psa

Connickally yours

Jan 11th

The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.

The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.

————-

A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.

Genealogy

Aug 18th

Posted by Gideon in criminal law principles

No comments

give me your tired, your poor - no wait, that's the other one

A sense of awe and a nobility of purpose is an often-found characteristic among those of us who choose to dedicate our lives to the criminal justice system. Though most may not choose to repeatedly quote Ammianus Marcellinus or repeatedly invoke the image of Sisyphus, we are all aware of our place in the continual progression of a free society and most importantly, the simple atoms from whence we evolved into the rich, complex system which governs our lives today.

Whatever the role of Roman Law may have been creating the broad outlines of the present system, the most significant impact was that of the British legal system from the 17th century onwards, most famously represented by the court at Old Bailey. (Astute readers will note that this painting of a scene at the Old Bailey – which seems to be a color reproduction of a Thomas Hosmer Shepherd watercolour and H. Melville engraving – used to lend an unwarranted gravitas to this blog.)

To those who know – and those who want to know – I recommend the website ‘Old Bailey Online‘, the subject of this new NYT piece on the vast amount of historical information about Old Bailey trials now available and searchable. The advances in computer technology have made it possible for researches to quickly and deeply analyze the vast volumes of information stored in ‘the Proceedings’, drawing some interesting conclusions. From the NYT piece:

Beginning in 1825 they noticed an unusual jump in the number of guilty pleas and the number of very short trials. Before then most of the accused proclaimed their innocence and received full trials. By 1850, however, one-third of all cases involved guilty pleas. Trials, with their uncertain outcomes, were gradually crowded out by a system in which defendants pleaded guilty outside of the courtroom, they said.

Conventional histories cite the mid-1700s as the turning point in the development of the modern adversarial system of justice in England and Colonial America, with defense lawyers and prosecutors facing off in court, Mr. Hitchcock and Mr. Turkel said. Their analysis tells a different story, however.

“Mapping all trials suggests that the real moment of evolution was in the first half of the 19th century,” with the advent of plea bargains that resulted in many more convictions, Mr. Hitchcock said. “The defendant’s experience of the criminal justice system changed radically. You were much more likely to be found guilty.” Last month the scholars submitted an article to the British journal Past and Present on their findings.

Profound shifts were behind the turn toward negotiated agreements. The class of professional lawyers, police officers and judges was growing quickly at the same time that prison began to be used as an alternative to exile or capital punishment, historians have noted. (The first modern prison in Britain can be dated to 1792.) As Mr. Hitchcock said, “It’s hard to have plea bargaining when all they are going to do is hang you.”

This online repository is a delightful source of endless hours of entertainment. For example, see this account of the poor fellow who received a “fentence of Death” for stealing a Mare and a “Guelding”, or this unfortunate soul who was “Drawn, Hang’d and Quartered” for, well, you have to read it yourself:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

John Francis Dickison , a notorious Popish Priest being taken in Newgate, as he came to pervert on Martha Cook a Convict, his Indictment being grounded upon a Statute made in the Third Year of King James, to prevent drawing away the King’s Subjects from their Allegiance; the manner thus, Martha Cook about Three Quarters of a Year since being Condemned for Cliping and Coyning, and remaining in Newgate, Two Women that were her fellow Prisoners, perswaded her to embrace the Romish Religion, and after some yielding to their proposition; the Prisoner was sent by the Priests into the Press-yard to visit her, who upon promise to get her a Pardon, made her renounce the Protestant Religion gave her the Sacrament, confessed her, &c. And to encourage her to perservere in what she had Embraced, oftentimes brought her Money; the which she disclosing to on Partridg a Presbyterian Minister, he discovered it to the Ordinary, who acquainted Captain Richardson with the same, so that about the Twenty-first of October last, the Prisoner coming to visit his Proselite, was seised in the Hole, and after some time carried before Sir William Turner , where he owned himself to be a Priest; and that he was Chaplain to the Portugal Embassadour ; whereupon he was commited, upon his Trial he likewise owned himself a Priest; and but faintly denied the pervertion, Mr. Ordinary, Mr. Partridg, and Martha Cook giving Evidence against him, after the Jury were satisfied of the Statute, they brought him in guilty ; and he was Sentenced to be Drawn, Hang’d and Quartered as a Traitor, &c.

But this online presence of the Old Bailey records also provides a very instructive roadmap of the evolution of the jury system and the rights of defendants and victims in the proceedings that were to have a profound influence on the framers of the United States Constitution and the architects of our modern criminal justice system. These bits of information show us just how much and how little the system has evolved since the turn of the 19th century. Take Grand Juries, for instance. Prosecutors in those days might vociferously disagree with someone from modern times who would scoff at their utility by citing their propensity to indict a ham sandwich:

The problem with this system was that the Grand Juries therefore often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname “the hope of London thieves”. From 1838 a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage.

The presumption of innocence started out as the presumption of guilt (unfortunately, as I’ve argued before, we seem to have reverted back to the late 1600s on that score):

The prisoners whose indictments had been approved by a grand jury were brought into the court and formally charged. Each prisoner was asked to plead to the charge, which was read to them, and the vast majority pleaded not guilty. Until the reforms of the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or a pardon. With the decline in death sentences in the early nineteenth century guilty pleas became more common.

Defendants who refused to enter a plea were, unless they were found mute “by visitation of God”, subject to the ordeal of peine forte et dure, in which they were forced to lie down and have weights placed on them until they either relented or died. For example see the trial of William Spiggot and Thomas Phillips alias Cross in 1721. This practice, however, was rare, and formally ended in 1772, after which date standing mute was deemed the same as pleading guilty. In 1827 the presumption of guilt was reversed and refusal to plead was redefined as equivalent to pleading innocent.

And lastly, the role of the lawyers:

Lawyers were rarely present in ordinary criminal trials prior to the last decades of the eighteenth century, and only began to appear in a significant number of trials at the turn of the nineteenth century. Lawyers who appeared at the Old Bailey in the eighteenth century hardly ever made it to the very top of the legal profession. They were often accused of being ignorant of the law and of a general incivility, something that was also said to characterise their bullying of witnesses. Such accusations were not always unfounded

…

Defendants in misdemeanour cases and treason cases (from 1696) could also employ legal representation, but they were excluded in felony cases (except for the purpose of raising narrow points of law) until the mid-1730s. The justification for this prohibition was that they were thought unnecessary: it required “no manner of skill to make a plain and honest defence” (Hawkins). Moreover, judges were thought capable of looking out for defendants’ interests. However, the increasing number of prosecution lawyers from the early 1730s appears to have led the courts to allow defence lawyers in order to help maintain a balance.

