Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.

And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:

What if a former client writes: “My lawyer was terrible.  He never returned my calls or e-mails.  I had a million-dollar case, and she blew it!”

Some prospective clients might read that blog entry, and thus never call the lawyer.  Current clients might get nervous.  Other lawyers might decline to refer a case to the bad lawyer.

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day.  He asked the same questions over and over again.  After evaluating his case through discovery, we realized his case was marginal.  We told him to settle the case for $25,000 – nuisance value.  He refused.  The trial court dismissed the case on summary judgment.  Now he’s angry.  By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

Does that Rule make sense?  A lawyer can lose business.  Online reputation matters – not for a lawyer’s ego – but for his business.  The law offers trademark protection.  A brand matters.  A lawyer is only as good as her name.  Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?

First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.

Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.

But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?

Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:

[In response to Mike's hypothetical] I’m not entirely clear that’s accurate.  Waiver of privilege is an all or nothing proposition.  Once a client discloses confidential communications to others, it constitutes a waiver.  It’s the client’s to waive, and there’s nothing to prevent her from doing so.  It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship.  Once waived, however, the privilege is extinguished.  Like pregnancy, it’s not just a little waived.  It’s waived.  End of privilege.

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process.  While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.

I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.

In my fleeting dalliance with the post-conviction world, I noticed many odd behaviors by defense attorneys and a marked change in attitude toward the client. For some reason even the most experienced criminal defense attorneys never seemed to grasp the simple fact that the claim of ineffective assistance of counsel was not – and never will be – a personal attack. It is yet another of those Constitutional rights afforded the defendant that we seek to so zealously uphold when we are representing them on the front end.

In the post-conviction context, there is plenty of case law that makes clear that the filing of a habeas corpus petition does not constitute a “full waiver” of attorney-client privilege and regardless of any other duty that the lawyer may have to his former client, the waiver is a limited waiver:

Claims of ineffective assistance of counsel are routinely raised in felony cases, particularly when a sentence of death has been imposed. If the federal courts were to require habeas petitioners to give up the privilege categorically and for all purposes, attorneys representing criminal defendants in state court would have to worry constantly about whether their casefiles and client conversations would someday fall into the hands of the prosecution. In addition, they would have to consider the very real possibility that they might be called to testify against their clients, not merely to defend their own professional conduct, but to help secure a conviction on retrial. A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote.

Were such a broad waiver necessary to satisfy federal interests, the state’s interest in protecting lawyer-client confidences might have to yield. But we can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests. See Laughner, 373 F.2d at 327. At the same time, a narrow waiver rule — one limited to the rationale undergirding it — will best preserve the state’s vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state’s criminal lawyers continue to represent their clients zealously.

A narrow waiver rule is also consistent with the interests of the habeas petitioner in obtaining a fair adjudication of his petition and securing a retrial untainted by constitutional errors.

Bittaker v. Woodford (9th Cir. 2003). And yet this simple, yet powerful rationale is completely wasted on scores of lawyers. Lawyers “defending” against claims of IAC seem to think:

1. That they are a party to the habeas corpus proceeding;
2. That counsel for the actual party, the Respondent, is their lawyer;
3. That they must give the State dirt on the client;
4. That they must turn over their file to the State;
5. That they must not co-operate with counsel for the former client;
6. The file belongs to the lawyer, not the client.

This is not a test. All 6 are wrong. Utterly, completely wrong. It is very revealing when a lawyer maintains a poor file during his representation of the client, but even more so when that same lawyer takes affirmative steps to hinder the prosecution of a habeas corpus petition. There is nothing more aggravating, disappointing and disgusting than when trial counsel takes the stand in a habeas hearing and suddenly cannot remember details he’d previously disclosed to the habeas attorney or somehow can miraculously remember in excruciating detail conversations that he’d minutes ago, off the record, confessed to habeas counsel of having no memory of.

One of the worst things you can do as a criminal defense attorney is make an error that may have contributed to the conviction of a client. Compounding that by standing on the sidelines as that conviction is affirmed will not help you sleep better at night.

