prosecutors
Kool-Aid drinker
Apr 29th
Western Justice, self-proclaimed small town prosecutor, quotes Alan Dershowitz in asking whether criminal defense attorneys are “lie promoters“.
But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.
Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?
Several things struck me about this as problematic. First of all, it would indeed be an extremely rare circumstance in which the defendant actually admits that everything that is alleged is 100% true. There’s a reason for this and it’s not because defendants are liars, but because rarely is everything actually true.
The second, and more fundamental, problem is the abject failure to recognize the system that we have and the distinct roles that prosecutors and defense attorneys fill in that system.
Defense attorneys are not partners in this pursuit of justice – we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.
Yet another thing that bothers me is the holier-than-thou attitude, which I’ve written about several times. Prosecutors like to think of themselves are righteous, can-do-no-wrong proponents of some higher ideal. Yet, time and again, they will take as gospel the drivel spewed forth by cops in “police reports”, ignore blatant lies, “lose” exculpatory information, condone arm-twisting of witnesses and victims. Where is the righteous indignation then? Why no outcry? The hypocrisy is palpable.
If you’re looking for the truth, Mr. Prosecutor, start by asking yourself if you would file a substitute information on a lesser charge or dismiss them entirely if you have any doubt as to the veracity of the facts are reported by the police. And if you would, recognize that it is your job to do so and that you are in the minority. Just as the defense attorney who goes to trial with a client who has “admitted” guilt. And even then, recognize that both the rare prosecutor who does not drink the kool-aid and the defense attorney that goes to trial in those circumstances are obligated to do so. The burden is yours, not ours.
This is not some silly game. The very liberty of individuals hangs in the balance. What I know or do not know about my client’s guilt or innocence is irrelevant. What is relevant is whether you can prove that he is guilty.
In the real world, one would assume that if the facts are such that all the elements of the offense would be easily proven, and there is no dispute from the defense, then the case will be plea bargained. But remember that a bargain means give and take. If you make an offer that is essentially the same as what the defendant would get if he went to trial, there is no bargain. You are providing no incentive to avoid putting you to your burden.
Scott provides a fitting conclusion:
But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.
So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.
What say you, WJ?
Cops coming round on videotaped interrogations
Apr 24th
You must’ve heard the phrase “Don’t knock it till you’ve tried it”. Some police departments have now tried it and may be sorry they knocked it. The Day has this article on the pilot program to videotape interrogations and the surprising (to some) results.
“The police are waking up to the fact that this is not the enemy, that it can be their best friend,” [Judge Kevin P.] McMahon said.
The police have long resisted being compelled to videotape interviews but apparently are seeing good results when they participate voluntarily.
“There has been, for quite a while, a positive reaction to it, but a recognition that we have to be careful and do it right,” said Kevin T. Kane, chief state’s attorney. Kane said there are many issues yet to be resolved, such as creating transcripts of the interviews, preserving the records and training investigators. He said one consideration will be whether the camera inhibits suspects from talking or investigators from using normal or lawful investigative techniques, two reasons police had resisted videotape in the past.
So how are some departments feeling about this?
The time for videotaping has come, said detective Lt. John Varone of the Groton Town Police Department. His department will be included in the second wave of the pilot program and will share its resources with departments east of the Thames River. In the home invasion/murder case, which Varone declined to discuss specifically, police used a camcorder. Eventually, the department’s interview room will be revamped to accommodate state-of-the-art video equipment.
“I think some of the defense attorneys are in for a huge, huge letdown when we do this,” Varone said. “Now they’re not going to be able to challenge us and say we tricked them (the suspect).”
Ugh. This is not a game of Gotcha!, Lt. Varone. I don’t wake up every morning hoping that some cop tricked my client somewhere so I can challenge the confession. We want transparency. The point of videotaping interrogations is precisely to see what cops are doing and to make sure that they don’t get a false confession because they’ve got your sights set on one man and can’t look beyond their nose.
Defense attorneys have long called for mandatory recording of interrogations.
“I think it adds transparency to the process that benefits everybody, both the defense and the state,” said New London attorney Matthew G. Berger. “It removes doubt about what happened.”
Public Defender extraordinaire Tom Ullmann wants to videotape interviews with witnesses.
