Category Archives: juries

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

fuck-you2

Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

How do you solve a problem like jailhouse informants?

Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer,  but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.

Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.

But how does the science match up? Does it support any of these methods by convincing jurors to disregard the alleged confession?

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Blech-er: confronting the venomous

Odious people tend to up the ante the most when they’re schilling something: like NY Law Professor Robert Blecker1, who’s got a book out about the death penalty. So naturally he takes to the beatified pages of CNN’s op-ed section to write an unholy screed about how lethal injection is just too easy.

When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer’s quick but painful death? By ensuring death through anesthesia, however, we have nearly severed pain from punishment.

An unpleasant life in prison, a quick but painful death cannot erase the harm. But it can help restore a moral balance. I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.

So what is his solution?

Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best. It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.

Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned. This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections. Anger and responsibility seem to lie everywhere elsewhere — that is, nowhere. And where we cannot fully escape responsibility — as with a firing squad — we diffuse it.

Both Greenfield and Gamso have taken this on today, with Scott pondering the value of televising and making executions a public spectacle once again:

But it’s made me consider whether the issue would be best brought to a head by putting executions on the television, prime-time, hosted by someone who used to be on MTV, so that all the agnostics who are kinda for it without having to give themselves headaches by thinking too hard can watch it in high-definition.

and Gamso echoing Scott in that maybe, just maybe, we all don’t have this bloodlust of Blecker:

Except, you know, maybe not everyone’s so hot to kill.  Maybe not everyone thinks matching evil for evil is a moral command.  Maybe some of us absorbed the lesson that two wrongs don’t make a right.  Maybe mercy is a higher value than retribution, more something we should at least aspire to.  And maybe those folks who just don’t trust the government to get it right have something there.

They both recognize – correctly – that not everyone is like Blecker and there are those2 who are moving in the opposite direction.

But there are more Bleckers out there than Gamsos and Gideons and Greenfields. The death penalty is still heavily favored across large swathes of the country. So who, exactly, are the Robert Blecker’s of the world? And what can be done about them? Let’s start with Blecker himself. From his “bio“:

With a gleam in his eye, Robert Blecker, a nationally known retributivist advocate of the death penalty, has managed to alienate both sides of the debate on the politically divisive and morally complex issue of capital punishment.  But his position as designated outcast is nothing new, nor is his strongly held conviction that the most vicious and callous offenders deserve to die and that society is morally obliged to execute those “worst of the worst” criminals.

His entire bio is a manifesto of his “outsiderness”, his “unpalatable” positions and his “radical” agenda.

His positions, however, are hardly radical when it comes to the death penalty. Retribution is a such a simple emotion and requires little to no thought. It is base, unadulterated and intoxicating.

“You hurt me so I hurt you.”

Forgiveness is difficult. It takes understanding. It takes swallowing of pride and absorbing the wounds of pain and humiliation. Revenge is easy. As with anger, it consumes and obfuscates. It takes over one’s entire existence.

And so people across the country succumb to its allure. “Hang him by his penis“, they shout. “All murderers should be executed.

These are our jurors. Our death penalty jurors. Some of whom might even be death-qualified. So what do we do about the Bleckers of the world? How do we confront that which is so venomous, just as Blecker would have those condemned confront the guns of a firing squad?

A commentator on a national listserve pointed out that one might be able to look at Blecker’s philosophy itself to counter this wall of rage and retribution.

Blecker makes much of executing only “the worst of the worst”.

Yet we all know that there’s no such thing. That “the worst of the worst” is an euphemism for the defendant du jour. There’s always someone, somewhere, who’s done worse. Or appeared to do worse.

In Lockett v. Ohio, the United States Supreme Court held that the decision to sentence someone to death must be based on an individual assessment of moral culpability.

The decision to vote for death is a deeply personal, moral and individual one. Even people like Blecker must be forced to admit that not every case is “the worst of the worst” otherwise that distinction will have no meaning to him.

The death penalty is a punishment imposed on an individual, not on an act. Acts may be the “worst of the worst”, but as applied to people, that term is meaningless. Because people are damaged and broken and flawed and disabled and mentally ill and provoked and oppressed and angry.

