Category Archives: psa

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

Should lawyers be disciplined for criticism of judges?

Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?

Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?

Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”

Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.

Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:

Rule 8.2. Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disre­gard as to its truth or falsity concerning the qualifi­cations or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(4) Engage in conduct that is prejudicial to the administration of justice;

I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.

As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.

And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.

The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.

As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.

But we are all lawyers. The irony is lost on us.

 

The lesson is that people are always guilty, even if they’re not.

David R. Cameron, distinguished professor of political science at Yale and a member of the State of Connecticut’s Eyewitness ID Task Force has written one of the most incomprehensible and bizarre opinion columns in the New Haven Register.

The feeling I got after reading that column is similar to the feeling I get after reading briefs written by the prosecution: one struggles for a sizeable chunk of time with where to start in response. As my favorite law professor used to say: it’s not even wrong.

Cameron uses three recent trials in New Haven Part A to illustrate the lesson that more evidence of guilt is better for conviction than lesser evidence of guilt and that without such additional evidence, guilty people will be found not guilty.

No, I’m serious.

Cameron tells us the tale of three trials conducted in recent months, all of which resulted in either acquittals or mistrials. He starts off by presenting unfiltered pro-prosecution evidence in each case:

In October, a jury found Jermaine Scott, 33, not guilty of murdering Marquise Baskin, 26, on June 19, 2010, in a parking lot behind Winchester Avenue. It did so despite the fact that a relative of Scott’s who had taken care of him since he was a child told police in a taped interview that she saw him in the parking lot with a gun, saw flashes of gunfire and heard gunshots.

In November, a jury found Tyrick Warren, 20, not guilty of conspiring with Rajoun Julious to rob John Henry Cates, a 57-year-old homeless man who was murdered on Jan. 3, 2010, near the corner of Huntington and Newhall streets. But it was unable to reach a unanimous verdict on the charges of felony murder and attempted robbery, despite a taped statement in which Warren implicated himself in the crime. The judge declared a mistrial.

And a week ago, Superior Court Judge Jon C. Blue granted a defense motion for acquittal in the trial of Kenta Wilson, 22, for the murder of Timothy Mathis, 25, on Sept. 3, 2011, in a parked car on South Genesee Street on the grounds that the state had not proved its case beyond a reasonable doubt. The motion came after a prosecution witness, Alfonso Dixon, refused to acknowledge that he told the police that several days after the shooting Wilson told friends he shot Mathis. Dixon was sentenced to six months for contempt of court.

He then goes through the rest of the evidence, essentially arguing that there were very good reasons why each judge or jury could not and did not convict the defendant. He boils down the similarities in each to:

But in all three, the prosecutors relied heavily upon a taped statement by an eyewitness, the defendant himself or an acquaintance that unambiguously implicated the defendant only to have the eyewitness, defendant or acquaintance subsequently recant, claim the statement was made under pressure, or refuse to acknowledge having made it.

Just in case you weren’t clear, he doesn’t believe any of this eyewitness recantation pressure nonsense, because clearly no one’s ever falsely confessed or misidentified the perpetrator. It’s understandable that a lay professor isn’t up on wrongful convictions across the country. It’s not like he’s on a task fo-oh.

And then he makes this really absurd conclusion:

However persuasive such statements may sound at the time to investigators and however useful they may be in demonstrating probable cause, they are quite likely to be recanted or otherwise denied later on at trial, especially if they were made by someone who is related to or acquainted with the defendant or by the defendant himself.

It is the fact of kinship that causes recantation, not the possibility that the statement may itself have been obtained under coercive circumstances. Cameron completely ignores this possibility again, so he’s either drunk or trolling everyone with this.

And let’s not forget the lesson he wants the good guys to learn from this:

That means investigators and prosecutors need to realize that judges and/or juries will usually need some corroborating evidence — ideally, forensic evidence — in addition to such statements in order to prove guilt beyond a reasonable doubt; probable cause isn’t enough.

I don’t even know where to start. What is he saying? That confessions aren’t enough because they’re only probable cause, and probable cause is not proof beyond a reasonable doubt?

That prosecutors should “find” some physical evidence because without that murderers and killers are going to go free because they can simply magically say they didn’t do it and juries are so stupid that they automatically believe all recantations?

I’m sorry this post is so rambling, but I literally do not know how to comprehend and deconstruct the vast amount of stupid that is this opinion column.

Wouldn’t it have made more sense for his opinion column to be about reminding prosecutors and police that they should only pursue cases in which there is proof beyond a reasonable doubt and to not try to convict people who are quite apparently not guilty?

That’s not what he writes, though, because surprisingly for someone who comes from his position, he too is of the all too common mindset that once police and prosecutors arrest someone, we have full faith that they’ve got the right person and all that’s left is a matter of meeting the ministerial burden of proof BRD and any prosecution that fails to meet that pro forma hurdle is a victim of cheating, dishonest witnesses and incompetent juries and “liberal” judges.

Never once does he demonstrate the understanding that maybe, just maybe, in each instance the verdict was the just one and the only one that upheld the integrity of the legal system.

But shit like that doesn’t get you on task forces now, does it?

 

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Unmuting Gideon’s trumpet

Pictured: a trumpet

Pictured: a trumpet

It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.

There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.

Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.

In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:

Who’s the people?

smbc-20131203

Did you hear the one about the woman who couldn’t fly to testify at a trial about the government’s “no-fly list” because the government put her on a “no-fly list”?

No? It happened this past weekend, when Raihan Mustafa Kamal, the daughter of the woman suing the Department of Homeland Security – and incidentally a U.S. citizen – tried to board a plane to San Francisco in Kuala Lumpur and was told by Malaysian Airways that the Department of Homeland Security had put her on a no-fly list.

Not an Onion article. I swear.

The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.

Just so you understand what’s happening: the Federal government is being sued. The Federal government, in defending that lawsuit, has apparently just blocked the opposite party from providing a witness. It’s as if the state charged you with murder, but you have a rock solid alibi of your family, so on the day your family was going to testify, they took your family and moved them to Guantanamo and then pretended like nothing happened and they didn’t know anything.