Category Archives: judges

How do you solve a problem like Brady? Liu-k no further.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don't get it.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don’t get it.

Scott wrote yesterday about a blisteringly ineffectual 4th Circuit opinion in U.S. v. Bartko [PDF], which was notable not only for its lengthy reprimand of the Brady practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about the numerous Brady violations it noted. Via Scott:

And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty. But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:

“We do not mean to be unduly harsh here.”

But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.

“Whatever it takes, this behavior must stop.”

Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.

As noted repeatedly here on this blog and almost everywhere else where someone with half a brain cell writes about criminal law, the problem with Brady is that it’s essentially unenforceable as long as there is no oversight and no will on the parts of judges to do the really hard thing: punish prosecutors for violating their duty by reversing convictions and referring them to grievance committees.

Maybe, though, just maybe that is catching on. First there was Judge Sheldon’s blistering opinion a few months ago, reversing a conviction for “a deliberate pattern of improper conduct” by the prosecutor.

Then, there was this recent story out of Alaska that involved a suspension of a former prosecutor for hiding exculpatory evidence in a murder case:

City wants defense lawyer to pay for wrongful imprisonment

kevin-pagean

You’re almost 18 right? No? 16? Well, let’s just pretend you said 17. Now smile for the camera while we destroy your rights1.

The lawyer for the city of Worcester acknowledges up front that his legal argument is frivolous and has no basis in the law2:

After the hearing, [the solicitor for the city of Worcester] Moore acknowledged there is no case, no precedent to cite to support the complaint against [defense attorney] Ryan.

But he’s doing it anyway, because anything to distract from the horrible violation of civil rights that his city inflicted on 18 year old Nga Truong. Truong, 16 at the time, was arrested because her son had stopped breathing earlier in the day. Police decided, as they often do, with no evidence and no basis other than they pulled it out of their collective asses, that she had killed him.

So they interrogated her3 for two hours, lying to her, threatening her and coercing her into confessing. Which she did4. Don’t kid yourself; you would have confessed too.

Her lawyer called it the worst interrogation he’s seen in 35 years, labeling it ‘psychological torture’. A judge agreed, suppressing her statement [PDF]. In that opinion:

When the judge, Janet Kenton-Walker, threw out Truong’s statements to police, she wrote that Truong “was a frightened, meek, emotionally compromised teenager who never understood the implications of her statements [to police].”

With no other evidence, the prosecutor had to drop the charges. But that didn’t stop him or the police chief from keeping their blinders on and backing their own:

Playing games

The internet is a series of tubes, about....this big.

The internet is a series of tubes, about….this big1.

Isn’t it just so darling that these befuddled old justices get to pretend that its still the Bronze Age? It’s so adorable that they decide cases involving video games, but oh no, they’re a loveable bunch of pensioners who’ve never heard of video games, so they “try out a few”.

Hilarious. Just fucking hilarious.

It does sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance.

Or criminal justice. Which not one of them has any experience with, but which forms a significant portion of their docket. Which is why their opinions are constantly unenforceable and unrealistic. And out of touch. Did I mention out of touch? For which you have to look no further than Justice Thomas, who during his confirmation paid great tribute to the criminal defendant and the adage that “there, but for…”, but who, in reality, just doesn’t give a fuck.

So while we all sit around and laugh at just how damn adorbs these old-timey justices are, realize that the joke’s on all of us.

They have no understanding beyond a vague intellectual appreciation for your rights or mine, which is why Scalia is such an intellectual donkey2 and Thomas can go the entire run of 30 Rock without uttering a fucking word and why Alito can roll his eyes at others and behave like a petulant child.

For the most part, the cases they rule on have no impact on them and their interest in the jurisprudence is nothing more than cold, detached calculation. Maybe it should be that way. Or maybe we should have justices who can claim to have more than some vague idea of that whatsit gizmo thing they want us to rule on.