There are some very simple rules for ethical behavior in the post-conviction context [read this Champion article (HTML version) for some in-depth counseling]. Remember that the right to effective assistance of counsel is a Constitutionally afford right to the client who is spending his days and nights in jail. Also remember that it is not for you to decide whether you provided effective assistance of counsel. Don’t reveal more than is required by the scope of the IAC allegations. Don’t offer up your client on a platter.

Worried about your reputation? The lawyer who doesn’t get in the way of his client in the post-conviction arena almost always has a better reputation than the lawyer who does, at least in the legal community, if not among the clientele. That’s because it conveys one very important fact: that you are going to put the client’s interests ahead of your own.

Heed the advice we give our clients about cops: “they’re not your friend”. The respondent? Not your client’s friend.

That bus? It’s not for you to throw your client under.

Meet Thomas White, also convicted for child sexual assault and who also spent 5 years in prison before a third jury finally acquitted him in 2005.

But Hidalgo and White have more in common that merely being falsely accused of terrible crimes for which they both spent long years in harsh conditions in prison. Both convictions were obtained by a failure of the system: in Hidalgo’s case, aided by the complete inexperience of his defense attorney in what amounted to a constructive denial of counsel; in White’s, horrifying misconduct by the police and prosecutors to hide exculpatory evidence.

Stevensen was working for the Barker and Howard law firm, which provided indigent defense services for Chelan County, when he was assigned in 1995 to represent Hidalgo. He had been admitted to the Washington State Bar less than two years earlier, and had been working as a Chelan County public defender for a little over a year.

In a declaration filed in court on Friday, Stevensen, now a juvenile prosecutor for Chelan County, wrote that he had had limited legal experience and little supervision or support from his employers when he was handed the Hidalgo case.

Stevensen wrote that he was unable to launch a counter defense to medical testimony, offered by prosecutors, that one of the children Hidalgo was accused of attacking had been sexually assaulted. He said that he did not know how to “attack” the strong medical testimony or to call on expert witnesses to attest that children sometimes make up stories of being sexually assaulted when they are improperly questioned by authorities.

It would be pointless for me to recap the problems in White’s case here, so just go read these posts. I’ll wait.

Done?

In both cases, one thing is clear to me: the system failed the defendants. Whether it be the public defender system in Hidalgo or the law enforcement and criminal justice system in White. The difference is that Hidalgo’s lawyer has seemingly taken responsibility for his contribution to Hidalgo’s nightmare, whereas the officer and prosecutor in White’s case pretend like they’ve done nothing wrong.

The suit against the police in White is nothing new. The suit in Hidalgo is extremely rare. Hidalgo’s lawyer settled, because he has malpractice insurance although his suit against the public defender system is still pending.

Someone, ultimately, must pay. In some form or another. While courts have routinely declined to hold prosecutors responsible for their misconduct (see here and here and more generally here and here), defense lawyers have no such immunity. And Stevensen, to his credit, did the right thing. He stood up and took responsibility for his actions. That he is being held financially responsible for his inexperience and not any intentionally malicious act on his part is unfortunate, but as long as courts decline to recognize that the system itself is flawed, the burden will fall on the individual lawyer.

Much about the system, though, is backwards. Just like the detective in White who continues to remain a police officer,

Stevensen was admitted to the Washington State Bar in October 1993 and was hired by Barker and Howard in 1994.

Barker and Howard no longer provides the county’s public defense, but did provide it from January 1994 until December 2002. One of its partners, attorney Keith Howard, then contracted with the county until 2006. In 2007, the county switched to a public defenders office, called Counsel for the Defense of Chelan County, and hired Howard as its director.

Hopefully Stevensen has learned from his mistakes, although he’s now on the other side of the fence as a juvenile prosecutor.

There’s one more thing worth mentioning in Hidalgo, especially in light of the conversation around the ‘sphere a few weeks ago regarding IAC and our responsibilities:

Partway through the trial, Firkins, a private attorney [and Hidalgo's current attorney], sent a letter to the court offering to represent Hidalgo if the judge, Carol Wardell, would grant a two-week continuance. Wardell denied the request, saying in court that she thought Stevensen was doing a good job.

