Category Archives: sixth amendment

Bail me out, bro

For most people who get arrested for anything, big or small, the only thing standing between them and liberty is the amount of bail that will be set. For everyone, the only thing standing between them and the bail amount is the judge or judicial officer who will set that bail. For a significant portion of the people in this country who will be arrested1no one will stand next to them when they face that judicial officer who will determine the bail that will allow them to get freedom.

That’s the warning bell rung by a brand new report from The Constitution Project [PDF], which analyzed the state of pre-trial right to counsel at bail hearings and concluded that very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.

The present system tilts the scales of justice, as state and local prosecutors gain a significant advantage at the outset of prosecution when poor people appear alone, receive unaffordable bail or are remanded into custody, and then wait in jail for assigned counsel to appear. There are countless instances across the country in which a poor defendant languishes in jail, often for a minor offense, and subsequently pleads guilty in exchange for regaining liberty.

And, of course, the study finds that minorities are disproportionately affected:

African Americans and other people of color comprise the majority of the pretrial jail population. Studies reveal that “bail amounts set for black male defendants were 35 percent higher than those set for their white male counterparts.”2

Further, in drug offenses, African American and Latino defendants are 96% and 150% more likely, respectively, to be incarcerated before trial than white defendants. In property crime arrests, African American and Latino defendants are 50% and 61% more likely, respectively, to remain in jail than their white counterparts. Scholars have concluded that African Americans and Latinos are “more likely to be preventively detained, to receive a financial release option, to post a higher bail, and to be unable to post bail to secure their release.”

Racial biases, even if unconscious, may influence judicial officers’ decision-making at pretrial release determinations. “Research on labeling and stereotyping of black male and Hispanic offender reveals that court officials (and society-at-large) often view them as violent-prone, threatening, disrespectful of authority and more criminal in their lifestyles.”

African American detainees spend a longer time in detention, are convicted at higher rates, and receive harsher sentences. Empirical studies show that the longer a defendant spends in jail before trial, the more likely he or she is to be convicted and receive a more severe sentence. Defendants released before trial are likely to obtain more favorable pleas and outcomes.

According to the study, the solution is to ensure that all individuals, when arrested and are facing a judge making a bail determination, should have the assistance of counsel. Connecticut already does that, but apparently it is in the minority of states that do so. And even here we have our problems. In order to be Constitutional, bail amounts must be set no higher than what is necessary to ensure the appearance of the defendant in court. In today’s world, however, the word “excessive” has lost all meaning.


It depends on what you mean by a fair trial (updated)

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial1, a right to a fair trial2 and a right to a trial by an impartial jury3.

Concurrently, the public and the press have a First Amendment right of access to courts and to trials4. These rights combine to form a “presumption of openness”5 and access to courts and judicial documents.

The core value of this right to a public trial is:

Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

“[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp.

An impartial jury is one which comes into a trial without any preconceived notions and can put aside whatever biases they may have formed and decide the case based on the evidence presented to it. Just because jurors have been exposed to news coverage doesn’t mean that the defendant is deprived of due process6. Jurors are not required to be “totally ignorant of the facts and issues involved” and prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance7.

Sometimes, however, these core rights are at loggerheads. This is when the public’s right of access and the media’s right to report on court proceedings creates an atmosphere of publicity in which it is impossible to find and seat impartial jurors. This happens in high profile cases where there is such extensive media coverage with inflammatory information and facts that create irreversible biases among potential jurors. In a case like that, the defendant need not prove that each potential juror is actually biased against him, but whether the pretrial publicity constitutes an “extreme circumstance where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”8 Since this would be done pretrial, most defendants would seek to have the trial moved to another location where there isn’t such publicity, or wait a long time for the prejudice to abate.

This Constitutional lesson is currently being enacted for the American public in Boston, where Dzokhar Tsarnaev is being tried in a capital case for the Boston Marathon bombings.

That there is immense pretrial publicity in this case is undeniable. The Boston bombing was the top MA story of 2014. This has already prompted Tsarnaev’s lawyers to file three motions for change of venue. [UpdateThe first two were rejected All three have now been rejected [PDF] as was a subsequent Writ of Mandamus filed in the 1st Circuit Court of Appeals [pdf] which that court denied [PDF].9 This is because courts like to think that jury selection can weed out the partial jurors and uncover those hidden gems who can profess to be impartial. In fact, it’s one of the minimization mechanisms required as an alternative to a change of venue.10

It is with that in mind that it seems the district judge and the court of appeals denied Tsarnaev’s first attempts at changing venue.

Then came jury selection, which has been an unmitigated disaster. According to his third Motion for Change of Venue [PDF] and his Second Writ of Mandamus [PDF], juror questionnaires and jury selection have uncovered irreparable biases:

[A]n extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified “connection” to the case, or both.

