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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This led Judge Weinstein to declare a mistrial.

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

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

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

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

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

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

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

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

Someone at Volokh posted the following rationale:

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

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

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

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

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

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

But they just couldn’t leave it at that.

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

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

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

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

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

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

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

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

Previous, similar thoughts here.

photo credit: mag3737

Usually will get you into trouble. Consider the “kerfuffle” between Judge John Bayly, Jr. and Liyah Brown, a public defender. They got into a petty dispute over whether Brown’s client was homeless and after an escalating argument during which the judge apparently told her to let it go, he asked marshalls to “step her back”, which ended with her in handcuffs and the recipient of a pat-down and a trip to the lockup.

Later on, the judge declined to hold her in contempt, and last week the DC Judicial Commission determined that he violated the code of conduct for judges.

A commenter at WSJ’s Law Blog provides additional details:

The gist of it is this: It was a status hearing on a discrete topic. The lawyer persisted in raising a point that the judge thought was irrelevant to the purpose of the hearing. The judge gave her a moment to make the point, and, when it took longer than he wanted, he told her to sit down and he would re-call the case after calling the other cases on the docket (with dozens of status hearings to deal with). The lawyer refused to leave the lectern, and she kept talking. The judge twice or three times told her again to leave the lectern. The last warning was that he was about to hold her in contempt. The lawyer then made the talk-to-the-hand gesture, cocked her head, and said, “I don’t know what’s going on up there.” At which point the judge told the marshal to step the lawyer back. When the judge re-called the case a little later, he expressed regret that the matter had come to this, and he declined to cite the lawyer for contempt of court.

The hand. Yeah, that’s not a good idea. Confrontations in the courtroom happen and they aren’t that rare. However, the confrontation usually occurs when the judge makes a ruling you disagree with or forces you to trial when you’re not prepared - all in the course of zealously advocating for your client. Heck, there have been a few times when I’ve recognized the distinct possibility of being held in contempt before the hearing started, anticipating that things would go south (thankfully, it has never come to that).

But this…this is just asking for trouble, in my opinion. If this were indeed a peripheral, irrelevant matter, then I can’t see the point in persisting with it or the point she was trying to make by persisting with it.

You’ve got to learn to fight your battles and I don’t think this is one I would have chosen to fight at that time.

HT: Ed.

Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.

That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.

1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.

2. Weapons focus:

The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.

This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.

However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.

3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.

4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.

5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?

So what is to be done? One method - the example used in the paper - is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.

Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.

I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.

What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.

I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.

(Courtroom sketch: Wired News/Norman Quebedeau)

I’m sorry, I have to say it. She’s freakin’ scary now. I think she’s lost it and I can almost picture her sitting in a darkened room, illuminated by frequent lightning, hair standing up, rubbing her hands together, eyes pointing in separate directions, cackling, laughing maniacally as she imagines these proposals.

The Governor, as part of her budget and state of the state speech yesterday, proposed these changes to the criminal justice system. Are you ready?

I will be submitting legislation to require a mandatory minimum sentence for Burglary in the Second Degree and to change Burglary in the First Degree to include burglary of an occupied dwelling, day or night.

I wonder if she reads the current statutes before making these proposals: “By Jove! I’ve got a brilliant idea! Let’s outlaw one man killing another!”

I would also like to put in place a three-strikes law for those convicted of three violent felony offenses.

And to satisfy those who thought mistakenly there was an “out” in the original proposal, I am removing the possibility of a case review after 30 years. Now it’s three strikes for violent felony convictions and you’re truly out.

There you go. “Original” three-strikes. Completely ineffective and counter productive. I’m also particularly tickled by the “to satisfy those…” comment. American Idol Governor, indeed.

I am also proposing legislation to significantly toughen our laws dealing with sex offenders.

All too often we hear or read about a predator attempting to entice a child online or about a sex offender failing to register as required.

One simple fix I am proposing is to bar offenders from legally changing their names to escape police attention or to avoid registration.

Again with this recidivism nonsense and this shows real ignorance on the topic. Yeah, we hear about MySpace predators because every single time it happens, there’s a media frenzy. Yet, 90-ish % of “predators” will be within the family. They don’t need myspace.

