Category Archives: psa

Playing games

The internet is a series of tubes, about....this big.

The internet is a series of tubes, about….this big1.

Isn’t it just so darling that these befuddled old justices get to pretend that its still the Bronze Age? It’s so adorable that they decide cases involving video games, but oh no, they’re a loveable bunch of pensioners who’ve never heard of video games, so they “try out a few”.

Hilarious. Just fucking hilarious.

It does sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance.

Or criminal justice. Which not one of them has any experience with, but which forms a significant portion of their docket. Which is why their opinions are constantly unenforceable and unrealistic. And out of touch. Did I mention out of touch? For which you have to look no further than Justice Thomas, who during his confirmation paid great tribute to the criminal defendant and the adage that “there, but for…”, but who, in reality, just doesn’t give a fuck.

So while we all sit around and laugh at just how damn adorbs these old-timey justices are, realize that the joke’s on all of us.

They have no understanding beyond a vague intellectual appreciation for your rights or mine, which is why Scalia is such an intellectual donkey2 and Thomas can go the entire run of 30 Rock without uttering a fucking word and why Alito can roll his eyes at others and behave like a petulant child.

For the most part, the cases they rule on have no impact on them and their interest in the jurisprudence is nothing more than cold, detached calculation. Maybe it should be that way. Or maybe we should have justices who can claim to have more than some vague idea of that whatsit gizmo thing they want us to rule on.

How do you think they can competently rule on the intricacies of cell phone privacy and GPS when they haven’t a fucking clue what a mobile phone is? Or email? Did the NSA even exist in their youth?

As Scott wrote three years ago:

The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right.  That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn’t mean that putting another theorist (more or less) on the court is the solution.

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better.  Now that it’s a life and death struggle for political hegemony from two political parties whose members can’t be distinguished without a scorecard, the risk of nominating a real lawyer is far too great.  There might be a tea party, or coffee klatch, or beer bash, because of it.  We can’t take the risk of doing something right.

Because the last thing we want on the goddamn Supreme Court of the United States of America is a lawyer who might know a thing or two about the practical applications of laws the Court is frequently called upon to express its opinion on.

Clarifying the problems with mandatory-minimums: why it’s okay to let them go

Over the weekend, Susan Bigelow at CT News Junkie had a fantastic op-ed piece arguing that Connecticut should follow AG Holder’s lead1 and revisit its use of mandatory minimum sentences.

Susan writes:

Just as important as efforts on the federal level, however, are criminal justice reforms we can and should implement here at home. The number of prisoners held in Connecticut’s facilities has, for a number of reasons, dropped from all-time highs in 2007 and 2008, but those levels are still high considering the drop in violent crime that’s occurred over the past decade. Also, the parole reforms enacted after the Cheshire murders in 2007 have contributed to the reversal of recent declines in prison population, meaning fewer prisoners are being released.

That’s accurate, with some recent reporting by The CT Mirror showing that numbers have gone up and overcrowding is a problem again, driven in large part by “reforms” to parole laws. Susan argues that in the next legislative session, we should “reform” mandatory-minimums or,  better yet, do away with them altogether.

There’s nothing to reform. Mandatory-minimums are a dangerous power to give to prosecutors. The results of that power being wielded in a heavy-handed way are evident in the war on drugs. It’s taken decades for the Attorney General of the United States to recognize that mandatory-mininum sentences have a terribly disproportionate impact on racial minorities.

In Connecticut, mandatory-minimums apply if you’re selling drugs within 1500 feet of a school or public housing project. Repeated efforts over the last few years to reduce that “drug-free zone” to 200 or 300 feet have failed.

Take a guess as to who is most impacted by this mandatory-minimum sentence2? You know where you can’t stand without being within 1500 feet of a school or public housing project? That’s right. Connecticut’s urban cities (that’s a post from 2007, by the way. We’ve been dithering over this common sense reform for six fucking years).

Mandatory-minimums are also dangerous because they are a chain that binds the hands of judges who seek to do justice and are a weapon in the hands of prosecutors who want to be unreasonable and unjust.

