psa
Relegating McCleskey
Apr 23rd
Twenty five years ago yesterday, the United States Supreme Court issued one if its most shameful opinions in recent history: McCleskey v. Kemp, in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences. The Court in McCleskey, assuming that the Baldus study [.doc] was accurate, nevertheless:
categorically rejected the idea that statistical evidence was sufficient to show a constitutional violation, requiring instead that a defendant show “exceptionally clear proof” of discrimination under the facts of his or her own case. This near impossibility effectively shut the door to any thing short of “smoking gun” evidence of intentional discrimination — evidence that is unlikely to exist, or unlikely to be discovered by the defense.
From this post the ACLU’s McCleskey project website. That is to say, the Court made it near impossible to prove the standard, particularly in light of the fact that contacting individual jurors and asking them about their personal racial biases is a non-starter. The Court’s rationale in rejecting McCleskey’s claim wasn’t that racial discrimination in the criminal justice system didn’t exist, but rather that it was “inevitable” and, as Justice Brennan put it, the majority was afraid of having to dispense too much justice. Rather than confront the reality that the system is terribly flawed and skewed against people of color, especially in the death penalty context, the Court did what was natural to any petulant 5-year old: run in the other direction, hands over their ears, yelling at the top of their lungs so as to not let reality set in.
[Interestingly, as heretofore unknown to me, was a Scalia memorandum prior to the decision in McCleskey, which said:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.
Shorter Scalia: it's there, it's real and we can't change it, so why even bother?]
McCleskey, of course, is also famous for being the one vote that Justice Powell, in his later years, regretted. Which brings me to the point of this post. While no courts would ever seriously consider a systemic bias claim in light of McCleskey, that doesn’t mean legislatures aren’t free to mandate such a consideration. In 2009, North Carolina did just that, with its Racial Justice Act. And last week, we saw the results. In the first ever decision applying the RJA, Superior Court Judge Greg Weeks held [PDF] that Marcus Robinson’s death sentence must be commuted to life without the possibility of release because of racial bias in the jury selection process:
Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.
The Michigan State University study [PDF] produced some stunning findings:
It reported that, of almost 160 people on North Carolina’s death row, 31 had all-white juries, and 38 had only one person of color.
More here. The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.
It isn’t enough for us in the system to “know” that there is racial bias. It isn’t enough for us to throw our hands up and shrug. It isn’t enough that we pay lip service. We must relegate McCleskey to the dustbin of history, alongside cases like Dred Scott and Plessy v. Ferguson. We must do something more. David Baldus, may he rest in peace, did. Gov. Beverly Perdue, who vetoed a repeal of the RJA, did. Judge Greg Weeks did.
Who’s next?
Idiocracy
Apr 16th
There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.
First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.
You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.
Yet, we have Labriola:
He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.
I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:
Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.
[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]
This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:
1. The death penalty is appropriate.
2. Because DNA evidence provides great assurances that offenders are actually guilty.
3. He knows this because he represented an offender.
4. In whose case DNA evidence was presented.
5. And the DNA evidence excluded his guy.
6. And still his client was convicted.
7. And spent 20 years in jail.
8. ????
9. PROFIT!!!!
Labriola concludes with:
“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.
It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”. As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?
For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.
It does not compute.
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Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.
In which I make some uninvited retorts to specious arguments against abolition
Apr 10th
With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.
I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.
Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?
A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.
Q: “Bluster?” What ever can you mean?
A: It was never a serious proposition, just a useful piece of propaganda.
He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.
Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.
A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!
This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.
It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.
So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.
Q: Another argument was that the penalty once applied was irreversible.
A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.
I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.
Q: But the appeals!
A: A means of postponing punishment, a judicial means of jury nullification.
…
[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.
You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.
First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.
This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.
But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.
Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.
These are the appellate review options available to any defendant:
1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).
2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
3. A Petition for Writ of Habeas Corpus in State Court.
4. An Appeal to the Connecticut Supreme Court from that decision.
5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
6. A Petition for Writ of Habeas Corpus in Federal District Court.
7. A Discretionary Appeal to the Second Circuit Court of Appeals.
8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]
To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.
To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.
In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.
[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]
The measure of our society
Apr 6th
One of the highlights of staying up until 3am on Wednesday night/Thursday morning to watch the death penalty abolition debate was listening to state Senator Gayle Slossberg give a rousing speech in support of repeal. Susan Campbell of the Courant has obtained a copy of the entire speech and I would urge everyone to read it.
