a public defender

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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.

Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.

That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.

1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.

2. Weapons focus:

The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.

This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.

However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.

3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.

4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.

5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?

So what is to be done? One method - the example used in the paper - is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.

Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.

I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.

What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.

I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.

(Courtroom sketch: Wired News/Norman Quebedeau)

The Statute of Limitations is a legislatively enacted section of the penal code that states:

(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, except within one year next after the offense has been committed.

The practice book also provides (Section 41-18):

The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:

(3) Statute of limitations

A Motion to Dismiss exists to test the court’s jurisdiction.

However, caselaw indicates the exact opposite:

Years ago, the United States Supreme Court indicated that “[t]he statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases. . . .” Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). Courts have cited Biddinger for the proposition that the statute is an affirmative defense waived unless asserted at trial.

We think that the more acceptable and better reasoned approach is not to treat the statute of limitations as jurisdictional and hence nonwaivable but as an affirmative defense and hence waivable. In doing so, we incline to the position that, although the protection is given to a criminal defendant by a statute, it is in the nature of a “substantive right,” extending, where timely asserted, immunity from prosecution. See United States v. Gulf Oil Corporation, 408 F. Sup. 450, 455 (W.D. Pa. 1975); United States v. Haramic, 125 F. Sup. 128 (W.D. Pa. 1954); 22 C.J.S., Criminal Law § 223, p. 574.

State v. Littlejohn, 199 Conn. 631, 640 (1986). The result of that holding is that the statute of limitations must be raised during trial, just like a normal affirmative defense, after the close of the state’s case-in-chief and if not done, is waived.

Why? The legislature has established time-limits within which individuals must be prosecuted or the state forfeits the right to institute criminal actions against them. It would seem that if a defendant cannot be legally prosecuted after the expiration of the time period, then a court does not have jurisdiction to hear that matter. Why has it been turned into an affirmative defense that must be asserted by the defendant?

Any clue?

This very odd story today leads me to ask the question in the title of this post. Luke Stetson and his girlfriend stole his mother’s chihuahua from the mother’s house and held it for ransom. They demanded hundreds of dollars. Hundreds. Apparently the transfer was made, but they were arrested trying to flee. Details haven’t been released, but I wonder if they themselves took the dog back to the mother for the money exchange.

Anyway, this led me to wonder whether you can be convicted of burgling your own house or your mother’s house. The burglary statute provides that one is guilty of burglary “when he enters or remains unlawfully in a building with intent to commit a crime therein”. It’s the second clause that interests me. “Remains unlawfully”. Caselaw has defined that as a situation in which an individual has permission to enter the premises, but then that permission is subsequently withdrawn - either explicitly or implicitly. State v. Henry (”even if one is lawfully admitted into a premises, the consent of the occupant may be implicitly withdrawn if the entrant terrorizes the occupants”).

However, every case that has dealt with that portion of the statute (at least the ones that I found) involve an attack or assault on the home-owner. The theory is that while you invite someone over, that invitation is rescinded once they attack you or commit a crime. Now bear with me here.

If Stetson had permission to enter, stay and take whatever he wanted from his mother’s home, can he be convicted of burglary for taking the dog? The predicate crime being, of course, larceny. Larceny, in this context, would be defined as:

(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.

Clearly, it would have to be under sub (a). So let’s look further:

A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:

(5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime…

So there are questions aplenty. First, it would seem clear that he “wrongfully withheld”. But is it? Would a dog be “property”? Even if it is, did he “compel or induce another person to deliver such property”? Or is the “property” money? Because he clearly compelled the mother to “deliver money”. So he could “wrongfully obtain” this “money” by “instilling fear” that if it is not delivered, he will “cause damage to property”. Which property is that last “property”? Would that be the dog?

Now, getting back to burglary. The crime itself - the extortion - didn’t occur till after he left the mother’s premises. So did the crime occur while in the house? If not, can it be burglary?

I think the answer will be yes, but it’s not a decided question by any means. Thoughts?

PS: I love elements analyses.

On occasion, clients will hesitantly - almost embarrassingly - ask if giving us pds money will make things better for their case. Perhaps it will make us investigate defenses with more vigor or make us move their case to the top of our pile.  Obviously, for the ethical attorney, the answer is no. That question is also a stupid question to ask private attorneys: they charge their fee and offering more money shouldn’t make them want to work more (some of the privates can chime in here).

There’s another problem with these sorts of questions: that money can be the answer to all of one’s problems. For example, a perfectly legal search can become problematic because $500 changed hands between the defendant and counsel or $2000 will create a third-party defense when you’re caught on tape with your name on a large cardboard card hanging from your neck, committing the offense, while looking straight at the camera, shouting loudly “I AM JOHN DOE. I AM COMMITTING THIS CRIME.”

Which is why I chuckle when defendants say things like “why did I pay that guy so much? I could have gotten the same result with a public defender” or “man, he didn’t do nothin’. The offer stayed the same”. It’s also really shady for a private to take a case away from a pd with the promise of a better offer. The other day, I read a transcript in which both the judge and the prosecutor stated on the record that the offer made to the defendant was the same that was made when he was represented by the public defender. The judge said “some defendants think that if they fire the pd and hire a private attorney, the offers are going to get better. That’s not the case.”

I’ve heard judges tell defendants “not to waste their money”, because whatever the private attorney can do, the public defender can do.

Folks - it’s the facts. Either there’s a defense or there isn’t. (In)competence reaches across both sections of the bar. There are incompetent public defenders and just as many incompetent private attorneys. Money won’t make them perform better. Or, at least, it shouldn’t.

