a public defender

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Two news stories today that allow me to hope, just a little bit, that perhaps some sense is seeping into the Capitol. The first proclaims boldly that the suspect in the recent New Britain home invasion had “little rehab for sex offense”.

The ex-convict accused in this week’s fatal New Britain home invasion dropped out of a sex offender treatment program during a 10-year prison stint that involved seemingly little rehabilitation, according to prison and parole documents.

That’s actually inaccurate - he had to leave the program because he was transferred to another facility.

But Williams’ case is now raising questions about whether the state correctional system properly prepares an inmate for eventual release.

“Whenever we run into those situations that are so horrific, it raises the question if our correctional system is performing to the extent that it can,” said state Sen. John Kissel, R-Enfield, a member of the judiciary committee.

“I think we need to make a concerted effort to benchmark what that optimum program level should be in the Department of Correction, and then see how far away from that level we are,” Kissel said.

Very far, Senator, very far.

Yet there are some that still can’t tell front from down. DOC rep Brian Garnett’s statements remind me of the famed Iraqi minister of (dis)information:

In general, Garnett said, inmates, “can participate in as many programs as they want and refuse to participate in programs.”

“You can’t force an offender to take part in a program,” he said. “You can make them sit in the room, but if they’re not going to engage in participating in the program, all you’re doing is wasting a chair.”

“Can participate” here should be taken to mean “could participate if it weren’t for severe overcrowding and lack of room, facilities and spots in programs”.

Ooops. There’s no such thing as prison overcrowding. My bad.

State Rep. Michael Lawlor, D- East Haven, co-chairman of the judiciary committee, said the case points to the need for more rehabilitative services in prison, but also housing for sex offenders upon release from jail and prison because few want to take them.

“They did not let him out early,” Lawlor said. “Now he finishes his sentence and he’s on probation.”

“What should you do?” Lawlor said. “You should have a place you can force him to go while he’s on probation. No such place exists. That is the problem.”

And no one wants these places in their towns.

The second story is about Gov. Rell’s top secret meeting with law enforcement yesterday (from which Dem legislators - who control the legislature - were excluded). After that meeting, there were no calls for three-strikes laws, but rather a call to streamline the persistent offender statutes and more funding for GPS monitoring.

“The current persistent felony offender law is like the tax code,” said [Chief State's Attorney Kevin] Kane, a longtime prosecutor who stood next to Rell at the afternoon press conference. “You’ve got to be a Philadelphia lawyer to understand it. … If I have a hard time reading it — the number of times I’ve read it — imagine how a judge feels when he’s reading it pretrial.”

Senate President Pro Tem Donald Williams, the highest-ranking senator, said “there’s no reason why we can’t work with the governor” on her request to increase funding for global positioning system, or GPS, monitoring to track convicted sex offenders with bracelets that could monitor their movements.

Williams also favors more money for re-entry programs for those released from prison and for more beds for sex offenders after their release.

“I would like to think we’re moving beyond the finger-pointing stage,” Williams, of Brooklyn, said. “My goal and hope is to move beyond the political rhetoric.”

Me too, Senator, me too…

To inject some lightheartedness into a serious discussion, here’s Amy Winehouse:

The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.

State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.

But they just couldn’t leave it at that.

The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.

Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.

And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however - or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.

The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.

Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.

One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.

The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.

If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.

Previous, similar thoughts here.

The criminal justice system is a heavy volume business. There are hundreds of thousands of individuals being processed through the system on a yearly basis. Hundreds get sentenced on a daily basis, there are even more that have short court-appearances. Add to that pre-trial hearings, trials and other motions and arguments, it is clear that it can get monotonous, repetitive and boring.

Yet to allow it to become so is, in my opinion, doing a disservice to the system and to the individuals caught up in it. Western Justice, a prosecutor authoring a self-titled blog, describes a day in court and how his (or her) mind wanders during routine pleas. His mind wanders in and out of the proceedings, sometimes distracted by the upcoming weekend, sometimes by other cases and at other times by ethanol. He relates that he snaps back to reality just enough to mumble some responses to the court’s questions.

While I can understand how this would happen, I’m just a little disturbed that it does happen. Sure, things get repetitive, but are we really that self-centered that we forget the significance of what is occurring in our presence? There are people charged with crimes who might be deprived of their liberty for a significant period of time, their families, people who have been victimized and traumatized and their families. The criminal justice system is not a joke, people. (Well, I don’t mean that kind of joke.) Even the smallest of infractions have consequences in this day and age and we must take our jobs seriously for others to take the system seriously.