…

The trial process placed defendants at a disadvantage. Typically without the benefit of legal assistance, they had to organise their cases on their own, normally while in prison awaiting trial. Until the actual trial, they were unaware of the specific evidence that would be presented against them, and therefore had to respond spontaneously to what the witnesses said. This was thought to be the best way of ascertaining the truth.

Unthinkable now, but certainly fun to think about.

« Hide It

The Barney Fife exception: all in good faith

Aug 15th

Posted by Gideon in cops

2 comments

The Constitution requires that criminal defendants be provided with a fair trial, not merely a “good faith” try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense. That ineptitude, however, deprived respondent of his guaranteed right to due process of law.

Those, of course, are the (somewhat) famous opening lines to Justice Blackmun‘s dissent in Arizona v. Youngblood, which held that in order to affect due process of law, law enforcement’s actions in destroying potentially exculpatory evidence must be caused by some “bad faith”. The Court, of course, never explains “bad faith”, which results in a race to the bottom to designate all police misconduct as “incompetence” and “inadvertence”, thereby circumventing the Fourteenth Amendment.

Consider, for your entertainment, the very recent case of Martin v. The State of (Where Else?) Texas. In Martin, the defendant was pulled over by Deputy ~~Fife~~ Jennings for failing to signal a left turn. Upon approaching the vehicle, the Deputy smelled “marihuana” and then observed a furtive gesture which led to a patdown, which led to the Deputy feel something like a razor blade (wait for it) which led to the discovery of ~~marihuana~~ methamphetamine (don’t even ask). Martin, within two weeks of his arrest, sent a subpoena to the police department, asking them preserve the video of the dashboard camera. A year later, at the suppression hearing, there obviously was no video, or I wouldn’t be writing this post. Here’s a summary of the police procedure and operation of the dashcam:

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video.

And why did no one know if there was video and why did Jennings not preserve it to find out if the incident had been videotaped? I’ll let him tell you:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Q: And why was it not preserved?
A: Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value.
…
Q: But, apparently, your opinion is . . . that if you feel that it doesn’t have evidentiary value, you don’t have to turn it in or you don’t have to preserve it, or whatever, correct?
A: Yes, sir, that was my understanding at the time.
Q: So it’s very possible that . . . you just decided in your mind that it didn’t have any evidential value, that . . . you didn’t preserve the video?
A: Yes, sir.
Q: And the only way to know if there was a video that properly recorded the events of that evening would be if you had preserved that video, correct?
A: Yes, sir.

Is your head spinning? It should be. He didn’t know what was on the video, yet determined that there was no evidentiary value, so he destroyed the tape and thus the only method of determining if it did, indeed, have evidentiary value. All in violation of department policy.

As for that subpoena? Well, Jennings says he never received it, even though it was served at his department and by golly we damn well take his word for it:

The district court could have reasonably inferred from this testimony that there is a department policy giving officers discretion to determine whether the tapes have evidentiary value and that Jennings did not violate that procedure by determining that the videotape in this case did not.

Finally, Martin argues that bad faith can be inferred from the failure of the department to comply with either the subpoenas that were issued or the letter that Martin wrote requesting preservation of the evidence. Regarding the letter, the district court would not have abused its discretion in crediting Jennings’s testimony that he had not seen it prior to the suppression hearing[...]

Well, I’m glad that we have so much faith in an incompetent, bungling, apparently clairvoyant police department. Because, really, it would be too much to ask of Deputy Fife to just possibly walk the videotape over to the evidence room. Poor guy has his hands full deciding whether something smells like pot or feels like a razor blade when it’s in fact meth. We shouldn’t tax him much more.

Now, of course, that was in Texas and not in Connecticut, which roundly rejected Youngblood‘s “bad faith” rule in State v. Morales. In Connecticut, you can get a jury instruction telling the jury to draw an adverse inference from the police’s failure to preserve potentially useful evidence:

Fairness dictates that when a person’s liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant has received due process of law. Rather, our constitution imposes certain obligations on the state to ensure that the criminal trial is “a search for truth, not an adversary game.” United States v. Perry, 471 F.2d 1057, 1063 (D.C. Cir. 1972); State v. Wright, 87 Wash. 2d 783, 786, 557 P.2d 1 (1976).

That’s authored by Justice Berdon, with whom I want to have babies.

H/T: Radley “A link is worth a thousand pageviews” Balko.

Here’s an alternate image to the one above:

insert uncomfortable laugh track

« Hide It

A Cronic problem

Aug 1st

Posted by Gideon in criminal law principles

3 comments

too soon?

Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.

Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.

I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.

But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?

In Cronic, SCOTUS said:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U. S. 308 (1974), because the petitioner had been “denied the right of effective cross-examination” which ” `would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Id., at 318 (citing Smith v. Illinois, 390 U. S. 129, 131 (1968), and Brookhart v. Janis, 384 U. S. 1, 3 (1966)).

Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U. S. 45 (1932), was such a case.

That the cross-examination of the defendant during a trial is a “critical stage” in the proceedings cannot be denied. It can thus also not be denied that during that cross-examination, the defendant must have the assistance of counsel. It surely would not suffice to say that the defendant must have the assistance of counsel during some periods of the critical stage, but not all. The second paragraph certainly illustrates that: Muniz’s lawyer was technically “available”, so it isn’t a situation where there is an actual denial of counsel, but rather an effective denial of counsel. But can any lawyer provide effective assistance when asleep? Obviously not. So why don’t Cronic and Powell apply? Why is it okay, then, for a lawyer to be asleep during the cross-examination of his client, the defendant?

