Category Archives: prosecutors

“A deliberate pattern of improper conduct”

The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

Depends on what you mean by justice: 50 years of Brady

It’s a brilliant concept, if you think about it: an adversarial system in which one side – the one trying to steal the liberty of the other – has to show all its cards up front. “Here”, they have to say “this is what we have against you and, oh, by the way, in the interests of justice, here’s what we have that might show that you didn’t do it.”

It’s the ultimate salvo in an open and fair system; where the goal is rigorous examination of the allegations, no tricks and traps by the government and an outcome that can then be reliably relied upon.

Justice. Such a grand notion; an admirable ideal. It is justice that prompted Brady v. Maryland – an unworkable, but yet noble attempt at drawing lines and taking stances:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.

Perhaps it was a bit optimistic, but they can hardly be blamed for wanting the system to be above board; honest.

But it all got lost somewhere down the road. Why? Who knows. Politics, legislators baying for blood, a public with passions aroused – “tough on crime”, an overburdened system and overworked lawyers with a taste for resolution and no stomach for a fight? But it happened. And the calling was no longer “justice”, it was “convictions”.

Justice is never personal; winning always is. And when the nature of the game that one side is playing changes so dramatically that it becomes personal, the stakes are raised. Raised stakes lead to seeking the advantage and then Brady – and its very ideals – get turned on its head. Now the fox is the gatekeeper, not just the guardian: how do you know if something is exculpatory if they don’t turn it over? And the arbiter of what is “exculpatory” is that very prosecutor whose job it is to administer justice. Statements that cast doubt on the complainant’s version? Not believed by the prosecutor, so not exculpatory. You can imagine the machinations.

And when the goal becomes winning and convictions rather than justice, you get stories like this.

[Prosecutor Keller] Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered.

“When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said. According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

Did you get all that? Prosecutor Keller Blackburn is miffed that the legislature reduced penalties for low-level crimes, not because it offends justice, but because it makes his job harder. Prosecutor Keller Blackburn is more concerned with warehousing his fellow citizens, guilt or innocence be damned, because this makes it more difficult for him to put the squeeze on defendants.

Tough penalties were the worst thing this country did in the name of justice. It did exactly the opposite: it forced the hands of unwilling prosecutors and provided great ammunition for the sadistic ones. The greater the exposure in jail, the greater the chance of putting someone away for a disproportionate amount of time.

People ask why I do what I do. This is one reason. Not because I condone crime; not because I like it. But “justice” is hard to come by in the American system. Because of prosecutors like Keller Blackburn. Because there is no oversight of prosecutors. They can get away with almost anything because law and order and criminals and other buzzwords. And if ever found to have violated the Constitution, there is no punishment. Just a stern wag of the finger and be set free to do the same again and again, leaving how many untold victims in their wake while they pursue their quest of “convictions”.

Brady was a valiant effort. Too bad justice doesn’t mean what it used to.

[I swear to God if one of you says "hey, not all prosecutors are like that", I will tie a peacock to your butt and sprinkle birdseed on your head. Of course they aren't.]

H/T: SL&P.


A system for you and a system for them

I think it should be pretty obvious by now that there are two justice systems in America: one for the rich white folk and the brothers in blue and one for the rest of us shmucks. You don’t normally see it in action as early on as the arrest, though, because it’s hard to convincingly argue that “if my client were white and middle-class his bond would be $20,000 non-surety but since he’s black it’s $100,00 cash only”.

Except when something like this happens:

Early Saturday, [Flathead County Deputy Attorney Kenneth “Rusty”] Park was the recipient of an unusual after-midnight hearing that allowed him to be released from custody without spending Saturday and Sunday in jail, as is the norm for Friday night arrests.

Park, whose fault isn’t that he got into a bit of a domestic with his girlfriend – shit happens and that doesn’t mean he’s necessarily a bad person – but that a judge showed up past midnight to give him a bond hearing. On a Friday night.

See, you don’t understand. This is unheard of. This never happens. Ever. You’re arrested on Friday? You’re stuck until Monday. Too bad. That’s why Monday mornings are terrible in arraignment courts because you’ve got the clients who’ve been cooped up all weekend, arrested on minor charges that the police saw fit to set high bonds for, who’re upset, angry, whose families have no clue where they are and who are wearing the same ratty, stinky clothes they were in on Friday night.

Not Park.

The result of that hearing was that Park was released on his own recognizance and did not have to sit in jail over the weekend until one of the justices was available during their regular hours Monday morning.

