a public defender

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This, in my opinion, is a major victory. Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The brand new Section 40-13A provides:

Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than  forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were  prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.

This is a tremendous improvement, making uniform discovery provisions across the State.

But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.

There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.

Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.

The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.

An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.

I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.

There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.

The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.

But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.

For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.

This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.

Do the benefits outweigh the costs? How is it done in your state?

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Since immigration is a “hot button” topic these days, the court concluded that the jury had been irrevocably tainted and that trusty weapon in the court’s armor, the curative instruction, would be useless. In fact, the court went so far as to invoke Xtina Aguilera and claimed that the “genie was out of the bottle”.

The defendant, as he should have, made a motion to bar reprosecution arguing double jeopardy. The court, continuing its line of correct decisions, denied that motion.

As you already know, that decision was reversed. Read the opinion if you want the legal basis.

What I couldn’t get out of my head as I read the decision was how this would never have happened had it been a defense motion for mistrial. That motion would have been roundly (and rightly) denied and the curative instruction would have been sent forth, to encourage the jurors to disregard what was material and relevant evidence of bias.

There’s one thing you learn as a defense attorney over time and that’s that judges are slightly, if not overwhelmingly, pro-prosecution. What’s good for the goose is rarely good for the gander. And when a judge does rule in a legally appropriate manner, tales of that instance are spread far and wide and the judge is hailed as “fair” and “unbiased”. What’s forgotten are the hundreds of instances when that didn’t happen.

The liberal, pro-defendant judge is a myth. A persistent myth perpetuated by the media, prosecutors and – to some extent – defense counsel.

Anyone else think differently?

And because you knew this was coming:

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In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime  details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect  and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that  apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

In addition, while courts have taken a hard line stance condemning physically abusive tactics during interrogations, their rulings in the area of psychologically abusive tactics can be best seen as condoning the methods. The psychologically abusive tactics can be briefly categorized as: maximization and minimization, false-evidence ploy and other forms of deception (most notably not objected to in Frazier v. Cupp).

When dealing with a case that involves confessions, it is important to know the different types of false confessions and how they are induced. This paper classifies them into three types (drawing on an earlier taxonomy by Kassin): voluntary, coerced-compliant, and coerced-internalized.

Voluntary false confessions

This is where the subject intentionally confesses to a crime he did not commit. The reasons are varied: notoriety, a breakdown in reality monitoring and most frequently to protect the real perpetrator.

Compliant false confessions

These are the types of false confessions one most frequently associates with this concept. Think of it as acquiescing to the color of authority. This is the kind of false confession that also poses the greatest problem for both defense attorneys and jurors. The prevalent thinking is that one would never confess to a crime they did not commit, no matter how persuasive the interrogator and thus if there is a confession, it must be true. Yet the psychology of the human mind stands at odds with this assumption.

Demonstrating the form of influence observed in classic studies of social influence (e.g., Asch, 1956; Milgram, 1974), this type of confession is an act of mere public compliance by a suspect who knows that he or she is innocent  but bows to social pressure, often coming to believe that the short-term benefits of confession relative to denial outweigh the long-term costs. Based on a review of a number of cases, Gudjonsson (2003) identified some very specific incentives for this type of compliance—such as being allowed to sleep, eat, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional  confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up in a police station. The pages of legal history are filled with stories of compliant false confessions.

Internalized false confessions

This is third type, where not only does the suspect confess, but also starts to believe that he or she has actually committed the crime in question.

So what causes people to falsely confess? As I mentioned above, it seems incongruous to you and me that a person who knows that he is innocent would nevertheless confess to a crime. The answer begins with basic human psychology: we are highly responsive to reinforcement and subject to the laws of conditioning and of course our behavior is influenced by our perceptions of short-term rather than long-term consequences.