Cronic nowhere mentions the “substantial portion” requirement. That comes from further caselaw from the circuits interpreting and applying Cronic:

The Ninth, Fifth, and Second Circuits have all considered the question of when sleeping by trial counsel becomes the effective denial of counsel and “so likely .. .prejudice[s] the accused” that Cronic applies and prejudice is presumed. All of these circuits have held that the denial of counsel with presumed prejudice only occurs once counsel sleeps through a “substantial portion of [defendant’s] trial.” Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984); see also Burdine v. Johnson, 262 F.3d 336, 340-41 (5th Cir. 2001) (en banc) (concluding a defendant’s right to counsel was violated where defense counsel was “repeatedly unconscious through not insubstantial portions of the defendant’s capital murder trial”); Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996) (holding the defendant’s right to counsel was violated where defense counsel was asleep for “numerous extended periods of time”).

This still doesn’t answer the question, of course. The answer is, I suppose, that the Court makes a judgment that there are periods of a trial that are inconsequential. That if, for example, the lawyer falls asleep between witnesses, it clearly doesn’t affect the trial itself (now some might rightly argue that it does, but let’s assume that it doesn’t). But what about during the cross-examination of the defendant itself? The court, is in essence, applying a harmless error analysis to the lawyer’s actions. They’re condoning it because it really wouldn’t have made a difference whether the lawyer was awake or asleep. In doing so, in my opinion, the court conflates both Cronic and Strickland. Cronic, as noted above, says that whether it would have made a difference or not is irrelevant. What’s relevant is merely the fact that the defendant did not have access to counsel during a critical stage and that in those situations, because there is a paramount need to preserve the integrity of the system, we will assume prejudice. Strickland, on the other hand, says that where it is the performance of counsel that is under fire, we will see whether that performance made any difference in the outcome.

Cronic becomes useless.

Reading this opinion and its narration of the meaning and import of Cronic and Cronic‘s application, one is left with the distinct impression that it really is okay for lawyers to take brief naps during a criminal trial. That Cronic‘s language about the effective denial of counsel is meaningless and unenforceable.

Coupled with the very low bar of Strickland that one needs to skip over, it sends the message that we are willing to tolerate everything but the most outrageous instances of misrepresentation of clients.

That we do not require of those among the bar who take it upon themselves to protect and defending the liberties of others to be awake during one of the most crucial acts of the criminal trial. Is it too much to ask that lawyers stay awake when their clients are on the stand? Even if the prosecutor is droning ona and on and it’s after lunch and you’re slipping into that food coma?

Is the message a wink and a nod that those who are prosecuted are really guilty, so attorney performance doesn’t really matter?

Here’s a thought experiment: if you were the attorney, would you sign an affidavit saying you were asleep? Would you testify at an evidentiary hearing and admit that you were asleep during your client’s cross-examination?

That this is condoned is only further evidence of the fact that the purpose of the system is no longer to protect individuals, their liberties or their rights, and there is nary a regard for the appearance of justice, but rather the focus is on ensuring that those who go to trial are convicted and remain convicted.

—-

On a similar note, thanks to a commenter at Volokh, I stumbled across these four videos recording a very odd, disturbing and sad courtroom interaction between an allegedly drunk lawyer and a judge trying to make sense of it all and protect the hapless individual seated at the defendant’s table. I’ve embedded Part 4 of the series below, because it gives the most flavor, but be sure the check out Parts 1, 2 and 3 as well.

« Hide It

The responsibility of choice

Jul 24th

Posted by Gideon in prosecutors

1 comment

Discretion is such an ugly word. It sounds officious, vague and un-engaging. I prefer to call it choice. Because that’s what prosecutors have: the power to choose whether to prosecute someone or not. It is that power to choose that is a manifestation of the great power that prosecutors wield: the power to deprive someone of their life, their liberty, their reputation.

This inherent ability has been discussed elsewhere lately, in Scott’s post where he gives two examples of poor choices made by prosecutors and in this NPR interview with former state judiciary committee co-chair Mike Lawlor and today, in this piece in the NJ Star Ledger.

The Star-Ledger piece talks about prosecutorial ~~discretion~~ choice in the context of three recent high-profile criminal justice stories: Dominique Strauss-Kahn, Casey Anthony and The Rocket and how all these cases seem to indicate the quest for justice has buckled under the pressure of the 24-hour sensationalist news cycle and the pressure to convict – when that same news media all but assumes that with every accusation comes a conviction – has subverted the true function of the prosecutor. I’ve written plenty about the impact and responsibility of the media in sensationalizing the criminal justice system, so I won’t go there in this post. This post is, I think, about the role of the prosecutor and the power of choice that they possess.

In penning this lament in the Star-Ledger, John Farmer, dean of Rutgers Law School (and a former prosecutor) relies heavily on the words of former Attorney General (and later Supreme Court justice) Robert Jackson uttered at a meeting of prosecutors, some of which I reproduce here:

“The prosecutor,” he reminded them, “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”

…

“With the law books filled with a great assortment of crimes,” the attorney general said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. … It is in this realm … that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group … or being personally obnoxious to or in the way of the prosecutor himself.”

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

That second paragraph, uttered some 70 years ago, is so telling about some of the dangers of forgetting the ramifications and burdens of the power that is at their disposal.

It seems that over time, the definition of the prosecutorial function has narrowed: from a broader concept of a duty to ensure that justice is done, to ensuring that criminals are locked away. While the latter may be part of the prosecutorial function, it is not all of it. The prosecuting authority has a responsibility to every citizen of the state or country to maintain fair and proper administration of justice: and everyone includes the defendant accused of a crime.

All too often, it seems these days, prosecutors seem to fall in step with the Nancy Graces of the world: that it is enough to accuse someone of a crime for them to be actually guilty of it. (Obviously I am not alleging that all prosecutors are like this – there are, to be sure, some, if not a sizeable chunk, who do take their duties seriously – but we’d be lying to ourselves if we believed that there weren’t any who didn’t view their job as merely securing convictions.)

The NPR interview I linked to above is primarily about the effect that budget cuts will have on public defenders’ ability to fulfill their constitutional obligations, but in it, Lawlor makes an interesting observation that the cuts will also force prosecutors to re-evaluate their priorities and to exercise their discretion even more so than they have done in the past: what is worth prosecuting? who is worth sending to jail? With limited resources, there will have to be a re-focusing of energies on the more egregious offenses and offenders.

Why doesn’t this hold true always? Why must this become an issue only in times of constrained resources? Shouldn’t we be constantly monitoring our prosecutors to ensure that they aren’t pursuing disproportionate punishment? That they aren’t painting all defendants with the same brush? That they are willing and able to recognize the nuances of each individual and each case? Isn’t that the best way to ensure justice?