If I were a local attorney there, I’d be furious. A prosecutor accused of hitting his girlfriend is important enough to get a judge roused out of bed and into the local lockup to let him set Park’s bond to a promise to appear? And my client? Rot in jail until Monday and then we’ll see what’s proportional. Maybe $50,000 cash. Because you’re a bad person.

“If it was you or myself or any client I’ve ever represented, they would never, never, ever be allowed out till Monday,” [local attorney Jason] Bryan said. “He’s entitled to due process and how everything works out, but he shouldn’t be receiving any favors just because he’s a deputy county attorney. If anything, he should be held to a higher standard.”

Not Park.

What do you think is going to happen when word of this spreads? Why shouldn’t every single other person arrested in that county demand a hearing at midnight so they don’t have to sit in jail over the weekend, wiling away their liberty over baseless charges like Park’s? Why is their due process and justice different than Park’s?

I’m not saying Park should be forced to sit in jail for the weekend; heck, I wouldn’t want to. But am I entitled to special treatment? Or is the treatment that Park received – a fair, timely hearing that set bond at a level that is actually commensurate with the allegation – the treatment that every defendant should receive? Shouldn’t the justice system should have only one set of rules.

Because if we start making different rules for different people based on who they are and what they do and what they look like, we’ll end up with..well, what we have right now. And that ain’t too hot, is it?

A shortcut through your rights

The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]

The cost of Quarles: from Tsarnaev to you

It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

The investigative subpoena: because who needs probable cause?


[This is the second in a two-parter today on the State pushing the boundaries of their power and seeking to perform their law enforcement function without the constraints of the Constitution. The first post, on their desire to be free from the Fourth Amendment, is here.]

Prosecutors want the power to subpoena witnesses under threat of contempt penalty to secret proceedings without probable cause.

For many years now – maybe over a decade – the prosecutors in Connecticut have asked every session of the state legislature to “reform” the grand jury process here. By “reform” they merely mean completely revamp and retool it, giving themselves vast powers to subpoena any manner of things with minimal judicial oversight.

But first, to understand the scope of this request, we must understand that Connecticut is not an indicting grand jury state; not typically, at least. Almost all of our charging is done via the information: the grand jury indictment was abolished in the 80s. This OLR report has all the background and information you’ll ever need on the grand jury in Connecticut.

What this means is that the decision to arrest people of crimes and to charge them with crimes is made based on probable cause – that requirement enshrined in both the United States and State constitutions. Either you get an arrest warrant signed by a neutral judge, based on probable cause, or you arrest someone and then a neutral judge makes a finding that there is probable cause to believe that the person arrested committed the crime.

Out of the 50 states, only half actually use grand juries and out of those, only 22 require their use. [Here is an informative ABA article on grand juries.] Most of these grand juries investigate the commission of crimes and are composed of lay people, but some states have other types of juries like civil grand juries, which aren’t involved in the criminal investigative process.

The indicting grand jury as you imagine it – held in secret, where a ham sandwich can get indicted – was abolished precisely because it was so secretive and its ex parte nature. Several amendments to the statutes and the State Constitution established our current system. The vast majority of criminal cases are brought by employing the method I’ve described above and a very, very small class of crimes are still via grand jury:

Somehow, I don’t care as much

You know I love Gideon and indigent defense and the problems of funding. But what happens when the budget cuts affect the other side? This just in: I don’t care as much and actually find it amusing. In Detroit Wayne County, Michigan, the county executive (whatever the hell that is) is having a fight with the county prosecutor because the former has laid off 22 prosecutors.

So their response in the administration of justice? Just don’t show up.

Worthy [Wayne County prosecutor], who had 26 of her employees — including 22 lawyers — laid off last week, told the Free Press Monday that she now doesn’t [have] enough people to cover all the cases and said she can’t fulfill her constitutional duties on the budget she’s been given.

She has said prosecutors will determine on a day-by-day basis whether they can cover the misdemeanor domestic-violence docket – cases that she said could turn into murders if they aren’t followed properly. Today, that docket included felonies, not misdemeanors.

So, umm, what exactly happens in these courts? ANARCHY! No, sorry, just kidding. The judge just dismisses some cases, the most noteworthy of which seemed to be a couple of DUIs.

Detroit’s 36th District Court Judge Ronald Giles said he dismissed about a half-dozen misdemeanor cases this morning including two drunk driving cases that were set for trial and an assault case because no attorney from the prosecutor’s office came to court.

Even after writing this post, I can’t get myself to care about this. It’s still amusing, though.