“Juries are not stupid,” he said. “They don’t understand why this stuff can’t be taped. And from a police perspective, if you did the job correctly and you’ve got someone making a statement and have the whole interview process recorded, it’s going to be reliable.”
Ullman said juries will now be able to see “what police really did.” The courts have allowed police to use trickery and false statements during interrogations, he said, “but I think there is much more problematic stuff that goes on that would stop, such as (the police) suggesting what photo to pick out of a lineup.” In New Haven, Ullman said, the public defenders had a case where the detective whispered “numero dos” to help the eyewitness pick the correct photo.
I don’t know how The Day got this next bit of information, but it sure is juicy:
Defense attorneys regularly ask judges to suppress statements that are not recorded. On Wednesday, attorneys Richard Emanuel and Douglas Nash filed a brief with the state Supreme Court to overturn the conviction of Julian Lockhart, who was convicted in the beating death of Robert Glidden in Durham in 2002. The attorneys claim in the appeal that “the electronic recording of interrogations, advisements of rights and statements is constitutionally required when the interrogation occurs at a place of detention and recording is otherwise feasible.”
I bet that’s a State Constitution claim.
Connecticut criminal justice system reformed?
Apr 24th
The question mark is because I can’t tell from this piece what the heck actually happened. Shoddy, shoddy writing.
Under pressure to respond after two deadly home invasions in the past nine months, the state Senate voted early this morning to strengthen the state’s criminal law and allocate $10 million for enhanced crime-fighting.
The bill passed by 32 to 3 at about 2:20 a.m. Thursday after the Senate Democrats withdrew a previous amendment that had prompted a sharply bitter debate with Republicans. The final version gained bipartisan support after lawmakers said the bill would authorize a judge to double the penalty following a second violent crime and triple the penalty after a third offense – up to a maximum of life in prison for a violent felon.
The debate on the three-strikes bill had the usual rhetoric from the Republicans that criminals are not being punished. The Dems responded with “bumper sticker politics”.
So what happened, exactly?
Earlier in the evening, the Republicans had verbally pummeled the original bill on the Senate floor, saying that it would actually weaken the state’s laws for violent crimes. Following that clash, Democrats — who hold the majority in the chamber — suddenly postponed the debate and called for a recess shortly before 11:30 p.m. The chamber reconvened later, and the “three strikes” debate pushed the vote past 2 a.m. Thursday.
“This is an extraordinary change in our public policy,” McDonald said, adding that criminals “will be punished in extraordinary ways.”
But Sen. John Kissel, an Enfield Republican, said the original bill was so badly written that it would not accomplish the legislature’s tough-on-crime goals and, in fact, would backfire.
“I guess I’m missing something,” Kissel said. “It actually is weaker addressing persistent dangerous felony offenders. … This amendment pushes us backward. How can this be tougher on criminals? It’s not.”
Out of 21 violent crimes mentioned in the original bill, the maximum prison sentence would actually be reduced for eight of them, Kissel said. That includes second-degree manslaughter with a firearm, among others.
Oh well, that’s interesting. Pray tell us, Courant, why these sentences would be reduced and what other crimes?
No? That’s not important to the narrative? Oh. Okay. Well, then tell us what the final version of the bill was.
Besides streamlining the law, the bill provides money for more prosecutors, public defenders and probation officers, along with expanding the state’s “cold case” unit and providing additional re-entry programs for criminals who are released from prison.
“So many people fail on probation,” said Senate Majority Leader Martin Looney, a New Haven Democrat. “So many people fail on parole.”
But McKinney said he was stunned when he read the original five-page bill. Currently, a criminal could receive 40 years in prison for compelling someone to have sex at gunpoint. The bill, crafted by Democrats, would reduce that penalty to 20 years, he said.
Wait. I’m confused. Is this the original version, the amendment that was scrapped or the final version? Don’t know? I don’t either. Good job there, Chris Keating, Capitol Bureau Chief. Now I know less than I did when I started reading your story.
Can you condense all of this into bullet points for stupid old me?
# $5,492,000 to improve supervision of sex offenders who are on probation, including upgraded lie-detector and global-positioning-system (GPS) technologies. The money also would be used for truancy prevention and helping officials serve warrants on probation violators.
# $2,147,000 to hire more parole officers and prison guards, along plus expanding the use of GPS technology to track criminals who are on parole.