It must’ve been clear to some that Stevensen wasn’t doing a constitutionally adequate job, perhaps even Hidalgo himself. Yet he was denied the opportunity to prevent the injustice prior to its occurrence and only gets some measure of vindication after spending 6 years:

Hidalgo was assaulted while in prison and put in solitary confinement. Other court documents state that he was assaulted twice in prison and spent six months in solitary confinement for his own protection.

One can’t begin to put an economic price on the damage to the lives of Hidalgo and White. Money goes a long way, but it isn’t everything. And the beating taken by the system and our notions of justice? What’s the price on repairing that?

He died in 2007, more than 40 years after the shooting. The Commonwealth, already having exacted 26 years from Barnes, now 74,  for the attempted murder, now seeks to exact some more for the eventual death of Ofc. Barclay.

Barnes’ second trial for the act of shooting Barclay began today in Philadelphia. The Commonwealth will attempt to prove that the gunshot wound suffered by Barclay in ’66 – which left him wheelchair bound – caused the urinary tract infection in 2006 that ultimately killed him.

The defense will seek to show the jury that the Commonwealth cannot prove the causal link, relying in part on the fact that Barclay, despite being confined to a wheelchair:

was able to drive a specialized car, walk with braces, earn a college degree, marry and divorce three times and perform sexually, had been in three car accidents and had fallen out of his motorized wheel chair twice during the 41 years that he lived after being shot

Mark Bennett, in a comment to Scott’s post above, asked in 2007:

I must be missing something, because those articles don’t even discuss this question: How does a conviction for attempted murder not jeopardy-bar a prosecution for murder when the victim dies?

A very important question, for it should be quite obvious that whatever the terminology attached to the formal charge, the act for which Barnes is being exposed to further punishment is the same: that he fired a weapon with the intent to cause the death of Ofc. Barclay.

Having already been punished once for that act, how is it permissible for the Commonwealth to seek to punish him again? I decided to delve into the quagmire of Double Jeopardy law, a muck from which I’m not quite sure that I’ve yet emerged. Nonetheless, I found this quote from a LawProf in another article covering the start of the trial:

Temple University Law Professor Jim Strazella says he believes the charges are permissible, and don’t violate any double jeopardy laws.

Since there is no further explanation in that article, or any other that I could find, you are left to my devices and I am to yours.

The fifth amendment to the United States constitution declares that no person  shall be subject for the same offense to be twice put in jeopardy of life or limb . . . . This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784 (1969).

One of the protections flowing from the double jeopardy guarantee is that against a second prosecution for the same offense after acquittal; North Carolina v. Pearce, 395 U.S. 711, 717 (1969); or conviction. Illinois v. Vitale, 447 U.S. 410 (1980).

The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184 (1957). The most famous double jeopardy case is Blockburger v. United States, which laid out the test for determining if multiple convictions arising out of the same incident violated the prohibition against double jeopardy:

[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304 (1932). This analysis ‘precludes examination of the evidence.’ Illinois v. Vitale, 447 U.S. 410, 416 (1980). Instead, an examination of the elements of the two crimes is essential. Brown v. Ohio, 432 U.S. 161, 166 (1977).

Quoth Justice Stevens, in Illinois v. Vitale:

In Harris v. Oklahoma, 433 U.S. 682, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U.S. 684. Since it was theoretically possible that a different felony could  have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711 (REHNQUIST, J., dissenting). However, the entire Court agreed that it was required by the Double Jeopardy Clause.

Of course, it is the interpretation of state law by a state court that controls and under PA law, attempted murder may not be a lesser included offenses of murder. There is a line of cases that suggests that the treatment of those crimes intended by the legislature plays an important role in determining whether they are the same for double jeopardy purposes. Perhaps the differing sentencing ranges for attempt and the completed act (for murder at least, at least here in CT) may give some weight to that argument.

Stepping back from the legal mumbo-jumbo, there is a certain appeal to the argument that Barnes should not be permitted to reap the benefits of a lesser sentence merely because Barclay did not die immediately.

This, however, is not unavailing, especially in light of the fact that the Commonwealth was willing to have Barnes plead to a lesser degree of murder, exposing him to a potential maximum sentence of 10 to 20 years, with credit for 16 years already served.