How do you think they can competently rule on the intricacies of cell phone privacy and GPS when they haven’t a fucking clue what a mobile phone is? Or email? Did the NSA even exist in their youth?

As Scott wrote three years ago:

The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right.  That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn’t mean that putting another theorist (more or less) on the court is the solution.

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better.  Now that it’s a life and death struggle for political hegemony from two political parties whose members can’t be distinguished without a scorecard, the risk of nominating a real lawyer is far too great.  There might be a tea party, or coffee klatch, or beer bash, because of it.  We can’t take the risk of doing something right.

Because the last thing we want on the goddamn Supreme Court of the United States of America is a lawyer who might know a thing or two about the practical applications of laws the Court is frequently called upon to express its opinion on.

Clarifying the problems with mandatory-minimums: why it’s okay to let them go

Over the weekend, Susan Bigelow at CT News Junkie had a fantastic op-ed piece arguing that Connecticut should follow AG Holder’s lead1 and revisit its use of mandatory minimum sentences.

Susan writes:

Just as important as efforts on the federal level, however, are criminal justice reforms we can and should implement here at home. The number of prisoners held in Connecticut’s facilities has, for a number of reasons, dropped from all-time highs in 2007 and 2008, but those levels are still high considering the drop in violent crime that’s occurred over the past decade. Also, the parole reforms enacted after the Cheshire murders in 2007 have contributed to the reversal of recent declines in prison population, meaning fewer prisoners are being released.

That’s accurate, with some recent reporting by The CT Mirror showing that numbers have gone up and overcrowding is a problem again, driven in large part by “reforms” to parole laws. Susan argues that in the next legislative session, we should “reform” mandatory-minimums or,  better yet, do away with them altogether.

There’s nothing to reform. Mandatory-minimums are a dangerous power to give to prosecutors. The results of that power being wielded in a heavy-handed way are evident in the war on drugs. It’s taken decades for the Attorney General of the United States to recognize that mandatory-mininum sentences have a terribly disproportionate impact on racial minorities.

In Connecticut, mandatory-minimums apply if you’re selling drugs within 1500 feet of a school or public housing project. Repeated efforts over the last few years to reduce that “drug-free zone” to 200 or 300 feet have failed.

Take a guess as to who is most impacted by this mandatory-minimum sentence2? You know where you can’t stand without being within 1500 feet of a school or public housing project? That’s right. Connecticut’s urban cities (that’s a post from 2007, by the way. We’ve been dithering over this common sense reform for six fucking years).

Mandatory-minimums are also dangerous because they are a chain that binds the hands of judges who seek to do justice and are a weapon in the hands of prosecutors who want to be unreasonable and unjust.

In Connecticut, prosecutors determine the charges to be filed and pursued. A judge, short of dismissal of a charge for legal reasons, cannot alter the charges filed by a prosecutor. Judges, on the other hand, can indicate a sentence they would impose, which can differ from a prosecutor’s recommended sentence.

So let’s say that a judge thinks an assault charge is worth a prison sentence of two years; the victim doesn’t want to the defendant to go to jail and there is no real long-term injury to any party. The defendant is a young man, with little or no criminal record and the state’s case is iffy at best.

But a gun was used in the assault, so the prosecutor charges Assault in the First Degree, which carries a mandatory sentence of 5 years. Now, no one thinks that a 5-year sentence is appropriate, except the prosecutor, but no one can do anything about it, including the judge and/or victim. Maybe the prosecutor doesn’t like the defendant, maybe she doesn’t like the defense lawyer, maybe she doesn’t like the judge or doesn’t like the system. Who knows.

But the point is that the prosecutor can hijack “fairness” in the process by “sticking” on a mandatory-minimum.

Mandatory-minimums are set by the legislature, based on precise calculations made using actuarial tables and deep meditation pulling numbers out of their ass. Most don’t have any experience in the day-to-day operation of the criminal justice system and base their ideas of “justice” and “fairness” on fairytales Law and Order. To be fair, when we’re resolving cases, we also pull numbers out of our ass, but at least our asses are attuned to the range of widely accepted resolutions.

