Category Archives: judges

Seeing is disbelieving: in spite of video edition

cafe-wall-line-illusion

This is not a trick question: what do you think has superior recall of the facts – your memory or a video of the incident?

No prizes for guessing correctly. But despite that, 5 judges in the State of Indiana went with their imaginations discretion in ruling [PDF] that a car had actually swerved into oncoming traffic despite the fact that it had not, and thus a police officer was justified in pulling the driver over for the horrifying crime of having a BAC level of 0.09.

Around 1:00 a.m. on October 15, 2011, Deputy Casey Claeys of the Elkhart County   Sheriff’s Department was following another vehicle down County Road 4. Deputy Claeys later   testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.”

Okay, so that’s what the cop says. What does the video say?

[T]he trial court stated it “reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant’s vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto the white fog line.”

Are you laughing or crying? I can’t tell. I’m doing both. So the video doesn’t support the proposition that the car left the roadway. Remember the officer said that it had veered off the road. Veered. Off. The. Road. Meanwhile the video shows that maybe it touched the white line.

So how do you reconcile that? Magic and the power of being a judge:

The trial court noted, however, that it was “quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.”

Got it? The officer’s memory is that much better than a video recording of the event.

This is important because if the car hadn’t actually left the roadway or god forbid, veered across a line for a second, the officer wouldn’t have any reasonable suspicion to make a traffic stop, which led to the arrest.

They need some reason – a traffic violation, say – to pull you over. Then when they notice you making ‘furtive movements’ and describe your eyes as ‘glassy’, they can arrest you for being drunk.

But this? This really just obviates the need for recording, because if the video can be superseded by an obviously biased officer’s “recollection” of the incident, then they can claim that their recollection is that you were driving with your windows down, AK-47s blasting into the air while screaming “fuck tha police” and taking exaggerated swigs of Crystal while simultaneously pissing on a photo of George Washington and wiping your ass with the American flag.

That scenario is just about as absurd as what the judges ruled in this case.

But no, you keep believing in the system.

Update: Scott wrote about this earlier in the week.

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

fuck-you2

Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

Defining the role of appellate courts

Dan Klau points, rather diplomatically, to a Connecticut Supreme Court opinion issued today [PDF] which he lost. It’s a civil case, but what sucked me in was his description of the issues in the case, which fits right in with the theme of complaints that I have with this present Supreme Court:

In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative. In short, can and should appellate courts raise and decide unpreserved issues sua sponte?

Today, the Connecticut Supreme Court ruled that yes, it could very well decide appeals based on issues that it raised on its own and that no one thought of at the trial level and that weren’t preserved or properly briefed or that the trial judge had no opportunity to consider.

Okay, that’ll be the last of the snark for today, because it actually is a really interesting and important opinion written by Justice Palmer.

The issues were divided up by the Court as follows:

Yet another judge caught on video abusing his power

Thanks to this video recording from August 2013, the public gets another glimpse into the power trips that some people go on when they get elevated to the bench.

Back in August last year, a woman named Ebony Burks was arrested and brought before a judge (Judge Gary Bennett) for arraignment. He asked her how she wanted to plead (not guilty) and then set bonds. As a condition of bond, he directed her to stay away from her partner, who was the victim of a domestic charge. When she realized that that meant she couldn’t go to her own home, shit hit the fan:

“How you going to tell me I can’t go to my home?” Burks asked.

“I just did,” Bennett replied.

“Well, I bet I do,” Burks said.

That brought the initial 30 day sentence.

Burks got 60 days when she held up her hand and walked away from the camera. Bennett ordered her back. Burks continued to talk back.

Here are her words and the resulting jail sentences:

“So what?” (90 days)

“So?” (120 days)

“Okay, and?” (160, 180 days)

“What else you got to say?” (Bennett replies that he will have nothing more to say until they meet again in six months.)

Burks makes an off camera remark, gets a 200 day sentence, and then Bennett asks Burks if she has anything more to say.

“F— you,” Burks replies, bringing the 300 day sentence.

Glad to see today’s definition of judicial temperament includes the ability to get into a childish pissing match with an indigent defendant who’s been told she can’t return to her house.

Should lawyers be disciplined for criticism of judges?

Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?

Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?

Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”

Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.

Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:

Rule 8.2. Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disre­gard as to its truth or falsity concerning the qualifi­cations or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(4) Engage in conduct that is prejudicial to the administration of justice;

I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.

As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.

And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.

The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.

As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.

But we are all lawyers. The irony is lost on us.

 

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Can the prosecution prevent you from giving discovery to a defendant?

In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.

As I wrote in January 2010:

Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.

This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.

However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.

In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.

Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.

Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.

Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.

So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.

It is incredibly hard to explain to a person accused of serious crimes by the state that:

  1. You are in possession of witness statements that implicate him and police reports that tie it all together;
  2. But you cannot give it to him.
  3. He can read it in front of you, but he cannot take it with him.
  4. He must rely on his memory in a correctional institution to recall all the details and to become well-versed with his own case, because he is not allowed to have any participation in the defense of his liberty and freedom;
  5. Especially when his cell-mate has 3 boxes of legal materials.

As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.

There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.

If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.

Of course, the question – just as with this scenario – is whether anyone will make that stand or will there always be some compromise worked out?3

It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.