In Connecticut, prosecutors determine the charges to be filed and pursued. A judge, short of dismissal of a charge for legal reasons, cannot alter the charges filed by a prosecutor. Judges, on the other hand, can indicate a sentence they would impose, which can differ from a prosecutor’s recommended sentence.

So let’s say that a judge thinks an assault charge is worth a prison sentence of two years; the victim doesn’t want to the defendant to go to jail and there is no real long-term injury to any party. The defendant is a young man, with little or no criminal record and the state’s case is iffy at best.

But a gun was used in the assault, so the prosecutor charges Assault in the First Degree, which carries a mandatory sentence of 5 years. Now, no one thinks that a 5-year sentence is appropriate, except the prosecutor, but no one can do anything about it, including the judge and/or victim. Maybe the prosecutor doesn’t like the defendant, maybe she doesn’t like the defense lawyer, maybe she doesn’t like the judge or doesn’t like the system. Who knows.

But the point is that the prosecutor can hijack “fairness” in the process by “sticking” on a mandatory-minimum.

Mandatory-minimums are set by the legislature, based on precise calculations made using actuarial tables and deep meditation pulling numbers out of their ass. Most don’t have any experience in the day-to-day operation of the criminal justice system and base their ideas of “justice” and “fairness” on fairytales Law and Order. To be fair, when we’re resolving cases, we also pull numbers out of our ass, but at least our asses are attuned to the range of widely accepted resolutions.

But legislators, in someone’s infinite wisdom, have selected arbitrary numbers and have decreed not only maximum punishments, but also minimum punishments, sometimes in abject disregard for the realities of the criminal justice system.

Eliminating mandatory-minimums would do only one thing: eliminate the minimum. It would do nothing to the maximum. But it would allow judges the flexibility of making fair determinations of the appropriate sentence to be imposed, not hindered by an over-charging prosecutor. If a case is “worth” 2 years, a defendant should get a sentence of 2 years. But if a case is worth 8 years, he will get 8 years. Eliminating mandatory-minimums does nothing to alter that possibility.

Instead of a range of 5-20 years, the range simply becomes 0-20 years and a judge is free to sentence anywhere between those two numbers.

Finally, as I’ve said before, CT’s mandatory-minimum scheme has a weird interaction with its juvenile sentencing scheme, resulting in 14 year old children being tried in adult court as adult criminals and sentenced to mandatory ten years in jail. Juveniles – children – are different than the rest of us. The science is incontrovertible and established and even the United States Supreme Court has acknowledged this distinction. They deserve a second chance. While states across the country are considering altering their laws to comply with the Supreme Court, a bipartisan bill that would have done just that was defeated in the State legislature.

Because people are afraid:

“There seems to be some notion that mandatory minimum sentences make us safer and that moving away from them makes us less safe,” [State Rep. Gary] Holder-Winfield said, highlighting a stale leftover from the tough-on-crime rhetoric of the 1980s and 1990s. More people in prison doesn’t equal a safer or more just state, especially not when so many lives are being destroyed in the process.

People who commit crimes should be punished. But they should be punished fairly and proportionate to their crime. They should also be punished in a manner that is proportional to others who have committed similar crimes. They should also be punished in a manner taking into account their individual facts and circumstances.

Smart on crime means all of that. It means treating people as human beings. “Tough on crime” means being afraid of everything that isn’t you and condemning vast numbers of people because you’re scared. Tough on crime is simply continuing the narrow-minded racist policies that got us where we are today: staggering numbers of children and low-level non-violent drug offenders serving significant prison sentences, while our jails burst at the seam, corrections swallows the largest portion of our state’s budget and a trail of destroyed lives and families in its wake.

It’s time to stop being stupid on crime and start being smart on it. Eliminating mandatory-minimums is a step in the right direction.

Things that are also good at stopping crime/terrorism

Stopping crime and/or terrorism is a noble, if unattainable goal. So it is with that in mind that the governments of various countries (most pertinently to this snarky post, the U.S. and now the U.K.) employ tactics such as the round-the-clock-surveillance of its citizens or collection of “metada” in bulk.

But these are only half-hearted measures. There are many, greater measures that would be infinitely more effective in stopping/preventing dastardly and nefarious acts.

