Category Archives: judges

Adversarial means you can’t force me to help you

The criminal justice system has been called an adversarial system. The Mirriam-Webster Online Dictionary defines adversarial as:

of, relating to, or characteristic of an adversary or adversary procedures

and one of the example sentences it provides is:

an adversarial system of justice with prosecution and defense opposing each other

So what that means is that if you, the prosecution, file a motion seeking to have me disclose information that is confidential and is likely to incriminate my own client, I will refuse. If you, the judge, ask my client incriminating questions, I will intervene. You can choose to hold me in contempt, but you will end up looking like a bully.

If you decide that I must answer those questions, I may still refuse to do so and you can hold me in contempt1:

Terry Zimmerman, a longtime deputy public defender, was found on Wednesday to be in contempt of court for refusing to answer 11 questions related to Denise Goodwin’s murder case, despite a Superior Court judge’s ruling on the matter.

Zimmerman represented Goodwin who was accused of murdering an elderly gentleman allegedly in part because of his fortune. Goodwin was hired to care for Raburn, who has since disappeared and is presumed dead and whose assets have allegedly been drained by her. The bone of contention is this:

According to the judge’s written ruling, Zimmerman was appointed to handle Goodwin’s defense in September 2011. In April of last year, she filed with the court a large envelope containing a will, letters and other documents that purportedly belonged to Rabourn.

Those items were turned over to the prosecution. The District Attorney’s Office then filed a motion last month seeking testimony from Zimmerman about how she obtained the documents.

The judge ordered Zimmerman to disclose that and failing to do so, jailed. It’s a threat and a threat not to be taken lightly, but Zimmerman is in an adversarial relationship with the State.

There is only party whose job it is to do “justice”2 and that is not the defense attorney. It is my job to be an adversary. To put the State to the test and to examine its proof. Not to help it convict my clients.

—–

A game of thrones

Andrew Cohen at The Atlantic wrote this must-read article yesterday on judicial elections, which remarkably includes a lengthy comment from Justice Don Willett of the Texas Supreme Court1, who himself is a master politician and has managed to get himself elected a number of times.

(Un)surprisingly, Justice Willett is no fan of judicial elections and has some harsh words to say about the process. The request for comment from him was prompted by this frightening ACS study [PDF] on “the effect of campaign contributions on judicial behavior”.

The bottom line, if you haven’t guessed already, is that judicial elections are bad because judges are more likely to vote for the interests that got them elected in the first place. You can read the study if you want all the numbers. They’re horrifying.

Judge Willet writes:

No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

But it works. That’s the game and he plays it. He wants to be on the biggest stage in Texas and he gets to do it by courting important people who spend money to get him elected. And then, well, why else are they burning cash supporting him? Whether he intentionally or subconsciously doesn’t vote in their favor is beside the point. Wouldn’t they be getting some return on their investment? Why else would they repeatedly spend money?

But really, sitting back and looking at the system right now is fucking depressing.

There’s no funding of indigent defense, no repercussions for abuse of prosecutorial authority, no ethics in elected public defender positions, jurors who want to convict to vindicate OJ and judges who admit to playing the game just to keep their jobs. And what does judicial selection bring? More of the same. While not necessarily as infected as judicial election, the selection process is also inherently biased. After all, governors and presidents select judges. And they select along mostly political lines, so conservatives pick judges who will tend to lean that way and vice-versa. Is it any wonder, then, that the Supreme Court’s approval rating – if such a thing is to be believed – is so…divided?

So we are faced with a system where every single puppet-master is inextricably tied to his or her ideology.

Meanwhile everyday people are subjected to the machinations of those with power or those who want power. But they’re too busy watching Game of Thrones, rather than realizing that they’re the very people their favorite characters are trampling underfoot.

[For further lamentations on the sad state of Texas judicial elections, see this timely post at Grits for Breakfast.]

Judge imposes blanket internet ban on sex offender

Right on the heels of my post last week1 about a North Carolina Court of Appeals ruling holding that the state’s social media ban for sex offenders was unconstitutional, a judge right here in the idyllic town of Vernon, CT2 has apparently ordered a man to stay off the internet for the entire period of his 10 year probation.

Just, all of it. No emails, no Youtube, no Facebook, no Facebook, no Facebook, no Twitter, no Tumblr or Kickstarter or whatever the hell these kids are watching these days. Heck, no New York Times or CNN or Hartford Courant or WhiteHouse.Gov or SignThisEPetition.Com or whatever the web will become in 4 years’ time which is when he will get out of jail3.

Gregory Lindsey was sentenced to 10 years, suspended after 4 years in jail, followed by 10 years probation for possession of child pornography in the second degree, which is a subject I wrote about just the other day.

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.