And this responsibility is even graver in this age, where news travels instantaneously and nothing is ever erased and that accusation is always searchable and articles on the internet are never updated to reflect the resolution of charges and where 17 year olds are labeled predators for life for having sex with their 15 year old girlfriends.

Are prosecutors just automatons, mindlessly pushing for conviction and incarceration for all those who are unfortunate enough – rightly or wrongly – to be ensnared in the insidious and incestuous machinery that the criminal justice system has become?

For this, I return to Jackson:

Above all, Jackson emphasized, the power prosecutors have over life, liberty and reputation requires that their actions be animated by “a spirit of fair play and decency.” The prosecutor’s oath, after all, is not to be zealous in seeking convictions, but to be fair in seeking justice: “Although the government technically loses its case,” Jackson reminded the U.S. attorneys, “it has won if justice has been done.”

…

“Your positions are of such independence and importance that while you are being diligent, strict and vigorous in law enforcement, you can also afford to be just. … Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.”

With great power comes great responsibility and the responsible thing to do is to choose wisely.

Image via.

« Hide It

An ode to the Kitchens sink: a tragicomedy

Jul 17th

Posted by Gideon in criminal law principles

4 comments

Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We’ve all been there: the trial has just concluded, you’ve delivered the closing argument that you spent many nights working on and frankly, you’re exhausted. The judge starts giving the long, boring instructions to the jury – you know what I mean – which they’ll rely on to analyze the evidence and apply it to the law of the land. You tune out, your eyes glaze over, you just want a damn drink.

And in the midst of your reverie, the judge instructs the jury that the defendant has the burden of proof beyond a reasonable doubt to prove his innocence. Since you were preoccupied with visions of a drunken sleep, you didn’t notice. The jury, obviously, convicts, since there was no defense case in chief. You are upset, the client is led away and you go home to curl up in the fetal position and bemoan juries predisposition to convict.

Then your client appeals and the sharp, astute, awake appellate attorney notices the erroneous instruction. Oh no! This was instructional error! The judge gave the jury incorrect instructions! But you didn’t object! And so the error wasn’t preserved! Are we doomed?

Recognizing the problems that would arise with turning a blind eye to this obvious mistake of Constitutional magnitude that impacted the right to due process and a fair trial, the appellate courts in Connecticut issued a decision back in 1989: State v. Golding. The Golding decision created a 4-pronged test to deal with scenarios like these:

The record is adequate to review the alleged claim of error;
The claim is of constitutional magnitude alleging the violation of a fundamental right;
The alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
If subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

(note that Golding applied to all errors of constitutional magnitude, not just jury instructions). This test worked – albeit not perfectly – but it worked. Obvious errors that implicated constitutional rights received the appellate review they deserved. But the State, cloaked in its self-righteous veneer of finality over justice, was unhappy. It fought for years to reverse Golding, because dammit any trial is a fair trial. And if your lawyer is asleep at the wheel, or just plain misses something, you must pay for it.

Most defense lawyers weren’t that worried about the Court overturning Golding because, well, how could they? How could they justify punishing a defendant for an obvious Constitutional error? How could they justify depriving a defendant of his/her right to due process and a fair trial?

Blame the lawyer, that’s how. This year, in a trio of cases – State v. Kitchens, State v. Akande and State v. Mungroo – the Connecticut Supreme Court made jaws drop by holding that if a lawyer fails to object to the exact same language of a jury instruction that is later challenged on appeal, the defendant is deemed to have waived the right to appeal that error. Part of the reasoning is that it will be considered a tactic on the part of the lawyer to not object to that erroneous instruction. Like we’re all that smart.

Yes. So under my scenario above, the appellate lawyer cannot argue that the defendant’s right to a fair trial was violated, because the lawyer did not object to the incorrect reasonable doubt instruction. Think of it as that portion of a wedding vow where the officiant looks at the crowd and asks if anyone objects to the union and warns them to speak now or forever hold their peace.

Now, the example I gave is an extreme one – hopefully no matter how asleep you are, you would notice that the defendant doesn’t have to prove a damn thing. But what of other less noticeable errors? What of erroneous instructions that a particular lawyer just wasn’t aware of? But that’s apparently a tactical decision.

The burden this places on the defense lawyer is tremendous – and misplaced. The court has an independent obligation to ensure that the jury is instructed correctly. This removes that obligation on the trial court, which, after all, is in charge of courtroom procedure, evidence and instructions, and places it on the shoulders of the defense lawyer. And what if the lawyer is just plain wrong and incorrectly agrees to the erroneous instruction? How do you make a defendant pay for that lawyer’s mistake? And why must that defendant wait years and years for vindication that may never come? Why has the Supreme Court abrogated its basic function: to ensure that justice is delivered in Connecticut courtrooms and to preserve the Constitutional right to due process and fair trials? The Court seems more interested in arguing that defense lawyers will choose to knowingly ignore Constitutional errors so as to set up appellate claims – something that is highly unethical and detrimental to the client.

I refuse to cite from the majority opinion because it is just so vile. But, in the interest of making this post somewhat productive and instructive, I will cite only this one paragraph that provides some sort of guideline:

We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.

As far as I can see, here’s what we need to do:

File a motion with the trial judge for a written copy of the proposed jury instructions prior to the start of jury selection. In fact, demand them. Cite Kitchens over and over again.
Make a record every time you ask the Court for the written instructions.
Ask for a continuance of at least 48 hours if you receive the instructions during the evidence portion of the trial. Realistically, you need that much time to absorb, understand and critique the instructions.
Make a record of what else you have to do in the midst of trial and why you need that time.
Demand the time. Make a record and use the words “I will not have had a meaningful opportunity to review the instructions if you do not grant this continuance, Your Honor”.
The court will not usually grant you this time; expect that.
Share the instructions with other lawyers. Ask them to read them and provide feedback.
Start keeping a repository of your own instructions.
Always submit your own proposed instructions in writing.
Always ask the Court to give your version of the instructions, no matter how closely they track the Court’s.
Always object to the Court’s instructions and suggest that the Court give yours instead.
Make sure you don’t have something stupid or wrong in your proposed instructions.
Make a record that you have not shared your proposed instructions with your client, that he is not trained in the law and he is relying on you to get it right.
State on the record that your client is not waiving any right to review of errors contained in the jury instructions.
State on the record that you have perused the Court’s proposed instructions to the best of your ability and that there are no errors that you are intentionally not bringing to the Court’s attention.
Pray that the Court gets it right.