Fully 68 percent of prospective jurors already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.

Even more striking, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.

The news media has done an equally impressive job of documenting the utter futility of seeking impartial jurors and the investigations of potential jurors’ social media accounts have uncovered biases that may have otherwise remained hidden. In fact, a new poll published today in the Boston Globe reveals that almost 90% of people think he is guilty or probably guilty.

guilty3

11 days of selection have passed, 142 jurors have been questioned and we still don’t know how many, if any, have been selected11.

The First Circuit ordered the Government to respond to Tsarnaev’s Writ today. Whether it rules today and in what direction remains to be seen, but all of this does raise the question:

What do we really mean by a fair trial? Given the juror responses and the polls conducted, it seems obvious that everyone thinks Tsarnaev is guilty. Then why are we persisting with this charade in Boston? Our rules of law require that a decision be made only on the basis of the evidence presented in court. Yet if this trial is permitted to remain in Boston it will become clear that what we mean by “Fair Trial” is merely an “appearance of a fair trial” without regard to reality. Fair trial would mean “a fair trial to the extent that we can provide one under the circumstances”. The right decision here would be to move the trial but can we get past the legalese and make that difficult decision?12 Or is it going to be “good enough” for us to say that “well, we know he’s really, really guilty, so seriously, c’mon guys, the Constitution doesn’t count here”?

The Tsarnaev case has already once delivered a beating to a core Constitutional right. Will there be a second?


A Founding Father of incompetence

This is Thomas Jefferson:

BIO_Mini-Bios_0_Thomas-Jefferson_151078_SF_HD_768x432-16x9This is Dennis Hawver, dressed at Thomas Jefferson, surrounded by people who are inexplicably not laughing their asses off at him:

Hawver-Jefferson

Hawver, a Republican and Libertarian once ran for Governor of Kansas and then attorney general and also for Congress.

Needless to say, he failed in his quest for any office.

Perhaps in keeping with his Jeffersonian obsession, he was also a criminal defense attorney. He also failed at that – and spectacularly so – but this time he wasn’t the only one who lost. His client, facing the death penalty, was duly sentenced to death, because perhaps Hawver hadn’t grasped the fact that dressing like Jefferson doesn’t mean anything if you didn’t stand for his principles either:

At trial, Hawver described his client, Phillip Cheatham Jr., as a “professional drug dealer” and a “shooter of people,” according to findings of fact cited by the state supreme court. During the sentencing phase of the trial, he said the killer should be executed. “I had a single mitigator to offer the jury in sentencing,” Hawver said in an affidavit, “and that was my argument that my client was innocent.”

Hawver didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders, the court said.

As a defense lawyer, defending his client against the death penalty, there is generally one unbreakable rule: don’t tell the jury to execute your client.

Hawver also told jurors that they should execute the killer in his closing argument.

Oh. To be fair, this might have had something to do with his unusual tactics:

Hawver had never previously tried a capital murder case and had not tried a murder case in more than 20 years, according to the opinion. He was unfamiliar with ABA guidelines for trying capital murder cases.

And when I say a spectacular failure, I mean spectacular:

Hawver had said he had no funds for a pretrial investigation and he didn’t call the indigent defense board to explore whether funding was available to support his representation. He also said he didn’t recall whether a board representative had called him with an offer to provide co-counsel, investigators, consultants and expert witnesses, but he doesn’t contest that an offer of funding was made.

During the arguments, Hawver identifies Jefferson as his hero and says he wore the outfit because he had a constitutional right to represent the client “as directed, instructed and agreed” by the client, “no matter what the ABA guidelines have to say.”

Hawver explained to the Kansas Supreme Court why he didn’t get cellphone records for an alibi defense. “I had no idea that cellphones had GPS capabilities at that time,” he said. “Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.”

Thankfully, in 2013, the Kansas Supreme Court reversed Cheatham’s conviction and just last week, spared any other individual of having to be represented by a Jefferson clone by disbarring Hawver.