A voluminous body of research has shown that people make choices that they think will maximize their well-being given the constraints they face, making the best of the situation they are in—what Herrnstein has called the ‘‘matching law’’ (Herrnstein, Rachlin, & Laibson, 1997). With respect to a suspect’s response to interrogation, studies on the discounting of rewards and costs show that people tend to be impulsive in their orientation, preferring outcomes that are immediate rather than delayed, with delayed outcomes depreciating over time in their subjective value (Rachlin, 2000).

In addition to the intrinsic factors of human psychology that lead to false confessions, one must also be on the lookout for the external circumstances that can result in these confessions. Kassin breaks them down into two parts, each with subparts: the situational risk factors and the dispositional risk factors.

Situational risk factors include interrogation time, false evidence and minimization. Interrogation time, obviously, is the length of time that a suspect is interrogated. Some fun facts: the average interrogation lasts anywhere from 30 minutes to 2 hours. Interestingly in a 2004 study of 125 proven false confessions,

in cases in which interrogation time was recorded, that 34% lasted 6– 12 hours, that 39% lasted 12–24 hours, and that the mean was 16.3 hours.

When you get into those kinds of numbers, it’s easy to see why one should heed the red flags. Sleep deprivation can lead people to do – and say – almost anything.

False evidence

Once the interrogation has begun, the interrogator will try to convey to the suspect that resistance is futile. Basic psychology tells us that once people see an outcome as inevitable, cognitive and motivational forces conspire to lead people to accept, comply with and even endorse the outcome. Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation.

The forensic literature on confessions reinforces and extends this classic point, indicating that presentations of false evidence can lead people to confess to crimes they did not commit

…

That this tactic appears in proven false confession cases makes sense. In self-report studies, actual suspects state that the reason they confessed is that they perceived themselves to be trapped by the weight of evidence  (Gudjonsson & Sigurdsson, 1999; Moston, Stephenson, & Williamson, 1992).

Here’s an example via a study conducted by Kassin:

In one study, Kassin and Kiechel (1996) accused college students typing on a keyboard of causing the computer to crash by pressing a key they were instructed to avoid. Despite their innocence and initial denials, subjects were  asked to sign a confession. In some sessions but not others, a confederate said she witnessed the subject hit the forbidden key. This false evidence nearly doubled the number of students who signed a written confession, from 48 to  94%.

The most famous real-life example of such a confession is that of Marty Tankleff.

Minimization

The final situational risk factor is one we’ve all seen during interrogations: the officer convinces the suspect that confessing is in his best interest. That he is the suspect’s friend and that he can help him if he just confesses; that the judge and prosecutor will understand why he committed the crime, etc. The ultimately exonerated defendants in the Central Park jogger rape case reported feeling that they would be allowed to go home if they just confessed to the crime. Two core psychological phenomena underlie this factor: us being susceptible to reinforcement and and our eschewing long-term consequences in favor of short-term benefits.

Taken together, basic research showing that people are highly influenced by perceived reinforcements and that people process the pragmatic implications of a communication suggests the possibility that suspects infer leniency  in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable—even in the absence of an explicit promise.

Dispositional risk factors are those that are defendant specific, such as the age and maturity level, the mental and cognitive abilities of a particular defendant and whether the defendant suffers from any psychological disorders. You can easily imagine how any of these (or all) would play a significant role in inducing false confessions.

Interestingly, this paper notes another new and perhaps surprising risk factor: innocence. Yes, it does seem counter intuitive, but apparently recent studies have shown that innocence is a factor that can lead people to falsely confess. This is the “I did nothing wrong, I have nothing to hide” problem which leads innocent people to waive the rights and speak with police, subjecting themselves to the coercive interrogation techniques.

The[...] findings suggest that people have a naive faith in the power of innocence to set them free. This phenomenology was evident in the classic case of Peter Reilly, an 18-year-old who falsely confessed to the murder of his mother. When asked years later why he did not invoke his Miranda rights, Reilly said, ‘‘My state of mind was that I hadn’t done anything wrong and I felt that only a criminal really needed an attorney, and this was all going to  come out in the wash’’ (Connery, 1996, p. 93).