This name changing this is also odd. Why can’t they be allowed to change their name, as long as they register? To change your name, you have to get an order from Court, no? So if you’re on the sex offender registry, it should be pretty easy for someone to figure that out and make the change in the registry.

But I want to go further. I want to require offenders to report in person to police and to provide the name and address of their employers and the license plate number and description of their cars.

And they will also have a special imprint on their driver’s licenses.

Further than need be… This is scarlet letter territory we’re entering into here. Why should the sex offender have to provide the name of his employer? Do we want to further outcast these people? Look at my post from the other day, about the sex offender who can’t be located because he’s been kicked around like a football, or the sex offenders living under the bridge in Miami, one of whom has decided to disappear. Yeah, that’s public safety.

And in the name of public protection, I am calling for another significant change: I want all persons arrested for an A or B felony the most serious of criminal charges to provide DNA samples immediately upon arraignment.Those convicted of lesser felonies and certain misdemeanors must provide a DNA sample at conviction.

These samples will be processed to see if there are any matches related to unsolved crimes.

Incredibly, the law on the books only requires DNA samples to be taken at the end of the inmate’s sentence.

This is where one eye starts spinning uncontrollably, some cats enter the picture and fade to black.

This is just frightening. Absolutely frightening. Presumption of innocence? Them’s just fancy terms. Don’t mean nothing. You’re arrested so you’re guilty. Give up your damn DNA. Heck, I got a better idea. Why wait for people to be arrested. Let’s just have the police go to everyone’s homes. We can all stand in our yards in a line and the police can walk by, taking our DNA. You know, because innocent people don’t exist. Diogenes was right. There isn’t an honest man.

By the way, the statute calls for DNA to be collected after conviction. DOC can choose to collect that sample upon initial entry and they don’t always collect it prior to release.

She’s absolutely lost it and has no idea what to do and what not to do. Pandering is scary enough. This delusional law-making is scarier.

More from CTLP, CT News Junkie.

Disclaimer: This is my opinion. I don’t really think she looks like that in her home. That was my poor attempt at satire. Also, I don’t know what the public defender’s office’s official position would be. This is just mine.

You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?

If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.

According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?

It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.

After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.

This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.

Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.

“Actually, the juries come up with some pretty good questions,” he said.

Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?

There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.

Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?

Terrible, terrible idea. Why must we tinker so?

Image license info here.

Juries are often likened to the black box. You know stuff goes in and you know stuff comes out. What happens inside the box, however, is a mystery. People can guess, people can opine (some make careers out of it), but you never really know how a jury is going to behave. Until one of them speaks out, that is.

This unfortunate tale comes from New York, where, after verdict, a juror spoke up and revealed that they misunderstood the judge’s instructions.

The anonymous juror contended that at least six others on the 12-member jury would have found Joseph Cammarano not guilty of gang assault if they had understood the charge properly.

Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski.

The juror claimed the panel mistook the charge to mean Cammarano should be found guilty of gang assault if they believed he had participated in the Dongan Hills playground melee, regardless of whether he stabbed Orloski.

“We never intended to find (Cammarano) responsible for Richard Orloski’s stabbing, period,” the juror contended.

Part of the cause of this problem is the discretion of judges to permit note taking during trials. This judge did not allow it. The jury didn’t have a written copy of his charge available during deliberations, but requested a read-back of his orders on how to apply the charge in their verdict.

Collini reread his charge on gang assault, and also repeated instructions on three additional charges.

“We had several things read back to us. It was confusing,” the juror contended, claiming that on their return to the jury room, the panelists were still unclear about how to interpret Cammarano’s role in a brawl involving 30 youths in the playground next to PS 52 on Feb. 4, 2006.

I have never understood why note-taking is not permitted during trials. With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?

That’s not all, though. This jury exhibited the classic symptoms of a jury that just wanted to go home:

Describing the atmosphere behind closed doors as including “a lot of cursing and arguing,” the juror claimed the panel was “absolutely split down the middle” as to whether Cammarano stabbed Orloski.

After deliberations began, another member “refused to spend another day” and threatened to hang up the entire panel and force a mistrial if they had to come back on Friday, according to the anonymous juror.

While he was correctly convicted on other counts (and therefore his total exposure doesn’t change much), we still have a man who was convicted of something he shouldn’t have been. That’s unacceptable.