The fact that Hawver showed up to the disbarment argument in Jefferson garb might have had something to do with it (A good shot of his attire is at five minutes and 17 seconds; his argument begins at 22 minutes and 38 seconds.):

 

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

TX man thinks he’s better than the TN public defender system

First, in Texas, a man was charged with multiple murders and the prosecutor is deciding whether to seek the death penalty. In that case, his lawyer is a kid named Maverick Ray1. Mark Bennett has this to say about Ray:

The cal­low­est young lawyer puts up a web­site in which he calls him­self “The Law Offices of Mav­er­ick Ray” (he has one office), “An Expe­ri­enced Hous­ton Sex Crimes Lawyer Your Free­dom Can Depend On” (he has been licensed for less than eight months and been hired on one felony sex case), “the Assas­sin of Sup­pres­sion” (Har­ris County records show no granted sup­pres­sion motions in drug cases), “Houston’s pre­mier DWI Attor­ney” (I won­der what Gary Trichter or Troy McK­in­ney, or Lewis Dick­son, to name but three of Houston’s top DWI lawyers, with decades of expe­ri­ence each—[edit: not to men­tion Tyler Flood]—would have to say about that), “often opt­ing to let a jury deter­mine whether some­one was truly intox­i­cated rather than the highly flawed Field Sobri­ety Tests, Breath Tests, or Blood Tests” (Dis­trict Clerk records do not show him try­ing a sin­gle DWI case in Har­ris County dur­ing those eight months).

Maybe all of this can some­how be ratio­nal­ized in a cal­low young lawyer’s mind, but it just isn’t true. Mav­er­ick is a nice kid, but I think he’s com­mit­ting large-scale fraud on poten­tial clients. Even if it’s fac­tual, it’s decep­tive. I am sad­dened and dis­ap­pointed, and I see no way for this to end well for him.

But—for now at least—it works. Ray gets at least three new cases a week on aver­age, mostly felonies. I don’t know how much he’s charging—whatever it is, it’s too much—but it doesn’t take big fees to turn 94 cases in a lit­tle over seven months into seri­ous money.

Walker County District Attorney David Weeks, the prosecutor who’s deciding whether to seek the death penalty, has this to say about Mr. Ray:

Weeks also challenged the defense attorney’s qualifications to try a capital case Friday morning. Ray has only been out of law school for six months. There are concerns that his lack of experience hampers Lewis’ right to a fair trial, thus bolstering Lewis’ chance at an appeal if he is found guilty.

Kraemer had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel.

“I am extremely troubled about Mr. Ray’s lack of knowledge and training in taking this case,” Weeks said. “(Capital murder) is the most difficult and integral criminal case we have in this state.”

Mr. Ray’s response – “the defendant has the right to choose his own attorney” is the correct response, but also the wrong, glib response. I’m not sure there’s a single attorney, no matter how talented, in the United States, who is qualified to handle a death penalty case within the first 5 years of practicing as a lawyer.

Meanwhile, in reality:

“Because of the state’s filing of a death motion in this case, our office quite frankly lacks the resources to defend a death penalty case,” [Nashville Assistant Public Defender Mike] Engle told [Criminal Court Judge Randall] Wyatt in court Monday morning.

Engle said the American Bar Association estimates that a typical death penalty case requires upward of 2,000 hours of preparation. He explained that the office only has a few attorneys qualified to defend capital cases, two of whom are already on one case, and one of whom is retiring soon. The others, he said, have supervisory duties over other public defenders, making it impossible for them to take on a case of the magnitude of the one against Jenkins.

The ABA standards for death penalty representation [PDF]2 are lengthy and involved. They require hours and months of training, tutelage and study. They are not to be taken lightly, or glibly.

Mr. Ray seems to be making the same mistake that most attorneys who aren’t that sure of themselves make: acting too sure of themselves. The best ones will admit what they know and don’t know and the best new ones will recognize this early on.

It’s one thing to tout yourself as the “premier DUI lawyer” only 6 months out of law school. It’s quite another thing to take on the defense of a death penalty case. Even if it is Texas.

Update: Tornado Mark, in his gentle, kind way is soliciting advice for the Maverick in re: his capital representation. Be sure to add your two cents.

The Harmless Writ: whether you get due process depends on how guilty you are

In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ [of habeas corpus] “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.” The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights.

The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which, if withdrawn, “risk[s] injury to an important interest in human liberty.”

Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty.”

Taken, once again, from this law review article [PDF]. To those who don’t know, a petition for writ of habeas corpus is a post-conviction1 avenue to challenge the legality of their incarceration.

As the legendary Judge Weinstein quoted in his report on 500 habeas corpus cases:

The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

Because, at one point in time, in this country and this legal system, we valued the process as much as the outcome. We placed emphasis on doing things correctly, because we possibly recognized that we all weren’t so blissfully immune from the powerful crosshairs of a runaway government. To that end, judges across the various states and in the federal system were given broad authority to hear these “habeas petitions” challenging the legality of convictions.

Concomitantly, they were given broad powers to fashion remedies, because the harm caused by a violation of a Constitutional right must be made whole as completely as possible.