Western Justice provides the following quote:

For you non-criminal lawyers and non-lawyers, you have to understand, there are times in any court proceeding where your attention need not be undivided. These usually come at times like advisements, reading of one’s rights, or the reading of twenty plus jury instructions at a jury trial.

Wrong, wrong and wrong. You best pay attention during a plea canvass and you need to quit your job if you’re not paying attention during jury instructions.

More:

Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”

I sincerely hope that defense counsel are not saying to themselves: “who cares about the Constitution?” If they are, the answer is very simple. The man (or woman) standing next to you, and for his or her sake, you better care too.

The only participant in the system that can justifiably drift off is the defendant. It has been my experience that defendants drift off during pleas and sentencing, not because they are unmindful of the gravity of the situation, but rather because they are all too mindful of the consequences. Some are thinking about their families, some are thinking ahead to life in prison and some are cursing the day the committed the act. That I understand and have no problem with.

But it is incumbent upon us to pay rapt attention to what the court is saying. Whatever the judge says at that time can have significant consequences down the road. Another public defender once told me of a case he had where at the time of sentencing, the judge imposed a period of probation in addition to a jail term. Had he not been paying attention, he may not have remembered that the defendant did not actually plead guilty to a sentence that included a period of probation. The matter was immediately rectified, but it may not have been had he not been attentive.

This is what we are paid to do. We are paid to stand by a citizen accused of a crime. That is a serious job that demands our best. We should give nothing less. That includes paying attention in court.

A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.

So it came as no surprise when I saw this report today. It says that he is on the move - perhaps with a one-way ticket to prison.

This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.

This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement?  The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.

The statute has has violated is C.G.S 54-252, which provides in relevant part:

If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.

I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.

Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?

This job is tough enough as it is. The law itself is not kind to criminal defendants and those that mount their defense. If that were the only thing we had to struggle against, it would be an uphill battle. When you throw unreasonable prosecutors into the mix, however, it just becomes exasperating.

Every criminal defense lawyer knows what his case is worth. We all know what we would accept in order to resolve a case. After all, plea bargaining is 94% of the criminal justice system. So why do some prosecutors not get it? Why are some so damn difficult to work with? They must know what their case is worth. So why is it easier to make deals and settle with some prosecutors, when oftentimes, with better facts for the defendant, the prosecutor is just so damn reluctant to make a deal?

I couldn’t tell you the number of hours that have been wasted litigating stupid, small issues. Don’t we all have something better to do? Do 6 lawyers need to litigate a case where 120 days of incarceration is at stake?

The one “rationale” that I get from these bullheaded prosecutors over and over again is that it would “open the floodgates”. “Well, if I give your guy that deal, I’ll have to give it to everyone.” Really? If you give the guy with the simple possession charge 6 months suspended you’ll have to give the same offer to the triple murderer? Really? Everyone?

No, I think not. It has nothing to do with the floodgates. It has to do with a lack of knowledge of controlling caselaw and a failure to recognize the weaknesses of your case. Perhaps there’s an ego trip hidden in there somewhere. I’ve found that the easiest prosecutors to deal with are the ones that have been around forever. Those that know how the game is played. As for the rest… I don’t know. I have just one question:

Do we have to try everything?

Life, A-D also bemoans the lack of reasonable prosecutors.

Only now is word leaking about the substance of the death penalty challenge that is the subject of tomorrow’s hearing [previous post here]. The seven inmates that are party to the challenge are relying on a study [pdf] by Yale Law School professor, which finds that there is racial disparity and arbitrariness in the way the death penalty is charged and sought in Connecticut.

Yale Law School professor John J. Donohue III, who oversaw the study, said one of the most surprising findings is that the death penalty is often not sought for crimes that are more violent and disturbing than ones where lethal injection is pursued.

“There was basically no rational system to explain who got the death penalty,” Donohue said Tuesday. “It really is about as random a process as you can possibly construct.”

Over the past year, researchers reviewed 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution. Donohue said 60 percent of the defendants were minorities and 40 percent were white, numbers that conflict with the percentages in the general population.

Among the other findings in Donohue’s 128-page report:

• Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.
• Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.
• Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.

Of the inmates on death row, four are black, three are white and two are Hispanic.