# $910,000 for the state Department of Mental Health and Addiction Services to provide supportive housing and for improving the women’s jail-diversion program, among others.
# $681,000 to the Division of Criminal Justice for more prosecutors and better computers.
# $514,000 to hire more employees for the state police major crime squad.
# $252,000 to the Public Defender Service Commission for lawyers to handle more prosecutions and aide indigent criminals.
Yet nothing on penalties. Sigh.
Oh, by the way Chris Keating, Capitol Bureau Chief, the correct term would have been “indigent defendants“, not criminals. Unless, of course, this bill removed the presumption of innocence. Which I have no way of knowing whether it did or not, because I didn’t understand anything you wrote.
Anyone have a link to the actual bill that was passed?
Preempting habeas
Apr 21st
Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.
The question I’m currently considering, however, is whether there is a need – or does anyone have the responsibility – to preempt habeas corpus petitions by stopping the damage while it occurs.
Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?
A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?
Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here – cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.
Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can – or should – be done during a trial?
Ethical violations: A reluctance to report
Apr 14th
In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:
At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?
In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?
I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.
What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.
This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?
Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?
One of the first polls I put up on this site was “Would you ‘snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small – 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.
Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?
[PS: Scott, this is my 5th post today. No more complaining.]
[poll=21]
Image courtesy 3×0=3 (LVSFRD). License details here.
CT odds and ends
Apr 14th
Some interesting CT stories from today that I’m really just too lazy to make into full-fledged posts.
First, New Haven public defender Tom Ullmann gives the New Haven police department a piece of his mind and takes a few swings at the State’s Attorney’s office too:
Defense attorney Thomas Ullmann has charged that some members of the New Haven Police Department’s Detective Bureau are “incompetent, unprofessional and untruthful” in handling witnesses and investigating crimes. Ullmann, said the detectives’ performance is “at its lowest level in the 30 years I’ve been here.”
Ullmann accused the detectives of “a rush to judgment, not being thorough, not following up on obvious leads.” He said there was “a shocking lapse of asking witnesses investigative questions, such as who had been drinking or doing drugs.” Ullmann added, “Their attitude was ‘the less we know, the better.’ This feeds into their tunnel vision on the case.”
He alleged the Detective Bureau has “a history of suggesting information and providing facts to witnesses and failing to investigate facts pointing in a different direction.” He said in some cases witnesses have been “harassed.”
Moreover, Ullmann charged, “This culture doesn’t exist without some enabling by the state’s attorney’s office. This doesn’t happen without the prosecutors winking and nodding and looking the other way.” He added, “There are some really good prosecutors here, but sometimes people close their eyes to this stuff.”
Yowza!
Second, the Appellate and Supreme Courts might be in danger of losing heating and cooling May 1st onwards. The Supreme Court recently rejected emergency appeals filed by the State to compel the service provider to continue providing past the expiration of the contract on May 1.
On March 27, Hartford Superior Court Judge John J. Langenbach ruled that TEN Company has no obligation to supply the state buildings with heat, or the chilled water that runs air-conditioning systems, after its contract expires.
Langenbach said he could find no legal authority to “force TEN to continue a business relationship with the State that it wishes to end because the State may suffer harm as a result of its failure to plan for the expiration of that relationship.”
The State apparently figured that there’s no way TEN wouldn’t provide heat and a/c, so they have done absolutely nothing to prepare for this.
TEN offered to sell the piping system to the state, but officials didn’t make an offer. Wrote Langenbach: “The State has not taken a single step to begin the process of procuring an alternative source of heating and cooling for the eight buildings.”
Actually, it’s not entirely true that the state has failed to act. “Well, we filed an injunction. We also sought some legislative relief. So those are the things we’ve done,” one state official told Langenbach.
Public Works officials contend that a permanent system would take six years to install, and even a temporary solution would take two years to implement. But Langenbach gave credence to TEN’s general manager, Derek Rudd, who testified that temporary heating and cooling could be put in place “fairly quickly.”
Luckily, the current term of the Courts ends on April 30 (although the next one starts mid-May!). This should get interesting.
Videotaped interrogations pilot program to start soon
Apr 14th
At the end of June, four police departments in CT will begin to videotape interrogations of suspects of violent felonies.