The consequences of false confessions are pretty obvious, starting with police inaction. Once the police obtain a confession from someone they already strongly believe to the be the culprit, they close the investigation, don’t follow up on other leads and ignore exculpatory evidence even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation. This, the studies seem to show, spill over onto prosecutors as well, who refuse to accept the idea of false confessions.

But there’s another consequence that is even more troubling for you and I. And that is the effect that a confession has on people’s perception of the remainder of the evidence even when told that the confession was coercively obtained and false! The results of studies in this area are extremely frightening and must be given a lot of though going forward:

In a second study, Hasel and Kassin (2009) staged a theft and took photographic identification decisions from a large number of eyewitnesses who were present. One week later, individual witnesses were told that the person they  had identified denied guilt, or that he  confessed, or that a specific other lineup member confessed. Influenced by this information, many witnesses went on to change their identification decisions, selecting the confessor with  confidence, when given the opportunity to do so.

Mock jury studies show essentially the same results. The fact of a confession may be the single most powerful piece of evidence introduced in a trial to begin with. We learn that people (jurors) may not even fully discount the confession if told that it was coerced (going back to the “why would anyone confess if they didn’t do it, so there must be some reliability or some morsel of truth in it” problem).

For example, Kassin and Sukel (1997) presented mock jurors with one of three versions of a murder trial transcript. In a low-pressure version, the defendant was said to have confessed to police immediately upon questioning. In  a high-pressure version, participants read that the suspect was in pain and interrogated aggressively by a detective who waved his gun in a menacing manner. A control version contained no confession in evidence. Presented with the high-pressure confession, participants appeared to respond in the legally prescribed manner. They judged the statement to be involuntary and said it did not influence their decisions. Yet when it came to the all-important verdict measure, this confession significantly increased the conviction rate. This increase occurred even in a condition in which subjects were specifically admonished to disregard confessions they found to be coerced.

There are several reasons for this – three, primarily:

1. that people still have a hard time believing that even coercive techniques result in false confessions because they are more likely to take behavior at face value than to account for situational factors;
2. that people are terrible at deception detection: both cops and laypeople exhibit accuracy rates that range between 42 and 64% – no better than chance.
3. that confessions often include content cues presumed to be associated with truthfulness.

As Kassin concludes: Uninformed, however, this spectator mistakes illusion for reality, not realizing that the taped confession is scripted by the police theory of the case, rehearsed during hours of unrecorded questioning,  directed by the questioner, and ultimately enacted on paper, tape, or camera by the suspect.

So what is the solution? How do we prevent false confessions from occurring, from being entered into evidence and from jurors continuing to be deceived  by them? The single most important reform is videotaping of all custodial interrogations (which I’ve argued for before). Videotaping not only permits an entirely accurate record of everything to be maintained, it permits the jury to see how the confession was obtained, not just the content of the confession itself. It also deters interrogators from using the most blatant and obvious methods of coercion.

While initially meeting with resistance, the police departments whose jurisdictions have adopted videotaping are now strongly in support of it:

Among the collateral benefits they often cited were that recording permitted detectives to focus on the suspect rather than take copious notes, increased accountability, provided an instant replay of the suspect’s statement that  sometimes revealed incriminating comments that were initially overlooked, reduced the amount of time detectives spent in court defending their interrogation practices, and increased public trust in law enforcement.

In addition to the videotaping of interrogations, Kassin proposes several others reforms in the method of interrogations: limiting the time of such interrogations, a ban on fabricated evidence but not false assertions (as a compromise), moving from a “confession” model to a “fact finding” model of interviewing suspects and eliminating the use of legal consequence minimization in interrogations.