But legislators, in someone’s infinite wisdom, have selected arbitrary numbers and have decreed not only maximum punishments, but also minimum punishments, sometimes in abject disregard for the realities of the criminal justice system.

Eliminating mandatory-minimums would do only one thing: eliminate the minimum. It would do nothing to the maximum. But it would allow judges the flexibility of making fair determinations of the appropriate sentence to be imposed, not hindered by an over-charging prosecutor. If a case is “worth” 2 years, a defendant should get a sentence of 2 years. But if a case is worth 8 years, he will get 8 years. Eliminating mandatory-minimums does nothing to alter that possibility.

Instead of a range of 5-20 years, the range simply becomes 0-20 years and a judge is free to sentence anywhere between those two numbers.

Finally, as I’ve said before, CT’s mandatory-minimum scheme has a weird interaction with its juvenile sentencing scheme, resulting in 14 year old children being tried in adult court as adult criminals and sentenced to mandatory ten years in jail. Juveniles – children – are different than the rest of us. The science is incontrovertible and established and even the United States Supreme Court has acknowledged this distinction. They deserve a second chance. While states across the country are considering altering their laws to comply with the Supreme Court, a bipartisan bill that would have done just that was defeated in the State legislature.

Because people are afraid:

“There seems to be some notion that mandatory minimum sentences make us safer and that moving away from them makes us less safe,” [State Rep. Gary] Holder-Winfield said, highlighting a stale leftover from the tough-on-crime rhetoric of the 1980s and 1990s. More people in prison doesn’t equal a safer or more just state, especially not when so many lives are being destroyed in the process.

People who commit crimes should be punished. But they should be punished fairly and proportionate to their crime. They should also be punished in a manner that is proportional to others who have committed similar crimes. They should also be punished in a manner taking into account their individual facts and circumstances.

Smart on crime means all of that. It means treating people as human beings. “Tough on crime” means being afraid of everything that isn’t you and condemning vast numbers of people because you’re scared. Tough on crime is simply continuing the narrow-minded racist policies that got us where we are today: staggering numbers of children and low-level non-violent drug offenders serving significant prison sentences, while our jails burst at the seam, corrections swallows the largest portion of our state’s budget and a trail of destroyed lives and families in its wake.

It’s time to stop being stupid on crime and start being smart on it. Eliminating mandatory-minimums is a step in the right direction.

Freed and fired: how one woman put justice over her job

Albeit a few weeks old, this story out of Jackson County is a truly bizarre tale of modern day American Justice and the confluence of a strong desire to adhere to rigid bureaucratic rules and the grander notions of Doing The Right Thing and Justice1.

A Kansas City2 man, Robert Nelson, was convicted in 1984 for a rape and sentenced to 50 years consecutive to sentences he was already serving. Those sentences ended in 2006, meaning that’s when he started serving the 50 year sentence for rape3.

Thing is, Nelson claimed from the beginning that he wasn’t the guy. He was innocent and should be let out of jail. So:

In August 2009, Nelson filed a motion seeking DNA testing that had not been available at his trial 25 years earlier, but Jackson County Circuit Judge David Byrn denied the request. Two years later Nelson asked the judge to reconsider, but again Byrn rejected the motion because it fell short of what was required under the statute Nelson had cited.

You know how this goes. Eventually, Nelson gets a third motion granted, the DNA is tested and lo-and-behold, he’s fucking innocent.

So what was different this time? Someone gave him a template to use that had been successful in another case. That someone was Sharon Snyder, a 70-year old court clerk of 34 years. She simply took a public document from another case, redacted identifying information and gave it to Nelson’s sister, saying “here, file it in this format”4.

