Category Archives: prosecutors

Silence as guilt and the silent death of the Fifth Amendment

5 Replies

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

…

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.

 

Meet and greet the right to effective assistance

Leave a reply

Florida’s Supreme Court, in what can only be described alternatively as “remarkable” and “yeah, no shit”, just last week decided that being “overworked” is a state that can lead to ethical violations and public defenders who are so “overburdened” can be permitted to refuse appointments en masse.

The story started with the public defenders in the Eleventh Judicial Circuit of Florida being horribly overworked and overburdened with high caseloads – hello, welcome to the state of being – and decided to refuse appointments in all third degree felony cases, some 21 in all.

We’re overworked, they said, like you’ve always said. So now that chicken has come home to roost. We’re so overworked, they said, that we can’t possibly effectively represent all these clients. We can’t investigate, we can’t meet with the clients, we don’t have time to talk to each client. We have to “triage”, which means give priority to the oldest and most difficult cases first, which means, if you’re keeping track, that clients sit in jail for shitloads of time without meeting lawyers and without having any work done on their cases.

So, the Florida Supreme Court said [PDF], this is not tenable. Such representation puts defense attorneys in the position of having to provide representation below constitutional standards.

So we will allow defense attorneys to withdraw and perhaps appoint other attorneys.

Defense attorneys. The gatekeepers of justice. The benchmark for what is Constitutional and what isn’t. The overreliance on Gideon as a test for the efficacy of the system. The new mantra of Appellate Courts seems to be “if defense counsel didn’t object, it must’ve been okay”. Nevermind that defense counsel was frazzled, unaware, overburdened and overworked.

Then we come to this choice quote, sure to be repeated in every story about this decision:

Witnesses from the Public Defender’s office described “meet and greet pleas” as being routine procedure. The assistant public defender meets the defendant for the first time at arraignment during a few minutes in the courtroom or hallway and knows nothing about the case except for the arrest form provided by the state attorney, yet is expected to counsel the defendant about the State’s plea offer.

In this regard, the public defenders serve “as mere conduits for plea offers.” The witnesses also described engaging in “triage” with their cases – giving priority to the cases of defendants in custody, leaving out-of-custody defendants effectively without representation for lengthy periods subsequent to arraignment.

The witnesses also testified that the attorneys almost never visited the crime scenes, were unable to properly investigate or interview witnesses themselves, often had other attorneys conduct their depositions, and were often unprepared to proceed to trial when the case was called. Thus, the circumstances presented here involve – 34 – some measure of nonrepresentation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment.

Great stuff. You know what’s missing? Any acknowledgment that the defense attorney is but a bit player in this game. That a share of the responsibility and blame lies with the prosecutors and judges.

Meet and greet pleas? You know why they happen? Because judges and prosecutors make “arraignment only” plea offers. Because they say: “take this non-jail time offer today or you’ll never get it back”. The defense attorney, reading a police report for the first time, cannot refuse to tell his client of the offer, nor can any sane attorney counsel his client otherwise.

But that’s not the attorney’s fault, nor is it the fault of high caseloads. They know nothing about the case in these meet and great pleas. You know why? Because they’re given no discovery. The State doesn’t turn it over for a while and in some cases it’s always a fight. But apparently that’s the public defender’s fault.

Are we overworked? Yes. Are we overburdened? Yes. Is there a conflict of interest? Yes. But it would be nice to see that the system actually acknowledged all the problems instead of making us the gatekeepers of fairness, which is a neat trick, if you think about it, because when it comes down to it, we control nothing.

Maybe now the right to effective assistance of counsel will mean something in Florida. Time to pay attention to those other rights.

—–
Compare and contrast the Connecticut Supreme Court which said, inexplicably, that there is no conflict when two members of the same office represent two co-defendants, one of whom was snitching on the other.

Also compare the FL Supreme Court’s cognitive dissonance when dealing with death row lawyers who are overworked and overburdened. Apparently death is different.

Sometimes, justice requires a bit of luck

3 Replies

JamesWalder Joseph Frey has spent a lot of time in jail. Some of it for crimes he committed and a lot of it for one crime he always said he didn’t. In 1991, he was fingered as the suspect in a brutal break-in and rape of a student at knifepoint. Just this week, a judge in Wisconsin reversed his conviction. But, in 1994:

He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.

That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.

The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.

The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.

And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.

There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.

But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:

After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.

Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:

“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”  “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”

I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?

Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.

A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective Fife Charley.

And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.

Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.

It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.

How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?

So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?

—

Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.

 

 

 

 

 

 

 

 

 

 

“A deliberate pattern of improper conduct”

8 Replies

The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

Depends on what you mean by justice: 50 years of Brady

5 Replies

It’s a brilliant concept, if you think about it: an adversarial system in which one side – the one trying to steal the liberty of the other – has to show all its cards up front. “Here”, they have to say “this is what we have against you and, oh, by the way, in the interests of justice, here’s what we have that might show that you didn’t do it.”

It’s the ultimate salvo in an open and fair system; where the goal is rigorous examination of the allegations, no tricks and traps by the government and an outcome that can then be reliably relied upon.

Justice. Such a grand notion; an admirable ideal. It is justice that prompted Brady v. Maryland – an unworkable, but yet noble attempt at drawing lines and taking stances:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.