First, though, let us set the ground rules for who is or is not a terrorist:

As gleaned by that, in light of yesterday’s revelations about Glenn Greenwald’s partner, it’s pretty clear that a terrorist or criminal is someone who is defined as such by the Government. When they make it a crime to be you, you will be a criminal, even if you were the same person as the day before the change in status.

So, dear criminal, let us count the ways the government is not extracting information from you, you evil scumbag who is here to hurt my precious children!

1. Detaining your loved ones and interrogating them for 9 hours under an “Anti-Terrorism” law. [Scott has more on this.]

2. Preventive detention: where we hold you in custody before you’ve committed a crime, because we want to prevent that crime, because you might be a criminal1.

3. General warrants [PDF]: This one, for you history buffs, dates from the time of Colonial America. Such an ancient ritual surely can’t be wrong! Broadly, the authority to search anything belonging to anyone they suspected of being, you know, someone they didn’t like.

4. Warrants with no standards: Here’s a clever way: require a warrant, but set the standard for getting that warrant so vague and nebulous that no one will ever know what doesn’t satisfy that standard, ergo the warrant is but a rubber stamp. Everyone start queing for the Government’s office to turn in your criminal papers.

5. No warrants: The above, but with less work. See also: NSA.

6. Waterboarding/torture/rack and pinion/Room 101: Because nothing prevents terrorism and crime than beating the shit out of someone to get them to confess to something they didn’t do.

7. Racial Profiling: Wouldn’t it be great if we could just tell who was a terrorist/criminal simply by looking at them? I like this one the best. Start with this and apply a healthy dose of the above and viola! No crime.

Why waste your time defending “secret FISA courts” and “Hey-that-guy’s-name-is-Miranda-is-he-a-journalist?” There’s plenty more out there to stand up for! The rights of your Government to eviscerate every modicum of freedom and privacy have not been adequately defended yet. They’re doing so much more.

If you don’t, that makes you a terrorist, right?


Freed and fired: how one woman put justice over her job

Albeit a few weeks old, this story out of Jackson County is a truly bizarre tale of modern day American Justice and the confluence of a strong desire to adhere to rigid bureaucratic rules and the grander notions of Doing The Right Thing and Justice1.

A Kansas City2 man, Robert Nelson, was convicted in 1984 for a rape and sentenced to 50 years consecutive to sentences he was already serving. Those sentences ended in 2006, meaning that’s when he started serving the 50 year sentence for rape3.

Thing is, Nelson claimed from the beginning that he wasn’t the guy. He was innocent and should be let out of jail. So:

In August 2009, Nelson filed a motion seeking DNA testing that had not been available at his trial 25 years earlier, but Jackson County Circuit Judge David Byrn denied the request. Two years later Nelson asked the judge to reconsider, but again Byrn rejected the motion because it fell short of what was required under the statute Nelson had cited.

You know how this goes. Eventually, Nelson gets a third motion granted, the DNA is tested and lo-and-behold, he’s fucking innocent.

So what was different this time? Someone gave him a template to use that had been successful in another case. That someone was Sharon Snyder, a 70-year old court clerk of 34 years. She simply took a public document from another case, redacted identifying information and gave it to Nelson’s sister, saying “here, file it in this format”4.


Nelson used that motion – a public document Dunnell [the sister] could have gotten if she had known its significance and where to find it – as a guide for a motion he filed Feb. 22, 2012, again seeking DNA testing. That August, Byrn sustained the motion, found Nelson to be indigent and appointed Laura O’Sullivan, legal director of the Midwest Innocence Project, to represent him.

And then Byrn finds out that it was Snyder who provided a copy of a public document. This obviously could not stand, so 90 days before she was set to retire, Snyder was fired. For. Umm. Hang on a second. Let me find a good phrase. Bureaucratic disobedience?

Five days after Nelson was released, Court Administrator Jeffrey Eisenbeis took Snyder into Byrn’s office near closing time and told her the prosecutor and defense attorney “had a problem” with her involvement in the case.

What defense attorney? You mean the one who was appointed after his motion for DNA testing was granted? I doubt it. And what problem? Making them look bad?