The State and the courts of this State don’t seem to give a damn about its citizens Constitutional rights. Now, more than ever, we defense lawyers are the only ones that stand between the individual who has all the might of a government thrown against him and a summary, lawless judgment being pronounced. This is not the time to tuck our tails between our legs and scamper off. Fight. Stand up and assert our rights. Your rights. My rights. Because if we don’t, soon, there won’t be any left.

———-

And because every post of this length needs a video, here’s a song about rhymes (language decidedly adult):

« Hide It

What do we want from our system?

Jul 10th

Posted by Gideon in criminal law principles

6 comments

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead. He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]

The Aftermath

May 18th

Posted by Gideon in prosecutors

No comments

It’s no secret that if there’s one type of case that a defense attorney really fears, it’s the one involving allegations of sexual assault against a child. They’re morally repugnant crimes, which can be alleged with surprising ease and little evidence to back them, making them nightmares to defend. Add to that the stigma that is now attached, the media scrutiny, the complete disregard for the presumption of innocence and the witch hunt under way and you have the perfect recipe for sleepless nights and ruined lives.

This week, the Washington Post published a lengthy, powerful article on the aftermath of such a (false) allegation against an elementary school teacher in Fairfax, VA.

Sean Lanigan’s nightmare began in January 2010, when the principal at Centre Ridge Elementary School pulled him out of the physical education class he was teaching and quietly walked him into an interrogation with two Fairfax County police detectives.

He had no warning that a 12-year-old girl at the Centreville school had accused him of groping and molesting her in the gym.

The girl, angry at Lanigan about something else entirely, had made the whole thing up. But her accusations launched a soul-sapping rollercoaster ride that still hasn’t ended.

Lanigan’s story captures all the problems with child sexual abuse cases: an overenthusiastic willingness to believe the accuser, blinders that inhibit careful investigation, witnesses getting locked into stories they can’t get out of, job loss, media lynching and stubborn prosecutors digging their heels in, unable to see beyond the blind faith in their dubious complainants:

Lanigan spent months in anxious exile, forced from his school, his players, his neighbors and his friends, pondering the possibility of up to 40 years in a state penitentiary.That soon turned to relief. A jury found him not guilty after just 47 minutes of deliberation — virtually unheard of in a child sex abuse case. Jurors were outraged by the lack of evidence, with one weeping in sympathy during closing arguments.

But still the nightmare continues, as Lanigan struggles to earn back his reputation and career.

Within two weeks of the accuser’s report — without ever speaking to the girl — Fairfax detectives arrested Lanigan and charged him with aggravated sexual battery and abduction.

And then came the collateral consequences:

Police issued a press release with Lanigan’s booking photo and home address, and the school district sent home a letter about his arrest. TV trucks descended on the school and his neighborhood, and Lanigan’s reputation took a lasting beating. Even today, the first thing that comes up in a Google search of Sean Lanigan is a Web site called “Bad Bad Teacher.”

In this age of everything being stored forever, it is extremely disappointing that those who publish these sensationalist stories to grab headlines don’t have the ethical integrity to tie up loose ends and update their earlier proclamations when people are found not guilty. The internet garbage dump is littered with half-finished pronouncements of people’s arrests, floating about in the cyber wilderness, available to anyone and everyone for eternity. We see headlines every single day, on every news website: “Man arrested for robbery; Man accused of molesting child; Suspect arraigned in murder”.

The crime itself isn’t news – it’s the fact of arrest and allegation – a giant scarlet blob that’s shot out with the precision of a paintball gun, with no sense of duty to clean up the mess once the shot has been fired.

When do we ever see news organizations edit their original articles to reflect the outcome of the case. “Man arrested for raping 3 year old” never has an update attached to it stating “Man was ultimately acquitted, see here for details”. When do police departments put out press releases acknowledging that they arrested an innocent individual, one that was ultimately acquitted?

Why are we so quick to believe accusations and sully reputations based solely on them? Why do we permit shoddy police investigations that seem to have no regard for the truth? Think of the children, sure, but what about the rest of us?

Once in the equipment room, the girls decided, Lanigan laid the accuser on a stack of blue tumbling mats, began massaging her shoulders, then laid on top of her and told her he would “treat her like a queen,” while the other girl stood in the doorway. The accuser said that she tried to get up, but that Lanigan pushed her down and asked where she was going. The accuser said she had patrol duty, and Lanigan then allowed her to leave.

Several witnesses said the tumbling mats couldn’t even fit in the equipment room, but there is no indication in reports or trial testimony that Fairfax police ever checked.

Shoot first, there is no later.

Wrong time, wrong battle

Mar 28th

Posted by Gideon in clients

5 comments

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

__________________________________________________

¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

« Hide It

Deluding yourself is deluding the client

Mar 15th

Posted by Gideon in clients

9 comments

Sometimes I wonder what practicing as a criminal defense lawyer would be like if the State only arrested innocent people; if all my clients were, indeed, not guilty. It would be a burdensome practice, for sure. And exceedingly infuriating. As every criminal defense lawyer will tell you, one inevitably comes to believe in the not-guilt of a client with whom you are preparing to go to trial. Every inconsistency in the State’s case becomes magnified, every weakness exaggerated, every defense rock-solid. There is no way to lose, we say to ourselves.

But the reality is, unless you can pick and choose your clients, you will lose. More often than not. Frequently, even. Which is why the inevitable “how many trials have you won” question from an antagonistic client gets under my skin. None, I often respond. But what I really want to add is “that’s because I haven’t had an innocent client yet”. Recognizing that that is nothing more than a hurt ego lashing out, I resist.

But maybe there is something to be learned. Perspective, after all, matters. As defense attorneys, we regularly complain that the state and the man wearing the robes commence discussions and negotiations with the presumption of guilt. Due process, the burden of proof and all the rest of it are fine concepts, in principle and need to be upheld on a daily basis, for without them we would be left with a terrifying shambles of a system.