I have said for years that the death penalty is, at its core, a purely moral and emotional issue. The rest of the reason – deterrence and cost for example – are sideshows. An attempt to dress our passions in the garb of rationality in order to give them a semblance of respect.
But in the end, you either believe in retribution or forgiveness. You either believe that the majority – collectively – should not have the power to dictate whether another lives or dies or you believe that it must. You balance the emotions of compassion and mercy with revenge, anger and retribution. Some come out on one side; some on the other.
The debate on the death penalty is not about the viciousness of the acts of 11 men or the feelings of 4 survivors of homicide who support the ultimate penalty or the 4 who oppose it. There are vicious men who have done terrible things and there always will be. There are people who are opposed to executions and those who support it and that will remain forever.
It is about what we value more (and no, it isn’t about valuing life more, which is why it is not incongruent to believe in a woman’s right to choose and be opposed to the death penalty): that society should act in revenge or society should set the example and offer mercy and compassion and forgiveness.
When opponents of the death penalty chant “not in my name”, it isn’t that we want this particular person to live because we like them, but it’s because we don’t want the Government to take the life of one of our fellow citizens in the name of all of us. It is that governmental action that we decry. We refuse to give the shapeless, amorphous body called “the State” the power to determine whose lives are worthy of permitting to exist.
Today, there are 11 men on CT’s death row of whose guilt there is no doubt. But that is not the case in the rest of the country and will undoubtedly not be the case some time in the future in CT as well. That risk is untenable. We are all fallible beings. We all have made mistakes. As fallible beings, the responsibility of deciding who lives and who dies is too awesome to be trusted to be carried out without error and in good judgment in a way that doesn’t unfairly affect one group or another.
Vengeance is easy. Forgiveness is difficult. As a society, we must make difficult choices. Giving up the power to exact revenge is perhaps the most difficult one of them all, yet it is one we must make, because otherwise, an eye for an eye will make us all blind.
To plead or not to plead: a critical question
Mar 21st
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?
So muses Hamlet in Act 3, Scene 1 of Shakespeare’s play of the same name. So goes the quandary faced by criminal defendants in today’s criminal justice system: to plead or not to plead? Is it more advisable to suffer the ignominy of a conviction and lesser jail time up front than to press the sword of trial and hope that it doesn’t turn on you, often to more deleterious effect?
Hamlet had no one to guide him honestly; the modern criminal defendant, however, does: his lawyer. And it is upon this lawyer that he relies for a frank and learned assessment of the pros and cons of the various options available to him. To argue that the decision to plead guilty or to reject an offer is not a “critical stage” of the criminal process is to disingenuously ignore the realities of this modern day system.
And yet this is precisely what agents of the various States have been arguing for many years. This is a nonsensical fight that I personally have fought for at least 5 years now, without any direct guidance from the United States Supreme Court. Until yesterday.
In two sure to be seminal cases, Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages and yes, Dorothy, the plea bargain is a “critical stage”.
The argument for this holding is best explained by stating the position of those against it. The position against is this: so long as a defendant receives a fair trial, it is irrelevant whether – and to what extent – his lawyer erred in the time leading up to that trial. Reductio ad absurdum, to these folks, if a lawyer never speaks to his client prior to the trial and conveys no offer, it doesn’t matter, because the right to effective assistance of counsel only has force in the context of a criminal trial.
To a less absurd degree, take the case of Lafler, whose lawyer told him that he should reject a very favorable pre-trial offer and instead make the State prove its case because there was no way he could legally be convicted of attempted murder, since the victim was shot in the leg.
You don’t need 3 years of law school and a passed bar exam to tell you that’s just wrong. Stupid, wrong and dangerous. But the States would have you believe that it is of no moment that such patently faulty advice was given, because Lafler received a fair trial.
Justice Kennedy, writing for both majorities, explains it well:
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
While the significant role of plea bargaining cannot be diminished (also why ideas like taking every case to trial are stupid and unethical), I would argue that the right to effective assistance pre-trial is not a product of only that large impact of the plea process. It is also a matter of simple logic and ethical responsibility. As I’ve long argued, we are our clients’ shepherds through this complicated quagmire that we call the criminal justice system. The layman, untrained in the nuances of this system, look to us to proffer advice and most often follow our advice. How would you feel if you were given bad advice by the person whose only responsibility was to give you good advice?
Simply put, the issue boils down to this: if you have a right to have a lawyer give you advice, then you have a right to have that lawyer give you competent advice.