But the bulwark against false confessions remains the recording of interrogations. While most states do not require the videotaping (only 2 do), several others have lately indicated that such videotaping would be a good idea. In addition to Alaska (Stephan v. State, 1985) and Minnesota (State v. Scales, 1994), seven additional jurisdictions—Illinois, Maine, New Mexico, New Jersey, Wisconsin, North Carolina, and the District of Columbia— have joined in  requiring recordings of custodial interrogations in some circumstances (Robertson, 2007; Sullivan, 2004). In several other states, supreme courts have stopped short of requiring recording but either have issued strongly  worded opinions endorsing recording—e.g., New Hampshire (State v. Barnett, 2002) and Iowa (State v. Hajtic, 2007)—or, in the case of Massachusetts, held that where law enforcement officers have no excuse for the failure to  record interrogation, defendants are entitled to a strongly worded instruction admonishing jurors to treat unrecorded confessions with caution (Commonwealth v. DiGiambattista, 2004).

In Connecticut, however, there is no such requirement. Our Supreme Court recently heard oral argument in State v. Julian Lockhart, in which it is being asked to hold that videotaping interrogations is required under the State constitution. I’m not holding my breath.

In the meantime, however, I strongly urge you to read the entire paper by Kassin and every time you have a case that involves a confession, look closely for the presence of these risk factors. I might even go so far as to say that one should make it a practice to consult with an expert in cases involving confessions.

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So it seems that the entire crux of their decision to prosecute was based on the lack of a “satisfactory” explanation from Mr. Clarke as to how he got the gun and why he waited two days to turn it in. Nevermind the fact that the same police department distributed a leaflet encouraging people who find guns to bring it to the police station.

Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There's this fellow who's going to jail for beating up an intruder and then this awfully sad story.]

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Over the past year, Einhorn has been at the center of two of the higher profile cases in San Diego. Sommer was convicted of murdering her husband, Todd, in 2007 by poisoning him with arsenic. She was granted a new trial in November of that year. Then in April 2008, new evidence was discovered — tissue samples of Todd Sommer that showed no traces of arsenic — and that led to prosecutors dismissing the case.

The retrial had been assigned to Einhorn. Allen Bloom, Sommer’s lawyer, pressed for the case to be dismissed in a way that would preclude prosecutors from ever charging Sommer again.

That turned into a pissing match between the State and the judge (the state accusing him of a lack of jurisdiction), but he eventually ruled in favor of the State. In another case, he interpreted a statute in a way the state disagreed. Unless the judges of San Diego are really prosecutors-not-in-disguise, this sort of stuff happens every day. So, what then, caused them to hate him so? No one knows, except the prosecutor’s office, which isn’t talking. The Judge himself doesn’t know.

It’s only natural, however, when prosecutors make decisions in a clandestine manner that seem contrary to the administration of justice, to ascribe nefarious motivations to such actions. Perhaps we will be proven wrong at some point down the line, but now, as it stands, it seems they do not like this judge and are using some procedural mechanism to prevent him presiding over any cases.

Not only is this extremely inefficient (one judge sitting idle in these days of tremendous workload?), but is also casts an ugly shadow on the rest of the courthouse. In our criminal justice system, a judge is supposed to be an impartial presence: someone who ensures that a trial proceeds smoothly and makes rulings of law. The nuts and bolts of the criminal case – the facts – are left to the parties. Is it fair to draw an inference that the prosecutor’s office expects judges only to side with them and a judge who shows a hint of independence is thus an obstacle to the administration of “justice”? Are the other judges in San Diego merely lemmings who follow the prosecutor’s office with nary an independent thought? It would certainly seem that way.

Now, I’m not saying that “judge shopping” doesn’t occur. It does, but in more subtle and less ugly ways. You have a complex legal issue? You might want to try and get it before an eminent jurist. You have an uppity prosecutor? You might want to try and have the trial before a no-nonsense judge. These, usually, are not done to subvert the administration of justice, but rather to ensure the smooth and fair administration of the process of the trial.

To completely block one judge from sitting on any cases whatsoever for some undisclosed reason smacks of subterfuge and arrogance.

