Category Archives: judges

SC public defender forgets meaning of adversarial

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

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

The complaint has been filed by Attorney Desa Ballard:

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

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

The Unexamined Trial

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

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

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

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

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

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

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

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

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

Even judicial opinions spin their facts (updated)

[Update below] What, really, is a fact? The word, which seemingly should have one simple definition, in fact does not.  For example, in science, a “fact” is an observation that has been repeatedly confirmed and for all practical purposes is accepted as “true.” In law, on the other hand, a “fact” is what 6 people say it is. In other words, it’s not a validation of what actually happened, but what reasonably could have happened. A fact is also determined based on a rather narrow, limited universe: some things aren’t taken into account and conclusions are made by ignoring other, contradictory events.

One example of this is if you read any appellate court opinion by a Connecticut court written in the last decade or so, almost all of them will have a recitation of the “facts” that begins with the following sentence:

The jury could reasonably have found the following facts

Invariably, this recitation is skewed toward the interpretation of those “facts” that supports the court’s eventual decision. If you need to uphold a questionable stop of a car on the road, highlight the helpful police officer’s testimony while downplaying or even ignoring frame-by-frame video evidence.

Two days ago I wrote a post about a juror who demonstrated that she believed the defendant to be guilty even before the presentation of evidence and who was “bullied” into stating that she could be fair despite those prejudicial beliefs. At the time i wrote the post I didn’t read the opinion. A helpful commenter has provided a link to the opinion. It perfectly illustrates the point I’m making here. First, let’s remember from my post that the transcript revealed that the juror made several assertions that she would not be able to be fair:

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

So let’s go take a look at the opinion. Find the Control and F keys on your keyboard. You’re going to need them. In the opinion, the judge explains that the trial court, before the evidence, explained to the panel that the case involved allegations of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. At the time jury selection occurred, both the prosecution and the defense questioned the jurors including Juror 112, who did not indicate any problem with judging the case fairly.

Then it starts getting messy:

Seeing is disbelieving: in spite of video edition

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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)

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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.