Category Archives: psa

Shooting a stranger on your porch is still a crime: The Stand Your Ground bogeyman

Last Saturday morning, Renisha McBride, a black woman, got into an accident in a very white neighborhood. At around 2:30am, she knocked on a man’s door to ask for help since her cell phone battery was dead. Upon receiving no answer, she turned to walk away at which point she was shot in the back of the head.

Absurd, grotesque, horrifying, infuriating and enraging, all of it.

Stand your ground? Not so much.

Stand your ground, as it is commonly referred to in our lexicon, implies that the user of the phrase is invoking a situation where an initial aggressor doesn’t have a duty to de-escalate or walk away from the situation and, instead, is permitted to use deadly force.

It’s all hogwash. Stand your ground laws (which I do not like)1, empower citizens engaged in lawful activity outside of the home to repel deadly force with deadly force2. It does remove the duty to retreat in a public place, but only in certain circumstances.

Stand your ground laws do not apply to a person inside his own home. Almost every state in the country has no requirement that a person try and “retreat” inside his own home or to another location when attacked in that safe place.3

What the law doesn’t allow, of course, is a license to shoot and kill, without legal consequence, a person who happens to be knocking on your door or standing on your porch or even – in some circumstances – entering your home.

We call that murder4.

Your home is not an independent foreign country and every visitor an enemy incursion that you must repel with ballistic force. This is not Petoria.

Whatever this individual did will per force have to be viewed in a subjective and objective lens. What did he perceive and was that perception rational?

It seems to me, without knowing anything about anything5 that a man shot a woman for no reason. In most states, it is either murder or manslaughter.

What it most certainly is not, is a free pass under Stand Your Ground laws.

But don’t ask me, I’m just a lawyer.

Come on, we’re not even pretending anymore

whatisthisidonteven

If you for some reason start a judicial opinion with the following:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was   scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

[No. Stop. You really need to read that blockquote. Don't skip it.] And then recite more facts like these: He worked for an hour and a half on Thursday. On Friday he worked on the case for 2 1/2 hours. Then, on Saturday:

defendant’s counsel conducted a three- to four-hour review of relevant evidence rules and suppression law to prepare himself for proceedings in adult criminal court

and on Sunday, he spent three hours reviewing discovery and preparing cross-examination. In all, he spent 10-11 hours preparing for a trial. For his first criminal trial in 7 years. For a client he’d never met.

Clearly unclear and unequivocally equivocal

The Hitchhiker’s Guide to the Galaxy describes Vogons as:

[O]ne of the most unpleasant races in the galaxy – not actually evil, but bad tempered, bureaucratic, officious and callous. They wouldn’t even lift a finger to save their own grandmothers from the Ravenous Bugblatter Beast of Traal without an order, signed in triplicate, sent in, sent back, queried, lost, found, subjected to public enquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.

There is no way that Douglas Adams, when he created the Vogons, would have the foresight to know of the CT Supreme Court. But in his description of the Vogons, he has also put into words the most precise description of this State’s highest court1.

They’re not evil. They’re bureaucratic.

And they certainly won’t lift a finger unless every request you’ve made is signed in triplicate and somehow magically predicts the spot to the which they’re going to move the target and then manages to hit it perfectly, while following all the rules they’ve subsequently made up.

Some of their opinions are much like Vogon poems:

Vogon poetry is of course, the third worst in the universe. The second worst is that of the Azgoths of Kria. During a recitation by their poet master Grunthos the Flatulent of his poem “Ode to a Small Lump of Green Putty I Found in My Armpit One Midsummer Morning”, four of his audience died of internal hemorrhaging and the president of the Mid-Galactic Arts Nobbling Council survived only by gnawing one of his own legs off. Grunthos was reported to have been “disappointed” by the poem’s reception, and was about to embark on a reading of his 12-book epic entitled “My Favourite Bathtime Gurgles” when his own major intestine–in a desperate attempt to save life itself-leapt straight up through his neck and throttled his brain.

So pretty much how I feel after reading CT Supreme Court opinions. Like this one from yesterday [PDF].

Meet Michael Pires, Sr2. Pires was a VeryBadMan©, guilty of murder. Michael Pires also had a big problem with his lawyer. In a word, he didn’t like her. So he tried, on many occasions to fire her. The problem is, that he didn’t hire her to begin with, so the upside-down law says that you can’t fire someone you didn’t hire.