Supporters think such a policy should have been required in Connecticut years ago, especially in light of two high-profile cases in which police were accused of coercing confessions. Law enforcement officials have remained leery, voicing concerns that suspects will balk at being recorded and that defense lawyers will critique interrogation tactics.
In 2003, Illinois became the first state to enact legislation requiring electronic recording of interrogations. Maine and New Mexico soon followed suit. But even those states were a decade behind Alaska and Minnesota, whose supreme courts mandated taping in the mid-1980s. New Hampshire and New Jersey’s supreme courts have since made similar rulings. Additionally, 500 smaller jurisdictions have adopted recording policies.
Under State v. James, a 1996 CT Supreme Court decision, videotaping interrogations is not required. Despite that, many organizations have lobbied tirelessly for requiring such videotaping.
Rep. Michael Lawlor, the committee’s co-chairman, said the measure has been merged with another bill aimed at compensating those wrongfully convicted. He said a Commission on Wrongful Convictions would evaluate the pilot program and report back in January. “Then next year we’ll talk about expanding” the videotaping program said Lawlor.
Lawlor said he believes Connecticut will eventually require recording statewide.
Won’t be too soon.
Removing prosecutorial immunity
Apr 13th
Update: SCOTUS grants cert.
Original: As highlighted in this L.A. Times article and this Scotusblog summary, the Justices will announce tomorrow whether cert will be granted in Goldstein v. Van de Kamp [9th Cir. decision here]. Goldstein was released from prison after serving 24 years for a crime he did not commit.
Goldstein was ordered released after 24 years in prison after the sole eyewitness recanted and doubts emerged about a supposed confession by Goldstein to an informant. Years after his conviction, Goldstein learned that his jailhouse accuser — a three-time felon — had lied in court when he denied having received promises of special treatment from another county prosecutor in exchange for his testimony.
The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.
The Los Angeles County district attorney’s office, the nation’s largest prosecution office, once made regular use of jail informants, but at the time it had no system for sharing information among prosecutors countywide about which informants were reliable and what they had been promised.
Van de Kamp, the chief prosecutor from ’75 to ’83 has claimed full immunity.
Prosecutors and some observers are all atwitter:
Regardless, the immunity rule should be preserved as an important judicial safeguard, [law prof] Levenson said. “We don’t want [prosecutors] looking over their shoulders. In order to be independent and to make tough calls, they can’t be worrying about whether they will be sued.”
I agree. For the most part. However, given the recent surge in exonerations, why is it not time to reconsider whether prosecutors can be sued in a limited set of circumstances? This seems doubly important given the reluctance of many states to enact compensation statutes for the wrongly convicted.
Consider the scenario where a prosecutor knowingly offers false testimony that leads to a wrongful conviction or hides Giglio material – or even Brady material. Why should that prosecutor (or the State) be immune from suit? Do we want to encourage that behavior? Does that assist in the pursuit of justice? Heck, defense lawyers are regularly sued by clients.
I understand that is not what the lawsuit alleges, but on this lazy Sunday afternoon, it is worth thinking about. What exactly are we protecting when we bar suits that seek to place blame with the appropriate person in appropriate circumstances?
Focus starting to shift in crim justice “reform”
Apr 4th
Two news stories today that allow me to hope, just a little bit, that perhaps some sense is seeping into the Capitol. The first proclaims boldly that the suspect in the recent New Britain home invasion had “little rehab for sex offense”.
The ex-convict accused in this week’s fatal New Britain home invasion dropped out of a sex offender treatment program during a 10-year prison stint that involved seemingly little rehabilitation, according to prison and parole documents.
That’s actually inaccurate – he had to leave the program because he was transferred to another facility.
But Williams’ case is now raising questions about whether the state correctional system properly prepares an inmate for eventual release.
“Whenever we run into those situations that are so horrific, it raises the question if our correctional system is performing to the extent that it can,” said state Sen. John Kissel, R-Enfield, a member of the judiciary committee.
“I think we need to make a concerted effort to benchmark what that optimum program level should be in the Department of Correction, and then see how far away from that level we are,” Kissel said.
Very far, Senator, very far.
Yet there are some that still can’t tell front from down. DOC rep Brian Garnett’s statements remind me of the famed Iraqi minister of (dis)information:
In general, Garnett said, inmates, “can participate in as many programs as they want and refuse to participate in programs.”
