occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a  miscarriage of justice[.]

You can read the nearly-3-times-as-long dissenting opinion here, which basically argues that the majority is creating a new rule and that the violation wasn’t that bad because we really must assume that a prosecutor who receives these materials, reads them and then alters his trial strategy to counter the defendants did so unintentionally and in good faith and oh, I don’t know. I stopped reading after the 10th page or so.

I think it’s particularly telling that the majority opinion was written by the Chief Justice. CJ Rogers has been on a mission since being appointed chief: a mission to clean up the image of the judiciary and the legal profession. It’s abundantly clear that this isn’t an opinion about criminal law, albeit that is the mechanism for the ruling, but rather about the integrity of the profession, the fairness of the courts and the sanctity of our clearly defined roles and the rules that we must abide by.

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

We’ve all been there: the trial has just concluded, you’ve delivered the closing argument that you spent many nights working on and frankly, you’re exhausted. The judge starts giving the long, boring instructions to the jury – you know what I mean – which they’ll rely on to analyze the evidence and apply it to the law of the land. You tune out, your eyes glaze over, you just want a damn drink.

And in the midst of your reverie, the judge instructs the jury that the defendant has the burden of proof beyond a reasonable doubt to prove his innocence. Since you were preoccupied with visions of a drunken sleep, you didn’t notice. The jury, obviously, convicts, since there was no defense case in chief. You are upset, the client is led away and you go home to curl up in the fetal position and bemoan juries predisposition to convict.

Then your client appeals and the sharp, astute, awake appellate attorney notices the erroneous instruction. Oh no! This was instructional error! The judge gave the jury incorrect instructions! But you didn’t object! And so the error wasn’t preserved! Are we doomed?

Recognizing the problems that would arise with turning a blind eye to this obvious mistake of Constitutional magnitude that impacted the right to due process and a fair trial, the appellate courts in Connecticut issued a decision back in 1989: State v. Golding. The Golding decision created a 4-pronged test to deal with scenarios like these:

1. The record is adequate to review the alleged claim of error;
2. The claim is of constitutional magnitude alleging the violation of a fundamental right;
3. The alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
4. If subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

(note that Golding applied to all errors of constitutional magnitude, not just jury instructions). This test worked – albeit not perfectly – but it worked. Obvious errors that implicated constitutional rights received the appellate review they deserved. But the State, cloaked in its self-righteous veneer of finality over justice, was unhappy. It fought for years to reverse Golding, because dammit any trial is a fair trial. And if your lawyer is asleep at the wheel, or just plain misses something, you must pay for it.

Most defense lawyers weren’t that worried about the Court overturning Golding because, well, how could they? How could they justify punishing a defendant for an obvious Constitutional error? How could they justify depriving a defendant of his/her right to due process and a fair trial?

Blame the lawyer, that’s how. This year, in a trio of cases – State v. Kitchens, State v. Akande and State v. Mungroo – the Connecticut Supreme Court made jaws drop by holding that if a lawyer fails to object to the exact same language of a jury instruction that is later challenged on appeal, the defendant is deemed to have waived the right to appeal that error. Part of the reasoning is that it will be considered a tactic on the part of the lawyer to not object to that erroneous instruction. Like we’re all that smart.

Yes. So under my scenario above, the appellate lawyer cannot argue that the defendant’s right to a fair trial was violated, because the lawyer did not object to the incorrect reasonable doubt instruction. Think of it as that portion of a wedding vow where the officiant looks at the crowd and asks if anyone objects to the union and warns them to speak now or forever hold their peace.

Now, the example I gave is an extreme one – hopefully no matter how asleep you are, you would notice that the defendant doesn’t have to prove a damn thing. But what of other less noticeable errors? What of erroneous instructions that a particular lawyer just wasn’t aware of? But that’s apparently a tactical decision.

The burden this places on the defense lawyer is tremendous – and misplaced. The court has an independent obligation to ensure that the jury is instructed correctly. This removes that obligation on the trial court, which, after all, is in charge of courtroom procedure, evidence and instructions, and places it on the shoulders of the defense lawyer. And what if the lawyer is just plain wrong and incorrectly agrees to the erroneous instruction? How do you make a defendant pay for that lawyer’s mistake? And why must that defendant wait years and years for vindication that may never come? Why has the Supreme Court abrogated its basic function: to ensure that justice is delivered in Connecticut courtrooms and to preserve the Constitutional right to due process and fair trials? The Court seems more interested in arguing that defense lawyers will choose to knowingly ignore Constitutional errors so as to set up appellate claims – something that is highly unethical and detrimental to the client.