This is an outcome that everyone involved – judges, prosecutors and defense attorneys – should be cheering, because it ensures that the system is fair. That is not to say that all advice given by counsel that a defendant doesn’t like is per se ineffective, as some folks1 would have you believe. Rather that a court should evaluate that advice to determine whether it was sound. I suspect that in the vast majority of cases, the advice will be deemed so. But there will also be cases where, but for the misadvice of counsel, the defendant would have not been worse off.
The problem with these opinions lies – as it often does – with the remedy. Here is where I part ways with Justice Kennedy. He writes, in the context of a sentence after a jury trial and a rejected plea agreement:
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
This proposed model of determining remedy is fundamentally unsound. The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible. In my mind, the only appropriate remedy2 is the first one: if the defendant can establish that the plea was rejected as a result of ineffective assistance and the plea would have been accepted by the judge, the only way to make the defendant whole is to sentence him to the terms of that plea. Anything else would be a band-aid on a gaping wound.
Finally, there will always be naysayers even among the defense bar. To them, I repeat words I wrote just under two years ago:
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.
IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us. At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.
This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
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1. The analogy given by the good folks at C&C is, simply put, stupid and inapposite. This is not a situation where “you offer to buy my car for $10,000. After consulting with my expert, I reject the offer. Turns out my expert gave me bad advice. The next week, I want to go through with the deal. In the meantime, though, I have wrecked the car. Would it be fair to make you pay me $10,000 for the now-wrecked car?” The expert has no duty to give me advice and my “wrecking the car” is not analogous to going to trial with that expert as my advocate.
2. The same good folks at C&C suggest that the appropriate remedy should be that “the defense lawyer should be personally liable for the cost of the trial. If the defense was the public defender’s office, the cost of prosecution should be transferred from the public defender’s budget to the district attorney’s budget.” If it wasn’t clear prior to today that the good folks at C&C were only concerned with obtaining convictions and watching people murdered by the State, it should be now. Such a rigid, simplistic view of the by-its-nature murky and unclear business of assigning guilt does a disservice to everyone.
DNA exonerates another in CT; mis-ID the culprit
Mar 16th
On Monday, Hubert Thompson walked out of Hartford Superior Court a free man. He felt the sun hit his face, breathed fresh air and went where the hell he damn pleased. He had just been granted a new trial after serving well over half a decade in prison for a rape he didn’t commit.
After DNA taken from the victim was discovered to still exist in a vault somewhere, his attorney sought to have it tested. The results excluded him as the source of the DNA and implicated another man. On Monday, his motion for a new trial was granted [I don't have a copy of the actual motion, but if you go that page, you can see a copy of the order page, which has some details on it].
[I've been sitting on this post for 3 days now, since there was absolutely no media coverage whatsoever and I didn't want to find myself in the enviable position of being the source of a news story that frankly half a dozen "news" organizations shouldn't gotten their hands on this week. That it took 4 days before the intrepid folks at CT News Junkie tracked down this story independently speaks volumes to the focus of the "mainstream" news outlets, which are quick to splash sensationalist headlines of people's arrests but reluctant to find out about real stories of injustice even when repeatedly informed of them. This is why independent news outlets like CTNJ and New Haven Independent have the drop on most traditional news media.]
How did Mr. Thompson get arrested, charged and convicted, you might ask, despite the title of this post? A faulty identification by the victim, ‘natch. Just in time, too, as the legislature today holds a public hearing on another eyewitness identification bill that would improve upon the one passed last year. But it also comes at the right time in the context of the death penalty debate, serving to remind us and our legislators that even here in the land of steady habits, we are not perfect. We make mistakes and one day, these mistakes are going to converge in a death penalty case. That we’ve been lucky so far is no reason to maintain faith in the infallibility of our particular death penalty scheme.
Thompson was convicted in 1998 of a rape and kidnapping that occurred in 1994. He was sentenced to serve 12 years in prison. At the time there was no usable DNA evidence, but the victim identified Thompson as the perpetrator.
Just this month, the State lab finished testing on the victim’s underwear to find that it excluded Thompson and implicated another man. Which is fantastic for Mr. Thompson, but just imagine, for a second that there was no testable DNA remaining. He’d still know he was innocent, but no one would believe him. He’d probably serve 12 years and be left to the ravages of the system with no way of proving his innocence.
There are people like that in our prisons. People who are innocent, but have no way of proving it. And a large number of them are convicted based solely on eyewitness testimony. Why do we continue to rely on this faulty mode of evidence? Why do juries? People: if you’re reading this and you’re on a jury, be extremely skeptical. There may be no white knight in 5, 10, 15 years to save an innocent man. Maybe it’s time we all started requesting instructions on the dangerousness of eyewitness testimony. We should ask that juries be instructed that 75% of wrongful convictions involved an identification of the exonerated. Something has to be done.