The reality, though, is that they’re right, for the most part. The system doesn’t just go about arresting perfectly innocent people willy-nilly. And the blind faith in the innocence of each and every client does them a disservice. Clients come to us – or we are thrust upon them – for our expertise, our knowledge and our advice. It is imperative that we consider every possibility and assess it accurately before suggesting the most prudent course of action.

Our job isn’t to “win” or to put on a great trial or to take on the State. It’s to protect the client’s ass, which, most of the times, they have no interest in doing. We fail miserably at our jobs if we adopt the same reckless abandon that they have to their future. We are in the mitigation business, unfortunately and even more so for others, we are akin to actuaries.

What is the most likely outcome, we are required to advise, and what is the best way to minimize negative consequences? Crunch the numbers and viola, we have a recommendation.

Do not, for a second, mistake this to be a growing disinterest or disillusionment with the role of the defense attorney, but the opposite: an expanding awareness of the pragmatism that is needed – required, even – to perform this job well. In the end, I do not sleep in a jail cell; the client does. And if that outcome is more likely than not, is it not my job to ensure that such an undesirable circumstance occurs for the least amount of time possible? And what, then, is the most certain way to achieve that outcome?

Prepare every case as if it were going to trial, because that meticulous preparation will inevitably lead to better offers from the State. But recognize that the plea deal is more often than not the sounder of the two choices. Because, in the end, experience tells us that the defendant almost always gets screwed. How badly he gets screwed is up to us.

Cf: Why I hate guilty pleas

Clowning around in Georgia

Nov 12th

Posted by Gideon in clients

8 comments

Why is it always Georgia? The latest, via Volokh, from the Georgia Peach State:

The record in this case establishes that the prosecutor, in the final moments of her concluding argument on behalf of the State, “clicked” her fingers at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor “popped out a cake out of a grocery bag” complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory words to “Happy Birthday.”

This was during the closing arguments of a murder trial, where a couple were charged with the death of their son Josef. The defense lawyer, apparently one of the “top 5 defense attorneys in Georgia” didn’t object. Sorry, Manny “Top 5 defense attorney in Georgia” Arora, but you’re an idiot. How any defense attorney worth the paper his degree was printed on could restrain himself from jumping up from his seat, and protesting the blatant appeal to jurors’ sympathies is beyond me. But maybe I don’t think this way:

Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the “Happy Birthday” song during closing argument. Specifically, Arora thought that the “Happy Brithday” song was so “preposterous,” “absurd,” and “over the top” that “it would turn the jurors off,” and that he should not call any more attention to it by objecting to it.

“Strategic decision” is the language that full-of-themselves lawyers hide behind when they realize that they’ve – to put it simply – royally screwed up, but don’t want to take the hit to their reputation. It’s also the language that courts use to coddle these lawyers. Anyone who’s ever honestly practiced criminal law and who puts the client’s interests before their own will see this for what it is: bullshit. But then again, I guess one doesn’t get invited to be “a legal analyst for Atlanta’s ESPN radio affiliate 680 The Fan and regional television show Sports Nite” and “a frequent guest on CNN, Fox News, ESPN” and be “quoted as a legal expert in the New York Times and USA Today” by admitting that they screwed the pooch while defending the liberty and freedom of two individuals. If you were a real lawyer, Manny “Top 5″ Arora, you’d admit your mistake and not hide behind a legal fiction.

What’s more disturbing is that the court approval of this argument is undermined by the instructions given to the jury by the trial court:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Nor was counsel’s concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that “you should not be prejudice[d] in any way against a lawyer who makes objections for the party he or she represents.”

But let’s put the defense lawyer aside for a moment. Shouldn’t the prosecutor’s outrageous behavior by itself be deemed a violation of Due Process, requiring a reversal? The dissent sure seems to think so:

There was no legitimate reason for what the prosecutor did. It was neither argument nor rebuttal, because there is nothing at all in the record about birthdays and birthday cakes to raise even the slightest possibility that the prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary restrictions, that eliminated the possibility of the victim experiencing the type of birthday event dramatized by the prosecutor.3

The prosecutor’s birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury’s passions and divert the jury from the evidence.4

And footnote 4 gives us a little more insight:

4I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV. See defense counsel’s testimony at the hearing on appellants’ motion for new trial (“I understand the cameras were rolling and everybody wants to be Nancy Grace’s friend”).

Oh. There were TV cameras rolling and people were watching live. And what of the trial court’s duty to maintain decorum in the Court and ensure an orderly application of the rules?

It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom. Moreover, after observing this “‘preposterous’” performance, the trial court took no steps of any kind to minimize the prejudice. There was no rebuke to counsel; there was no direction to the jury to ignore the spectacle they had just witnessed; there was no charge to the jury that sympathy for the victim was to play no role in their verdict. See Div. 1 (C), infra.

The record is clear that the trial judge violated his duty to maintain order and decorum in his courtroom. Although he told the jurors in his pre-trial instructions that he was “going to make sure that the decorum of the court — that the decorum of the courtroom stays intact,” he took no action to stop an out-of-control prosecutor from turning his courtroom into a theater stage for her unprofessional behavior, which could only have left the jury with the impression that what she did was perfectly acceptable.

It is beyond question in this exceptional circumstance that the trial judge’s failure to maintain the decorum of his courtroom was an error that seriously affected the fairness, integrity and public reputation of these criminal proceedings, such that “the plain error rule should be applied” to this case, Paul v. State, supra, 272 Ga. at 848 (3), and these convictions reversed.

So, just to be clear: the prosecutor performed this outrageous stunt, defense counsel sat silent because of some made-up reason and the trial court didn’t as much cough uncomfortably. The defendants were found guilty and now the Georgia Supreme Court has affirmed, despite the recognition that the behavior was outrageous. The majority’s reasoning simply was that the lawyer didn’t object, so the issue wasn’t properly preserved for appeal and “plain error” doesn’t apply because this isn’t a death penalty case (which the dissent points out is an incorrect interpretation of prior decisions).

Folks, the lesson here is that if ever a prosecutor unveils a cake during closing argument and starts singing happy birthday to the decedent, jury be damned, you object. Because if you don’t, it’s going to be your fault that your client was convicted in violation of the Constitution. And isn’t that why you’re doing the job in the first place? To protect Constitutional rights?*

Apropos of the discussion of prosecutors and their ethics the last few days, it is indeed notable that the decision – neither the majority nor the dissent – does not bother to name the offending prosecutor.