I refuse to cite from the majority opinion because it is just so vile. But, in the interest of making this post somewhat productive and instructive, I will cite only this one paragraph that provides some sort of guideline:

We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.

As far as I can see, here’s what we need to do:

1. File a motion with the trial judge for a written copy of the proposed jury instructions prior to the start of jury selection. In fact, demand them. Cite Kitchens over and over again.
2. Make a record every time you ask the Court for the written instructions.
3. Ask for a continuance of at least 48 hours if you receive the instructions during the evidence portion of the trial. Realistically, you need that much time to absorb, understand and critique the instructions.
4. Make a record of what else you have to do in the midst of trial and why you need that time.
5. Demand the time. Make a record and use the words “I will not have had a meaningful opportunity to review the instructions if you do not grant this continuance, Your Honor”.
6. The court will not usually grant you this time; expect that.
7. Share the instructions with other lawyers. Ask them to read them and provide feedback.
8. Start keeping a repository of your own instructions.
9. Always submit your own proposed instructions in writing.
10. Always ask the Court to give your version of the instructions, no matter how closely they track the Court’s.
11. Always object to the Court’s instructions and suggest that the Court give yours instead.
12. Make sure you don’t have something stupid or wrong in your proposed instructions.
13. Make a record that you have not shared your proposed instructions with your client, that he is not trained in the law and he is relying on you to get it right.
14. State on the record that your client is not waiving any right to review of errors contained in the jury instructions.
15. State on the record that you have perused the Court’s proposed instructions to the best of your ability and that there are no errors that you are intentionally not bringing to the Court’s attention.
16. Pray that the Court gets it right.

The State and the courts of this State don’t seem to give a damn about its citizens Constitutional rights. Now, more than ever, we defense lawyers are the only ones that stand between the individual who has all the might of a government thrown against him and a summary, lawless judgment being pronounced. This is not the time to tuck our tails between our legs and scamper off. Fight. Stand up and assert our rights. Your rights. My rights. Because if we don’t, soon, there won’t be any left.

———-

And because every post of this length needs a video, here’s a song about rhymes (language decidedly adult):

• In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?

That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.

• Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:

Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.

Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:

The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.

Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.

Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.

• Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.

The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

• Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:

Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.

In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.

In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.

Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.

• An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.

And you say I don’t post anymore.

mom ran you over in a car? dad beat you? GTFO

[Yes, I'm mixing my children's stories here in order to come up with this creative title, but 'Justice Thomas is an effing hypocrite' just doesn't have the same oomph.]

On the twentieth anniversary of Justice Thomas’ confirmation to the highest court in the United States, USA Today has this “retrospective” piece on the work of the Silent Assassin. Focusing primarily on his work in criminal justice cases, the article lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes. And no story of this ilk is complete without a quote that makes you groan and your eyes roll so far into the back of your head that you’re not quite sure if you’re awake or dreaming:

Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, “But for the grace of God, there go I.”

During his confirmation hearing, Thomas explained that he would identify with defendants: “So I can walk in their shoes and I could bring something different to the court.”

It’s okay. Gagging on whatever you’re eating/drinking/throwing a fist through your monitor is an acceptable reaction. I’ll wait till you call 911/poison control/customer service. Back? Feel better? Didn’t think so.

That the same man could utter the words quoted above during his confirmation hearings and then spend 20 years on the bench imposing his morality and punishing others for not being as stoic as he is reflects two things: 1) a truly distorted view of himself as a hero figure; and 2) the utter uselessness of confirmation hearings.

The USA Today piece focuses on Thomas’ opinions in recent cases like Connick v. Thompson and Cullen v. Pinholster. On Pinholster:

Thomas wrote: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

In her rendition of the facts, Sotomayor noted that it was Pinholster’s mother who ran him over as child. Regarding the stepfather, Sotomayor offered no “nearly so” caveat: “Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board,” she wrote. “There was so much violence in the home that Pinholster’s brother dreaded coming home each day. Pinholster’s half-sister was removed from the home as a result of a beating by his stepfather.”

Thomas allegedly has this on his office wall: “If you do the crime, I’ll damn well make sure you do the time. Constitution? What Constitution?”* The article collects quotes from legal beagles like Jeffery Fisher and the inimitable Orin Kerr, who, due to the possibility of appearing before said Justice have to employ the use of euphemisms in describing his “jurisprudence”:

“When he steps in the shoes of people,” says Stanford University law professor Jeffrey Fisher, “he’s more likely to say tough-love is necessary and you have to take responsibility.”

