Category Archives: prosecutors

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.

The petulance of power

petulant

Let’s lay it out there: who here doesn’t believe that anyone arrested for a crime is automatically guilty of it? Who here doesn’t believe that there is a very good reason someone’s been arrested: they must’ve done something. Who here doesn’t believe that the system is a necessary inconvenience; a rigmarole we must go through before we arrive at the “truth” that everyone’s known about since the time of arrest.

The legal system – and the criminal justice system in particular – is increasingly viewed as an annoying detour on what should be a very short road from arrest to incarceration. If an arrestee is later found guilty by a jury, well then, I told you so. If an arrestee turns into an acquittee, it doesn’t mean he didn’t do it, just that the State couldn’t prove it. What has come before me, I do not know1.

And while it may be excusable for the masses to believe that the system is a technicality, it is exceptionally shameful for those educated in the law and charged with its conveyance to similarly believe so.

While this desire to dispense with the due process of law because we know better is foul when it emanates from law professors2, it is particularly odious when it extrudes from the pores of our own Champions of Justice: a terrible habit that seems to routinely recur.

Prosecutors can’t seem to keep their hands out of the misconduct jar. And when they engage in this misconduct, they do it over and over again, and indignantly soBecause they know better. Because they know how the system really works and how defense attorneys and the “constitution” are just impediments and tricks that prevent them from doing real justice: putting people who they’ve decided are rapists and murderers behind bars.

They have the power to decide who is a criminal and who is not and by God they’ve decided that long before they start to pick a jury.

Take Sharmese Hodge. A prosecutor in Danbury, Connecticut, who prosecuted a man named Michael Maguire. Hodge alleged that Maguire had sexually assaulted an eight-year old. In fact Hodge was so sure Maguire was guilty of this hyenous3 crime that she said the following4 [PDF] to the jury:

Defense counsel concluded his argument by stating: “I don’t ask you for pity. I don’t ask you for mercy. I ask you for justice. I ask you to set [the defendant] free.”

The prosecutor began her rebuttal closing argument as follows: “Ladies and gentlemen, that’s not what he’s asking you for. What he’s asking you for is to condone child abuse. What he’s asking you for is to allow a world in which a forty-one year old man sticks his hand down the front of an eight year old’s pants, claims to tickle her . . . [t]akes his hand out, smells it while his erect penis is sticking out of his pants, and, because he did that to an eight year old child, because he did it in a room where no one else was present, because he did in it in a house where mom and dad were separated and there was a woman staying the night . . . you can’t find him guilty. That’s what defense [counsel and the defendant want] you to believe. That’s what they want you to do. They want you to condone child abuse in this courtroom. They don’t want you to look at that little girl that sat on the stand and testified before you . . . . They don’t want you to look at her testimony. . . . They want you to say, hey, guess what? Because she’s eight [years old] and it was just her [testimony alone, you should find the defendant not guilty].”

After asserting that defense counsel had “lied to [the victim]” when he told her that his questions were not intended to trick her, the prosecutor returned to her earlier theme, stating: “So when [defense counsel] sits here and says to you today, we’re not here to condone child abuse or we’re not trying to beat up . . . on the [victim], listen to that. . . . Is he telling you the truth . . . when he says that?”

Finally, the prosecutor made the following argument with respect to the defendant’s own testimony: “I would assume what you wanted to hear was the truth, not a bunch of excuses, not . . . a big cloud of smoke and mirrors . . . . You wanted to hear the truth. That’s not what you heard. You heard a . . . coached conversation between a defense attorney and his client.” The prosecutor further argued: “[I]t’s not a secret that child abuse is a crime. But what counsel’s asking you to do is to say that . . . child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty . . . .”

In addition, during the trial, Hodge and the defense attorney Norm Pattis had agreed that the interview of the complainant should be edited to remove portions that did not deal with the current allegations5. Pattis asked the interviewer if he had asked the complainant about inconsistencies in the story (he had not). Hodge then argued in front of the jury that the interviewer indeed had asked about those inconsistencies, but it was in the redacted portion of the interview that the jury was not allowed to see.

Which is not a misrepresentation but a blatant lie.