The Commonwealth is not interested in the legal issues here, especially when you consider the fact that Barclay’s body wasn’t autopsied for 7 months and after Barnes had been charged with murder. To me it seems more like grandstanding and putting on a show in light of the death of a member of law enforcement. Which is fine, except Barnes has already paid a pretty steep price for that very crime.

[As you may have noticed, my DJ analysis was pretty half-baked. That's because I am unwilling to embark on writing a brief on this subject just yet. If I've missed a key case, I'm sure you'll let me know about it.]

Tonya Craft, a former kindergarten teacher, charged with 22 counts of various sexual offenses involving 3 minor girls, was acquitted today. You may or may not have heard of her. I wrote a post recently about the trial and some of the outrageous antics engaged in by the prosecutors.

She was represented by Demosthenes Lorandos, who apparently has made a habit of successfully defending child sex cases across the country, and who hilariously said at the post-verdict press conference: “I do not lose”.

The media has been all over this trial, bringing it much needed attention. At first, the attention focused on the misbehavior of the prosecutors [see this for some very questionable comments during closing] and later the complete lack of qualification and training of the so-called “child sex experts”.

Twitter was set ablaze today as the jury was deliberating and the tweets of joy were abundant when the verdict was announced. Parties have been planned, interviews being given on the news and Ms. Craft will now fight to regain custody of her children.

All’s well that ends well. But this is not a happy post, nor is it a merely celebratory one. While Ms. Craft has the opportunity to return to her life, there are lessons for all of us. A fellow defense lawyer asked on Twitter: “Who is #tonyacraft and why [is she] any different from all of our other human tragedies?”

She is not. There are hundreds of Tonya Crafts out there in the criminal justice system, every single day, pleading to charges to avoid lengthy sentences or attempting to fight the false allegations and losing.

Any criminal defense lawyer (like yours truly) saw a stream of familiarity in the continuing coverage by news reporters of the direct and cross-examinations of the witnesses. The dissection of the forensic interviews by the defense experts was a veritable checklist of the problems associated with such after-the-fact divining: repeated questions, leading questions, suggestive questions. Pressuring children to answer a certain way; the worst form of confirmation bias. The prosecutors attempting to cast the defendant in general terms as a bad person, a person of loose moral character, thus equating foibles in their character with child molestation.

This. Happens. Every. Day.

Child sex assault allegations are the scariest of them all. The power to believe a child is overwhelming and the fear of disbelieving a child is even greater.

Will the media be there tomorrow when yet another Tonya Craft is hung out to dry by our criminal justice system and our courts that are so quick to label anyone merely accused of such a crime as a heinous monster? Will the public rise up in support every time there is a trial with questionable evidence and even shadier tactics employed by prosecutors and experts?

Or did Tonya Craft get attention because she’s white and she’s a woman?

There’s a well documented disparity between male and female sex offenders and the treatment they receive in our courts. Women are more likely to receive probation and less jail time than men. Women are more likely to have websites created which count down the “hottest” sex offenders.

Men are vilified and universally regarded as creepy and generally guilty.

Imagine if it weren’t Tonya Craft on trial, but Tony Craft. Would there be the same hubbub? Would anyone even bat an eyelid? Would the media’s treatment of the trial have been the same or diametrically opposed?

I don’t mean to demean the victory here, but this is a great opportunity for those who aren’t “in the know” in the system to realize several things:

1. People are falsely accused of crimes

2. Child Sex cases are the most difficult to defend against

3. Prosecutors routinely rely on questionable “experts” to get convictions

4. Just because a man is accused of molesting a child, doesn’t mean he’s guilty.

The next time you get asked to serve on a jury, think long and hard about these things and about Tonya Craft and about the witchhunts that go on every single day in all our courtrooms across the country.

Congratulations Tonya Craft. You board a plane and given an interview to NBC, it is your right. There will be some noise made about grieving the judge and the prosecutors, but if history is any guide, nothing will come of it. The town in Northwestern GA will return to normal and soon this will be talked about as a fairy-tale. But tomorrow, another Tony(a) Craft will be arrested and charged and will go on trial. Will he/she get justice? Will you be there to cover it? Will you know the difference? Will you turn a skeptical eye? Or will you join the mad rush of hysteria that has swept the nation in condemning the despicable child molester?