As a criminal defense lawyer, would I want to have a trial before a pro-defense judge (if there is such a beast)? Absolutely. Do I think that fact by itself would make a difference in the outcome of the case? Probably not. It might net me a favorable jury instruction or a helpful ruling on some questionable evidence, but the facts are the facts. And this is the key distinction: It is not my job to ensure the administration of justice or the appearance of a fair system. I have no obligation other than that to my clients. The prosecutor’s office, on the other hand (as appropriately stated in the press release quote above) represents “the people” as a whole and is obliged to not only prosecute crime, but to provide a fair and just system, which includes the appearance of propriety. [For a lengthy discussion of "justice" vis-a-vis the role of the defense lawyer, see the discussion that's been making the rounds of the blogosphere here, complete with links to all the posts.]

And, since the title of this posts teases it, here’s the Soup Nazi:

[youtube]http://www.youtube.com/watch?v=M2lfZg-apSA[/youtube]

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“We don’t think the defense has shown anything wrong with the verdict,” Mr. Dwyer [the chief assistant Manhattan district attorney] said.

I’m not sure what world Mr. Dwyer lives in that 5 recantations don’t imply something wrong with a verdict, but wherever it is, I don’t want to live there.

What cases like these ought to do is put more focus on SCOTUS’ upcoming decision in Pottawattamie County v. McGhee [oral argument transcript here; scotusblog recap here]. The issue in Pottawattamie is whether prosecutors should enjoy immunity for intentionally coercing false testimony in the investigation phase of a prosecution and then introducing that same testimony at a trial that leads to conviction. In that case:

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.

The oral argument in Pottawattamie is something to read. It shocks the mind that something so simple as intentionally framing an innocent person is a phrase never once uttered by any party (not that I remember anyway). Some of the justices were more concerned with the chilling effect on prosecutors. Look, we all acknowledge that most prosecutors try to do their jobs fairly and very, very few of them wouldn’t be bothered by a wrongful conviction on their conscience. But how does removing immunity for intentionally framing someone produce a “chilling” effect on their prosecutorial function? It seems bass-ackwards. If anything, wouldn’t it make prosecutors more careful in whom they pursue and whom they charge? Would  removing such immunity not provide the very result which we seek: no wrongful convictions and certainly none that are obtained by intentional falsification of the evidence? [Listen to NPR's Morning Edition's coverage of this case last week, which includes listener calls from prosecutors and public defenders.]

For me, the answer in Pottawattamie is simple: If you’re a prosecutor who intentionally frames an individual, you should be sued. Not only should you be sued, but you should be disbarred. The latter is less likely to happen than I am to become the next Chuck Norris, but the former should be a real threat. The power of a prosecutor is awesome and that power should be wielded with great care and never with malice or dishonesty.

Had police and prosecutors not pressured 5 people into falsely identifying Mr. Bermudez, he probably wouldn’t have spent 17 years in jail for a crime he didn’t commit. That’s the real moral of this story, not the legal fiction of “opening floodgates” or “chilling effects”. Anyone who gives any weight to such an argument needs to spend 17 years in jail in his place.

And because it’s a Sunday night, I give you this little joke:

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Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.

Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:

In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.

But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.

In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.

But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:

Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial.  As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the  [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any  insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)

Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.

Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.

[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.

It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute.  It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time:  when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize.  We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.

Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision.  This assertion bothers me for a few reasons.  First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes.  I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping.  Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!

Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.

So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case.  The concurring opinions aren’t any better.  All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).

The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:

[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.

He also sums up the problems with the “luck” argument quite succinctly:

If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.

It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.

(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)

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Stacey Castor questioned about day her daughter fell ill

*Joke. Don’t do it.

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In 2002, Elkins’ niece recanted her testimony about Elkins being the perpetrator. That same year, Elkins made a request for DNA testing, which was denied on the grounds that the results would not prove Elkins’ innocence.

Despite this ruling, Elkins managed to provide his own funding for Y-STR testing on evidence from the crime. Y-STR is a relatively new form of testing that isolates certain characteristics of the male chromosome suitable for comparison. In 2004, Elkins’ lawyers at the Ohio Innocence Project cooperated with the prosecutor’s office to send evidence to Orchid Cellmark, a nationally recognized forensic lab.