…

“He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them,” says George Washington University law professor Orin Kerr [...]. “The themes you see in his criminal law cases are the themes that you see elsewhere. He says, ‘If you do wrong, you have to take the consequences.’”

Delicately put. In other words (my own): he just doesn’t give a fuck. He thinks he’s better than you and is not afraid to tell you so. He’s on the Supreme Court and you’re just a convicted murderer-scum-of-the-earth. It’s not that Thomas exhibits a failure to understand the nuances and circumstances of individuals’ lives or to appreciate the different shades of gray that make up each human. He’s too smart not to get that. He just intentionally disregards them. Quoth Gamso:

Suck it up is his mantra. Whether you deserve it or not. Them’s the breaks. If your life sucks, live with it. If someone hurts you, too bad. No remedies. No relief. No comfort. No apologies.

So what if you spent decades in prison for a crime you didn’t commit, almost got executed for it? That’s life. Why should the people who cheated to put you there have to pay for what they did? Some people are winners, others losers.

And who cares about the losers?

Not Justice Thomas.

*That’s not a direct quote. In fact, I may have made it all up. Actually, I’m pretty sure I did.

A state trooper’s arrest warrant application that charges a Bantam Superior Court judge with coercion and hindering an investigation has been rejected, but the allegations it raises have been forwarded to the Chief State’s Attorney’s Office for review. … On Friday, state police spokesman Lt. J. Paul Vance declined to say why the application was denied or by whom. Vance said the document, stamped in bold with the words “arrest warrant application” at the top, is not considered an application for arrest unless and until it is signed by the investigating trooper and a supervisor.

BUT then we turn to the Register-Citizen, which has a different story. According to the R-C, no warrant was ever submitted by any police agency to any prosecuting authority:

“No arrest warrant was ever submitted from any police agency to any prosecutorial agency,” said State’s Attorney David Shepack. Mark Dupuis, a spokesman for the Division of Criminal Justice, which includes the State’s Attorney’s Office and Chief State’s Attorney’s Office, also indicated that there is no warrant or warrant application for the arrest of any superior court judge. “What’s been reported up there is inaccurate,” Dupuis said regarding the news coverage in Litchfield County. “No valid warrant application was submitted. There may have been other documents, but it is not an arrest warrant application and we can’t act on it,” Dupuis said.

Note that the two may not be inconsistent. It’s entirely possible that Lauretano filled out an application and submitted it to his supervisor, who sat him down and had a nice long talk. Lauretano may then have forwarded the application to the Chief State’s Attorney’s Office anyway. Notice that Dupuis uses the word valid and references “other documents”, and finally this quote:

“The document people are referring to had no signatures,” Dupuis said. “Nothing was ever submitted to us to act on.”

Curiously, it seems that Judge Klatt did end up signing an arrest warrant for the individual who was the subject of the original warrant:

Later on Tuesday, attorney Ira Scott Mayo of Torrington said Klatt had signed a warrant for the arrest of Dylan Hickey following its submission from the Western District Major Crime Squad. … Klatt wanted more information regarding the altercation or to see an arrest warrant filed for everyone involved in the fight, according to Mayo, Hickey’s attorney.

Curiouser and curiouser. Whether the CSAO are actually looking into possible misconduct by one or more parties remains to be seen, as does any action they may pursue. In the end, I’d be extremely surprised if the Judge were accused of any wrongdoing, but I’ve been wrong so many times that it’s embarrassing for me to even think about. The original issue raised by the decision of the judge not to sign the warrant, from a legal geekery perspective, was the protection of the “victim” in cases of domestic violence and violations of protective order. Anyone who’s either been subject to a protective order or represented someone subject to it, knows how easy it is for the “victim” to get the defendant in trouble. All it takes is one phone call and some plaintive bleating about how the defendant “tried to contact me” or sent me a letter and bam! you’re in jail. Even in cases where the communication between the two is perfectly consensual – as it often is – there are no consequences for the purported “victim” for enticing the defendant to violate this protective order. So she [look, I know. It just gets really tiring to keep typing "the victim" and it reads awkwardly.] can call and say “I love you and fuck the protective order and I want you to come over” all she wants and then laugh mercilessly when he shows up with a six-pack and every available police officer in the State is waiting for him. And now the legislature wants to codify this nonsense. I present HB 6629 (you have to scroll way, way down to Section 12), which states in relevant part:

(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, as amended by this act, or section 54-1k or 54-82r has been issued against such person, and such person violates such order. (b) No person who is listed as a protected person in such protective order may be criminally liable for (1) soliciting, requesting, commanding, importuning or intentionally aiding in the violation of the protective order pursuant to subsection (a) of section 53a-8, or (2) conspiracy to violate such protective order pursuant to section 53a-48.