Your eyes have been opened. Whether to keep them open is up to you.

[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Justice Blackmun, in Franks v. Delaware, quoting Judge Frankel in US v. Halsey. Franks, of course, permits a defendant to challenge the veracity of the statements in a search warrant. If he makes a substantial showing that the affidavit contains intentional falsehoods or material omissions, then he gets an evidentiary hearing to prove..umm..that there are falsehood or misrepresentations or omissions in the affidavit.

But Franks applies only to search warrants. What of the scenario where the officer intentionally lies to get a judge to sign a warrant for an arrest? There has to be judicial review of an arrest warrant and a finding of probable cause. But since we know officers lie, what if an officer lied to get a person arrested? Is there any remedy for that? I’ve been asked this question more than a few times over the last month and was a topic of discussion on the local listserve today, so I figure it’s about time I write a post on it.

There is a remedy, sort of. It’s more of a hollow remedy. In State v. Dolphin, the Connecticut supreme court, without explicitly stating so, applied the Franks analysis to an arrest warrant. As with the search warrant, a defendant attacking the validity of an arrest warrant must prove by a preponderance of the evidence that the falsehoods contained in the warrant, or the material omissions would defeat probable cause:

When reviewing whether a Franks hearing is warranted, we recognize that there is a “longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.” State v. Dolphin, 195 Conn. 444, 457 (1985). In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”; and (2) show that the allegedly false statement is necessary to a finding of probable cause. Franks v. Delaware, supra, 155-56. If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. Id., 171-72. Although the Franks decision referred only to false statements in the affidavit, we have held that “material omissions from such an affidavit also fall within the rule….” State v. Stepney, 191 Conn. 233, 238 (1984).

State v. Bergin. So let us assume that there is, indeed, a material omission. A court finds that the warrant, with the material omitted, would not sustain a finding of probable cause. Then what? One could argue logically that when a search warrant is invalid, the fruits of the search are suppressed. If an arrest warrant is invalid, the arrest should be invalidated. But wait:

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Fleming. An illegal arrest does not stop a prosecution nor does it void a conviction. The argument, it seems, is that you’ve committed the crime if you’ve committed the crime and any illegality in actually initiating the prosecution shouldn’t enable you to go scot-free. What does it get you, then? A Franks violation in an arrest warrant gets you a suppression of the fruits of that illegal arrest: a confession, items seized, etc. But it doesn’t change the fact that you have been accused and thus can be prosecuted for the crime.

A Franks violation in an affidavit supporting an arrest warrant does not entitle a defendant to the dismissal of the charges for which he was arrested. Such a violation may require the suppression of evidence or statements obtained as a result of the execution of the warrant but it does not deprive the court of jurisdiction nor does it bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Patterson. This, of course, assumes that there are “fruits” of the illegal arrest. What of the case where there are none? You can easily imagine the scenario where the omission of potentially exculpatory information permits the State to obtain a warrant for the arrest of an individual, thus initiating the criminal prosecution. After that, it’s their decision whether to pursue the charges or not and that power essentially entitles the State to force the defendant to a trial, at expense to himself or to the State, through the office of the public defender.

A Constitutional violation caused by the improper acts of the agents of the State having been established, the jurisprudence in this area provides for no real remedy whatsoever. This is a glaring hole in Constitutional caselaw that can be exploited to harass, threaten and otherwise ruin perfectly innocent people. To acknowledge on one hand that the State has engaged in illegal activity and yet on the other permit the same State to continue to reap the benefit of that illegal activity and to force the defendant to risk a trial or accept a compromise deal vitiates Due Process in the worst way. I have not been able to find a mechanism by which the prosecution itself can be dismissed where a warrant has been found to have been obtained by illegal means. Do you know of any?

[Update: She's been acquitted.] Raise your hand if you’ve never heard of Tonya Craft. I hadn’t either, until I stumbled across this post at change.org. Tonya Craft is the latest lightning rod in that modern day witch-hunt: the sex offender.