“You can’t force an offender to take part in a program,” he said. “You can make them sit in the room, but if they’re not going to engage in participating in the program, all you’re doing is wasting a chair.”
“Can participate” here should be taken to mean “could participate if it weren’t for severe overcrowding and lack of room, facilities and spots in programs”.
Ooops. There’s no such thing as prison overcrowding. My bad.
State Rep. Michael Lawlor, D- East Haven, co-chairman of the judiciary committee, said the case points to the need for more rehabilitative services in prison, but also housing for sex offenders upon release from jail and prison because few want to take them.
“They did not let him out early,” Lawlor said. “Now he finishes his sentence and he’s on probation.”
“What should you do?” Lawlor said. “You should have a place you can force him to go while he’s on probation. No such place exists. That is the problem.”
And no one wants these places in their towns.
The second story is about Gov. Rell’s top secret meeting with law enforcement yesterday (from which Dem legislators – who control the legislature – were excluded). After that meeting, there were no calls for three-strikes laws, but rather a call to streamline the persistent offender statutes and more funding for GPS monitoring.
“The current persistent felony offender law is like the tax code,” said [Chief State's Attorney Kevin] Kane, a longtime prosecutor who stood next to Rell at the afternoon press conference. “You’ve got to be a Philadelphia lawyer to understand it. … If I have a hard time reading it — the number of times I’ve read it — imagine how a judge feels when he’s reading it pretrial.”
Senate President Pro Tem Donald Williams, the highest-ranking senator, said “there’s no reason why we can’t work with the governor” on her request to increase funding for global positioning system, or GPS, monitoring to track convicted sex offenders with bracelets that could monitor their movements.
Williams also favors more money for re-entry programs for those released from prison and for more beds for sex offenders after their release.
“I would like to think we’re moving beyond the finger-pointing stage,” Williams, of Brooklyn, said. “My goal and hope is to move beyond the political rhetoric.”
Me too, Senator, me too…
To inject some lightheartedness into a serious discussion, here’s Amy Winehouse:
[youtube]http://www.youtube.com/watch?v=LD5sahXoj0U[/youtube]
Three-strikes again: Prescience and a three-ring circus
Apr 2nd
The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.
State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.
But they just couldn’t leave it at that.
The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.
Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.
And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however – or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.
The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.
Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.
One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.
The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.
If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.
Previous, similar thoughts here.
The courtroom as assembly line
Mar 28th
The criminal justice system is a heavy volume business. There are hundreds of thousands of individuals being processed through the system on a yearly basis. Hundreds get sentenced on a daily basis, there are even more that have short court-appearances. Add to that pre-trial hearings, trials and other motions and arguments, it is clear that it can get monotonous, repetitive and boring.
Yet to allow it to become so is, in my opinion, doing a disservice to the system and to the individuals caught up in it. Western Justice, a prosecutor authoring a self-titled blog, describes a day in court and how his (or her) mind wanders during routine pleas. His mind wanders in and out of the proceedings, sometimes distracted by the upcoming weekend, sometimes by other cases and at other times by ethanol. He relates that he snaps back to reality just enough to mumble some responses to the court’s questions.
While I can understand how this would happen, I’m just a little disturbed that it does happen. Sure, things get repetitive, but are we really that self-centered that we forget the significance of what is occurring in our presence? There are people charged with crimes who might be deprived of their liberty for a significant period of time, their families, people who have been victimized and traumatized and their families. The criminal justice system is not a joke, people. (Well, I don’t mean that kind of joke.) Even the smallest of infractions have consequences in this day and age and we must take our jobs seriously for others to take the system seriously.
Western Justice provides the following quote:
For you non-criminal lawyers and non-lawyers, you have to understand, there are times in any court proceeding where your attention need not be undivided. These usually come at times like advisements, reading of one’s rights, or the reading of twenty plus jury instructions at a jury trial.
Wrong, wrong and wrong. You best pay attention during a plea canvass and you need to quit your job if you’re not paying attention during jury instructions.
More:
Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”
I sincerely hope that defense counsel are not saying to themselves: “who cares about the Constitution?” If they are, the answer is very simple. The man (or woman) standing next to you, and for his or her sake, you better care too.