So:

Nelson used that motion – a public document Dunnell [the sister] could have gotten if she had known its significance and where to find it – as a guide for a motion he filed Feb. 22, 2012, again seeking DNA testing. That August, Byrn sustained the motion, found Nelson to be indigent and appointed Laura O’Sullivan, legal director of the Midwest Innocence Project, to represent him.

And then Byrn finds out that it was Snyder who provided a copy of a public document. This obviously could not stand, so 90 days before she was set to retire, Snyder was fired. For. Umm. Hang on a second. Let me find a good phrase. Bureaucratic disobedience?

Five days after Nelson was released, Court Administrator Jeffrey Eisenbeis took Snyder into Byrn’s office near closing time and told her the prosecutor and defense attorney “had a problem” with her involvement in the case.

What defense attorney? You mean the one who was appointed after his motion for DNA testing was granted? I doubt it. And what problem? Making them look bad?

Keep in mind that nothing in the article or in the facts that can be gleaned or inferred from the reporting indicate that Nelson’s first two motions were denied because of their merits. They weren’t rejected because he didn’t make a sufficient factual claim that he should get DNA testing. It appears as though they were rejected for bureaucratic, ‘not-filed-in-triplicate-signed-by-your-deceased-great-grandmother’ reasons. They were rejected because the format of the motions didn’t comply with the statute.

So who is Nelson to turn to? An incarcerated inmate who took two cracks at filing a pro-se motion just to get an attorney appointed to get DNA testing performed to prove that he wasn’t guilty of the crime he was convicted of. No one. The point was that he was on his own or out of luck. That’s what the system does to pro-se litigants.

There is such a stubborn desire across the nation to protect convictions at all costs. There’s also a very strong sense of territorialism in county and district courts in some parts of the country where some judges rule like petty kings. Anyone who may dare to cross their path shall be smited, ridiculed and fired.

Prosecutors, judges and legislatures are so invested in this idea of “finality” and are so afraid of finding out that they’ve convicted an innocent person that rules across the country have cropped up erecting the most intricate and elaborate obstacles to post-conviction review of convictions. The Great Writ, once a pillar of the vindication of justice, a shining beacon and last resort of the illegally detained, has been eviscerated to the point that it’s unrecognizable. Post-conviction DNA statutes are absurd in their requirements and innocence has been held to mean not only your innocence but proof beyond a reasonable doubt of the guilt of another identifiable person. A technicality, I’ve said recently, isn’t what you think it is. A technicality is more often the tool of the state to protect its interest in the finality of convictions it obtains, the validity and legality of those convictions be damned.

Here, Nelson was, indeed, innocent, about to serve 50+ years for a crime he didn’t commit. And if Snyder hadn’t given him the magic form to fill to get Byrn’s attention, he’d be stuck in jail for the next 50 years, banging his head against a wall, wondering just why he couldn’t get anyone to listen to him.

“The document you chose was, in effect, your recommendation for a Motion for DNA testing that would likely be successful in this Division,” Byrn wrote. “But it was clearly improper and a violation of Canon Seven … which warns against the risk of offering an opinion or suggested course of action.”

What is Canon Seven? Can someone find out?

I think, in the end, whether she was “rightly” or “wrongfully” 5 fired is but a sideshow. Snyder is happy with her pension and the knowledge that she was able to help an innocent man get out of jail, bureaucratic nonsense notwithstanding.

The real tragedy here is that our system of justice is so adamant to put form over substance that an innocent man being denied a chance to prove his freedom is an acceptable consequence of failing to color inside the lines.

There are rules – don’t kill/harm/rape and don’t let innocent men go to prison – and then there are rules – submit on yellow typepaper, scrawled with the ossified tooth of a wildebeast’s carcass found in the northwest region of the Massai forest. There should be no confusion as to which rules are to be followed and which are not to be strictly so.

When we start sacrificing the former for the latter, we know the system has gone mad6.

