Category Archives: prosecutors

The consequences of a “confrontation” with cops

maherThat’s Mark Maher, a resident of Windsor, CT. Well, that’s him after Enfield Police Officer Matthew Worden got done teaching him a lesson. Naturally, Maher was then charged with interfering with an officer, because his face got in the way of the officer’s energetic fist-bumps with the ground. I guess Officer Worden learned from the Sunil Dutta school of policing, whose core philosophy is ‘Obey me at all costs or I will break your face’.

Lucky for Maher, there were dashcams. Two of them. I can’t embed them because screw you Hartford Courant. But here’s dashcam one, which shows you just how annoyingly Maher kept getting in the way of Worden’s colloquial greeting to the pavement and here’s dashcam two, which prominently features “stop resisting”, today’s version of “stop hitting yourself”.

Impossibility is not a defense

The law, you will have guessed by now, is not concerned much with the English language and its precise definitions. A fall-back answer that’s almost always right, when it comes to the law, is that everything “depends”.

Even something as simple as ‘impossibility’. When you, laypersons, think about the word “impossible”, you usually think of something that’s not possible. But the law isn’t that easy.

There are different categories of impossibility, each with its own definition and applicability: mistake of law, mistake of fact, legal impossibility and factual impossibility. Legal impossibility is where, no matter how evil your intentions are, your acts do not constitute a crime. Factual impossibility is where it is impossible for you to have committed a crime because you misunderstood the facts. A classic example used in law school hypotheticals is that of Sydney Barringer, the guy who died in a most tragic fashion.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

These are not qualifications to be a public defender

Which is the odd man out?

burk-flyerNow, who won the election for Public Defender in the 25th Judicial District?

Yep, it’s pro-death penalty, 7-year prosecutor Bo Burk, who, if you zoom in on the image, touts his membership in the NRA as a plus to be the champion of individual rights for the poor and disenfranchised.

But as if that wasn’t enough, he is also a fiscal conservative who will use all resources available to save taxpayer dollars.

Perhaps since he’s never represented a criminal defendant in his life, he might be confused as to where the government largesse in the criminal justice system comes from: it is from over-criminalization and vindictive prosecutions, excessive prison sentences and lengthy terms of probation.

It isn’t the job of a public defender to worry about how much money is being spent on defense. In fact, if anything, the reality is that indigent defense organizations are criminally underfunded and could use significantly greater numbers of lawyers and investigators to provide constitutionally adequate defenses.

Of course, none of this mentions the greater philosophical problem: the stewardship of individual rights and defenses of poor people left to a man who, just yesterday, was trying to put those very people in jail.

How exactly will that prosecutorial mindset so quickly convert to one of defending rights at all costs? How will he suddenly bring himself to the attitude required of criminal defense attorneys: that whether the client actually committed a crime is often irrelevant; what matters is whether the prosecution can prove it?

It would also seem that in a jurisdiction like his, there may be a significant number of people dealing with mental health and drug addiction issues – topics that prosecutors are usually skeptical of. Can he immediately shed that skepticism and see these defendants for what they are – people who are in trouble and need help?

Logic dictates that the defendants of the 25th Judicial District in Tennessee are in for some worse times. Reality dictates that Bo Burk will continue to get elected, despite his complete lack of qualifications for the job.

 

Dog running in election to be prosecutor

The jokes write themselves:

Whatcom County prosecutor David McEachran, a Republican, will face his first opponent in 10 terms. Nyima, a fluffy, adorable Tibetan terrier, is running as a write-in candidate against the state prosecutor. Nyima’s owner, Frank James, a Democrat, family doctor and assistant professor at the University of Washington, said his mission is to have fun and make a statement about Washington politics, according to ABC News.

 

 

The consequences of guilt by association: racial profiling and preventing videotaping

[This is my latest column for the CT Law Tribune, republished here because they're stuck behind a paywall.]

In 1979, the United States Supreme Court in Ybarra v. Illinois held that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”.

Indeed, it is one of the core requirements of the right to be free from unreasonable searches and seizures and also the right to expectation of privacy, that officers of the government need independent, particularized suspicion and cause as to the person they seek to search or detain.

In other words, if police want to stop you, they have to have some reasonable suspicion that you committed a crime or are in possession of a weapon. Even the watered-down “stop-and-frisk” standard of Terry v. Ohio required this ‘particularized’ suspicion:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.