The only participant in the system that can justifiably drift off is the defendant. It has been my experience that defendants drift off during pleas and sentencing, not because they are unmindful of the gravity of the situation, but rather because they are all too mindful of the consequences. Some are thinking about their families, some are thinking ahead to life in prison and some are cursing the day the committed the act. That I understand and have no problem with.
But it is incumbent upon us to pay rapt attention to what the court is saying. Whatever the judge says at that time can have significant consequences down the road. Another public defender once told me of a case he had where at the time of sentencing, the judge imposed a period of probation in addition to a jail term. Had he not been paying attention, he may not have remembered that the defendant did not actually plead guilty to a sentence that included a period of probation. The matter was immediately rectified, but it may not have been had he not been attentive.
This is what we are paid to do. We are paid to stand by a citizen accused of a crime. That is a serious job that demands our best. We should give nothing less. That includes paying attention in court.
The forever persecuted
Feb 5th
A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.
So it came as no surprise when I saw this report today. It says that he is on the move – perhaps with a one-way ticket to prison.
This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.
This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement? The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.
The statute has has violated is C.G.S 54-252, which provides in relevant part:
If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.
I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.
Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?
In which Gideon wishes more prosecutors were reasonable
Dec 27th
This job is tough enough as it is. The law itself is not kind to criminal defendants and those that mount their defense. If that were the only thing we had to struggle against, it would be an uphill battle. When you throw unreasonable prosecutors into the mix, however, it just becomes exasperating.
Every criminal defense lawyer knows what his case is worth. We all know what we would accept in order to resolve a case. After all, plea bargaining is 94% of the criminal justice system. So why do some prosecutors not get it? Why are some so damn difficult to work with? They must know what their case is worth. So why is it easier to make deals and settle with some prosecutors, when oftentimes, with better facts for the defendant, the prosecutor is just so damn reluctant to make a deal?
I couldn’t tell you the number of hours that have been wasted litigating stupid, small issues. Don’t we all have something better to do? Do 6 lawyers need to litigate a case where 120 days of incarceration is at stake?
The one “rationale” that I get from these bullheaded prosecutors over and over again is that it would “open the floodgates”. “Well, if I give your guy that deal, I’ll have to give it to everyone.” Really? If you give the guy with the simple possession charge 6 months suspended you’ll have to give the same offer to the triple murderer? Really? Everyone?
No, I think not. It has nothing to do with the floodgates. It has to do with a lack of knowledge of controlling caselaw and a failure to recognize the weaknesses of your case. Perhaps there’s an ego trip hidden in there somewhere. I’ve found that the easiest prosecutors to deal with are the ones that have been around forever. Those that know how the game is played. As for the rest… I don’t know. I have just one question:
Do we have to try everything?
Life, A-D also bemoans the lack of reasonable prosecutors.
Study finds CT’s death penalty racially biased
Dec 12th
Only now is word leaking about the substance of the death penalty challenge that is the subject of tomorrow’s hearing [previous post here]. The seven inmates that are party to the challenge are relying on a study [pdf] by Yale Law School professor, which finds that there is racial disparity and arbitrariness in the way the death penalty is charged and sought in Connecticut.
Yale Law School professor John J. Donohue III, who oversaw the study, said one of the most surprising findings is that the death penalty is often not sought for crimes that are more violent and disturbing than ones where lethal injection is pursued.
“There was basically no rational system to explain who got the death penalty,” Donohue said Tuesday. “It really is about as random a process as you can possibly construct.”
Over the past year, researchers reviewed 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution. Donohue said 60 percent of the defendants were minorities and 40 percent were white, numbers that conflict with the percentages in the general population.
Among the other findings in Donohue’s 128-page report:
- Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.
- Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.
- Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.
Of the inmates on death row, four are black, three are white and two are Hispanic.
I’m looking for a copy of this study. If someone has it, please let me know. Here it is.
Fabricating PC thread disappears
Jul 25th
Grits’ reporting of the fabricating probable cause thread on the Texas DA’s website caused such a stir in the blogosphere, that they have now taken down the thread and it is no longer available.
I never understood why they’d have these threads open to the public anyway. No good can come of it [well, except a chuckle here and there and a general affirmation of defense counsel's mistrust of prosecutors].
The image above is a rip-off of Grits‘ rip-off of my earlier post.
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