Perhaps it was a bit optimistic, but they can hardly be blamed for wanting the system to be above board; honest.

But it all got lost somewhere down the road. Why? Who knows. Politics, legislators baying for blood, a public with passions aroused – “tough on crime”, an overburdened system and overworked lawyers with a taste for resolution and no stomach for a fight? But it happened. And the calling was no longer “justice”, it was “convictions”.

Justice is never personal; winning always is. And when the nature of the game that one side is playing changes so dramatically that it becomes personal, the stakes are raised. Raised stakes lead to seeking the advantage and then Brady – and its very ideals – get turned on its head. Now the fox is the gatekeeper, not just the guardian: how do you know if something is exculpatory if they don’t turn it over? And the arbiter of what is “exculpatory” is that very prosecutor whose job it is to administer justice. Statements that cast doubt on the complainant’s version? Not believed by the prosecutor, so not exculpatory. You can imagine the machinations.

And when the goal becomes winning and convictions rather than justice, you get stories like this.

[Prosecutor Keller] Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered.

…

“When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said. According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

Did you get all that? Prosecutor Keller Blackburn is miffed that the legislature reduced penalties for low-level crimes, not because it offends justice, but because it makes his job harder. Prosecutor Keller Blackburn is more concerned with warehousing his fellow citizens, guilt or innocence be damned, because this makes it more difficult for him to put the squeeze on defendants.

Tough penalties were the worst thing this country did in the name of justice. It did exactly the opposite: it forced the hands of unwilling prosecutors and provided great ammunition for the sadistic ones. The greater the exposure in jail, the greater the chance of putting someone away for a disproportionate amount of time.

People ask why I do what I do. This is one reason. Not because I condone crime; not because I like it. But “justice” is hard to come by in the American system. Because of prosecutors like Keller Blackburn. Because there is no oversight of prosecutors. They can get away with almost anything because law and order and criminals and other buzzwords. And if ever found to have violated the Constitution, there is no punishment. Just a stern wag of the finger and be set free to do the same again and again, leaving how many untold victims in their wake while they pursue their quest of “convictions”.

Brady was a valiant effort. Too bad justice doesn’t mean what it used to.

[I swear to God if one of you says "hey, not all prosecutors are like that", I will tie a peacock to your butt and sprinkle birdseed on your head. Of course they aren't.]

H/T: SL&P.

 

A system for you and a system for them

7 Replies

I think it should be pretty obvious by now that there are two justice systems in America: one for the rich white folk and the brothers in blue and one for the rest of us shmucks. You don’t normally see it in action as early on as the arrest, though, because it’s hard to convincingly argue that “if my client were white and middle-class his bond would be $20,000 non-surety but since he’s black it’s $100,00 cash only”.

Except when something like this happens:

Early Saturday, [Flathead County Deputy Attorney Kenneth “Rusty”] Park was the recipient of an unusual after-midnight hearing that allowed him to be released from custody without spending Saturday and Sunday in jail, as is the norm for Friday night arrests.

Park, whose fault isn’t that he got into a bit of a domestic with his girlfriend – shit happens and that doesn’t mean he’s necessarily a bad person – but that a judge showed up past midnight to give him a bond hearing. On a Friday night.

See, you don’t understand. This is unheard of. This never happens. Ever. You’re arrested on Friday? You’re stuck until Monday. Too bad. That’s why Monday mornings are terrible in arraignment courts because you’ve got the clients who’ve been cooped up all weekend, arrested on minor charges that the police saw fit to set high bonds for, who’re upset, angry, whose families have no clue where they are and who are wearing the same ratty, stinky clothes they were in on Friday night.

Not Park.

The result of that hearing was that Park was released on his own recognizance and did not have to sit in jail over the weekend until one of the justices was available during their regular hours Monday morning.

If I were a local attorney there, I’d be furious. A prosecutor accused of hitting his girlfriend is important enough to get a judge roused out of bed and into the local lockup to let him set Park’s bond to a promise to appear? And my client? Rot in jail until Monday and then we’ll see what’s proportional. Maybe $50,000 cash. Because you’re a bad person.

“If it was you or myself or any client I’ve ever represented, they would never, never, ever be allowed out till Monday,” [local attorney Jason] Bryan said. “He’s entitled to due process and how everything works out, but he shouldn’t be receiving any favors just because he’s a deputy county attorney. If anything, he should be held to a higher standard.”

Not Park.

What do you think is going to happen when word of this spreads? Why shouldn’t every single other person arrested in that county demand a hearing at midnight so they don’t have to sit in jail over the weekend, wiling away their liberty over baseless charges like Park’s? Why is their due process and justice different than Park’s?

I’m not saying Park should be forced to sit in jail for the weekend; heck, I wouldn’t want to. But am I entitled to special treatment? Or is the treatment that Park received – a fair, timely hearing that set bond at a level that is actually commensurate with the allegation – the treatment that every defendant should receive? Shouldn’t the justice system should have only one set of rules.

Because if we start making different rules for different people based on who they are and what they do and what they look like, we’ll end up with..well, what we have right now. And that ain’t too hot, is it?

A shortcut through your rights

1 Reply

The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]