*Luckily, even in CT, defense counsel need not object in order to preserve the issue of prosecutorial misconduct impropriety for appeal:

“Or to put it another way `while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). `A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.’ Viereck v. United States, 318 U.S. 236, 253, 63 S. Ct. 561, 87 L. Ed. 734 (1942) (Black, J., dissenting).

In this connection, we recognize that primarily it is the responsibility of the defense counsel to protect the rights of his client by taking appropriate action to alert the trial court to claims that those rights are being jeopardized. In this case, the defense counsel’s sporadic objections to the improper cross-examinations and his lack of objection to the impermissible closing argument fell short of that responsibility. Nonetheless, in a case of serious and repeated prosecutorial misconduct such as this, the trial court has an independent responsibility to intervene, even in the absence of an objection or motion by defense counsel. See Harris v. United States, supra, 657. Although the timing and degree of that intervention will depend upon the facts of each case; id., 657 n.1; the court’s reaction should be proportionate to the seriousness of the misconduct. Berger v. United States, supra, 85; Harris v. United States, supra. 550*550 We cannot say that the court’s cautions to the jury in this case adequately dealt with the severity of the prosecutorial misconduct.

State v. Williams. And:

Due to continued confusion, we also take this opportunity to clarify our due process analysis in cases involving incidents of prosecutorial misconduct that were not objected to at trial. In doing so, we conclude that, in cases like the present one, it is unnecessary for the defendant to seek to prevail under the specific requirements of [preservation of issues for appeal] State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),[10] and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test.

State v. Stevenson.

And as if that wasn’t enough craziness for one day, watch this:

« Hide It

The obscenity of risk of injury

Sep 6th

Posted by Gideon in ct legal news

2 comments

Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

For something that forms the crux of the criminality of actions in this statute, there is precious little guidance on the legal meaning of that phrase and the evidence that is required to sustain proof beyond a reasonable doubt on that element. The only explanation of “likely to impair” is as follows:

The term “likely” and the phrase “likely to impair” are defined neither in § 53-21 (a), nor in any related provision of our General Statutes. In the absence of statutory guidance as to the meaning of a particular term, it is appropriate to look to its dictionary definition in order to discern its meaning in a given context. Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 232, 842 A.2d 1089 (2004). Our review of such sources reveals that, depending on the context, the term “likely” most commonly is understood as an adjective that denotes when particular subject matter will probably come to be or when its chances of realization are more probable than not. Oxford English Dictionary (2d Ed. 1989) (defining “likely” as something “that looks as if it [will] happen, be realized, or prove to be what is alleged or suggested”); The American Heritage Dictionary of the English Language (3d Ed. 1992) (defining “likely” as “possessing or displaying the qualities or characteristics that make something probable”).

In contrast, dictionary sources indicate that the term “possible,” again, depending on the context, primarily has a lower degree of probability or certitude of realization. Oxford English Dictionary, supra (defining “possible” as “that may be [i.e. is capable of being]; that may or can exist, be done, or happen”); The American Heritage Dictionary of the English Language, supra (defining “possible” as something that is “capable of happening, existing or being true” [emphasis added]). The common understanding of the term “likely” therefore ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of “probable,” but that counsels against an understanding of its meaning as merely “possible.” Indeed, at oral argument before this court, the state conceded that it would be “hard-pressed” to contend that the term “likely” reasonably may be understood as meaning “possible.” Accordingly, with no persuasive argument to the contrary, the trial court’s jury instructions that the term “likely” was to be understood as meaning “in all probability or possibility” and “possible or probable,” were improper.

State v. Romero. Got that? Likely to impair means “more probable than not” and (heh) more likely than possible. And yet there is precious little on exactly how the State is to go about the business of proving that an act or situation is likely or more probable than not to impair the morals of a child. There, of course, is no requirement that the morals be actually impaired, merely the probability that they might be. This results in nothing more than that which the Supreme Court said it was avoiding in Robert H. above:

In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.

Take the court’s reasoning for its rejection of the defendant’s claims in Romero (and repeated verbatim in subsequent opinions):

Once the jury determined that the anal intercourse and mutual sexual touching took place, as described by D, it is difficult to imagine a finding that this conduct could not be deemed likely–in the context of probably–to impair D’s morals. Put another way, the defendant has made no claim, and we can conceive of no justification for one, that the defendant’s conduct in relation to his abuse of D, conduct which the jury found to have occurred, is not conduct that is “likely to impair” the health or morals of a child.

Leaving aside the obvious examples quoted involving “acts” as opposed to “situations” (for no one should reasonably argue that it should be legal to force a minor into sexual intercourse), consider the slightly more nuanced scenario where a defendant is charged with showing pornography to a 2 year old child, and thus is said to have violated the Risk of Injury statute. How can one, beyond a reasonable doubt, prove that such an act is likely to impair the morals of a minor? Isn’t this essentially taking for granted that any act involving sexual conduct or placing a child in any situation which has a hint of sexual innuendo is always likely to impair the morals?

What is the functional difference between my example of the 2-year old being exposed to pornography and an 8-year old who walks into his parents’ bedroom while they are engaged in intercourse? To those of you who’ve had the misfortune of experiencing the latter, would you say your morals were impaired?

My point isn’t that we should show pornography to 2-year olds, but rather that the State should be put to its burden of proving beyond a reasonable doubt that such acts or situations are likely to impair the morals, rather than simply taking it for granted.

Sex offenders and sex offenses aren’t popular people and crimes and we’re all a bit squeamish about the topics and the ideas. But this is the top of the very, very, slippery slope. If we can’t confront the inadequacies in the state of the law in this area, then how soon is it before the burden starts slipping in other areas of the law?

Or perhaps it is time to revisit the actual statute itself and rewrite it such that it doesn’t require 20-odd years of judicial gloss to make it Constitutionally acceptable.

And doesn’t this all oddly reek of the same logical fallacies underlying the obscenity laws? You’ll know when your morals are impaired, because my morals are the same as yours.

[For a fascinating read on obscenity trials, be sure to look at this article on the trial of Lady Chatterly's Lover.]

