Category Archives: psa

A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

SC public defender forgets meaning of adversarial

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What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

Legal fiction: the system operates on “good faith”

Andrew Cohen writing at The Week has a powerful and damning condemnation of the criminal justice system. He writes:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions. To even say this, I realize, is to cross some sort of decorous boundary that proper lawyers and judges are still conditioned to observe. But here we are. I am no longer a believer in the presumption of “good faith.” I’ve simply seen too much evidence of bad faith.

For Cohen, who’s been a lawyer for a long time and a distinguished legal writer, to come to this realization 25 years into his career is quite telling.

It reveals that we are all operating from the same basic assumption that the system, in the end, works: that everyone in it is doing the best they can do and that any injustices are the outliers. “The best system in the world” is the norm and the wrongful convictions and the prosecutorial misconduct are the inevitable bugs in a system manned by humans.

But if you’ve been reading this blog, or others, or have had any involvement with the system, you know that the assumption is false: it’s a fiction created to grant a sense of stability to the system.

If the system was predicated on good faith – that all parties were operating honestly and with noble intentions in mind, then we wouldn’t have Justin Wolfe or Esteban Martinez or our appellate courts wouldn’t contort themselves into positions deserving of perfect 10s at the Olympics simply to avoid providing relief to criminal defendants.

Just like harmless error is a legal fiction, so is the idea that there is a level playing field. Cohen again:

I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or “good faith” of public officials. I see now that I was taught wrong. The death penalty in America, indeed the entire criminal justice system, is worthy of trust and respect only to the extent that the men and women running it act honorably and in good faith, even if it means they take positions with which they do not personally agree. Think here of John Roberts’ famous “umpire” analogy. Now imagine that umpire calling only balls for one team and only strikes for another. The truth is that our justice systems are full of men and women acting in bad faith under color of law, and it’s time we all stopped pretending this isn’t so.

It took Cohen getting deeply involved in the reporting of criminal justice stories to have this epiphany. What will it take you?

Prosecutor threatens defense attorney with warrant for failing to help incriminate client

We’ve always known that the prosecutorial function requires somewhat of a solipsistic world-view, but failing to do one’s own job and then demanding that the defense do it for you is another realm entirely.

Charlie Rubenstein, Cincinnati prosecutor, may have an inadequate understanding of the adversarial process of the criminal justice system and seems to have never heard of the burden of proof resting on him. Rubenstein was prosecuting a man named Terrance Jones for the high crime of stealing candy from a store. This being 2014, there was a store surveillance camera which recorded the incident. Rubenstein, laboring under the mis-impression that convictions come walking in through the door without having to work for them, neglected to obtain the security footage.

Ray Faller, public defender and human with at least half a brain apparently, got his investigator to go to the store and obtain a copy of the surveillance video. The stores, as stores do, then erased the video so it could record the next robbery.

Rubenstein, ever so demanding, demanded that the defense turn over the video that purportedly incriminated Jones. Faller, as any good lawyer would do, told Rubenstein to go fuck himself.

So, like every misdemeanor prosecutor who’s been told to go fuck himself, Rubenstein flexed his muscle and got his pal and former co-worker Judge Lisa Allen to sign a search warrant for Faller’s office. In it, he claims that the video is evidence and the defense was hiding evidence and thus were guilty of “tampering with the evidence”.

The case settled and the warrant was never executed, but the idea that the warrant was sought and issued is a tremendously frightening one.

The surveillance video has evidentiary value, certainly, but it is not the job of the defense to provide that to the prosecution, when the prosecution had the opportunity to obtain it itself.

With the prevalence of 24-hour security cameras everywhere, retention of footage has become a big issue. The prosecution routinely secures footage when it believes it will be helpful, but not when it believes it to not be so or when it may be exculpatory. When asked to obtain video that might show the defendant was innocent, the prosecution routinely shrugs its shoulders and points out that it has no control over store owners and can’t legally be required to obtain the footage.

And yet Rubenstein thinks that a defense attorney is obligated to help incriminate his own client by turning over video of an incident that he himself failed to get.

The chilling effect of this line of thinking is obvious: defense attorneys would be extremely hesitant to conduct an investigation of their own because they would automatically have to turn over whatever they uncover that would incriminate their clients. This would cause a conflict of interest in all criminal cases: either fail to investigate and run afoul of the rules of professional conduct or investigate, refuse to turn over evidence and be subject to arrest or turn over incriminating evidence uncovered and violate the duty of confidentiality and zealous advocacy to the client.

In other words, Rubenstein’s thuggery serves to remove the defense attorney entirely from the adversarial process, leaving him free to steamroll pro-se defendants.

H/T: ABAJ

 

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.

Knockout bill KOs logic, advances in legislature

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Listen, if you’re going to propose a bill that criminalizes a “trend” in assaultive behavior and you want to single out juveniles for especially harsh treatment, you better have a more concrete response than this:

Verrengia said it was difficult to determine how many of the attacks have occurred when he was asked Monday if there was any evidence suggesting that a large number have been committed by 16- or 17-year-old offenders.

“I tried to wrap my arms around it, I tried to get statistics, but it’s very difficult to do so by virtue of the present reporting requirements by various law enforcement agencies,” he said. “. . . I think if you were to ask [victims] how many assaults have there been throughout the state of Connecticut, they would say, ‘One too many.’”

You know why he couldn’t “get statistics”? Why he tried to wrap his arms of justice around this issue and failed? I mean, if the ‘knockout game’ is such a big problem that you need to specifically legislate against it in ass-backwards ways, shouldn’t the statistics be abundant? Shouldn’t there be data flowing out your rear hole?

A DuPont heir update and a reminder that the media generally sucks at criminal justice reporting

Remember two weeks ago when you were outraged like never before that the rich, pedophilic, no-good trust fund bastard Robert H. Richards IV, aka “the DuPont heir” got away with no jail time because he “wouldn’t fare well in jail” according to some liberal activist judge in Delaware? Remember that you were so angry that he was rich and therefore got special treatment and you wanted to burn him instead of burning down the system that encourages such disparities?

Now, do you also remember that generally speaking the media is god-awful at reporting on criminal justice?

So, when the former meets the latter, who do you think you got fooled into fake outrage? You. That’s right. You got suckered. Again.