prosecutors
Connickally yours
Jan 11th
The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.
The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.
Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:
notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.
And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.
8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.
That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.
————-
A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.
CT death penalty nothing but arbitrary
Jan 9th
Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.
The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:
Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:
It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.
It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.
The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:
not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.
For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.
Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.
The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:
1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.
That sounds awfully like the State’s expert agrees with the defense expert.
The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.
Ayyy!
Aug 16th
making impropriety cool since 1974
It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.
This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.
Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:
The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.
To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:
Sanctioning misconduct
Aug 15th
In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment.
I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.
But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.
But I digress.
Conviction by cuteness
Aug 10th
Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).
It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
…
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.
There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:
His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:
The responsibility of choice
Jul 24th
Discretion is such an ugly word. It sounds officious, vague and un-engaging. I prefer to call it choice. Because that’s what prosecutors have: the power to choose whether to prosecute someone or not. It is that power to choose that is a manifestation of the great power that prosecutors wield: the power to deprive someone of their life, their liberty, their reputation.
This inherent ability has been discussed elsewhere lately, in Scott’s post where he gives two examples of poor choices made by prosecutors and in this NPR interview with former state judiciary committee co-chair Mike Lawlor and today, in this piece in the NJ Star Ledger.
The Star-Ledger piece talks about prosecutorial discretion choice in the context of three recent high-profile criminal justice stories: Dominique Strauss-Kahn, Casey Anthony and The Rocket and how all these cases seem to indicate the quest for justice has buckled under the pressure of the 24-hour sensationalist news cycle and the pressure to convict – when that same news media all but assumes that with every accusation comes a conviction – has subverted the true function of the prosecutor. I’ve written plenty about the impact and responsibility of the media in sensationalizing the criminal justice system, so I won’t go there in this post. This post is, I think, about the role of the prosecutor and the power of choice that they possess.
In penning this lament in the Star-Ledger, John Farmer, dean of Rutgers Law School (and a former prosecutor) relies heavily on the words of former Attorney General (and later Supreme Court justice) Robert Jackson uttered at a meeting of prosecutors, some of which I reproduce here:
“The prosecutor,” he reminded them, “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”
…
“With the law books filled with a great assortment of crimes,” the attorney general said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. … It is in this realm … that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group … or being personally obnoxious to or in the way of the prosecutor himself.”
Can you imagine if she’d been convicted?
Jul 19th
We all know by now that Casey Anthony was acquitted by a jury that understood the meaning of the burden of proof and held the prosecution to that burden. It seems like, of all the parties in that courtroom, they’re the only ones who truly understood and followed their role and responsibilities. The shenanigans on Jose Baez the defense attorney are well known – but whatever they may be, he convinced the jury to deliver what is looking more and more like the correct verdict.
I wonder about the prosecution, though. The prosecution that has the Constitutional obligation under Brady v. Maryland to disclose potentially exculpatory information, that – being lawyers – has the ethical obligation of candor to the tribunal and to immediately correct erroneous information presented to the court or the jury.
I haven’t paid much – if any – attention to the facts of the case. A girl went missing, the mom partied and didn’t report it, a body was found(?) but the cause of death couldn’t be pinpointed, Nancy Grace said she was guilty and Casey googled “chloroform” 84 times.
Wait, you mean she didn’t? Oh:
Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.
The designer [of the software that the police used to validate their conclusion], John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.
The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.
…
Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.
And we all know that the prosecution and the police did nothing. The state’s already weak and nebulous case was actually weaker. And yet onward they pushed, to try and get the death penalty against a woman they “knew” in their hearts was guilty, just didn’t have that pesky “evidence” to back up. I can understand that if this information had come up pre-trial, the prosecution could’ve wiggled out of disclosing it by using the well-worn trope that in their opinion it wasn’t potentially exculpatory, but to let the court and jury continue under the false impression that evidence before it was accurate when it wasn’t is a serious violation of their ethical obligations. (See here for a prior post on the prosecutors’ obligations to pursue a prosecution they know they can’t prove).
Nothing will happen to the prosecutors, obviously, other than a few people shaking their heads and tut-tut-ing. It’s a good thing she was acquitted. Imagine if this came to light after a conviction?
For your eyes only: prosecutors really can’t look at privileged documents
Jul 17th
From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.
Just how egregious was this violation of the attorney-client privilege? Judge for yourself:
During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege.
This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:
The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.
What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :
An ode to the Kitchens sink: a tragicomedy
Jul 17th
Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought
it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved
And so the court issued
its seminal holding
in the case of
State v. Monica Golding
The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed
In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl
And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent
And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective
Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”
If you do not object
or even stand silently by
as erroneous instructions
the jury must apply
If you do not state
with exacting precision
the specific problems
with the court’s instruction
The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might
The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed
You must be prescient
You must be attentive
because the Court has become
anal retentive
And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?
Ask for copies
and then ask for time
and if you forget
just remember this rhyme
One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.