The amendment is to CGS 53a-223, 223a and 223b. Subsection (b) above is a new entry here. “Aiding” or “conspiring to induce a person to violate a protective order” is not a crime anyway, so I’m not entirely sure why this subsection was added, but there you have it.

Unless the victim was also arrested. You can’t make this shit up. And if it were April 1st today, I might laugh it off as a clever joke. But it’s not and apparently neither is this.

Here’s the lowdown, from the two meager paywall inhibited articles that I could find. State Trooper from Salisbury, CT (where watching paint dry is exciting) Mark Lauretano apparently submitted an arrest warrant for a man who got into a bar fight with someone else. The “victim” of the fight (meaning the guy who got beaten up worse), was obviously not arrested, as these things go. Judge Klatt, upon reviewing the information in the warrant declined to sign it, apparently until the “victim” was also arrested.

Judge Klatt, a former prosecutor from Death Valley Waterbury, CT, should have known better. You simply do not refuse the State Police what they want. So instead of, I don’t know, reviewing the information again to see if maybe the Judge had a point, Lauretano does the logical thing and is now seeking an arrest warrant for the Judge herself*.

Because, you know – no, actually I don’t know. He claims that:

The fact that Judge Klatt is currently holding onto a valid arrest warrant for the accused and refusing to sign it until and unless she receives an arrest warrant for the victim is coercion and a violation of criminal law.

Actually, I prefer to call it “not engaging in selective prosecution”.

Assuming, of course, that the reason the judge didn’t sign the arrest warrant was because she personally knows the defendant-elect, this highlights a problem that we in the defense field have long observed: that arrests in these and domestic violence and violation of protective order cases are always one-sided. Man and girlfriend get into fight and it’s always only the man who’s arrested. There’s a running joke that the way to “win” a fight is to get injured just slightly more than the other guy. They’ll never arrest you if you come out looking like the worse of the two. You see it in self-defense cases, too.

But that’s neither hither nor thither. Let’s take a look at what the good Trooper accuses the judge of doing: coercion and “hindering a police investigation”.

Coercion, CGS 53a-192, states:

(a) A person is guilty of coercion when he compels or induces another person to engage in conduct which such other person has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which such other person has a legal right to engage, by means of instilling in such other person a fear that, if the demand is not complied with, the actor or another will: (1) Commit any criminal offense; or (2) accuse any person of a criminal offense; or (3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair any person’s credit or business repute; or (4) take or withhold action as an official, or cause an official to take or withhold action.

(b) It shall be an affirmative defense to prosecution based on subdivision (2), (3) or (4) of subsection (a) of this section that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other person to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior or making good a wrong done.

(c) Coercion is a class A misdemeanor except, if the threat is to commit a felony, coercion is a class D felony.

Ugh. Best I can tell, Lauretano feels like Judge Klatt is compelling him, or inducing him, to abstain from engaging in conduct that he has a legal right to engage in (arresting the defendant-elect). But there also has to be a showing that he’s afraid that if he does not arrest the “victim”, he will himself be the victim of a crime, be accused of a crime, his secrets will be exposed or the judge will “take or withhold action as an official”, whatever the hell that means.

[Update: As astutely pointed out by Gamso in the comments below, the irony is that Lauretano's actions more closely fit the definition of coercion than the judge's. Compelling the judge? Check. Conduct that the judge has a legal right to abstain from engaging? Check. Instilling in the judge the fear that if the demand is not complied with he will accuse her of committing a crime? Check. Subsection (b) might apply to him, but as we all know, an affirmative defense is not a bar to prosecution. Methinks the trooper may not want to play this game much longer.]

So if not coercion, then what else? “Hindering a police investigation” isn’t a crime. There’s no such thing in CT. There’s “Hindering prosecution” and “interfering with the police”. I’m going to assume it’s the latter. CGS 53a-167a states:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

(b) Interfering with an officer is a class A misdemeanor.

Interfering with an officer can – and does – mean many things in Connecticut. A Judge acting in furtherance of her duties cannot be one of them. If that were to be the case, then any and all warrants must be signed by judges, otherwise they’d all be interfering with officers.

