prosecutors
Prosecutor Connelly resigns
Jan 14th
You may or may not have heard, but the State’s Attorney for the Waterbury Judicial District – and the man responsible for sending the most inmates to death row in CT – has just resigned. Justice Richard Palmer, chair of the Criminal Justice Commission, which oversees the State’s Attorneys in CT, issued a statement that Connelly had resigned effective February 1st:
Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission’s inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.
You might recall that back in August I posted that Connelly was the subject of a federal investigation into whether he had accepted compensation from his good friend – and defense attorney Martin Minella – in exchange for favorable treatment of Minella’s clients. That Federal investigation is still ongoing. Palmer’s statement is particular noteworthy because it seems that the Commission had conducted its own inquiry into this alleged unethical conduct and was ready to issue some form of punishment. That has now been rendered unnecessary by Connelly’s resignation:
Palmer said that the commission had honored a request that it refrain from engaging in any activities in furtherance of its inquiry that might have impaired or otherwise interfered with the federal investigation. Palmer also said that despite this limitation on the commission’s inquiry, it was prepared to take appropriate action with respect to the allegations against Connelly, but that any such action has been rendered unnecessary by Connelly’s resignation.
Now that may or may not mean anything about the “action” the commission was ready to take, but it certainly does indicate that Connelly was to receive some form of rebuke, separate from the Federal investigation.
The disproportionate number of death sentences originating in Waterbury had been the driving force behind a racial and geographical disparity lawsuit that is still pending.
What this means for the state of the death penalty in Connecticut or for those who were tried by Connelly in capital and non-capital cases is anyone’s guess. Mine is that there will be no consequences and that’s a damn shame.
Guilt by convenience
Nov 17th
[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]
So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:
“This is America. Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.
“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.
Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.
He was too slow with that training. Because this happened:
In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.
Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.
According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.
Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.
Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:
Unethical beyond a reasonable doubt?
Nov 11th
Rule 3.8 of the Connecticut Rules of Professional Conduct (and the ABA Model Rules) provides, in relevant part:
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(1) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
This Model Rule has been adopted by almost every state other than NY and CA. The United States Supreme Court has made it clear that:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.
Bordenkircher v. Hayes. The Connecticut Supreme Court echoed much of the same in Massameno v. Statewide Grievance Committee:
Prosecutors have enormous discretion in deciding which citizens should be prosecuted and for what charges they are to be held accountable.
So it is undisputed that in order for a prosecutor to behave unethically, he would have to persist in a prosecution despite “knowing” that there is no probable cause. Is the corollary then true? That as long as a prosecutor knows that there is that bare minimum probable cause, persisting in an otherwise sure-to-be-doomed prosecution is ethical?
Extraordinary misconduct leads to extraordinary relief
Nov 2nd
Absolutely stunning news today from the state Supreme Court: only one day after hearing oral arguments in State v. Patrick Lenarz, the highest court in Connecticut issued a summary order directing his immediate release from custody. It will issue a decision on his appellate claims later on.
Folks, I cannot stress how absolutely incredible this is. This, if you will allow me the superlative, is unprecedented. Typically, defendants appeal to the Supreme Court and raise all sorts of issues. Depending on who writes the majority opinion, it takes months or years for the court to rule on the claims. Here, the very next day, the court ordered this man’s release from prison.
So what were his claims on appeal? That the prosecutor engaged in extraordinary misconduct (I refuse to employ the current “impropriety”) by reading documents seized from Lenarz’s computer, which the prosecutor agreed were confidential and protected by the attorney-client privilege:
[Lenarz's attorney] Ferry argued that Lenarz was denied his Sixth Amendment right to counsel because the prosecutor in the case, Christopher Parakilas, read five documents that Lenarz had prepared to help his attorney in defending him. Those documents were on Lenarz’s computer, which police had seized.
Those documents, Ferry argued to the court, were protected by attorney-client privilege. Ferry argued at the trial that the case against Lenarz should have been dismissed because the prosecutor read the documents, even after discovering that they were covered by attorney-client privilege. The trial judge, Judge Leslie I. Olear, agreed that the documents were privileged but declined to dismiss the charges.
After hearing the arguments Thursday, the state Supreme Court — in a highly unusual move — ordered Lenarz’s immediate release on a promise to appear in court.
“That order by the Supreme Court directing Mr. Lenarz be released loudly suggests that it believes Mr. Lenarz was a victim of a serious Sixth Amendment violation by the office of the state’s attorney,” Ferry said. The documents “outlined our entire trial strategy, how we were going to attack the credibility of the accusers,” Ferry said.