 

 

The problem with the justice system (in a nutshell)

While doing an updated analysis of this post, I came across this “concurrence” [PDF] by the Chief Justice of the CT Supreme Court that perfectly encapsulates everything that is wrong with our “justice” system. Here it is, in its entirety:

ROGERS, C. J., concurring. I agree with the majority’s conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court’s decision in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered  question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.

Those 6 lines make me want to throw up.

The defendant claims that the jury was not told that the State had to prove an essential element of a crime. Imagine, for example, the scenario that in order to find a person guilty of stabbing someone else, the judge doesn’t tell the jury that they have to find that the victim actually got stabbed. That’s an “essential element of the crime”.

That’s what the defendant is arguing the jury wasn’t told about. But no. We (the Appellate Courts) don’t care, because we elevate form over substance. We are a bureaucracy first and a judiciary second.

Kitchens is a case that says if a defense lawyer doesn’t specifically request X or Y – even if the absence of X or Y would be a gross Constitutional violation – we don’t care and the person can rot in jail. Too bad.

The second part of that paragraph is even worse.

Courts are – we would hope – entrusted with the administration of justice. They are – or should be – charged with, in the end, doing what is right and what is just and fair. They should be zealously and jealously guarding our rights and our protections, not running roughshod over them in an attempt to adhere religiously to some overwrought ideal of being an umpire first and an inspiring jurist never.

Plain error. Error that is plain to see. Error that is apparent to everyone. A mistake that has so infected the trial that it cannot have been fair.

Except now it is not available unless you “request” it. The defense attorney has to fill out a form in triplicate, signed by your mother, asking permission, pretty please, could you acknowledge the existence of the manifest error that you clearly know is there but pretend not to. And then, maybe then, we will deem it worthy of our review. Until that time, we are quite okay with a conviction obtained by a trial infected with Constitutional error.

This is what “justice” has come to.

The error of their ways should be plain for everyone to see.

CT: New rule for jurors and media

New Rule for Jurors: Don’t listen to media coverage about the case you’re serving on and if you do, let a judge know.

Oh? That’s not so new, you say? Well, welcome to CT, where yesterday is 1950 and tomorrow might be the landing on the moon.

Roughly 30 years after the invention of the internet and about 15 years after the invention of internet comments, the CT Supreme Court has issued an order [PDF] directing all trial court judges to instruct jurors after they’re selected that they have to avoid all media coverage.

This all came about in a civil case that was really contentious 1 and the New York Times published an in-depth article about the case. The plaintiff got mad and asked to poll 2 the jury if anyone had read it. But by this time the jury was already seated, because in CT, in civil trials, the judge doesn’t sit on the bench for jury selection. Seriously. He’s got other “judicial business” to attend to, while civil lawyers civilly agree on jurors. Bizarre. Anyway. The judge refused because, I don’t know. 3

The Supreme Court, while not agreeing that the trial court should have inquired into whether anyone was exposed to the media, nonetheless said that going forward trial courts should give an instruction to disregard the media and inquire into it, if brought to their attention. Because logic.

So they exercise their supervisory authority, which means, “we decree”:

Pursuant to our supervisory authority, we now direct all trial judges in this state to enforce the following policy when presiding over a jury trial: immediately after each juror is selected, he or she must be instructed by the court, either orally or in a written order from the presiding judge, which the juror must read and sign  before leaving the courthouse, that: (1) his or her sworn duty as a juror will be to decide the factual issues of the case for which he or she has been selected based only upon the evidence presented at trial; (2) consistent with that duty, he or she must avoid all publicity about the case and all communications to or from anyone about the case or any issues arising in it; and (3) if he or she is exposed to any such publicity or communications despite his or her best efforts to follow this instruction to avoid it, he or she must immediately inform the court about the exposure in writing, without advising any other jurors about the fact or the nature of the exposure, so that the court can follow up, as necessary, with him or her and/or other jurors, to protect the parties’ right to a fair trial.

Welcome to 2005.