I’m glad that Salisbury has nothing else going on that a State Trooper wastes his time applying for an arrest warrant for a judge for 2 misdemeanors and also makes a statement to the press.

I wonder what’ll happen if another superior court judge refuses to sign this warrant for Judge Klatt’s arrest.  Ad Infinitum.

[*Obviously, this is all based on the limited information we have so far. If it turns out that the judge refused to sign the warrant for reasons that are less than kosher, then we have a different story on our hands.]

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.  It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt.  It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision.  It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.  Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

This is, of course, the model jury instruction. I request one that’s substantially different and lifted from State v. Jackson, which I’ll get to in a minute. But look at that definition above. The first sentence itself is so meaningless and confusing that I bet everyone who hears it spends the next 5 minutes trying to figure out just what it means and thus misses the exposition. Emphasizing the word “reasonable” simply leads people to say “proof beyond a reeeasonable doubt”, without any further clue as to how that is to inform their decision. Furthermore, what the hell is a reasonable doubt anyway? Chicken, egg, etc.

The real problem, though, comes when we start defining what “reasonable doubt” isn’t. This indoctrination and confusion starts with jury selection. Prosecutors in these parts read from a script and the script has this explanation:

Now, you may have heard of the phrase proof beyond a reasonable doubt. If you’re selected to sit on this jury, the judge will give you the exact definition, so I’m not going to do that. What I can tell you is that proof beyond a reasonable doubt isn’t proof to an absolute certainty or 100% proof. That’s an impossible standard. [Insert joke about packing up bags and going home or setting a 9am tee time.]

Of course, when the juror-of-average-intelligence follows up with the logical question of, well, if it isn’t 100%, then how much is it, we are all too quick to disavow any statistical attachment to reasonable doubt. We can’t put a number on it. You’ll know it when you see it, just like obscenity and chicken sexing. This loosey-goosey definition of reasonable doubt leads to the same pitfalls when applied to criminal law as it does when applied to obscenity. It means different things to different people.

The “not absolute certainty” instruction also, in my opinion, seeks to lessen the state’s burden in a sneaky, roundabout way: the logical conclusion is that a juror will remember that and say to herself or her fellow jurors: look, we don’t have to be absolutely certain. Close enough is good enough. And you can’t really argue with that, because we don’t know what the standard is in the first place. Scott, writing in the post I linked to above, says it better:

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them.  We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them.  It’s not their fault.  Not in the slightest.  It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

And it is precisely this imprecise and vague meaning of reasonable doubt that the State craves. Research into the psychology of jurors has shown that people are predisposed to convicting someone who is on trial, that jurors are more often likely to side with the State and their show of power. It’s an “us vs. them” mentality and this vague definition teases that out and exploits them. Reasonable doubt is replaced with “I think he did it and if I don’t have to be absolutely certain he did, then this feeling is good enough”. No matter how hard you try, it is extremely difficult to overcome this bias in jury selection and argument, because there’s nothing contrary to argue. You can’t stand up there and give them another definition that makes it clear to them just how high the State has to jump to convince them.

Back to Judge Blue, then. In his valiant attempt to bring sanity to and make concrete this most important concept in criminal justice, he penned the following instruction, which is a slight variation of the charge on reasonable doubt recommended by Justice Ginsburg of the Supreme Court of the United States in Victor v. Nebraska, 511 U.S. 1, (1994). It is a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts:

The state has the burden of proving each and every element necessary to constitute . . . the crime charged. And I’ll instruct on those elements later in my charge. The defendant does not have to prove his innocence in any way or present any evidence to disprove the charge against him. The state has the burden of proving the defendant’s guilt beyond a reasonable doubt. Some of you may be aware that in civil cases jurors are told that it’s only necessary to prove that a fact is more likely true than not true. In criminal cases, the state’s proof must be more powerful than that: It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

The irony is that, in State v. Jackson, the defendant appealed, arguing that this instruction diluted the State’s burden. I suspect, however, that it was appealed only so as get the seal of approval from our Supreme Court, which it did.

Is this definition perfect? No, but it is a step in the direction of providing a concrete explanation of standard to which jurors must hold the State. “Firmly convinced” is a phrase that has more meaning than “a real doubt, an honest doubt”. A juror can ask herself: Am I firmly convinced of this man’s guilt? It’s easier to answer than “Do I have reasonable doubt?”

