Category Archives: prosecutors

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Unmuting Gideon’s trumpet

Pictured: a trumpet

Pictured: a trumpet

It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.

There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.

Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.

In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:

Can the prosecution prevent you from giving discovery to a defendant?

In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.

As I wrote in January 2010:

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

The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.

This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.

However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.

In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.

Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.

Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.

Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.

So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.

It is incredibly hard to explain to a person accused of serious crimes by the state that:

  1. You are in possession of witness statements that implicate him and police reports that tie it all together;
  2. But you cannot give it to him.
  3. He can read it in front of you, but he cannot take it with him.
  4. He must rely on his memory in a correctional institution to recall all the details and to become well-versed with his own case, because he is not allowed to have any participation in the defense of his liberty and freedom;
  5. Especially when his cell-mate has 3 boxes of legal materials.

As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.

There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.

If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.

Of course, the question – just as with this scenario – is whether anyone will make that stand or will there always be some compromise worked out?3

It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.

A registry of prosecutorial misconduct

The Center for Prosecutor Integrity (apparently there is such a thing) has just issued this press release, announcing the the receipt of a grant to establish a Registry of Prosecutorial Misconduct.

In it, it states:

The Registry will eventually catalog thousands of cases of prosecutorial misconduct around the country. This information will allow policymakers to pinpoint priorities for reform.

The Registry will report the prosecutor’s jurisdiction, type of crime, type of misconduct, whether the case was referred to an ethics oversight body, whether sanctions were imposed, and other information.

Determinations of misconduct will be based on holdings of trial courts, appellate courts, state supreme courts, and legal disciplinary committees.

Maybe the next step can be to establish buffer zones for repeat offenders: you can’t get within 500 feet of a file without adult supervision.