The results of this testing excluded Elkins as the possible perpetrator of the rape and murder. A male profile was found on male skin cells from both the grandmother’s vaginal swab and the young girl’s underwear. Elkins moved for a new trial. On July 14, 2005 the court denied Elkins’ motion.

The State, meanwhile, was not convinced. They claimed that because the DNA was from skin cells, it wasn’t conclusive that Elkins was excluded as the real perpetrator. Eventually, after some considerable risk to his own life in prison, Elkins and his wife were able to get the DNA of the man they believed committed the crime. But even that wasn’t enough for prosecutors. They wanted more.

Just today, the Hartford Courant has a front page story about two men, similarly claiming innocence:

The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn’t belong to either of the two men convicted of killing him.

Fingerprints found on the door handle of the store’s safe are not theirs, and the state’s main witness now admits in a taped interview that she lied when she testified at their trial.

But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.

The similarities between Taylor and Gould’s case and Elkin’s case are eerie: In both, there is a recanting eyewitness. In both, there are alibis. In both, there is a wife convinced of innocence fighting to prove it. In both, there is DNA evidence that excludes the defendants and for now, in the former, the prosecutors have refused to test the DNA of the man the defense believes is responsible. Finally, like in Elkins, the prosecutor in New Haven isn’t convinced:

“Having reviewed the file presented by Gerry O’Donnell, it wasn’t like in the Roman case, where there was clear-cut evidence,” Dearington said. “In this case it’s not clear that the inappropriate person or persons were convicted.”

Dearington said that although O’Donnell’s report raised questions about the original case, he wasn’t about to order the release of two convicted murderers based mostly on “pure conjecture and speculation.”

The prosecutor is more willing to leave it to a court to decide, with a hearing on the petition for The Great Writ scheduled for June. Will the similarities between Elkins’ case and Taylor and Gould’s case continue? It remains to be seen.

All of this makes one wonder: why are prosecutors so fiercely protective of their wins? Certainly, there is much to be said about the finality of convictions (and indeed courts around the country have written enough about it to replenish the rainforests) and the need for closure, but none of these cases present ordinary circumstances.

Both prosecutors, in Elkins and Taylor and Gould have shown or are showing caution in proceeding. The prosecutor in Elkins took a long time convincing herself that Elkins was indeed innocent – seeking voluminous DNA testing, and she took an even longer time to charge the man who actually commited the crime. The prosecutor in Taylor and Gould is taking the ultimate cautious approach: a hands off one. Leave it to the judge and let him take the rap.

If only they’d been this cautious or skeptical of evidence the first time around. Which brings me to my last story, via David Tarrell. Prosecutors in Omaha have announced that they will no longer be accepting plea bargains from adult defendants. In any case. At all. [In other news, Omaha's criminal justice system shot itself in the head.]

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn’t think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

“This prevents overcharging,” Ritnour said. “You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We’re going to see what we should charge people with and stick with it.”

I, for one, am not buying it. This will be a short-lived experiment, during which a whole bunch of defendants will get screwed. This stance places a lot of faith in prosecutors’ ability to see their case for what it is and not for what it might be. It also raises some questions: what charges is he talking about? I don’t know how it works in NE, but here, the charges can be changed at any time via a substitute information. So if the cops charge Assault 1st at the arrest and the prosecutor, either at arraignment or at some point further down the line, say after an extensive defense investigation, is of the opinion that Assault 1st is no longer viable or is risky, will offer a plea to Assault 3rd. That doesn’t mean that the prosecutor thinks it’s unprovable, just that it’s unlikely. Is that what Ritnour is saying? Because if it is, then I don’t know the difference between what he’s saying and plea bargaining. Or is he saying that they won’t file charges until they’re absolutely sure of what they can prove, regardless of what any further investigation turns up? Because that’s a hollow policy.

He’s also implying that there will be no guilty pleas whatsoever. That’s a ridiculous assertion, even if there is no right to plead guilty. The volume would be crushing. What of the defendant, who agrees that he commited Assault in the Third Degree and the prosecutor is of the same mind. Why waste everyone’s time and money and go to trial? Would a plea not suffice in that situation?