H/T: Indefensible

Update: Scott notes the most obvious downside of juries taking notes: They don’t pay attention to what is currently being said. I don’t think this is as big a problem as he makes it out to be - super juror and what not - and can be rectified with a simple jury instruction. The notes are to assist in recall and should be treated as such. He also points out that notes aren’t perfect and we have a system of perfect recall: reading back the testimony. Sure, that may work in some cases, where the information the jury is seeking is a large part of the case and they are constantly reminded of it. But what of something that seems minor, but could be pivotal? If they don’t have notes to remind them, how will they know what to have read back?

At the very least, the jury should have a copy of the charge.

After his nomination hearing was abruptly ended yesterday, Judge Downey today asked Governor Rell to withdraw his nomination to the Appellate Court. She issued the following press release:

Judge Downey has asked me to withdraw his nomination to be a Judge of the Appellate Court. I respect Judge Downey’s decision. I am sure it was a difficult one for him and his family.

I will be submitting a new nomination to the Judiciary Committee in the near future.

His withdrawal letter can be found here [pdf]. Who’s next?

HT: CTLP and CT News Junkie

The Judiciary Committee hearing on Judge Downey’s nomination, which raised some hackles, was postponed to sometime before September 17 about 70 minutes into the proceeding so as to allow the committee members some time to digest new information that was brought to their attention.

Specifically, this transcript [pdf], in which the following statement is uttered:

“Only people who are legally here in the United States, in my opi—-are entitled to the rights and privledges that we extend to U.S. citizens. Why should a person become a U.S. citizen if they can otherwise enjoy the same rights as the rest of us especially after 9/11?”

He also said he would not hear a case in which one of the parties said they were “not legal”.

Other quirks:

At one point during the hearing Downey referred to himself in the third person like he did in the May 24, 2002 transcript and Sen. John Kissel, R-Enfield, asked him to refrain from making third party references to himself calling it “Seinfeldesque.”

Read the full report at CT News Junkie

We all know the story of the Texas lawyer who fell asleep during a capital trial, but now Scott points to one in New York. Unfortunately, as was the case with the Texas appeal, the court in NY also found that it was not ineffective, because, in essence, the lawyer did some “lawyering”.

Here’s another *ahem* reason the petition was denied: the judge that heard the petition for a new trial was the same judge that presided over the trial itself.

Scott does a good job, as usual, of pointing out how stupid this decision is, but misses one important question: What was the same judge doing hearing the petition for a new trial? If the defendant had filed a petition for writ of habeas corpus, the judge should have recused herself. Precisely for the reason that no judge will admit that there was a sleeping lawyer in the courtroom and they did not catch it, should this judge have not been presiding over this hearing.

I don’t know much about the NY post-conviction process, so maybe someone can clue me in. Was this a petition for writ of habeas corpus? If not, is that available to this defendant?

Either way, judges do the darnest things.

After Governor Rell nominated Judge Barry Schaller to the Supreme Court to replace Justice Borden (Courant opinion piece here), she nominated Judge John Downey to replace him on the Appellate Court. Judge Downey has not been popular and has some problems. Aside from his endorsement of Throm Sturmond, he asked if a man killed in an accident was here in the US legally - after hearing his name.

Attorney Brenden Leydon, representing the man’s estate, told Downey he believed so and stressed that issue had not been raised by anyone involved in the case.

“Well, it might be an issue in Judge Downey’s courtroom,” Downey stated on Sept. 11, 2006. He went on to say, “I presume that he was duly authorized [to sue] as a person here having the appropriate documentation, because I think citizens and people here validly have a right to use the court system and those who are here illegally do not.”

But the courts disagree with the judge’s opinion, which is guaranteed to prompt inquiries at his confirmation hearing before the legislature’s Judiciary Committee on Tuesday. Sen. Andrew McDonald, D-Stamford, who co-chairs the committee, said Downey’s statement was “alarming.”

“The quote contained in the transcript is a jarring proposition for a judge to make and certainly raises substantial questions about Judge Downey’s understanding of the law in Connecticut,” said McDonald, who is a lawyer. “The issue of whether someone is in this state legally has little or no bearing on a civil action, particularly in this case, where the person had died and it was their estate bringing the action.”

Indeed. Peter at Undercurrents has more.