I’m looking for a copy of this study. If someone has it, please let me know. Here it is.

Grits’ reporting of the fabricating probable cause thread on the Texas DA’s website caused such a stir in the blogosphere, that they have now taken down the thread and it is no longer available.

I never understood why they’d have these threads open to the public anyway. No good can come of it [well, except a chuckle here and there and a general affirmation of defense counsel's mistrust of prosecutors].

The image above is a rip-off of Grits‘ rip-off of my earlier post.

The controversy over the Criminal Justice Commission’s choice for Hartford’s new top prosecutor [previous coverage here] won’t go quietly into the night. Yesterday, the Courant published this letter [scroll to the bottom] to the editor from a current Hartford prosecutor. Today, they have this story covering all the reactions to the appointment and the ensuing controversy.

In the week since Gail P. Hardy’s appointment as the first African American to be lead prosecutor of a judicial district in the state, some of her new staff and the outgoing prosecutor have raised questions about whether the state’s Criminal Justice Commission selected the most qualified candidate.

The commission chairman, state Supreme Court Justice Richard N. Palmer, said Wednesday he has never denied that diversity played a role in the commission’s decision to hire Hardy. But he said her race was not the only relevant factor.The application of the 44-year-old Hardy included recommendations from a presiding judge, a state’s attorney, a police chief, the president of the Hartford NAACP, her pastor at a Hartford church and others, Palmer said. She presented herself as a well-rounded candidate, who not only had experience as a prosecutor but experience in other aspects of the state’s justice system, Palmer said.

Connecticut’s chief state’s attorney, Kevin Kane, has spoken to the prosecutors in the Hartford office:

Hardy’s supporters, including Kevin Kane, the lead prosecutor for the state, and Hardy’s current boss, Waterbury State’s Attorney John A. Connelly, said Wednesday that Hardy can overcome the obstacles created by the controversy.

Kane declined to address the controversy, but said he has talked with prosecutors in the Hartford office and is “confident” that “together they will do a good job.”

I don’t really care about the controversy, except that it makes for good reading. What I do care about is the impact that a Waterbury prosecutor will have on the death penalty policy in Hartford.

Technorati Tags: gail hardy, prosecutor, hartford, connecticut

You, the defense lawyer, get a client. You look at the information (or the indictment for those from other states), or you look at an appellate decision upholding some form of overcharging or prosecutorial misconduct. You are amazed. You go to your colleagues and ask: “What is this prosecutor thinking?”

Well, now we now - sort of. Thanks to Grits (who actually has been linking to this message board for quite some time - I just haven’t gotten around to posting about it) and the fine folks at the Texas District and County Attorneys Association, we get a glimpse into the mind of a prosecutor. Their message board is public. There are lots of threads, some asking for opinions on pending cases, some discussing legal issues, some discussing news stories. There’s even one about the judge that banned the use of the word “rape” at trial. Here’s a recent goodie, titled “Good search?”:

Defendant was pulled over for traffic stop. Officer ran her name and a felony warrant came up from Oklahoma. Officer pulled defendant out of car. He told defendant that she had an outstanding warrant. Defendant says, “that is not me, it must be my sister. She is always using my name.” Defendant was very nervous when asked about narcotics. (She had a previous POM arrest.) She requested that she be allowed to get back in her car and sit down.

Officer was awaiting confirmation of the warrant and agreed to let defendant get back in car. He searched the lunge area of the vehicle (without consent) and found a tin can with some baggies of methamphetamine under the driver’s seat. He arrested defendant for POCS. When he returned to his office he got the pictures from the Oklahoma warrant that was issued in defendant’s name and it turned out that it was actually defendant’s sister.

The officer was acting in good faith and believed that defendant had an outstanding felony warrant when he initiated the search. It must be a good search, right?

Some thought it was a good search and some questioned the validity of it. What do you think? Grits is “annoyed with a bunch of lawyers sit[ting] around jawing after the fact about what legal theory they can use to justify it.”

If you want more, here’s the thread about an arrest for failing to obey a lawful order (refusing to exit the car when asked), when in fact there is no such crime. Here is Grits’ take.

Overall, I think it is fascinating. To see other legal minds at work - especially those that are our adversaries - is a treat. It shows us that there are those who will be bound by the law and those that might be willing to make whatever argument it takes to secure a conviction. Sort of what we do, but the implications are completely different.

PS: For those interested, this is the picture I had originally selected for this post.