Anyway, let us assume that he means he won’t charge someone with crimes he doesn’t think he can prove. How sure does he have to be? The two innocence stories above are examples of shoddy investigation. I’m sure prosecutors in both cases thought (and still think) that they could prove their cases. It raises an interesting question: do the two innocence cases serve to bolster Ritnour’s new policy or do they inform us that no matter what, defending a win seems to be of prime importance.

See more from the Viscount of the blawgosphere.

As always on this blog, there are no answers. Only (stupid) questions.

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The hallmark of a good lawyer is the ability to take bad facts or bad law and still make a cogent, convincing argument.

The last thing you want to do is pretend that you’re right when you’re not. It’s hollow and transparent. Everyone sees through it and it’s sort of like the boy who cried wolf. No one will believe you again, even when you’re right.

It’s something Jennifer L. Smith, Associated Deputy Attorney General for the State of Tennessee would have been well served by, had she remembered it and followed it.

Smith represented Tennessee before SCOTUS yesterday in Cone v. Bell. At issue in Bell was some boring nonsense about procedural default in habeas corpus practice. But what it devolved into was a discussion of whether the State had intentionally misrepresented the status of a Brady claim to a state court and then made disingenuous arguments to cover it up later.

What happened was this: The defense, in attempting to prove mitigating factors in the penalty phase of Cone’s trial, argued that Cone was a drug user and in the throes of a drug induced psychotic state when he committed the murders. To that end, they provided testimony from two experts. The State, during cross-examination, took greats pains to point out that the experts’ only source of such addiction information was Cone himself and went to some lengths to prove that Cone was not addicted to drugs.

The only problem is that the State possessed a wealth of information that showed that Cone was indeed addicted to drugs and seemed to be in a drug induced state at the time of the murders. The only logical conclusion here is that the prosecutors intentionally did not turn over this evidence to the defense. This is where Ms. Smith starts to get into some trouble. She has hardly begun speaking when she gets hit with the first questions:

JUSTICE STEVENS: May I ask — let me get something on the table. Do you agree that the evidence shows that this evidence was deliberately suppressed?
MS. SMITH: Your Honor, I don’t think there’s been any — any finding about the –
JUSTICE STEVENS: But is there any explanation for — was there any explanation for it other than the tactical explanation?
MS. SMITH: There’s no explanation in the record, there has been no finding about whether the evidence has been suppressed at all in this case because both the district court and the Sixth Circuit decided as a matter of law that the materials –
JUSTICE STEVENS: It seems to be relevant because if it was suppressed for tactical reasons, it seems to me hard to say that the prosecution thought it didn’t make any difference.

It doesn’t get any better for Ms. Smith:

JUSTICE KENNEDY: Do you think the prosecutor had an ethical duty to turn over this material?
MS. SMITH: I think that the material — if the material — if the subject was immaterial –
JUSTICE STEVENS: It’s a simple question, yes or no?
MS. SMITH: I think that as a legal matter there was no — no need to turn it over because it was immaterial.
JUSTICE STEVENS: That’s not my question. Can you answer my question? Did he have an ethical duty to turn this material over?
MS. SMITH: I’m unaware of any ethical requirement that he turn it over, and I don’t think that — and certainly under Brady if it’s not material, we don’t think it was material, then it’s certainly not required as a constitutional matter. And the reason is not –
JUSTICE SOUTER: You believe that the materiality judgment is yours to make, the State’s to make as sort of a gate keeping measure? Isn’t the materiality an issue for the fact finder?
MS. SMITH: Well, I think it’s — it’s –
JUSTICE SOUTER: You exclude — do you believe that you can, in effect, suppress any piece of evidence on — on — on the State’s judgment that it will not prove to be material in the context of the whole case?

Yikes. But wait. There’s more. After this little subterfuge of hiding the Brady material, the State twice argued to post-conviction courts and appellate courts that the Brady issue had already been decided. When, in fact, no Court had ever actually ruled on the merits of the issue. So it was deemed procedurally defaulted.