Just not what State Rep. Hewett wants:
However, Rep. Ernest Hewett, D- New London, said Thompson’s case lends support to a different proposal he’s pushed in the past. Hewett wants to allow the pre-conviction collection of DNA data at the time of a felony arrest. “Can you imagine if we increased our database to arrestee DNA, how many people we’d get? They’re just walking the streets,” he said. “Those people that are running wild out there, continuing to commit crimes, their profile would be in our database.”
This, apparently, is his pet project. I’ve written in the past about how this would run afoul not only of our basic Constitutional rights, but also the principles underlying those rights and would only serve to push us closer to war with Oceania [and a debate on this bill last year produced, in my estimation, the "Best. Quote. Ever"].
Hewett, as you can see from prior posts, is prone to saying things that make little sense. He says that Hubert Thompson’s DNA exoneration, – and for that to work, they’d had to have DNA from the victim, the suspect and Mr. Thompson – this particular case, lends support to the idea that we should take DNA from people when they’re arrested. Apparently he missed the part where they didn’t test the DNA in 1998 because there wasn’t any usable DNA in the rape kit, not because they didn’t have Mr. Thompson’s DNA or that of the real suspect.
As time went by, extraction methods and protocols improved, allowing the lab to extract DNA from samples previously thought to be unusable. It’s that advancement in technology that permitted the exoneration of Mr. Thompson, not him suddenly deciding 5 years into a 12 year sentence that “hey, you know, maybe I should start working on this whole ‘getting out of serving time for a crime I didn’t commit’ thing”.
We’re all allowed to have positions on things and our pet projects – God knows I have so many – but can’t we at least expect our elected officials to be able to understand, articulate and properly apply theirs?
Prison isn’t what you think it is, and other death penalty half-truths
Mar 15th
The judiciary committee’s public hearing on the repeal of the death penalty in Connecticut lasted well over 14 hours yesterday, with both sides making impassioned pleas for their respective positions. All the usual arguments were bandied about: it’s not a deterrent, yes it is; it costs money; it’s worth it and so on. So one would think that with a debate so well worn out, there wouldn’t be any surprising moments in the discussion, but oh my, where do I start?
[Before I do start, however, I do want to point out that it seemed to me that unlike in years past, the number of supporters of repeal significantly outnumbered the opponents of repeal. Is this indicative of anything? I'm not sure, but it's worth noting.]
As the day progressed, one common theme seemed to emerge among the opponents of repeal, and since it’s one that’s blatantly wrong and designed to invoke false outrage among people it’s worth tackling head on. The refrain was that prison is a dandy place. A place where inmates “have everything going for them” (yes, that’s an approximation of an actual quote by a State Representative), where they get “all the rights and responsibilities” of other inmates. Where they have a TV – albeit 9 inches and only 1 or 2 channels. Where they can spend 6-7 hours a day outside their cages. Sounds heavenly.
So let’s get one thing clear: bullshit. Prison is a terrible, terrible place. It’s not Club Fed. It’s not your mother’s basement. It’s not the local Starbucks. It’s a fucking prison.
You know what happens in a prison? People are locked up. In tiny cells. With a big metal door that other people control. They also control when you eat, when you walk, when you take a shower, when you sleep, who you talk to, how long you talk to them, what you can watch, what you can read and whether that medical condition of yours deserves treatment.
And you are so controlled, inside drab, grey, concrete, barricaded walls for days, weeks, months, years, decades and in some cases, for the rest of your life. To suggest that allowing people from death row out into some form of general population is a gift that they do not deserve betrays a fundamental misunderstanding of what prison is. Either that or it’s an intentional lie meant to rouse the passions of the masses, in which case, if you’re stupid enough to believe it, you deserve what you get.
It’s one thing to go look at conditions of confinement when you’re with a touring party and a show is being put on just for you. It’s quite another to sit there, day in and day out, left with nothing but the sound of your own slowly deteriorating mind.
And let’s clear up another misconception: this bill would change the penalty of death to – and listen carefully now – life in prison. without. the possibility. of release.
It should be clear enough, but since a surprising number of people are poor at reading comprehension, I’ll state it in even simpler terms: life without the possibility of release means that there is no chance, none whatsoever, that those individuals will ever be released from prison, even if they live to the ripe old age of 5,328. In yet other words, they will die in prison. There’s no if, but or parole about it. So stop with the nonsense.
—
There is another segment of the population that seems to have deliberately closed its ears to an honest and accurate debate on the death penalty: our purveyors of fact, the doyens of social responsibility and honorable men, all – news media.
There are two things the media loves to trumpet in the wake of any death penalty debate: an incomplete statistic of the support of the death penalty and the views of one particular high-profile victim’s family.
It is true that, when asked if they support the death penalty, 67% of respondents said yes. So the headline becomes 67% support the death penalty. The headline is half-true and would be fully true if the words (in a vacuum) were added.
Because, as is often the case, the truth lies deeper (or in the case of this poll, in the next sentence): that when given the choice between the death penalty and life without the possibility of release, only 48% support the death penalty, while 43% oppose it with 9% not having a clue. As anyone who can reasonably guess at the meaning of words might tell you, 48% does not a majority make.
But try and find that in the news piece I linked to above. Or in any other. I’m not saying this as a supporter of abolition. I’m saying this as someone who wants to see an honest, informed debate. What other reason can there be to ignore this vital statistic than the fact that it doesn’t fit within the pre-determined story?
—-
In the world of victims in Connecticut, in the context of the death penalty debate, there are two types: the Petits and everyone else. The Petits who, as is their right, have been vocal in their opposition to the repeal of the death penalty get a mention in every news story about yesterday’s public hearing despite not being present to testify. Those on the other side are lumped together – if they get a mention at all – in an amorphous blog of nameless, colorless, existence-less, generic terms like “other supporters of repeal”.
No, sorry, that’s just disrespectful. The Petits’ position is just as valid as that of Dawn Mancarella or Elizabeth Brancato whose mothers were murdered, or Catherine Ednie, whose brother and four of his friends were murdered, or Cindy Siclari, whose sister-in-law was raped and murdered, or Jane Caron, whose aunt was murdered in the course of a robbery, or former Hartford Police Chief Daryl Roberts, testifying both as law enforcement and as someone whose cousin was murdered, or Timothy Anderson, whose aunt was murdered [and who is interesting for more than that reason, but more on that in a bit]. You can read all the submitted testimony here.
These people – and their voices and opinions – should be part of the debate just as much as those on the other side.
—-
There was a moment, when Chief State’s Attorney Kevin Kane, a man who is respected by most on both sides of the bar, started speaking in opposition to the death penalty, when he asked the members of the committee, just like he asks juries, to vote their conscience. He asked them to recognize that this is a gut-wrenching issue, that this will be the most important decision of their lives and to search within their souls and vote according to their beliefs and their convictions.
He’s right, you know. Underneath it all, sentencing a fellow human being to death, no matter whether their actions justified it, is a deeply moral issue.
And we ask our fellow, average, everyday citizens to do this on a regular basis. We ask you and me to make the decision to another’s life as if it were a decision about which car to buy. We place this heavy moral burden on people who do not ask for, nor want this responsibility. If it is such a monumental decision and causes so much anguish for those who are elected to make these decisions, how can we, in good conscience, foist this upon the rest of us?
This brings me back to Timothy Anderson, linked to above. Timothy Anderson was a juror in the trial of Joshua Komisarjevsky. Anderson was opposed to the death penalty and yet he voted to put Komisarjevsky to death (let’s put aside the contradictions here for the purposes of this post). He submitted testimony in support of repeal, not only for moral reasons, but because he experienced first-hand the toll it takes on the regular individual to have to make the decision to end someone’s life. We should not be asking this of our fellow citizens.
—–
This post has gone on long enough and meandered far enough, but I want to end with one exchange I viewed near the very end of the debate last night.
Maybe this came up during the day, I don’t know. But it was the first time I’d seen someone mention it yesterday: the death penalty is about who we are and who we want to be. It needs to be said. Put aside finances and the unworkability of the statute and the required appellate process. At its core, the death penalty is about how we wish to be viewed as a society. Are we forgiving, just and fair? Or are we racist, vengeful murderers?
As the member of the public said in response to some chiding by Republican Senator Kissel: “with all due respect, Senator, this is about how history will view us. And history will not look upon us kindly”.
Taxing the system
Mar 11th
“We should just put everything on the trial list. That’ll learn ‘em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).
The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.
It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.
An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.
When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:
Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.
Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.
Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.
[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.
Do it when you’re arrested, not when you’re defending someone else’s liberty.
There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.
My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.
[H/T: Bobby G.]
A solitary epiphany
Mar 11th
“They treat me like an animal, so I’m going to act like one”, a client once said to me at the end of a two hour meeting in which we had discussed his life and the host of disciplinary problems he was experiencing in jail. “I’m not an animal”, he continued, “but in here, when you’re surrounded by the smell of piss, shit and blood every day and when they [the guards] spit at you and tell you you’re not human, but an animal. you become one”. He ended with the strikingly poignant “fuck them”.
The client was in solitary. He had a concrete cell with a thick metal door and no window. He was fed through a slot in the door and there was a one inch wide and 5 inch long “window” on the door of his cell that looked out onto a narrow corridor and other similar doors. He was, at times, chained in his cell. He’d had a TV for a bit, but they’d taken him away. He’d had a few books, but they wouldn’t allow him to have more than one or two at a time. Toilet paper was scarce. He could only take a birdbath. He hadn’t been out of his cell in days. He only got one hour a day, by himself in a cage, in a concrete “courtyard” where the walls stretched 30 feet upward like a chimney and an opening at the top that was covered with a grate, also like a chimney. Sunshine was something you imagined, not experienced.
Whether he, or any other client of mine deserved to be held in those conditions is something I will not discuss. But their experience, their conditions are common. In this State and throughout the country. At CT’s Northern Correctional Institution – the only Level 5 facility in the state – there are 310 staff members for 352 inmates. I don’t know the exact number, but I’m willing to bet that a large majority of them are held in solitary confinement or its equivalent.
At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.
The concept of solitary confinement has some appeal, if only superficially. Isolate a troublesome inmate as a punishment and hope that they reflect upon their actions that landed them there. Deprive them of human interaction and they’ll learn to behave well with others.
But anyone willing to give the concept more than a minute’s thought can point out the serious flaws with this argument. Depriving someone of human interaction and depriving them of humanity are two entirely different beasts, one far more dangerous than the other. As anyone who’s ever been laid up sick at home for days on end – or someone who’s ever gotten stuck in an elevator or between locked doors in a jail – can attest, the sense of isolation and abandonment seriously distorts our mental health.
And our prisons are full of people – diagnosed or otherwise – who suffer from mild to severe mental illnesses. Solitary confinement only serves to exacerbate and fine tune.
Only lately, it seems, has the message begun to get through:
Many states continue to house inmates with mental illness in isolation. Some inmates appear to function adequately in solitary confinement or even say they prefer it. But studies suggest that the rigid control, absence of normal human interaction and lack of stimulation imposed by prolonged isolation can cause a wide range of psychological symptoms including insomnia, withdrawal, rage and aggression, depression, hallucinations and thoughts of suicide, even in prisoners who are mentally healthy to begin with.
States are closing their supermax prisons, taking people out of solitary and the results are surprising:
They allowed most inmates out of their cells for hours each day. They built a basketball court and a group dining area. They put rehabilitation programs in place and let prisoners work their way to greater privileges.
In response, the inmates became better behaved. Violence went down. The number of prisoners in isolation dropped to about 300 from more than 1,000. So many inmates were moved into the general population of other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.
The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.
Unfortunately, as is the case with most criminal justice reforms, this paradigm shift comes not of some fundamental epiphany regarding the way we treat those among us, but from economics. They’re just too damn costly. And that’s fine, I suppose, for it brings about a favored result. But it does nothing to correct a greater problem prevalent in our correctional systems: that there’s very little correction and rehabilitation going on. There needs to be a change in attitude towards inmates. Most of them – almost all, in fact – will be released some day. They will rejoin us in society. They will live among us and try to work side-by-side with us.
Will they come out with a greater disdain for society and its rules and the better nature of us all? Or will they come out believing that no matter what, they’re still animals, and having had that drilled into their heads for years and decades, decide to act accordingly?
While celebrating the shift away from harsh, torturous conditions, I fear that the only actual difference is a change of scene for this play. The content will remain the same. And until we – all of us – accept and understand that the near inhuman treatment of others only makes us like them and them like us, safety will only be an illusion. And humanity a forgotten ideal.
We need to talk about an injustice
Mar 6th
While it was happening, I heard from many on Twitter that Bryan Stevenson‘s TED talk on injustice was riveting and a must watch. It’s now available online and I’ve linked to it below. This is your homework for the day. Watch it, think about it and we’ll come back tomorrow to talk about it (and injustice).
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
—————————————–
Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
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
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:
The Barney Fife exception: all in good faith
Aug 15th
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:
A Cronic problem
Aug 1st
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:
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