As a poor person who couldn’t afford private counsel to defend a murder charge – and let’s be honest, unless you live in Fairfield County or the East End of Long Island, you can’t afford a private attorney to represent you on a murder charge – he was appointed a public defender.

And once you have counsel foisted upon you, you’re stuck with that attorney no matter how much you hate him or her. Because that’s what you get for free.

Now there is an alternative, which is usually used as a stick to make the carrot of the infuriating counsel-who-can’t-be-fired more attractive: represent yo’self! After all, Faretta v. California says that it a core Constitutional right to be permitted to represent oneself.

In order to exercise that right, you have to inform the Court somehow that you want to. That’s fair and logical. You can’t be afforded a right that you don’t express you want to exercise.

So, what did Pires do, after rounds of headbutting with his LawyerWhoCouldn’tBeFired? He apparently told her he wanted to represent himself. Which she duly conveyed to the court:

I did go downstairs and attempt to talk to [the defendant]. He did want to discuss strategy with me. He indicated now that he wishes to represent himself in this matter. I informed him that I didn’t think Your Honor was going to allow him to represent himself on a murder charge simply because that would be much too dangerous and it would not be in his best interest. And that’s about where we stand, Your Honor.

Putting aside the fact that counsel’s advice was blatantly wrong, she is alerting the court “that he wishes to represent himself in this matter”.

Now. Imagine you’re the CT Supreme Court. A court that has increasingly become reliant on procedural rules to deny VeryBadPeople new trials. A court that has become so reluctant to judge whether rights have been violated that it makes a tortoise stuck in its shell look like Evel Knievel.

So what do you do? Well 5 of them decided that his “request” wasn’t “a clear and unequivocal invocation” of his right to self-representation.

At this point, I’m just inclined to throw up my hands and say “I don’t even know anymore”. How can “he indicated now that he wishes to represent himself” not be a “clear and unequivocal invocation”?

I mean, surely there must be some rules in place to deal with situations where unsophisticated defendants make fumbling assertions of their individual rights, much less so clear and unequivocal?

Why yes, yes there are. Articulated by this very court, just last year in State v. Jordan:

Although a clear and unequivocal request is required, there is no standard form it must take. “[A] defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to [that] request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.”

Ask the damn question. If a lawyer or defendant tells you he wants to represent himself, how long does it take to ask him a few questions? Really? Why is everything a game?

Chief Justice Rogers, who wrote Jordan, dissents in Pires [PDF] saying essentially the same thing she said before: that requests for self-representation can be made through counsel and that this is as clear as they come.

The unfortunate reality, however, is that the die has long been cast. The lasting legacy of the “Rogers court” will be their systematic destruction of modes of review. For those who don’t know what I mean, I’m referring to the methods by which appellate courts, whose job it is to ensure that trials were conducted fairly and according to the law and rules of court, determine whether that was done.

If improper evidence was admitted, a new trial may be warranted. If Due Process was violated, a new trial may be warranted. If a judge or lawyer makes a mistake that results in the violation of rights, remedies must be issued. We used to value the protections built into our system more than we valued the result. But now, we value procedure over all else.

So if you are on trial and the judge admits some very improper and damaging evidence against you, evidence that the jury should have under no circumstances heard or considered, and your lawyer didn’t object either because she was asleep or frenzied or scared or incompetent, our appellate courts will refuse to remedy that wrong, because proper procedure wasn’t followed.

It’s akin to doctors refusing to perform surgery because there isn’t a signature on the requisition form for the lightbulbs that are in the operating room.

There is a silver lining, though: maybe someday soon the Court will start to get it. There are fresh faces on the court and more to come. Maybe people will start to realize how narrow appellate review has become. That maybe elevating finality and form over substance has negative consequences for society as a whole.

Well, if not, then we can always go have a drink at the Restaurant at the End of the Universe.

—–

When I was your age, we had executions AT the fundraisers!

If there’s one thing Republicans love, it’s their executions. If there’s one thing they love more than executions, it’s money. If there’s one thing they love more than executions and money, it’s politics. If there’s one thin- fundraisers. That’s what I’m getting to.

So what happens when two public spectacles which exist only for the purpose of pandering to the lowest common denominator collide? Money wins.

Kids: money always wins.