In the end, this approach perhaps covertly reinforces the abolitionist position all along: that no matter what people do, they are still people, individual human beings who don’t deserve to be summarily executed in anger, or in the name of some collective good.

So, Robert Blecker, you’re closer to a true abolitionist than you thought.

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.

In these times

It is good to recall, from time to time:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.

How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Irwin v. Dowd, Justice Frankfurter, concurring.

Martin, Zimmerman and the colors of injustice

This is not a Trayvon Martin post; this is not a George Zimmerman post. For that, go read these fine pieces with which I wholeheartedly agree.

This isn’t even a post about race, although race certainly fuels much of it.

This is a post about injustice. Injustice doesn’t come in one shape: the acquittal of a seemingly obviously guilty white-ish man for murdering a black teenager. Injustice comes in many stripes, shades and hues. Injustice is smaller than the Zimmerman acquittal and greater than it too. Injustice happens every day before your eyes, but you don’t see it.

Injustice is Warren Hill. In 2002, the United States Supreme Court said it was unconstitutional to kill mentally retarded people. Georgia is a part of the United States. Warren Hill is a prisoner in the State of Georgia. Warren Hill is mentally retarded. His experts agree. The State’s experts agree. Yet Warren Hill is scheduled to die tomorrow. A mentally retarded man, in direct contravention to the Constitution of the United States. Because it’s Georgia and Georgia does what it wants.

Injustice is the hundreds of thousand of black men who went to jail for years longer than their white counterparts because of an imaginary crack-cocaine disparity.

Injustice is when children like Trayvon Martin or younger are arrested and treated as adults by a harsh, unrepentant adult criminal system, sending them to jail automatically for a decade or more.

Injustice isn’t at the fringes of the criminal justice system; it isn’t in the extreme corners and reaches, rearing its head every 6 months or so for you to vent your moral outrage at.

Injustice happens to the wrongfully convicted, like Ronald Cotton or James Tillman or Miguel Roman or the hundreds of others who were convicted by duly sworn juries just doing their jobs.

Injustice is every day. Injustice happens like a death by thousand cuts. Injustice happens to the guilty and the innocent. And every injustice to the guilty is injustice to the innocent.

Injustice is when we spend millions of dollars to fund police and prisons and prosecutors and our legislators increase the number of crimes and multiply the punishment without nary a thought to covering the costs of defense. Injustice is when your rights are in the hands of underpaid, overworked lawyers who are doing their best but are overwhelmed by an overwhelming system. Injustice is when “tough on crime” trumps the promise of equality in access to justice.

Injustice is when prosecutors get to decide what to turn over and what not to. Injustice is when they don’t turn over evidence proving innocence. Injustice is when the courts protect their illegal and unethical ways.

Injustice is when the police department in New York has a policy of stopping every minority and “frisking them”, because they were “wearing clothes commonly used in a crime“. Injustice is when the police department wants the power to stop anyone on the street, for any reason, in violation of the Fourth Amendment.

Injustice is when “technicalities” are used to deny people their appeals, to forcibly impose convictions no matter the Constitutional violations or error. Injustice is when we elevate form over substance, format and rules over rights and freedoms. Injustice is when you punish people for exercising their rights.

Injustice is when they use fear to scare you into giving up your rights, telling you tales of the terrorist or the criminal whom you must punish.

Injustice is when you believe that you have nothing in common with the individual subjected to the full force of the government’s ire. Injustice is when you believe that you will never be a persecuted minority. Injustice is when you believe that you have nothing to hide, so you don’t say a word when they illegally look inside my house.

Injustice is when you pay attention when the media tells you to and you stop thinking for yourself. Injustice is when you go into court, predisposed to convict.

Injustice is when you think justice only applies to the innocent or the likeable. Injustice is when you decide that one set of rules apply to you and another set of rules to those that you don’t like. Injustice comes in a dazzling array of colors. Do you have the courage to not be afraid anymore?

Can you stop being colorblind to injustice?