« Hide It

Objects in mirror are as pretextual as they appear

Aug 9th

Posted by Gideon in aro

3 comments

turn left and go directly to jail

Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”

Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”

A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.

Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:

The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

It’s important to be clear, though: the court’s holding is that it is not a violation of the statute to merely hang an object from the rear-view mirror, or from any place on a windshield. What is illegal is to be distracted by that object, and it doesn’t matter whether you were actually distracted, but that you could be distracted. In the instant case, there was no evidence as to any of the latter and so the dismissal was the right decision.

In doing so, the court rejected the dangerous rationale put forth by the State and the dissent, that the mere possibility that an object could distract itself serves as reasonable and articulable suspicion to pull someone over for a motor vehicle infraction. In essence the dissent, penned by now-retired Justice Vertefeuille (who also penned the shockingly bold State v. Snelgrove which abandoned all pretense that propensity evidence is allowed in sex assault cases), essentially seeks to do the same here, by jurisprudentially permitting pretextual stops (despite footnote 10 which claims to the contrary). Take a look at this language:

As a result, I would conclude that it was reasonable for Mattioli to suspect that the chain could swing into the defendant’s view, thereby causing an obstruction to the defendant’s view, or distracting the defendant’s attention with its movement. Accordingly, I would conclude that Mattioli had a reasonable and articulable suspicion that the defendant possibly was violating § 14-99f (c) at the time when the trooper stopped the defendant’s vehicle and that Mattioli could justifiably execute a Terry stop to investigate whether the object did, in fact, interfere with the defendant’s unobstructed view or distract his attention.

Saying that the possibility that an object could distract is saying that an object could distract. Which is saying that it is illegal to have an object hanging from the rear-view mirror or the windshield, which would be exactly contrary to the statute in question.

Anything could give rise to the suspicion that an object might be obstructing or distracting a driver. A GPS device, a handicapped sticker, a parking lot pass, an EZ pass device, an emissions sticker. Do any of these reasonably obstruct a person’s ability to drive? Possibly. But to give carte blanche to the police to pull over any car that has such an object is to condone pretextual stops. And no matter how many times the dissent protests or tries to make it look like it wouldn’t be a pretextual stop, it really would be.

If the dissent had its way, everyone would be stopped. But then again, if you are white haven’t done anything wrong, you don’t have to worry about being hassled by cops, right?

It may be cynical of me to say this, but I believe a major factor in the majority deciding the case the way they did was the relatability of the facts in question: from what I’ve heard of oral argument in this case, several justices joked about the fact that they’ve got objects hanging from their mirrors. It was this familiarity with the realities of driving and normal behavior among a class they could identify with (drivers) that perhaps helped put things in perspective for them. Compare that with the decisions that impact “high crime neighborhoods” and the disjunction between the removed ivory-tower existence of jurists and the realities of every day life are clear. Perhaps this is why we should have justices interpreting our laws who not only are brilliant, but also attuned to the realities of day-to-day life of those who may not be as privileged and fortunate as them.

But I digress. Go forth and hang that awful air-freshener from your rear view mirror. Just don’t look like you’re distracted. Oh, and leave the pot at home.

Some more pics, for the heck of it:

: I’m going to park your ass in jail

: why do you hate the handicapped?

: all of ny state is now guilty of distracted driving

: turn left and go directly to jail

EZ Pass image courtesy.

« Hide It

One man’s regret is another man’s disparity

Aug 2nd

Posted by Gideon in aro

No comments

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The death penalty is but one type of sentence that is subject to this disparate effect. There is a strong argument to be made that all sentencings are inherently biased and that the data exists – if only one would look for it – that blacks and minorities are routinely sentenced more harshly than their white counterparts. Even controlling for variables like criminal history (which presents an interesting chicken-and-egg argument), there is ample anecdotal evidence to suggest that minorities are indeed treated more harshly than whites.

Yet, there is McCleskey. It is not the effect, but the purpose, we are told. So our conscience must be clear.

And so today, in a non-death penalty case, former Connecticut Supreme Court Justice David Borden, writing for an unanimous appellate court in Abdullah v. Commissioner, holds out his handcuffed hands and cites to McCleskey as often as is conscionable:

The short answer to this argument [that the Court should recognize McCleskey as an outlier and decline to apply it] is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

But we must remember that there are always two Constitutions at play in criminal justice: the Federal and the State. Abdullah, for some reason, makes a complete muck out the State constitutional argument, failing to even raise it in his opening brief. Justice Borden, ever the brilliant jurist, seems somewhat disappointed with his inability to even attempt a bite at the apple:

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Maybe he’ll still get his chance with the death penalty racial disparity litigation that’s ongoing. State v. Geisler is a Connecticut Supreme Court case which lays out the rubric under which state constitutional claims are to be analyzed. Geisler, in the context of this post, also provides the perfect segue for a greater problem with cases like McCleskey and the 5-4 vote of most controversial decisions today. The majority opinion in Geisler was penned by Justice Berdon (not to be confused with Justice Borden), who is this blog’s favorite jurist ever in the history of the world.

And the problem is this: Justice Powell’s belated change of mind has left in place a terrible decision that continues, to this day, to block any and all attempts at legitimately explaining the injustices inflicted by the death penalty in its application. That the death penalty even exists in its current form in the United States can be traced back to one man. That the application of our laws and the erosion of our fundamental rights and protections and liberties are the product of the particular whims and fancies of one (or nine) individual is pretty potent food for thought.

In times such as these, I turn once again to Justice Berdon:

[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.

Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.

« Hide It

The ideal ideal

Jul 27th

Posted by Gideon in ethics

8 comments

A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”

“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”

It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.

But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.

Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

psa

Connickally yours

Genealogy

The Barney Fife exception: all in good faith

A Cronic problem

The responsibility of choice

An ode to the Kitchens sink: a tragicomedy

What do we want from our system?

The Aftermath

Wrong time, wrong battle

Deluding yourself is deluding the client

Clowning around in Georgia

The obscenity of risk of injury

Objects in mirror are as pretextual as they appear

One man’s regret is another man’s disparity

The ideal ideal

search the blog

recent comments

recent posts

terms of use

Meta

syndication

stats

Categories

psa

search the blog

recent comments

recent posts

terms of use

Meta

syndication

stats

Categories

Tags