And so Pam Bondi, Attorney effing General of the State of Florida got her buddy Rick “Let’s Speed Up Executions Because We’re Doing Such A Fine Job Of Making Sure We Always Have The Right Guy” Scott to nonchalantly postpone an execution scheduled to take place on Monday.

Because Bondi needed to get some money to keep her job.

After Scott last month rescheduled the execution for Sept. 10, the date of Bondi’s “hometown campaign kickoff” at her South Tampa home, Bondi’s office asked that it be postponed. The new date is Oct. 1.

Scott said Monday that he did not know the reason for the request, and he declined to answer when asked whether he considers a campaign fundraiser an appropriate reason to reschedule an execution.

Here, laid before you in the barest terms possible is your “victim’s rights”. Here is your “tough on crime” and “vengeance” and “justice” and all that supposedly makes it worth having a death penalty.

All of that. An inconvenience to a politician who wants money. Here it lies before you, exposed as nothing more than another tool to get your vote and your dollar.

Do half of these blood-thirsty politicians even care about the death penalty by itself? Or do they care more about it as an instrument that legitimizes their existence?

And, despite your best efforts to convince yourself otherwise, is there no part of you that cringes at the thought that a man’s life is being toyed with so?

Is the irony lost? We, who seek to punish those who kill to teach a lesson about the value of life do so without any notion of exhibiting that very value. Human life is precious and must be treated with respect, we say as we cavalierly bring a man to the precipice of the after-life and then yank him back at the last minute because something shiny caught our attention.

We kill to teach that killing is bad, but we do it with such haphazard and imprecise abandon that one is but forced to come away with the opinion that maybe this killing thing isn’t such a big deal at all.

I want no part of any of this and neither should you.

St. John Parish: We, too, record you without your knowledge!

Hello? Can you hear me now?

Hello? Can you hear me now?1

If you’re ever in St. John the Baptist Parish in Louisiana (and really, after reading this post you should avoid it at all costs), make sure you don’t ever call the police. If you do call the police, pray to St. John the Baptist that you merely get arrested instead of shot and killed.

If you do go to St. John the Baptist Parish, and if you do call the cops and if you do somehow miraculously survive their almost-standard-issue shooting of you and you do end up arrested and alive, be aware that their Sheriff video records all private conversations you have with your attorney.

Scott mentions this recording in his post linked to above, but in an uncharacteristically muted way. I suspect there is some outrage fatigue here, so I’ll take up the cudgel:

OUTRAGE! SCANDAL! UNCONSTITUTIONAL! Etc.

Judge imposes blanket internet ban on sex offender

Right on the heels of my post last week1 about a North Carolina Court of Appeals ruling holding that the state’s social media ban for sex offenders was unconstitutional, a judge right here in the idyllic town of Vernon, CT2 has apparently ordered a man to stay off the internet for the entire period of his 10 year probation.

Just, all of it. No emails, no Youtube, no Facebook, no Facebook, no Facebook, no Twitter, no Tumblr or Kickstarter or whatever the hell these kids are watching these days. Heck, no New York Times or CNN or Hartford Courant or WhiteHouse.Gov or SignThisEPetition.Com or whatever the web will become in 4 years’ time which is when he will get out of jail3.

Gregory Lindsey was sentenced to 10 years, suspended after 4 years in jail, followed by 10 years probation for possession of child pornography in the second degree, which is a subject I wrote about just the other day.

How do you solve a problem like Brady? Liu-k no further.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don't get it.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don’t get it.

Scott wrote yesterday about a blisteringly ineffectual 4th Circuit opinion in U.S. v. Bartko [PDF], which was notable not only for its lengthy reprimand of the Brady practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about the numerous Brady violations it noted. Via Scott:

And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty. But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:

“We do not mean to be unduly harsh here.”

But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.

“Whatever it takes, this behavior must stop.”

Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.

As noted repeatedly here on this blog and almost everywhere else where someone with half a brain cell writes about criminal law, the problem with Brady is that it’s essentially unenforceable as long as there is no oversight and no will on the parts of judges to do the really hard thing: punish prosecutors for violating their duty by reversing convictions and referring them to grievance committees.

Maybe, though, just maybe that is catching on. First there was Judge Sheldon’s blistering opinion a few months ago, reversing a conviction for “a deliberate pattern of improper conduct” by the prosecutor.

Then, there was this recent story out of Alaska that involved a suspension of a former prosecutor for hiding exculpatory evidence in a murder case: