a public defender

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The Windypundit, in an effort to get a fellow Chicago blogger blawging, asks indirectly whether our job is to protect people’s rights or to help criminals “get away with it”:

Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:

I can’t help anyone “get away with murder.” No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn’t cheat. That’s not the same as helping you get away with murder.

It is to me, if I’m a murderer.

I don’t think Rob means what he wrote (at least not the way I’m taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don’t do what I’ve always thought they do, because I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.

Pretty much every defense attorney has been asked that question and most of us have fine-tuned our stock responses. They’re variations of the same “I’m defending the Constitution, asshole” meme. But is that what it really is? Losses sting in our business. We see clients sent to jail for decades and we never forget those cases. So wins do mean something. Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

This is a post that has been in the making for a long time. It is incomplete and at times will be incoherent. These are questions, however, that I think are worth exploring and attempting to answer. So bear with me on this Sunday as I ramble.

Anyone who has followed this blog for the past year will no doubt be aware of several high profile criminal justice stories in CT: the Cheshire incident, the David Pollitt incident and the more recent New Britain incident. Starting with Cheshire, reform of the criminal justice system has been on the minds of many residents of this State, mostly pushed forward by our esteemed legislature and Governor. We were once on the path to reducing our prison population and now we are growing and bursting at the seams with no relief in sight.

Prison sentences have been beefed up to unimaginable levels in the name of public safety, rehabilitation programs have been abandoned and common sense no longer prevails.

Yet there are people who do not feel this is enough. Read the comments to any Courant article on criminal justice and you will see that there are people who feel that any sentence short of life is inappropriate.

This State, fueled by the vote-seeking legislators, has become gripped in what might be the biggest “tough on crime” wave in the country.

The paradox, however, is something that I have long suspected.

It is no secret that one of the main causes of recidivism is a lack of opportunities for recently released offenders. As I’ve stated before, I’d like to see states take steps to ensure that, upon release, offenders have access to housing and jobs. If we provide them with a support system, then the need to turn to crime is greatly diminished.

So it makes me happy to see that one city is trying an innovative tactic. Philadelphia’s mayor announced today that employers would receive a $10,000 tax credit for hiring ex-cons.

Mayor Michael Nutter announced a program, being headed by an ex-offender, that gives $10,000 a year in municipal tax credits to companies that hire former prisoners and provide them tuition support or vocational training.

This is a fantastic program and one that should encourage more employers to hire ex-cons. Speak to any ex-con and you will hear stories of countless interviews, empty promises and, in the end, rejection, despair and frustration.

I can understand the point of view of employers, don’t get me wrong. People are hesitant to hire ex-convicts, because of the stigma. But that’s like asking which came first, the chicken or the egg. If ex-cons, who are willing to make a change in their lives, who want to make that change, aren’t given any opportunities, then they will get lumped in with those that have no such aspirations. They won’t get jobs, they won’t have housing or insurance or any money earned legally. Something’s gotta give and what better way to entice businesses than with money.

The scope of the ex-offender problem in Philadelphia was detailed in a report last fall that showed about 40,000 former inmates return to the city annually from federal, state and local incarceration.

At any given time, according to the study by the University of Pennsylvania’s School of Social Policy and Practice, the city of 1.4 million is home to 200,000 to 400,000 ex-cons, many in need of not only jobs but also education, health care and addiction counseling.

The study cites federal statistics showing that nearly two out of every three inmates released from state or federal prison are expected to be rearrested within three years.

This volume cannot be sustained. There has to be a way to provide opportunites for these masses and to curb recidivism. The savings in prison costs also warrant a mention. Let’s hope this program succeeds and that other states follow suit.

No state needs such an innovative program more than CT. Almost half the inmates in CT prisons are incarcerated for a violation of probation. I wouldn’t be surprised if more than half of those inmates returned to a crime for lack of legal employment.

One can hope.

Mike at C&F reviews a book that he recently read (and recommends), entitled “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking.” It is primarily a book about the human mind and the tricks it plays on us. Prof. Greenfield astutely reminds us all not to fall into these traps, if we are to represent our clients adequately.

I looked at it from another perspective. I think, generally speaking, as defense attorneys we are aware of these “tricks”. Some of them read just like the problems with eyewitness identification that are the subject of many papers and lots of research.

But this “list” organizes them succinctly (which, incidentally, is one of the “tricks”). If this is truly how people think, then we have just gained an insight into the minds of our jurors. We need to be aware of these “tricks” and be ready to either use them or to expose them.

Consider the following, with Mike’s summary:

Confirmation bias. People hate being told they are wrong. People love being told they are right. Consequently, people only look for data proving themselves right. Yet, in so doing, who knows what evidence we are missing proving ourselves wrong?

Anyone who is up on eyewitness id research knows about this. Witnesses reinforce their own memory and come to believe very strongly that what they saw is what they recollect. (As a side note, this is why it is imperative in eye id cases to attempt introducing the testimony of an expert.)

We are super simple Simons. Why do stock markets rise and fall? Why did your wife leave you? We have one or two sentence explanations of very complex events. In a sense, our need to oversimplify stems from the narrative fallacy and our inability to appreciate chance. Give us a show story that makes the world seem logical, and we’re sold.

Because of that, we prudently invest in mutual funds and worry about the child molester next door rather than the one in our own homes.

This, I think, can work in two ways. Find that two sentence theory of your case and you might be able to convince the jury of whatever your position is. Again, this is not new, but just further reinforcement that you want to keep it as simple as possible. One of the first things I learned about trying a case to a jury was to keep is as simple as possible - and simple to us lawyers is not the same as simple to lay jurors. Break the case into small, bite-sized pieces and feed as few of them as possible to jurors.

The other way it can work is to understand that the State’s case is usually made up of such a simplicity. A man saw the defendant hit someone. Hence, the defendant is guilty. Knowing that people lean toward such simple solutions teaches us that we need to unravel them carefully, and simply. Take each strand, one at a time and deconstruct it.

The simpler the better. See Occam’s Razor (or Bennett’s Chainsaw). I’ll have to read the book, but in the meantime feel free to jump in with your thoughts on this.

Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.

True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.

Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.

To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have somenoe with no appropriate training making these judgments and thereby controlling the destiny of a defendant.

When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine¹ [pdf]. If he fails to admit² [pdf], then he has violated his probation.

So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.

Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (See State v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.

There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).

It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.

Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.

The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.

While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found.  The outcome is generally not good.

So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.

I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?

1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).

As most of you know, I’m a tech-geek. I love technology and I love new gadgets and new software and cool things like that. I’ve started using technology in my day-to-day job and maybe you’ll find it useful too.

The tool I’m talking about is Microsoft’s Virtual Earth (you could use Google Earth too, but - surprise! - I prefer the MS version). Virtual Earth is software you download on your computer, which lets you view locations in 3D. I use it in conjunction with Live Maps (just pull up a map and then click on 3D - you will be prompted to download).

This is not a replacement for actual investigation, but merely a complement. I use this most frequently when reading police reports, to give myself a preliminary sense of the location and to orient myself with the streets and places mentioned in the report.

Say the police report states that the cops observed some activity taking place behind a building. I’d pull up that location on Live Maps and go to the 3D view. From there, I’d be able to tilt the map in all directions to see if, in fact, the police could have observed anything happening there. Gives you a sense of what the cops might have seen, without having to actually go there while you read the report.

A few examples follow. I’ve focused the map on that veritable hotbed of criminal activity: Iranistan Avenue, Bridgeport, CT.

Which might explain why lawyers love to hear themselves talk (I’m guilty of this too). The problem is that while this may we tolerable outside the courtroom, it can have disastrous consequences inside the courtroom.

Reflecting on Norm’s coverage of the Fieger trial some other nonsense I’ve read in the past week or two, I’ve come to the conclusion that we have to learn to talk less. It seems that sometimes we just can’t get out of our own way.

Maybe we need to have second chairs that will tell us to just STFU and sit down. The oft-repeated advice about cross-examinations is to never ask that final question that’s just sitting there on the tip of your tongue. You’ve made all your points and the conclusion is obvious. You don’t need to ask it, but you just want to. There’s this uncontrollable urge that comes from deep within you that eggs you on, pushes you to ask that question, just to see if you can push the envelope, just to see if you can make it any more painfully obvious that, say, the witness lied. Your training tells you not to, there’s a little voice in the back of the head telling you not to. And yet you do - and everything unravels. The question isn’t as slam dunk as you imagined it to be, the witness starts to waffle and wiggle out of the iron-clad suit you’d dressed them in and suddenly the impenetrable wall has been breached.

So stop talking, be aware of what’s happening in the courtroom and don’t ask that question just because you want to.

Oh, and while you’re at it, make sure you prepare your client to testify. Don’t just throw him up there and think it’ll all go okay. Even the best prepared defendants are itching to embellish and throw their version of the case down the toilet. Imagine what the ill prepared ones are doing.

Okay, so perhaps not as pronounced as in the title (and certainly not bad spelling), but as this National Law Journal article points out, lawyers are getting worse at legal writing.

Like other writing coaches, Garner sees the influence of technology in attorney writing, and, in many ways, he is not amused.

“They are losing concentration with what they’re writing about,” said Garner, who also is co-author with U.S. Supreme Court Justice Antonin Scalia of Making Your Case: The Art of Persuading Judges, which was released last month.

This piece spends a considerable amount of time explaining how advances in technology serve to interrupt the “flow” of a writer’s thoughts and create distractions. These distractions prevent us from writing in a coherent and simple manner.

“It’s a problem of distraction,” said Jennifer Murphy Romig, a legal writing and research instructor at Emory University School of Law and a writing coach to law firms.

She notes that interference with writing has always been present. A few years ago, it was computer solitaire, she said, and before that it was the old-fashioned crossword puzzle. But she describes today’s distractions — including texting, e-mail on a desktop computer, Blackberry messages and online news alerts — as “more aggressive.”

In addition, most of those distractions involve human communication, which makes them all the more attractive to attend to rather than drafting a brief on, say, jurisdiction.

My problem with writing is slightly different. As my readers (and co-workers) will surely attest, I often don’t know when to stop or how to get where I want to go. I’m not ashamed of it. I’m always learning, trying to get better.

I write (for work) like I think: mostly meandering. It’s not that there isn’t a (to me) logical sequence. There is. I just leave it out and expect the reader to follow. And then there are the times when I’ve had enough. I’ve spent 5 pages setting up the law and the facts and started making the argument and I think to myself: Well, that’s pretty clear. So I move on.

Like this.

Technological innovations also have an up-side, as anyone who has used spell-check will know.

Word processing basics, such as spell-check, passive-voice detection and subject-verb disagreement prompters can make more time for “what’s really hard about writing,” she said.

Advances in legal research also have improved writing, she said. Before online research, Shepardizing a case, for example, required a trip to the library to page through creaky volumes.

But the use of electronic research can create problems, especially for beginners, she said. All cases in electronic form look basically alike, she said.

That last line is a lead-in to a bizarre theory that if you don’t hold the book in your hand, you’re likely to miss that a case is from a non-binding jurisdiction or from the 1920s.

Or it could just be a cover-up for inattentiveness. I’m just saying.

I think these “problems” are not confined to legal writing. The same could be said of trial lawyering, communication, negotiation. We are a constantly distracted society and either you have it in you to focus and push everything else aside, or you don’t. In which case, you better learn how to multi-task well.  In the end, all that matters is the client and how effectively you represent him/her.

See? What the heck did that last paragraph have to do with anything? Come join the joyride!

(PS: Obviously, my work is vetted before I turn it in [for the most part], so don’t run around thinking my briefs are awful. They’re not.)

HT: WAC?

Now enjoy the Joyride:

There is an interesting series of posts over at the Volokh Conspiracy (I know, I know), in which minds far greater than mine tackle the question of age of consent laws and the reasons for choosing the prevalent age cutoff.

Eugene “Gene” Volokh starts it off by wondering:

Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever “sexually exploitive” might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they’re entirely unable to lie and manipulate — and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.

Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to “naturally” become interested in each other. Perhaps then the rationale is simply that you can’t stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?

Those in the field of criminal law (and observers) have long noted the arbitrariness of choosing 16 as a cut-off age for sexual activity. Rome and Juliet laws seek to decriminalize behavior between young teens, but almost universally, sex between an adult (18 and above) and a young teen is condemned and criminalized. On the other hand, there is a growing number of crimes for which those same 15 and 16 year olds are treated as adults.

What is the reason for this discrepancy? Are we saying that teens have the maturity to perform one sort of act but not the other? As one commentator puts it, a 16 year old may not know any better than to have sex with a 30 year old, but should know better than to rob and kill.

It is an interesting theory and might well be the best explanation, but it is not free of problems. Generally, if you have the intent (and maturity) to commit a severe act, then does it not follow that you must have the maturity to commit a lesser act? If consensual sex is seen as less severe than robbery, then if teens are treated as adults for crimes, must we not give them the same leeway in their sexual relations?

Of course, the problem is that maturity is subjective. Some 15 year olds are far more mature than some 30 year olds. In the law, you have to draw a line somewhere and create clear demarcations. So perhaps we as society have accepted that 16 is a good clean line to draw. But there’s a problem with that:

But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There’d be no need to “change the law” to allow this in most places; one would need to change the law to forbid it.

Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves “out of touch with reality,” whatever exactly that means. I certainly don’t want to argue that the majority view is always right. But it does suggest that we can’t lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is “luna[cy].”

But wait, there’s more: In France, the general age of consent is 15. In Austria, Germany, and Italy it’s, generally speaking, 14. In Spain it’s 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. [W]hen nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there’s an important discussion to be had here, and that the answer is at least not open and shut.

So, I turn it over to you, my enlightened readers. What think you?

Scott has shamed me into posting. Again. He has two posts on things that should always happen and things that should never happen. He asks us to think of it as a legal Rorschach test.

All people who believe that convicting innocent people is an acceptable necessity of an imperfect system should nominate one member of their family to go to prison “just to be safe.”

Government should never spend more on prisons than education.

So here are my contributions. Some may be repeats from his posts and it’s an incomplete list, mostly because I’m too busy soaking up the sun. But. Here goes:

Must happen:

1. Appellate Judges must spend three weeks a year practicing in the “real world”.
2. Defense lawyers must meet with clients at least twice before getting them to plead.
3. Prosecutors must spend two weeks in our chair.
4. Prosecutors must keep victims informed of progress in cases.
5. Identifications must be performed using the double-blind, sequential method.

Must not happens:

1. Harmless error must never be used as an excuse again.
2. Claims must not be deemed abandoned because you forgot to object for the 5th time.
3. Prosecutors must never hide exculpatory evidence and get away with it.
4. Defense lawyers must never forget that someone’s liberty depends on our efforts.
5. Prosecutors must never be afraid to challenge the police’s investigation (after all, they are after truth, not convictions).
6. People must not be tricked into confessing.
7. Police must never lie on affidavits.
8. Defense lawyers must never forget that it is all about the clients.
9. Defense lawyers must never forget that they can always do better.

Additions?

Doug at Not Guilty asks practitioners whether they’d prefer good facts or good law in a case. The answer, I think, is clear. Good facts (almost) always trump good law.

Putting aside the question of whether there actually is such a thing as “good law” for defendants, if the facts are not on your side, your options get severely limited. If you have a case with bad facts, you’re essentially looking to get the “least worst” resolution for your client.

If, on the other hand, you have good facts - such as DNA evidence that excludes your client - then not only can you argue to a jury (or a judge) that the verdict should be not guilty, but you can also try to create an exception in the “bad law” for your good facts.

Anyone disagree with this?

The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.

State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.

But they just couldn’t leave it at that.

The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.

Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.

And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however - or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.

The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.

Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.

One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.

The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.

If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.

Previous, similar thoughts here.

The criminal justice system is a heavy volume business. There are hundreds of thousands of individuals being processed through the system on a yearly basis. Hundreds get sentenced on a daily basis, there are even more that have short court-appearances. Add to that pre-trial hearings, trials and other motions and arguments, it is clear that it can get monotonous, repetitive and boring.

Yet to allow it to become so is, in my opinion, doing a disservice to the system and to the individuals caught up in it. Western Justice, a prosecutor authoring a self-titled blog, describes a day in court and how his (or her) mind wanders during routine pleas. His mind wanders in and out of the proceedings, sometimes distracted by the upcoming weekend, sometimes by other cases and at other times by ethanol. He relates that he snaps back to reality just enough to mumble some responses to the court’s questions.

While I can understand how this would happen, I’m just a little disturbed that it does happen. Sure, things get repetitive, but are we really that self-centered that we forget the significance of what is occurring in our presence? There are people charged with crimes who might be deprived of their liberty for a significant period of time, their families, people who have been victimized and traumatized and their families. The criminal justice system is not a joke, people. (Well, I don’t mean that kind of joke.) Even the smallest of infractions have consequences in this day and age and we must take our jobs seriously for others to take the system seriously.

Western Justice provides the following quote:

For you non-criminal lawyers and non-lawyers, you have to understand, there are times in any court proceeding where your attention need not be undivided. These usually come at times like advisements, reading of one’s rights, or the reading of twenty plus jury instructions at a jury trial.

Wrong, wrong and wrong. You best pay attention during a plea canvass and you need to quit your job if you’re not paying attention during jury instructions.

More:

Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”

I sincerely hope that defense counsel are not saying to themselves: “who cares about the Constitution?” If they are, the answer is very simple. The man (or woman) standing next to you, and for his or her sake, you better care too.

The only participant in the system that can justifiably drift off is the defendant. It has been my experience that defendants drift off during pleas and sentencing, not because they are unmindful of the gravity of the situation, but rather because they are all too mindful of the consequences. Some are thinking about their families, some are thinking ahead to life in prison and some are cursing the day the committed the act. That I understand and have no problem with.

But it is incumbent upon us to pay rapt attention to what the court is saying. Whatever the judge says at that time can have significant consequences down the road. Another public defender once told me of a case he had where at the time of sentencing, the judge imposed a period of probation in addition to a jail term. Had he not been paying attention, he may not have remembered that the defendant did not actually plead guilty to a sentence that included a period of probation. The matter was immediately rectified, but it may not have been had he not been attentive.

This is what we are paid to do. We are paid to stand by a citizen accused of a crime. That is a serious job that demands our best. We should give nothing less. That includes paying attention in court.

Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.

What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.

In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.

So they disbelieved the eyewitness. Zero credibility. They acquitted.

Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)

So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.

Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.

Update: Speaking of understanding the fallibility of humans, Anne at Deliberations has this post on who on a jury is more likely to forgive a defendant and why.

The researchers found that people of both genders are more forgiving when they see themselves as capable of committing a similar action to the offender’s; it tends to make the offense seem smaller. Seeing capability also increases empathic understanding of the offense and causes people to feel more similar to the offenders. Each of these factors, in turn, predicts more forgiving attitudes.  “Offenses are easier to forgive to the extent that they seem small and understandable and when we see ourselves as similar or close to the offender,” [Exline] said.

Original post: So by now you must have heard of NY Gov. Elliot Spitzer and his escort escapade(s). This from the same man who zealously pursued prostitution rings as a prosecutor and is generally known to give no quarter to others. He now finds himself in the opposite spot at the table, which used to be occupied by people (just like him, apparently) to whom he showed no mercy.

The irony is evident.

Yet, I want to take this opportunity to bang the drum one more time: It could happen to you, it could happen to me. We are people and people are fallible. All criminals aren’t bad people, just as all bad people aren’t criminals. There, but for the grace of God…

This, for me, is the singular reason for doing what I do (that Constitution thing comes in next). Elliot Spitzer may not have been a “bad person”; he made a few mistakes. It’s easy to rub his face in it (HAH!), given the stances he has taken in the past, but that should be no more than a moment of jest. For tomorrow it could be you.

So stop asking “how do you represent those people” or someone will laugh in your face when you get arrested.