But, from all accounts, this isn’t a normal case. This is a shining example of the lengths people will go to, in order to brand someone a villain. The word sham is inadequate to describe the sheer rape of the law that is currently underway in Northwest Georgia at Craft’s trial.

There’s little doubt that a guilty verdict will fail on appeal. Yet Arnt and his fellow prosecutor Len Gregor seem intent on achieving one anyway, no matter the cost. They’ve badgered witnesses with questions about Craft’s exercise and lawn-mowing habits, of all things. They’ve asked whether Craft is a narcissist, and if Craft ever passed out in a girlfriend’s bed after a night of drinking. These so-called “sordid revelations” that the kind that only a puritan (or an unhinged prosecutor) would connect to evidence of child molestation.

The case has gotten weirder and weirder. One defense witness, who let Craft watch her children every day for almost two years without incident, testified that one of Craft’s accusers — who is also a child actress — was “worldly for her age.” “Does that mean she’s a slut?” asked Gregor. When the witness uncomfortably denied the charge, Gregor wondered whether the child might be a “pre-slut.”

While change.org has two posts on the subject, much of the coverage is being done by this man (and this newspaper). The transgressions of the prosecutors in this case are numerous: from claiming that they didn’t have to obey the law, to employing the worst “experts”, to seeking to introduce dubious “prior bad acts”. I could really go on, but that wouldn’t do the story any justice. Instead, follow the yellow brick road from the ridiculous:

Craft’s trial has also seen a parade of so-called forensics experts act as effective cheerleaders for the prosecution. One expert who made an appearance, Holly Nave Kittle of the Children’s Advocacy Center, was openly hostile to questions about her lack of credentials and was unfamiliar with any relevant child abuse literature. Neither did she help her credibility as a witness after she “liked” a public Facebook post by Arnt, in which he wondered “if Tonya Craft’s Defense [sic] lawyers are really insane of [sic] just trying to jack up her defense bill?” (Both Arnt and Kittle’s conduct likely violate Georgia’s ethical rules.)

Another prosecution “expert” involved, Suzie Thorne, lacks a college degree, and her testimony seems highly suspect. When Thorne interviewed one of the children involved during a videotaped session, she asked the girl a whopping 16 times whether “anything else happened.” Each time, the child said no. However, Thorne testified that after she shut off the camera, the child left the room and then returned — suddenly remembering that yes, Craft had sexually abused her.

Fair enough. But then why didn’t Thorne record this statement, or press the child for more information on camera?

to the “what the fuck are you talking about?”:

“Do you know anything about a time that Ms. Craft came to the door of her home dressed only in a towel to meet a first-time date?” “No, I do not,” said the witness.

Mr. Gregor asked, “Do you know any narcissists?” “No, I do not.”

“Would a good person molest a child?” “No.” “Would a good person insert a finger or thumb in a vagina or rectum?” “No.”

As Noah Arenstein at Change puts it: the prosecutors were becoming increasingly unhinged. At least until the media showed up. But that’s not the worst of it. The man who seems to have defiled the purity and sanctity of the law the most is the judge presiding over the trial: Judge Brian House. Starting with declining (without explanation) to recuse himself from the trial, despite having represented Craft’s ex-husband in his divorce from her, to permitting completely irrelevant testimony about the defendant’s alleged affairs with adults, to not permitting the defense to present any character evidence of the defendant, after permitting irrelevant character-assassination testimony from the prosecution.

We all are aware that allegations of child sexual abuse inflame the passions of most people. But when a woman is so horribly being railroaded in a trial, where the singular aim seems to be to obtain a conviction in the face of damning evidence suggesting the contrary, where all independent observes agree that even if a conviction is obtained, it is sure to be reversed on appeal, do we know that we’ve crossed the line from hysteria into madness.

Prosecutors so abusing their power and a judge sanctioning the farce is a damning indictment of the lengths we will go to to demonize those that may be innocent so long as a child is involved. Whether Tonya Craft is guilty or not is irrelevant. That the trial is being permitted to be conducted in such an egregious manner casts a dark pall over all of us that hold the criminal justice system here in such high regard.

While this is the first I’ve read about Tonya Craft, this won’t be the last. I hope it’s the same for you.