And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:
This, that and the other
Jun 20th
Here are some stories that are deserving of more attention than 140 characters provides, but not interesting enough to get me to write a whole post about them:
- In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?
That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.
- Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:
Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.
Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:
The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.
Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.
Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.
- Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:
Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.
The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.
Among their findings to be published next weekin the Loyola of Los Angeles Law Review:
The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.
A death penalty prosecution costs up to 20 times as much as a life-without-parole case.
The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.
Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.
The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.
- Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:
Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.
In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.
In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.
Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.
- An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.
And you say I don’t post anymore.
The Aftermath
May 18th
It’s no secret that if there’s one type of case that a defense attorney really fears, it’s the one involving allegations of sexual assault against a child. They’re morally repugnant crimes, which can be alleged with surprising ease and little evidence to back them, making them nightmares to defend. Add to that the stigma that is now attached, the media scrutiny, the complete disregard for the presumption of innocence and the witch hunt under way and you have the perfect recipe for sleepless nights and ruined lives.
This week, the Washington Post published a lengthy, powerful article on the aftermath of such a (false) allegation against an elementary school teacher in Fairfax, VA.
Sean Lanigan’s nightmare began in January 2010, when the principal at Centre Ridge Elementary School pulled him out of the physical education class he was teaching and quietly walked him into an interrogation with two Fairfax County police detectives.
He had no warning that a 12-year-old girl at the Centreville school had accused him of groping and molesting her in the gym.
The girl, angry at Lanigan about something else entirely, had made the whole thing up. But her accusations launched a soul-sapping rollercoaster ride that still hasn’t ended.
Lanigan’s story captures all the problems with child sexual abuse cases: an overenthusiastic willingness to believe the accuser, blinders that inhibit careful investigation, witnesses getting locked into stories they can’t get out of, job loss, media lynching and stubborn prosecutors digging their heels in, unable to see beyond the blind faith in their dubious complainants:
Lanigan spent months in anxious exile, forced from his school, his players, his neighbors and his friends, pondering the possibility of up to 40 years in a state penitentiary.That soon turned to relief. A jury found him not guilty after just 47 minutes of deliberation — virtually unheard of in a child sex abuse case. Jurors were outraged by the lack of evidence, with one weeping in sympathy during closing arguments.
But still the nightmare continues, as Lanigan struggles to earn back his reputation and career.
Within two weeks of the accuser’s report — without ever speaking to the girl — Fairfax detectives arrested Lanigan and charged him with aggravated sexual battery and abduction.
And then came the collateral consequences:
Police issued a press release with Lanigan’s booking photo and home address, and the school district sent home a letter about his arrest. TV trucks descended on the school and his neighborhood, and Lanigan’s reputation took a lasting beating. Even today, the first thing that comes up in a Google search of Sean Lanigan is a Web site called “Bad Bad Teacher.”
In this age of everything being stored forever, it is extremely disappointing that those who publish these sensationalist stories to grab headlines don’t have the ethical integrity to tie up loose ends and update their earlier proclamations when people are found not guilty. The internet garbage dump is littered with half-finished pronouncements of people’s arrests, floating about in the cyber wilderness, available to anyone and everyone for eternity. We see headlines every single day, on every news website: “Man arrested for robbery; Man accused of molesting child; Suspect arraigned in murder”.
The crime itself isn’t news – it’s the fact of arrest and allegation – a giant scarlet blob that’s shot out with the precision of a paintball gun, with no sense of duty to clean up the mess once the shot has been fired.
When do we ever see news organizations edit their original articles to reflect the outcome of the case. “Man arrested for raping 3 year old” never has an update attached to it stating “Man was ultimately acquitted, see here for details”. When do police departments put out press releases acknowledging that they arrested an innocent individual, one that was ultimately acquitted?
Why are we so quick to believe accusations and sully reputations based solely on them? Why do we permit shoddy police investigations that seem to have no regard for the truth? Think of the children, sure, but what about the rest of us?
Once in the equipment room, the girls decided, Lanigan laid the accuser on a stack of blue tumbling mats, began massaging her shoulders, then laid on top of her and told her he would “treat her like a queen,” while the other girl stood in the doorway. The accuser said that she tried to get up, but that Lanigan pushed her down and asked where she was going. The accuser said she had patrol duty, and Lanigan then allowed her to leave.
Several witnesses said the tumbling mats couldn’t even fit in the equipment room, but there is no indication in reports or trial testimony that Fairfax police ever checked.
Shoot first, there is no later.
Prosecutor Connelly resigns
Jan 14th
You may or may not have heard, but the State’s Attorney for the Waterbury Judicial District – and the man responsible for sending the most inmates to death row in CT – has just resigned. Justice Richard Palmer, chair of the Criminal Justice Commission, which oversees the State’s Attorneys in CT, issued a statement that Connelly had resigned effective February 1st:
Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission’s inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.
You might recall that back in August I posted that Connelly was the subject of a federal investigation into whether he had accepted compensation from his good friend – and defense attorney Martin Minella – in exchange for favorable treatment of Minella’s clients. That Federal investigation is still ongoing. Palmer’s statement is particular noteworthy because it seems that the Commission had conducted its own inquiry into this alleged unethical conduct and was ready to issue some form of punishment. That has now been rendered unnecessary by Connelly’s resignation:
Palmer said that the commission had honored a request that it refrain from engaging in any activities in furtherance of its inquiry that might have impaired or otherwise interfered with the federal investigation. Palmer also said that despite this limitation on the commission’s inquiry, it was prepared to take appropriate action with respect to the allegations against Connelly, but that any such action has been rendered unnecessary by Connelly’s resignation.
Now that may or may not mean anything about the “action” the commission was ready to take, but it certainly does indicate that Connelly was to receive some form of rebuke, separate from the Federal investigation.
The disproportionate number of death sentences originating in Waterbury had been the driving force behind a racial and geographical disparity lawsuit that is still pending.
What this means for the state of the death penalty in Connecticut or for those who were tried by Connelly in capital and non-capital cases is anyone’s guess. Mine is that there will be no consequences and that’s a damn shame.
Guilt by convenience
Nov 17th
[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]
So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:
“This is America. Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.
“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.
Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.
He was too slow with that training. Because this happened:
In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.
Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.
According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.
Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.
Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:
Unethical beyond a reasonable doubt?
Nov 11th
Rule 3.8 of the Connecticut Rules of Professional Conduct (and the ABA Model Rules) provides, in relevant part:
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(1) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
This Model Rule has been adopted by almost every state other than NY and CA. The United States Supreme Court has made it clear that:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.
Bordenkircher v. Hayes. The Connecticut Supreme Court echoed much of the same in Massameno v. Statewide Grievance Committee:
Prosecutors have enormous discretion in deciding which citizens should be prosecuted and for what charges they are to be held accountable.
So it is undisputed that in order for a prosecutor to behave unethically, he would have to persist in a prosecution despite “knowing” that there is no probable cause. Is the corollary then true? That as long as a prosecutor knows that there is that bare minimum probable cause, persisting in an otherwise sure-to-be-doomed prosecution is ethical?
Extraordinary misconduct leads to extraordinary relief
Nov 2nd
Absolutely stunning news today from the state Supreme Court: only one day after hearing oral arguments in State v. Patrick Lenarz, the highest court in Connecticut issued a summary order directing his immediate release from custody. It will issue a decision on his appellate claims later on.
Folks, I cannot stress how absolutely incredible this is. This, if you will allow me the superlative, is unprecedented. Typically, defendants appeal to the Supreme Court and raise all sorts of issues. Depending on who writes the majority opinion, it takes months or years for the court to rule on the claims. Here, the very next day, the court ordered this man’s release from prison.
So what were his claims on appeal? That the prosecutor engaged in extraordinary misconduct (I refuse to employ the current “impropriety”) by reading documents seized from Lenarz’s computer, which the prosecutor agreed were confidential and protected by the attorney-client privilege:
[Lenarz's attorney] Ferry argued that Lenarz was denied his Sixth Amendment right to counsel because the prosecutor in the case, Christopher Parakilas, read five documents that Lenarz had prepared to help his attorney in defending him. Those documents were on Lenarz’s computer, which police had seized.
Those documents, Ferry argued to the court, were protected by attorney-client privilege. Ferry argued at the trial that the case against Lenarz should have been dismissed because the prosecutor read the documents, even after discovering that they were covered by attorney-client privilege. The trial judge, Judge Leslie I. Olear, agreed that the documents were privileged but declined to dismiss the charges.
After hearing the arguments Thursday, the state Supreme Court — in a highly unusual move — ordered Lenarz’s immediate release on a promise to appear in court.
“That order by the Supreme Court directing Mr. Lenarz be released loudly suggests that it believes Mr. Lenarz was a victim of a serious Sixth Amendment violation by the office of the state’s attorney,” Ferry said. The documents “outlined our entire trial strategy, how we were going to attack the credibility of the accusers,” Ferry said.
The documents gave the prosecution an advantage of “knowing our every move at trial,” he said.
This is astounding hubris on the part of the prosecutor and misconduct (yeah, fuck “impropriety”) of the most intolerable kind. To knowingly read something so sacrosanct as communications between the defendant and his lawyer, made in preparation for trial suggest callous disregard for the Constitution and the very basic principles that ensure fair play in our system of justice.
If a defendant is unable to write candidly and share his thoughts and opinions with the one person who is preparing to defend him, then it puts the very system at risk:
On numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the “long-standing, strong public policy of protecting attorney-client communications.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 48; see also Shew v. Freedom of Information Commission, 245 Conn. 149, 157 (1998) (discussing “well established legal principles governing 157*157 communications between attorney and client”). “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 52. The privilege fosters “`full and frank communications between attorneys and their clients and thereby promote [s] the broader public interests in the observation of law and [the] administration of justice.’” Id., 52, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145, 156-7 (2000). I cannot even begin to fathom what lead the prosecutor to read these documents, knowing they were privileged communications. I’m glad the Connecticut Supreme Court sees it the same way.
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