Keep in mind that nothing in the article or in the facts that can be gleaned or inferred from the reporting indicate that Nelson’s first two motions were denied because of their merits. They weren’t rejected because he didn’t make a sufficient factual claim that he should get DNA testing. It appears as though they were rejected for bureaucratic, ‘not-filed-in-triplicate-signed-by-your-deceased-great-grandmother’ reasons. They were rejected because the format of the motions didn’t comply with the statute.

So who is Nelson to turn to? An incarcerated inmate who took two cracks at filing a pro-se motion just to get an attorney appointed to get DNA testing performed to prove that he wasn’t guilty of the crime he was convicted of. No one. The point was that he was on his own or out of luck. That’s what the system does to pro-se litigants.

There is such a stubborn desire across the nation to protect convictions at all costs. There’s also a very strong sense of territorialism in county and district courts in some parts of the country where some judges rule like petty kings. Anyone who may dare to cross their path shall be smited, ridiculed and fired.

Prosecutors, judges and legislatures are so invested in this idea of “finality” and are so afraid of finding out that they’ve convicted an innocent person that rules across the country have cropped up erecting the most intricate and elaborate obstacles to post-conviction review of convictions. The Great Writ, once a pillar of the vindication of justice, a shining beacon and last resort of the illegally detained, has been eviscerated to the point that it’s unrecognizable. Post-conviction DNA statutes are absurd in their requirements and innocence has been held to mean not only your innocence but proof beyond a reasonable doubt of the guilt of another identifiable person. A technicality, I’ve said recently, isn’t what you think it is. A technicality is more often the tool of the state to protect its interest in the finality of convictions it obtains, the validity and legality of those convictions be damned.

Here, Nelson was, indeed, innocent, about to serve 50+ years for a crime he didn’t commit. And if Snyder hadn’t given him the magic form to fill to get Byrn’s attention, he’d be stuck in jail for the next 50 years, banging his head against a wall, wondering just why he couldn’t get anyone to listen to him.

“The document you chose was, in effect, your recommendation for a Motion for DNA testing that would likely be successful in this Division,” Byrn wrote. “But it was clearly improper and a violation of Canon Seven … which warns against the risk of offering an opinion or suggested course of action.”

What is Canon Seven? Can someone find out?

I think, in the end, whether she was “rightly” or “wrongfully” 5 fired is but a sideshow. Snyder is happy with her pension and the knowledge that she was able to help an innocent man get out of jail, bureaucratic nonsense notwithstanding.

The real tragedy here is that our system of justice is so adamant to put form over substance that an innocent man being denied a chance to prove his freedom is an acceptable consequence of failing to color inside the lines.

There are rules – don’t kill/harm/rape and don’t let innocent men go to prison – and then there are rules – submit on yellow typepaper, scrawled with the ossified tooth of a wildebeast’s carcass found in the northwest region of the Massai forest. There should be no confusion as to which rules are to be followed and which are not to be strictly so.

When we start sacrificing the former for the latter, we know the system has gone mad6.



Billy Slagle and the tragedy of death

Billy Slagle, when all is said and done, will cut the most tragic figure. His story is ripe for a Shakespearean tragedy 1 or at the very least a documentary with a most somber soundtrack. Consider the evidence:

1. He was sentenced to death for a crime he committed at 18, when there was no option for LWPOR 2

2. The chief prosecutor for Ohio, Ted McGinty, recommended to the parole board that he shouldn’t be executed, which is pretty extraordinary.

3. In yet another surprising twist, given that parole boards and Governors usually do whatever prosecutors tell them to, both the board and the Governor’s office rejected his plea for clemency and continued on with the death sentence.

4. Three days before his scheduled execution, early Sunday morning, Slagle said “enough” and hung himself. 44 years old, having spent the last 26 years in jail, he took his own way out.

5. And then this. This that will just break your heart. This, this missive of reprieve that arrives too late or never arrives. This message of hope that, but for a series of harmless and innocuous actions would’ve gotten there in time, but didn’t.

Parallel Construction: the government lies

[Update: Oh, look. There’s more. “NSA handing over non-terror intelligence.]

Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.