[You can follow coverage of the trial by reporters on Twitter and use the #TonyaCraft hashtag.]

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

What with the concept of bail being a joke and no one really having any clue what a reasonable amount is anymore, the choices available to the average defendant are stark and bleak: pray for a promise to appear, sit in jail or do whatever it takes to get the hell out.

Some judges and most prosecutors are acutely aware of this dilemma and a fair percentage of them are not above leveraging it into a conviction.

Offer a deal – any deal – that involves no jail time and the incarcerated defendant will jump on it faster than you can say “suspended sentence”. Guilt or innocence be damned. As long as he can get out today, he’s taking it.

For the public defender, this is quite the conundrum. On one hand, the client’s interests are paramount and whatever is the client’s paramount interest is yours. The ability to investigate, to challenge the State’s case, to force a dismissal if the facts align themselves are all tertiary.

“I want to get out” is an argument against which there is no satisfactory response. Ethically, we must convey every offer to the client. And, at times, they’re not bad deals. They’re just not as good as they should be. When the State offers a suspended sentence, it’s patently obvious that there weaknesses in their case, sometimes even fatal ones.

If only we could convince the client to hold out longer, while we finish that investigation, while we round up those witnesses and get those statements, while we beat the State into submission with the glaring holes in their case, while three months have elapsed.

To the poor, incarcerated client, this is just not a convincing strategy. It’s hard to argue with the allure of immediate freedom and escape from the shitholes that are our prisons.

The reality is that our clients are poor. They want out. We stand by, often with nothing more than a police report and counsel them as best we can that we can’t really tell them whether to take the promise of immediate freedom because we haven’t had time to do any research or investigation. They look at us as nothing more than a warm body and decide that they’d rather take the abstract notion of an unjust conviction and the attendant liberty over the potential of no conviction and the fact of more time spent behind bars.

If only they had money to fight the case “from the outside”. If only they weren’t poor and the system didn’t take advantage of that.

That’s a difficult pill to swallow.

*small sample size

For some cosmic reason, this has been the most frequent topic of conversation with clients that I’ve had in the last two weeks. And I’ve always known, in the back of my head, the power wielded by the State in the criminal justice system. Heck, that’s why my job is an uphill battle.

But until last week, I’ve never really had to confront it head on, think about it for a while and explain it to several people, one after the other.

“Can they do that?” asked one client when I informed him that the State had upped the charges against him to a crime that carried a mandatory-minimum sentence. With an apologetic curl of the lip, I conveyed an affirmative response. “They can do whatever they want”, was my response.

“They can do whatever they want”. For the most part, it’s true, isn’t it? The State decides what to charge. The State makes all plea offers. The State decides which co-defendant to try first and which charge to try first. The State decides if it wants a pre-sentence investigation. The State decides what material they think is exculpatory and what needs to be turned over.

The power of the State is fearsome.

What’s more is that the State decides whom to believe. That was Client 2. “You mean someone can make up some shit about me, say I did this to her and I go to jail?”

“Well,” I tried to explain, “that’s what the State believes happened. That’s the evidence they’ll present at trial. It’s her word against yours.”

“That’s bullshit, man” came the understandable response.

It is bullshit.

Convicted felons with a rap sheet a mile long and questionable moral character suddenly become virtuous citizens who have suffered terrible grievances once they take off the “defendant” hat and slip on the “victim/witness” hat.

I’ve never met a prosecutor who didn’t believe a minor who made an allegation of sexual assault. Oh sure, they’ll concede the weakness in their case, but deep down, every child who says they’ve been molested, has been molested.

Defendants’ alibi witnesses? Liars. Biased.

State’s witnesses? Hookers with hearts of gold.

Intellectual honesty has no place in the criminal justice system.

Inconsistencies in the State’s version are explained away with gymnastics worthy of perfect 10s. Most attempts at probing further and seeking a foothold in the mountain of prosecutorial wrath are met with a stern retort: “take it to trial, then.”

And that’s what we must do.

Take everything to trial. Force the State to stop believing their one. Force the State to prove each and every case and expose each and every flaw in front of a jury of peers.