The documents gave the prosecution an advantage of “knowing our every move at trial,” he said.
This is astounding hubris on the part of the prosecutor and misconduct (yeah, fuck “impropriety”) of the most intolerable kind. To knowingly read something so sacrosanct as communications between the defendant and his lawyer, made in preparation for trial suggest callous disregard for the Constitution and the very basic principles that ensure fair play in our system of justice.
If a defendant is unable to write candidly and share his thoughts and opinions with the one person who is preparing to defend him, then it puts the very system at risk:
On numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the “long-standing, strong public policy of protecting attorney-client communications.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 48; see also Shew v. Freedom of Information Commission, 245 Conn. 149, 157 (1998) (discussing “well established legal principles governing 157*157 communications between attorney and client”). “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 52. The privilege fosters “`full and frank communications between attorneys and their clients and thereby promote [s] the broader public interests in the observation of law and [the] administration of justice.’” Id., 52, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145, 156-7 (2000). I cannot even begin to fathom what lead the prosecutor to read these documents, knowing they were privileged communications. I’m glad the Connecticut Supreme Court sees it the same way.
G-hic G-hic G-hic G-uilty?
Oct 26th
[I don't want to hear anything about the title of this post. Deal with it.]
Remember hiccup girl? Even if you don’t, you can guess that she’s a girl who hiccups. She made national news two years ago as the girl who couldn’t stop hiccuping (video at the end of the post). She’s now in the news again, being charged with the murder of Shannon Griffin, a 22 year old male she met a week ago. According to police:
Griffin met [hiccup girl] Mee online just a week before his death, police said. They arranged to meet Saturday night at 511 Seventh St. N.
It was a trap. The three plotted to lure Griffin to the empty home and rob him, police said.
Griffin pulled up about 10 p.m. Mee led him to the back, where police said Newton and Raiford tried to rob him.
Mee kept on walking, but seconds later gunshots rang out. Griffin struggled with the men, police said, and was shot three times in the chest and once in the shoulder with a .38-caliber revolver.
No one reported the gunshots. Police found Griffin when a caller reported a sleeping transient about 11 p.m. Saturday.
Police found the gun and shoes left behind by a suspect.
Griffin had less than $60 on him when he was killed.
All three have been charged with first degree murder. Sentencing maven and lawprof Doug Berman exhorts:
I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens reaconcerning causing another’s death and may not be an effective was to deter underlying felonies). But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains.
As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder. I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge. I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges. But would this be truly a just outcome? Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out br be facing first-degree murder for which the only available punishments are death and life without parole?
What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things:
Good enough for government work
Sep 2nd
The Blagojevich trial (and subsequent mistrial) has provided plenty of fodder for discussion among the press, the blogosphere and the nation in general. But it seems as though a bit of the madness that allows him to polish his hair using shoe-polish has seeped into the rest of the world as well. Take this Time article for instance, which uses the fact that the government was unable to convince 0.004% of the population of Chicago, to describe the ill that ails our criminal justice system: hung juries
After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.
So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.
I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?
“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”
Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”
That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.
Close enough for government work.
The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.
How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.
Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.
And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.
It may be close enough for government work, but when it comes to justice, there should be no such thing.
CT’s top death prosecutor in federal probe
Aug 10th
I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.
Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.
One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.
According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”
Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.
By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.
[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]
That bus is not for your client
Jun 8th
The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.
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.
Paying for injustice
May 18th
Meet Manuel Hidalgo Rodriguez, arrested and convicted in 1995 for child sexual assault that he did not commit. Hidalgo spent 5 years out of a 5 1/2 year sentence before his conviction was reversed and the charges dismissed.
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.
Twice in jeopardy, 40 years apart
May 17th
Back in 2007, when the Commonwealth of Pennsylvania announced its intent to prosecute William Barnes for the death of officer Walter Barclay, eyebrows were raised. Barnes, you see, had already been tried for the 1966 shooting of Barclay and had been found guilty of attempted murder. Why was he not charged with murder at the first trial? Because Barclay wasn’t dead yet.
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?
Tonya Craft teaches us all
May 11th
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.
Frankly arresting
May 6th
[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:
A witchhunt by men who molest the law
Apr 29th
[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.]
Guilty of being poor
Apr 5th
There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.
“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.
All it takes is one
Mar 30th
One witness, one complainant, one word. That’s all it takes for your life to start tumbling down the rabbit hole. One accusation, one prosecutor to believe it and one judge who is laissez-faire. That’s all it takes.
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.
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