Not content with doing that much damage, the State them proceeded to change its tact on subsequent appeals. Accepting that the issue had not actually been decided, the State then argued that the defendant had waived the issue, despite several paragraphs in the habeas corpus petition alleging the Brady violation.

Any time you get a Justice of a Supreme Court, be it state or federal, to utter the following words, you know you’ve made a misstep along the way:

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

…

JUSTICE BREYER: Well, “waiver,” my goodness.

Why the State feels the need to defend every action it has ever take, however wrong or contrary to the law, is beyond me. If they were being intellectually honest, they would admit previous errors and make an appropriate argument. They might lose a case or two, but they at least wouldn’t end up in the position of having their credibility questioned by Supreme Court justices.

[This is not to say that Attorney Smith herself did anything untenable. It may well be that she was handed a deck of cards that lead to this result, and had to defend the questionable actions of others. It is the institutional resistance to admitting errors that irks me.]

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First, in Texas, where Houston Criminal Defense Lawyer, aka Mark Bennett is covering the election of Pat Lykos as DA, and the impact it has had on attorneys in the prosecutor’s office (for a first hand take, see AHCL’s posts here and here). After promising not to fire anyone who worked hard and was competent, she promptly fired everyone (or close to it).

The other cautionary tale is from Florida, which I mentioned in the Jumpstart on Monday. This one is a little more puzzling. Bill White, a public defender for 34 years was defeated in the election by Matt Shirk, an attorney who spent 5 years in the public defender’s office and 4 years in private practice. He was endorsed by the Fraternal Order of the Police and, by some accounts, promised not to raise questions about the integrity of the police and their work. He also stated:

he has no intentions of making sweeping personnel changes to the office of 140 employees, but plans to put his own management team in place.

And then he promptly fired the 10 most experienced attorneys in that office. Two of those 10 are Pat McGuiness and Ann Finnel, both of whom represented Brenton Butler in an infamous murder case in 2000, that resulted in Butler’s acquittal. Both McGuiness and Finnel were simultaneously featured in an Oscar winning documentary about Butler’s case. [CT pd, you should remember this documentary and remember McGuiness. He spoke at a seminar once and the documentary was screened at the Mystic annual meeting. If you, like me, slept through it, then go rent it and watch it now.]

McGuiness believes the firings are payback:

“There are very few people who would have acted as divisively as Mr. Shirk in term of ridding the office of skill and experience without interviewing a single attorney or looking at a single personnel file,” McGuiness said.

The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff’s department bungled the case.

McGuiness said the firings are payback.

McGuiness, Finnel and others fired are considering legal action. I know nothing about employment law, so maybe someone who does can chime in.

Given all of this (and this surely isn’t the first time something of this nature has occured), I wonder why states continue to elect their judges and other officials, who really should be civil servants. It creates an odd power game, where being a judge isn’t in the highest strata – it is being a public defender. Whether it is in Texas or FL or on Raising the Bar, you routinely read the resumes of district attorneys and see “former Judge” in them. We have this system backwards, don’t we? Do judges aspire to be prosecutors? I thought it was the other way round.

As Bobby G put it:

given the public’s abhorrence for and general misunderstanding of criminal defense and why we need it, public elections could be a recipe for disaster. Imagine if a candidate for office runs on a campaign of being tough on crime, easy on cops, and easy on the public dime (what the public wants to hear) and then they are elected?

That’s exactly what happened. Judges and public defenders should be beholden to no one except the law and their clients, respectively. Prosecutors, I think, should also be free from the encumberances of public pressure. Because almost always, public pressure veers prosecutors away from discretion and toward draconian and harsh punishments. In the very few cases that the public feels prosecutors are being unjust and unfair, they have the opportunity to rectify that: the jury.

Can anyone make a convincing argument for election?

*Image taken shamelessly from this year’s Senate race in MN between Al Franken and Norm Coleman. Via MPR.

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