Data recently released by the GHSSS* shows that 60% of you would choose to plead guilty to an offense you did not commit if you could avoid jail time.

This past week, a special prosecutor recommended that Tim Masters be released, after DNA exonerated him of the crime for which he’d been in jail for 9 1/2 years.

What does this tell us? I think it means that a conviction doesn’t mean an individual is guilty. It coud be that the jury found the defendant guilty under a version of the truth as presented to it, or simply that some people decided it would be better to just admit to something you didn’t do and avoid spending years incarcerated.

But what I’m really curious about is the folks that said “no” to the question asked in the poll. It occurs to me that the answer to the question might depend on whether you are a lawyer or not. Lawyers, especially criminal defense lawyers, see the system up close. We have clients who we believe are innocent and yet are convicted. We know how easy it is for the State to obtain a conviction in child sex cases (or even rape cases). Balancing the interests, the prospect of avoiding jail time for sure is too appealing to pass up.

On the other hand, if you’re not a lawyer, the principles of truth and justice might shine brighter. You may actually still believe in the fairness of the system and put faith in the notion that it is a truth seeking enterprise and that you will be vindicated because “you didn’t do it”.

So, I invite those of you who selected “no”, or would select “no” to share your reasons. Are you a lawyer? Why did you choose no? What would make you change your mind? Would you ever plead guilty to a crime you didn’t commit?

Anyone else with any other thoughts is also invited to jump in.

*not a real organization. Kudos to you if you figure out what it stands for.

As has been pointed out to me by several readers, I missed a troubling portion of an opinion earlier this week when I recapped the latest Appellate Court opinions. In Kaddah v. Comm’r, which I summarily dismissed, I ignored habeas counsel’s shocking admission that he intentionally pled a meritless claim just to please his client.

Perhaps I was subconsciously taking a cue from the Appellate Court who also let it pass without a reprimand.

The story goes thusly: Petitioner, represented by Attorney A, claimed in his first habeas that his appellate counsel, Attorney B was ineffective. However, at the habeas trial, Attorney A did not call Attorney B to testify and seemingly abandoned that claim. So petitioner filed another habeas, this time against Attorney A, alleging IAC for failing to establish his claim the first time around by not calling Attorney B.

At that second habeas:

[Attorney A] testified that the inclusion of the ineffective assistance allegation against [Attorney B] in the first habeas petition was done merely to placate his client—[Attorney A] did not believe the claim had any merit. On the basis of his assessment that the claim was meritless and would fail, [Attorney A] decided it would not be prudent to call [Attorney B] to testify.

Whaaaaaa? Did I just go through a worm-hole and end up in BizarroConnecticut where the rules of professional conduct no longer apply? Let me check. No, Rule 3.1 still exists. For those not in the know, it states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

So how does the court get around it? By changing Attorney A’s characterization of the claim as “meritless” to “weak”.

In light of this uncontradicted testimony, [Attorney A]’s abandonment of the claim against [Attorney B] was a strategic decision that merely eliminated a weaker argument from the petition.

Weaker? It’s frivolous! Weak is when the only support for your claim is your client’s testimony. Frivolous is when you have no support for a claim.

They can’t make up their mind, apparently. For, a sentence later, they say:

The petitioner has set forth no persuasive arguments as to why [Attorney A]’s failure to pursue a meritless claim amounts to deficient performance.

At a time when courts openly question why habeas cases take so long to prosecute, you’d think the Court would want to stamp down on those that plead meritless claims just to please their clients.

Oh, and I’ve said this before, but if you’re an attorney whose former client has filed a habeas petition, why don’t you just co-operate and talk about your representation? It would make things so much easier for the habeas attorney. You talk to them; they can better determine if there actually is a claim - then we don’t end up clogging the courts with frivolous weak claims.

Show of hands - how many of you regularly read the latest opinions issued by your appellate and supreme courts?

That’s what I thought. I try to. Back when I hadn’t discovered that they were available on the website, I’d pass on the paper versions. But then when I found this thing called “Advance Release Opinions” on the judicial website, I became hooked.

Why, you ask. I’m a trial lawyer; I don’t have time for this appellate gobbledygook. I work in the trenches and we don’t need to know this stuff here. We need to know how to get a client a lower sentence and how to negotiate with prosecutors.

Sure, but unless you’re just winging it, that ability comes directly from knowledge of the law. After all, that’s what we’re supposed to be doing: Following the law. Appellate decisions interpret the law, apply it and sometimes, change it. You can use that to influence the prosecutor - explain to him or her how their case is weak and why they should make a better offer if they want to resolve it.

I can’t tell you how many times I’ve heard “we don’t deal with the law here” from lawyers in various courts in this State. Really? You don’t? Then what, pray tell, are you doing? Do you know what to do when your client doesn’t want to take the plea? Wants to withdraw it? Isn’t canvassed? Isn’t told that he’s being sentenced to probation? Is charged with attempted assault of a police officer? Do you know that a “no-arrest” condition as part of a Garvin plea might not be legal?

Listen, I understand everyone’s busy. I’m no great lawyer myself and I’m also pretty swamped. But realize that we are the only thing standing between the government and our client’s liberty. Be informed.

So please, take the time to read appellate decisions. They come out once or twice a week and take about half an hour to read. You don’t have to be like me, reading them at the first opportunity. If you’re a CT lawyer, in fact, you can even wait a week or two until the good folks at the Appellate Unit publish summaries for the rest of us [which you can access here, using the password they provided - if you don't have the password, shame on you].

The more you know, the better a lawyer you will be. I know how I’ve improved. For your client’s sake, you should do it too.