Why, if you must ask yourself, would a prosecutor argue to a jury that the defendant is asking them to condone child abuse? Why would the prosecutor make an argument so beyond the pale?

Because she believes it. Because she believes it and also believes that juries aren’t to be trusted. Because she knows that her best bet at “winning” is getting people angry. Because emotion is the surest way to a conviction. Because she has decided that Maguire has done wrong and she’ll be damned if she lets due process get in the way of a conviction.

Fortunately, this time our supreme court intervened6:

We agree with the defendant that the prosecutor’s repeated assertions, during her rebuttal closing argument, that the defendant and defense counsel were asking the jury to “condone child abuse” and to find “that . . . child abuse that happens in secret is legal,” and, further, that defense counsel was lying when he stated otherwise, were highly improper and intended not only to appeal to the jurors’ emotions but also to demean the defendant and defense counsel in the eyes of the jurors. In characterizing the defense theory of the case as she did, the prosecutor sought to demonstrate, unfairly, and without a factual basis, that the defense was illegitimate and wholly unworthy of consideration, for no juror reasonably could be expected to credit a defense predicated on condonation or approval of child sexual abuse.

While Mr. Maguire gets a new trial7. it seems that there are no consequences for Ms. Hodge, who appears free to repeat her questionable behavior.

This prosecutorial hubris is not an isolated incident. Defendants and defense counsel are not immune to the petulance of prosecutors. As a jurist, if you stray too far outside the line, you may find yourself banished to traffic court – a tactic seemingly only employed by prosecutors in San Diego8 – or the subject of a 2-year long inquiry into your impartiality. All because you rule in favor of defendants. Another way of saying that is ‘you rule in favor of individual rights and the rule of law.’ But no one says that. You’re partial and need to be banished if you rule for defendants and prosecutors will spend countless hours writing 70-page complaints against you9.

If none of this bothers you, ask yourself why. Even if you are that convinced of the infallibility of individuals who are given this extreme power, doesn’t their petulance and arrogance at being questioned give you pause?

—–

Restoring sanity to child sex cases

For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.

There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.

When I was your age, we had executions AT the fundraisers!

If there’s one thing Republicans love, it’s their executions. If there’s one thing they love more than executions, it’s money. If there’s one thing they love more than executions and money, it’s politics. If there’s one thin- fundraisers. That’s what I’m getting to.

So what happens when two public spectacles which exist only for the purpose of pandering to the lowest common denominator collide? Money wins.

Kids: money always wins.

And so Pam Bondi, Attorney effing General of the State of Florida got her buddy Rick “Let’s Speed Up Executions Because We’re Doing Such A Fine Job Of Making Sure We Always Have The Right Guy” Scott to nonchalantly postpone an execution scheduled to take place on Monday.

Because Bondi needed to get some money to keep her job.

After Scott last month rescheduled the execution for Sept. 10, the date of Bondi’s “hometown campaign kickoff” at her South Tampa home, Bondi’s office asked that it be postponed. The new date is Oct. 1.

Scott said Monday that he did not know the reason for the request, and he declined to answer when asked whether he considers a campaign fundraiser an appropriate reason to reschedule an execution.

Here, laid before you in the barest terms possible is your “victim’s rights”. Here is your “tough on crime” and “vengeance” and “justice” and all that supposedly makes it worth having a death penalty.

All of that. An inconvenience to a politician who wants money. Here it lies before you, exposed as nothing more than another tool to get your vote and your dollar.

Do half of these blood-thirsty politicians even care about the death penalty by itself? Or do they care more about it as an instrument that legitimizes their existence?

And, despite your best efforts to convince yourself otherwise, is there no part of you that cringes at the thought that a man’s life is being toyed with so?

Is the irony lost? We, who seek to punish those who kill to teach a lesson about the value of life do so without any notion of exhibiting that very value. Human life is precious and must be treated with respect, we say as we cavalierly bring a man to the precipice of the after-life and then yank him back at the last minute because something shiny caught our attention.

We kill to teach that killing is bad, but we do it with such haphazard and imprecise abandon that one is but forced to come away with the opinion that maybe this killing thing isn’t such a big deal at all.

I want no part of any of this and neither should you.