judges

Paying for injustice

Meet Manuel Hidalgo Rodriguez, arrested and convicted in 1995 for child sexual assault that he did not commit. Hidalgo spent 5 years out of a 5 1/2 year sentence before his conviction was reversed and the charges dismissed.

Meet Thomas White, also convicted for child sexual assault and who also spent 5 years in prison before a third jury finally acquitted him in 2005.

But Hidalgo and White have more in common that merely being falsely accused of terrible crimes for which they both spent long years in harsh conditions in prison. Both convictions were obtained by a failure of the system: in Hidalgo’s case, aided by the complete inexperience of his defense attorney in what amounted to a constructive denial of counsel; in White’s, horrifying misconduct by the police and prosecutors to hide exculpatory evidence.

Guilty of being poor

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

All it takes is one

One witness, one complainant, one word. That’s all it takes for your life to start tumbling down the rabbit hole. One accusation, one prosecutor to believe it and one judge who is laissez-faire. That’s all it takes.

For some cosmic reason, this has been the most frequent topic of conversation with clients that I’ve had in the last two weeks. And I’ve always known, in the back of my head, the power wielded by the State in the criminal justice system. Heck, that’s why my job is an uphill battle.

But until last week, I’ve never really had to confront it head on, think about it for a while and explain it to several people, one after the other.

“Can they do that?” asked one client when I informed him that the State had upped the charges against him to a crime that carried a mandatory-minimum sentence. With an apologetic curl of the lip, I conveyed an affirmative response. “They can do whatever they want”, was my response.

“They can do whatever they want”. For the most part, it’s true, isn’t it? The State decides what to charge. The State makes all plea offers. The State decides which co-defendant to try first and which charge to try first. The State decides if it wants a pre-sentence investigation. The State decides what material they think is exculpatory and what needs to be turned over.

The power of the State is fearsome.

What’s more is that the State decides whom to believe. That was Client 2. “You mean someone can make up some shit about me, say I did this to her and I go to jail?”

“Well,” I tried to explain, “that’s what the State believes happened. That’s the evidence they’ll present at trial. It’s her word against yours.”

“That’s bullshit, man” came the understandable response.

It is bullshit.

Vengeance at its most shameful

Jordan Brown, a resident of western Pennsylvania, is charged with shooting Kenzie Marie Houk and her unborn child. Police say that Brown shot her once at point blank range. Today, a judge ruled [thanks to Doc Berman via Gamso] that the prosecution against Brown can remain in his court and denied the defense’s motion for transfer of venue.

Jordan Brown is 12. At the time of the death of Houk, he was 11.

I repeat. Jordan Brown is 12. And a judge ruled that he can be tried as an adult. A state in these United States is about to prosecute an eleven year old as an adult murderer.

Here is a file picture of him, taken from CNN. Look at it. This cherubic 12 year old now faces life in prison. The rest of the post after the photo and the jump.

Judge for a day – IV

“Tring tring”

“Hello, how may I help you today?”

“One robbery, please.”

“For here or to go?”

“To go, please.”

“Okay, your total is one smack on the head, plus tax.”

Fine, so that’s not exactly how the conversation went when two would-be robbers called a local bank and informed the person on the phone that they would be stopping by in a few to pick up their order of cash.

“You can’t make this stuff up,” Sgt. James Perez, Fairfield police spokesman, told the Post. “They literally called the bank and said to have the bag of money ready on the floor because they’re coming to rob the place.”

Then, true to their word, they showed up – just as police were coming to greet them.

One is a 16-year old juvenile and the other, 27, is on probation for – wait for it – robbing a bank. Prison may not have cured him of his bank-robber-itis, but it sure did teach him some manners.

[This is just an extreme example of the dire mopiness of most of our clients. An overwhelming number of clients that we here at 'a public defender' represent are sad souls, lost in the quagmire of a dead end life. Most aren't very educated and very few are even street savvy. They're just fools, for the most part, who make bad mistakes without thinking of the consequences. Drugs, alcohol and poverty play a significant role in their motivations for committing crimes. Very few of them, however, have the common courtesy to call ahead.]

So it’s time to return to one of my favorite games: judge for a day (previous installments here, here, here and here). Imagine you’re the judge who is to affix a sentence to those two simpletons. You know what I know: one is a juvenile (assume that he his record is non-existent or minimal) and the other is somewhat older and on probation for robbing a bank. Also assume that the older guy owes about 5 years on probation.

Your options are: a nolle, some form of alternative to incarceration program (see 53a-39a to 39d and other diversionary programs start here), probation for a misdemeanor, conditional discharge for a misdemeanor, probation for a felony or a CD for a felony, or just straight up time in the slammer with or without probation.

The robbery statutes are from here on down and the larceny statutes start here. The terms of incarceration are here and terms of probation are here.

So, Judge Intrepid Reader, how would you dispense your justice?

The Limp Writ

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:

12 really angry men

Imagine you’re sitting at counsel’s table, ready to start trial. The jury walks in and is seated in the jury box. The judge shuffles his papers, looks over at them and opens his mouth his start instructing the jury.

Suddenly, one of the jurors leans forward and says: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” Another juror pipes in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that”.

The case was a suit for emotional distress in the workplace, but that’s irrelevant. What’s relevant – and a little disconcerting – is the anger, resentment and frustration displayed by the jurors. This outward display of vehemence isn’t necessarily caused by the facts of the case; in fact, under other circumstances, they may have made appropriate jurors.

The troublesome matter here is that these jurors made it through voir dire and were selected – over their own objections. Both those jurors above attempted to be excused based on hardship.

Reconfiguring terms

It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?

The objection’s on the other foot

An interesting and ironic-chuckle-inducing opinion from the Colorado Court of Appeals (via Volokh), where the trial court granted a mistrial in a criminal case. The defendant had been charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.

As some of these prosecutions go, there was a defense. The defense was basically that the wife was a liar and would do anything to gain leverage in a contentious custody battle involving the couple’s infant son.

At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected – stating “we’re here on a criminal trial not on the divorce case” – but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel “a little bit of latitude” in this area, the court did urge counsel to “cut to the chase.”

Further questioning established that the wife had taken the couple’s son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported? The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

The trial court then granted the prosecutor’s motion for mistrial (yes, I did not type that incorrectly), while “vehemently disagreeing” with defense counsel (seems that this judge has learned from my tips for objections).