It is, of course, easier for the courts to “let it be”, but I take that as an instruction to judges, not lawyers. We should routinely object to that nonsense definition I first quoted. Read it again. Tell me if any of it makes sense to you. Can the word “reasonable” be used any more times in a single paragraph? Reasonable men and women having reasonable doubts about reasonable hypothesis.

It is reasonable to think that reasonable people will reasonably be confused by this. And it is reasonable to think that it reasonably leads to reasonable men being convicted for lack of reason.

Reason does make cowards of us all.

So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:

“This is America.  Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.

“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.

Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.

He was too slow with that training. Because this happened:

In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.

Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.

According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.

Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.

Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:

On Oct. 8, Luna appeared in Superior Court on Elm Street to answer to the charge of interfering.

“I approached the prosecutor and he said they would drop my charges and that I would have to pay a fine for creating a public disturbance,” Luna said. Luna said he thought to himself that he shouldn’t have to pay anything, that he hadn’t done anything wrong. But the prosecutor told him he probably wouldn’t qualify for a public defender, Luna said. He said when he asked where he might find a lawyer, he was referred to the yellow pages.

Without the time or money to fight the case, Luna decided to agree to the deal. He was charged with the lesser crime of creating a public disturbance.

When the judge asked if he was guilty, he said no, Luna recalled. “The judge explained I have to plead guilty,” he said. “At that moment when I said I’m guilty, I felt like I was going against myself.”

October 7: Actions perfectly legal and acceptable; not guilty of anything. October 8: Actions perfectly legal and acceptable; guilty of creating a public disturbance.

GA23 - where air goes to die

How did this happen, and why? Luna himself tells us why: because he didn’t have the time or the money to be bothered with it. Confronted with an overwhelming court system in that most overwhelming of courthouses: New Haven’s GA23 courthouse on 121 Elm Street, where the facade is barely hanging on supported by rafters and where throngs of people cram into the hallways like sardines and where air quality has been terrible for years, I’m told.

Luna, with nary an involvement with the system prior to this, was likely confronted with that madhouse like scene and had only one thought: “Get me the hell out of here“. So when faced with the daunting prospect of waiting to fill out an application for the public defender’s office, without any certainty of being eligible for the services of one of my brethren, or thumbing through a yellow pages (really? the prosecutor handed him the Yellow Pages?), he took the easy way out. He pled to something that was dangled in front of him: the all-saving “lesser charge”. An infraction, which is not a crime. It’s a slap on the wrist.

But wrists should only be slapped when someone’s done something wrong. Luna, even as of today, hadn’t. But he bore the sting of that slap just to get on with his life.

And Luna isn’t alone. Given the volume of people that wind their way through the system, it just isn’t possible for everyone to fight their fights. People, like Luna, want to forget their interactions with the criminal justice system like a bad nightmare about that ex who stole all your money.

And the ones that cave in are the ones that have had no prior interaction. The irony is that once you’ve been bitten by the court system, you aren’t shy anymore. You realize that it’s a sham for the most part and that sometimes, they’re just out to get you no matter what. So those with records stand and fight. Sometimes over nothing more than pride, but they fight like they’re Ali.

Those who are first timers fight like they’re Liston.

And that’s why Constitutional principles are decided in the cases of people who’ve had long exposure to the justice system – and that’s why these cases are called loopholes, because they only help the “lifelong criminals”. Well, that’s because they’re the only ones with nothing left to lose. So they stand up to the State and extend that middle finger.

Some of the comments on other sites seem to suggest that the prosecutor shouldn’t have extended the offer and the judge shouldn’t have accepted the plea. But I have a hard time faulting the judge. Factual bases for infractions are often sparse and limited. Did the judge know the underlying facts? The story – and Luna – doesn’t tell. What about the prosecutor? Should the prosecutor have known that what Luna did wasn’t illegal? Heck, the mayor and police chief are pretty clear on that. But then again, some seem to suggest that once a prosecutor believes probable cause exists – which is akin to believing there’s evidence of some higher power – then he’s within his rights to push for a conviction. If it’s not unethical, then well, what is it?

Remember that Luna was charged with Interfering With An Officer, which carries a maximum penalty of a year in jail:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

Do Luna’s actions fit within the definition of the crime? Depends on who you ask, I guess. Everyone but the prosecutor: No. The prosecutor (who’s the only one whose opinion counted): Yes/Maybe.

Luna could have been appointed a public defender – certainly the crime is eligible for our services – but maybe he made too much:

(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record.

Maybe he made too little to hire a private attorney. Maybe Luna was stuck in dead man’s land. And now? Now he’s guilty because it was convenient. The system claimed another victim.