And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

Go on…

In war, everyone loses something

[P]recisely at the point when you begin to develop a conscience, you must find yourself at war with your society.

James Baldwin, “A Talk to Teachers“, 1963. War is many things, none of them good. This job, this fight, this battle to protect and preserve and to traige, is war 1.

Sure, nobody dies 2, but there is much loss and there is much lost. The hallmarks are there: the thousand yard-stare; the separation from reality; the perverse sense of humor; the paranoia; the anger, so much the anger.

War has casualties. Ask my friend and fellow public defender and blogger Daniel Partain, who loves to quote Hawkeye from M*A*S*H. After 13 years, he’s walking away from the calling for good 3. Daniel’s journey to this point reads like a script for a movie about the struggles of an indigent defender:

Just like the ocean slowly ebbs away the coastline, so did being a public defender to my well-being. I made poor decisions regarding my health, both physical and mental, and I suffered for it. However, a day came where I realized that I needed to take better care of myself, and I started to alter some of my lifestyle choices. While my physical health improved, the diminution of the joy that I had in being a public defender continued to fade away from me. Without warning or great fanfare, one day I woke up, and I started viewing being a public defender as a job, and not as a calling. My viewpoint about being a public defender had become like one of Hawkeye’s rants from MASH about the disdain for being in the Korean War. However, I am my father’s son; I am my mother’s son; I refused to quit. I told myself that I was letting the stress get the better of me, and that I can persevere. For a while, it worked. I was able to carry on, and be the dutiful advocate for my clients. Yet, I knew that I needed a change.

Daniel’s story isn’t unique. Every public defender office and system throughout the country has tales to tell of similar people. Those that “lost it”, or “had a nervous breakdown” and couldn’t handle the work anymore. Those who had to be shifted around into less stressful positions because the job got hold of them and gave them the beating of their life.

Sometimes I wonder, here on this blog and out loud in real life, why we do this. The pay isn’t spectacular – even 30 year veterans who are supervisors make less than first year associates fresh out of law school do at big firms; the day to day drudgery of the work is overwhelming; the rewards are fleeting and far between; the accolades non-existent. Some get shot at, some stabbed, some stalked, some threatened and spat upon – literally and figuratively- and mocked and ridiculed and not always by our clients.

To do this job right is to do this job all the time. There is always something to be done. But you can’t do it 24/7. And that brings guilt. Because every minute I’m at home watching True Blood is a minute less spent on a client sitting in jail. But you can’t do it all the time. So you do it most of the time. It’s in your head. It percolates. You become anesthetized. The three bullet wounds to the head aren’t a tragedy, they’re a fact. The little boy who claims to have been anally raped isn’t a horror, it’s a problem 4.

You take a part of your brain, add a part of your soul and mix in a healthy heaping of emotions and you lock them away. The alternative is to render yourself unable to function.

It’s a war alright. A war against a system that’s eating itself without realizing. A war against a society that is full of so much hate that it is blind to the devastation it is causing to itself. A war against those that purport to exercise their better judgment for me. A war against a machinery that sees people as cattle, to be branded with the mark and shepherded into dark corners, ignored and forgotten.

It is a war that cannot be won.

And for what? Is it worth it? Are the six months I shaved off the offer because I worked till 7:30pm or because I spotted a legal argument worth any of that? Maybe yes. Because it’s 6 months less that someone needs to spend in those hell-holes we call “correctional facilities”.

Or is it the principle of the thing? Is it the ideal. The ‘one for all, all for one’. “My rights are your rights.”

And if it is the principle that drives you, then be prepared for the anger. Because there are no principles that the establishment won’t run over, leaving us on the sidelines, helpless.

Trial courts and prosecutors are in the conviction business. Appellate courts are in the affirmation business. We are in the triage business. You don’t care unless it happens to you. No one is in the rights business.

But for now, it goes on. Monday morning comes and there are people clamoring for attention. There are deals to be struck and clients to placate. There are lunches to miss and jails to visit and a mountain of stress waiting to strap itself back onto your back. It is both a job and a calling. For Daniel, it stopped being the latter. He walked away. Others may not have that courage. As for me, it sates for now, but how long is now?