There are several important reasons for this, stemming from the Founding Fathers’ strong dislike for a practice of the British crown at the time called ‘General Warrants’ or ‘Writs of Assistance’. As I’ve written here before,

these writs of assistance were permanent search warrants which decreed that any place could be searched at any time at the whim of the holder. The colonists’ hatred for these general writs gave birth to the Fourth Amendment and its mandate of specific, particularized warrants and its protection of papers and effects from search without probable cause.

Despite these specific, unambiguous protections afforded all citizens of the United States – and by extension the State of Connecticut – our state supreme court last week somehow managed to ensure that the conviction of one Jeremy Kelly remained intact.

Waiver by budget cut

You’ve just been arrested by the Federal Government and you’re shuttled off to a prison in a remote location, hours away from your home and your state. You are adamant that you’re innocent and you have lots and lots of thoughts about how the Government is persecuting you. You sit down to write these thoughts with pen and paper, but then the counselor who supervises you tells you that you can access email!

Email! The modern pen and paper; the standard mode of written communication in this day and age. You are delighted because your penmanship is atrocious and because it would take you hours to write all your thoughts and weeks to get your thoughts to your lawyers and weeks further still for them to write letters back. But email is instantaneous. So you fire up the email system and click accept and begin banging away at the keyboards.

You send these confidential thoughts about the defense of your case to your lawyer and, apparently, the prosecutors.

Yes. Federal prosecutors have readily admitted in several cases that they are monitoring suspects emails to their lawyers, reading them and then using that information to strengthen their case against those suspects.

Talk about system stacked against you: you’re charged with a crime by the Government. You have your liberty taken away by the Government. You have excessive bails set by the Government so you can’t leave. You are given limited and controlled access to your lawyers by the Government. And then, they monitor everything you say and then use that against you. How can they do this?

Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

Budget cuts. That bureaucratic, administrative go-to. The liberty that this nation pretends to hold so dear won’t be lost by war, or a bloody coup, but rather in slow, incremental steps by bureaucracy.

It is “too expensive” to set up a filter in the email system to enable a bypass of emails sent to specific email addresses, something that can be done for free in as clunky an email system as Outlook.

Some judges, however, are supporting this practice because they claim that defendants sign waivers when they use the system:

But a judge, Charles A. Pannell Jr. of the United States District Court in Atlanta, ruled in 2012 that by using Trulincs, Mr. Wheat “consented to the monitoring and thus had no reasonable expectation of privacy.”

This is consent of the same nature as you consenting to Facebook using your photographs or God knows what else we’ve all agreed to when we’ve hurriedly hit the “accept” button on terms of use on over a hundred thousand websites that we regularly frequent.

It’s coercive and, given the state of society today, we don’t really have a choice. Now imagine that coercive situation, but you’re in jail.

Comparing it to old-fashioned communication, however, shows how consent is a red herring. Letters written to lawyers are marked privileged and are not read. They can be, however. There’s nothing stopping correctional officers from opening those letters. They choose not to, because of a department wide policy and the general sense that doing so would violate confidentiality.

So either there’s a legal principle that bars them reading letters and that same legal principle should bar them from reading emails, or there’s a policy that prevents them from reading letters and they haven’t extended that policy to emails, but which shows that there’s no functional difference between the two modes and it’s merely a matter of convenience.

This is one of those things that, if pushed to a head, would necessarily spell trouble for the prosecution. We’ve had just that happen here in CT, where prosecutors read confidential word documents about the defense of the charges. A day after argument before the Supreme Court, he was ordered immediately released.

Sure, it’s good advice to never discuss confidential matters via modes of communication that have the potential to be monitored, but that applies to everything, including in person visits. But just because the Government can invade your confidentiality, doesn’t mean that they have the right to do so.

Conviction integrity starts with prosecutors

I had to double check1 to make sure I wasn’t reading an article in The Onion a few weeks ago when, apparently without irony, the Chief State’s Attorney Kevin Kane argued in the New Haven Register that the way to ensure “conviction integrity” was to give his prosecutors broader, unchecked power to conduct investigations and arrest citizens of Connecticut.

His editorial was in apparent response to an editorial the week before by Professor David R. Cameron of Yale, who argued that we needed a “conviction integrity unit” to ensure adequate and effective review of convictions in Connecticut.

Prosecutor Kane’s proposal involves “reforming” the grand jury process. His proposal – which has been the subject of bills submitted to the legislature for a few years now – would essentially make it easier for prosecutors to conduct investigations by forcing people to appear before individual judges in each judicial district and give testimony concerning any felony. His also wants to arm his prosecutors with the power of the investigative subpoena, which would be little more than carte blanche for prosecutors to command the appearance of uncooperative citizens and force them to bring papers and effects, all in the “interests of justice”.

That is the standard proposed by prosecutors for several years running in their quest to obtain the power to issue investigative subpoenas. Try to decide for yourself if you should do something “in the interest of justice”. I can say without reservation that every single person reading this has a different definition of what that means. As amorphous and flexible a standard as “probable cause” is, I have yet to hear of a burden of proof as indescribable and incomprehensible as “interest of justice”.

What is missing from either proposal is the recognition that perhaps the best way to avoid wrongful convictions in the first place is to ensure that people don’t get, you know, wrongfully convicted.

Prosecutor Kane seeks to minimize the number of wrongful convictions and touts the fact that of 100-plus cases analyzed by his office and the Innocence Project, there were no errors uncovered.

Of course, this assumes, as Prof. Cameron points out, that every wrongful conviction case will have DNA evidence that exonerates. Logic will tell you that this is impossible. In fact, most students of the system are unable to give accurate estimates of the numbers of wrongful convictions for that precise reason: without an identifiable marker such as DNA, it is virtually impossible to estimate one way or another how many people are wrongfully convicted.

A further complication, of course, that neither addresses just what we mean by a “wrongful conviction”. You ask the lay person and they’ll tell you simply enough that it involves a person who’s innocent being convicted of a crime.

But dig deeper: guilty of what, exactly? The real world and the actions we take are open to several interpretations. Our penal code has sought to codify most conceivable illicit acts, and by virtue of being overinclusive, necessarily has more than one provision that applies to any given criminal activity. So, what then, is a wrongful conviction? Are we to limit that term to only those who are innocent of any form of wrong doing? Or must we be more realistic and expand that term to include people who are guilty of something lesser but are, for one reason or another, convicted of something more serious?

If Professor Cameron and Prosecutor Kane wish to shore up the integrity of the criminal justice system, I have some suggestions that can be implemented upfront. First, stop over charging. There are a hell of a lot of people who are in prisons today serving bloated sentences because some prosecutors over charge in an effort to get leverage.

They have that leverage because of the second item on my list: mandatory-minimums. Mandatory-minimums are legislature set floors for incarceration periods and are almost universally hated because they homogenize crimes and individuals accused of crimes. They seek to treat all crimes of a certain type as the same, regardless of any mitigating circumstances. In the name of “truth in sentencing” and “tough on crime”, mandatory-minimums have eliminated the ability for judges to make nuanced decisions in every case and instead have given some prosecutors a hammer with which to bludgeon a plea out of frightening defendants.

If you’re charged with a crime which would result in a sentence of at least 5-10 years after trial, would you adamantly maintain your innocence and take the risk or would you take the plea offer that involves a sentence of only 1 year, What would you advise your daughter to do?

Our prisons are full of people who take plea deals in exchange for a “lesser” sentence because the alternative is so harsh. Our system is coercive and some of our prosecutors use that to full effect. If Prosecutor Kane wants to ensure integrity in our system, maybe he should start there. Maybe he and his office should oppose mandatory-minimums.

Maybe we should have more prosecutors who are willing to drop charges when they acknowledge that they probably couldn’t convince a jury beyond a reasonable doubt of an individual’s guilt. Maybe prosecutors who do dismiss questionable cases shouldn’t be shamed and reprimanded by their colleagues and superiors.

Here’s a novel idea: Maybe prosecutors who engage in misconduct should have to suffer some consequences. The Center for Prosecutorial Integrity estimates that there have been approximately 16,000 cases of prosecutorial misconduct since 1970. The National Registry of Exonerations maintained by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law estimates that official misconduct played a role in 43% of wrongful convictions.

What, exactly, happens in Connecticut to prosecutors who are reprimanded by appellate courts for engaging in misconduct? Is there remedial training? Integrity in the convictions obtained through the system isn’t limited to whether “we got the right guy”. Life, shockingly, isn’t as black and white. Integrity comes when we give meaning to the word “justice”. And justice comes in many forms. But how are we to have faith in the integrity of the system when justice is a punchline and prosecutors keep score of their wins and losses?

Because the joke, of course, is that when we have lost faith in the system, we are all losers.