This tact, of course, is fraught with difficulty. But the difficult path is what must be endured in order to restore a semblance of balance to the system.

As it stands, the State’s one outweighs the defendant’s none.

Jordan Brown is 12. At the time of the death of Houk, he was 11.

I repeat. Jordan Brown is 12. And a judge ruled that he can be tried as an adult. A state in these United States is about to prosecute an eleven year old as an adult murderer.

Here is a file picture of him, taken from CNN. Look at it. This cherubic 12 year old now faces life in prison. The rest of the post after the photo and the jump.

That this decision – to deny a transfer to juvenile court – is an abomination is an understatement. This decision makes Brown the youngest child charged as an adult anywhere in America.

The reasoning for doing so is even more shameful.

Since being charged with the murder of his father’s fiance, Jordan Brown, through his defense attorneys, has asserted his innocence.

Largely because of those denials, a Lawrence County judge ruled Monday that Brown, now 12 years old, will stand trial as an adult.

In his 17-page decision, [Judge Dominick] Motto ruled that the defense failed to meet its burden, in large part because Brown’s continued denials in the crime show an unwillingness to take responsibility for his actions, a necessary factor in rehabilitation.

Motto said that point was established by both forensic psychologists in the case — John O’Brien, who testified for the prosecution, and Kirk Heilbrun, the defense’s expert — who testified in de-certification hearings Jan. 29 and March 12

That the burden is on the defense to show that the child is capable of rehabilitation and is not a danger to society is absurd. The state of the law belies a fundamental misunderstanding about the nature and manner of the child psychology and the development of the human mind.

But again, this is an 11-12 year old we’re talking about. The law in Pennsylvania is that anyone above the age of 10 (10!!!) can be tried as an adult. In Connecticut, the threshold is 14.

To compound the travesty that is the untenably low age threshold and the burden on the defense to show something that should be presumed, the Judge then relies on the lack of “acceptance of responsibility” of an 11-12 year old to justify his decision to treat him like a full-grown adult. This is  judicial cowardice of the worst kind.

To say that in order to be treated as a juvenile, a child must display the kind of emotional maturity that most adults in the system are unable to display well into their 40s and then use the lack of that adult development to justify treating the child as an adult is mind-bogglingly contradictory and stupid.

The prosecutor gets no points, either. He, seemingly honestly, states:

“This is something that you wouldn’t even think of in your worst nightmare, that you’d have to charge an 11-year-old with homicide,” [Lawrence County District Attorney John] Bongivengo told a local CNN affiliate in Pittsburgh when Houk was killed in February 2009. “It’s heinous, the whole situation.”

This statement rings hollow. If this is your worst nightmare, John Bongivengo, then do something about it. If the decision is truly with the court to decide whether to transfer the case back to juvenile court, then side with the defense in urging the judge to do so. Don’t file a brief and argue that your relatively inexperienced “expert” correctly concluded that there is “very limited” capacity for juvenile treatment.

I understand the reasons for permitting juveniles to be tried as adults in the most serious of crimes. You do adult things, you face adult consequences. But to bring an 11-year old under aegis of such legal chicanery is appalling.

In most murder prosecutions – and certainly in death penalty prosecutions – vengeance is a driving factor. Punishment and revenge rule the day. But this is not the place for it and certainly an 11-year old is not a worthy object of the collective wrath of the adult criminal justice system.

It is a tragedy that Houk died and her unborn child along with it. But allowing this prosecution to continue does nothing but add to the utter destruction these people’s lives have already experienced. There is no need for vengeance here, but rather for the stern understanding displayed by a disappointed parent toward an unknowing, developmentally undeveloped adolescent.

When the law provides for him to be punished as juvenile for the next 10-11 years of his life, seeking to have as 12 year old incarcerated for the remainder of his natural life smells of nothing but shameful bloodlust.

As an 11-year old, Jordan Brown would still be in middle school. Maybe he just started noticing girls. Maybe he still wants to be a policeman or firefighter. He probably hasn’t stopped growing. And here we are, the best justice system in the world, condemning him to the possibility of spending the rest of his life in jail.

If this isn’t cruel and unusual, I don’t know what is.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?