In Hilton v. Braunskill, Chief Justice Rehnquist wrote

Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

So, for example:

Riggs v. Fairman, 399 F.3d 1179 (9th Cir.2005), a district court has considerable discretion in fashioning a remedy tailored to the injury suffered from the constitutional violation, and a court must consider the unique facts and circumstances of a particular case; Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla.2002), a court granting a writ of habeas corpus may also issue an injunction in aid of the writ; Gall v. Parker, 231 F.3d 265 (6th Cir.2000), a habeas court has broad discretion in fashioning habeas relief; Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992), a district court may exercise its broad authority in habeas cases to grant any relief it deems necessary, including 638*638 permanent discharge of a successful habeas petitioner; Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), federal courts have largest power to control and direct the form of judgment entered in cases brought up on habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.1981), where appropriate, a habeas court may grant injunctive, declaratory and mandatory relief; Hobson v. Murray, 485 F.Supp. 1340 (E.D.Va.1980), federal courts are not narrowly restricted in fashioning an appropriate remedy on granting petition for writ of federal habeas corpus relief but instead, the court is charged to dispose of the matter as law and justice require; U.S. ex. rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3rd Cir.1973), immediate and unconditional release is not the only remedy available in a habeas corpus proceeding.

Gentry v. Deuth. In Connecticut, this power, which derives from the habeas corpus court being a “court of equity” is identical to the power of the federal court. There are a set of statutes in this state, duly enacted by the legislature, that create special “habeas corpus courts”2 In CT, the legislature deemed it efficient to consolidate all these petitions in one courthouse in Rockville and assign 2-3 judges there to hear and dispose of all these cases. When I say “habeas court”, I’m referring to a judge assigned to sit as a habeas judge by the administration of the judicial branch. Once a judge has been administratively assigned to assume that role for a period of 2 or 3 years3, the judge takes on the duties, responsibilities and powers of the habeas corpus court which are given to it either by the common law (all the quotes above) or by statute, which states:

(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require.

Emphasis added by me. Because as of today, that bolded portion is functionally excised from the law books and placed in the metaphorical trash heap which the CT Supreme Court is doing a fine job of filling with your and my individual rights and liberties.

In a decision today [PDF] in H.P.T. v. Commissioner that is one in a long line of utterly confused and confusing decisions about what, exactly, one must do in order to correct a Constitutional wrong when it comes to bad advice given by an individual’s lawyer, the court effectively divests these “habeas corpus” courts of their long-standing and inherent power to fashion the appropriate remedy.

This supreme court, for some reason, has gotten it into its head for over a decade now, that impartial habeas courts whose job is to determine whether a person has been “accorded due process”, not to sit and once again decide “whether he is guilty” are the wrong jurists to determine just what is to be done once they have decided that there was no due process.

A habeas court, generally, decides three things:

  1. Was there a Constitutional violation?
  2. Was there harm to the individual?
  3. How do we fix it?

There is absolutely no precedent whatsoever for questions 1 & 2 to be decided by one court and question 3 to be answered by another court altogether. And yet here we are in CT where this is precisely what has happened.

Here’s what the court wrote:

the proper remedy remains the same in most cases, namely, remanding the case to the trial court, which is vested with the discretion to [return the individual to pre-harm status]

Except, as we have seen just above, it is the habeas court, not the trial court that is “vested with the discretion”.

In order for its proposition, this opinion in H.P.T. cites only two cases4. One is its own opinion from last year in Ebron v. Commissioner, which is based primarily on a (deliberate?) misreading of Lafler and Frye and Lafler itself. The problem is that the SCOTUS cases of Lafler and Frye deal with setups where the trial court and the habeas court are one and the same, which is clearly not the scenario here in Connecticut.

So, in this opinion today, the CT Supreme Court has, without being asked to or without any due consideration, effectively repealed a statute duly passed by the State legislature. It has done so for one reason and one reason only:

In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court.

In other words, because the trial judge will know if he’s a really bad guy who needs to be locked up. The beauty of having an independent court not only evaluate the harm, but then also direct the remedy is that by virtue of being independent, the court has no stake in the game. It is not being asked to second guess or explain its own decision making.

Remember that the trial judge is the one that presided over the case when it was initially pending. This is the judge who may have ruled on discovery requests and, more importantly, conveyed plea bargain offers to the individual’s lawyer. This is the judge who was informed of the vagaries of the case and the strength of the evidence of guilt, or lack thereof. This is a judge who has formed an opinion of the individual’s guilt.

The supreme court says today, in stark contrast to centuries of habeas corpus jurisprudence, that guilt is relevant to determining whether an individual should be afforded the protection of the Constitution against illegal convictions.

The court affirms that as long as someone is guilty, it doesn’t matter how that conviction was obtained.

A Constitutional harm is being weighed not against the principle that was violated or the actual harm caused to an individual, but against the character of that person.

What this decision today does, is give rise to a scenario where questions 1 and 2 above may be answered in the affirmative and question 3 may be answered by a judge with an emotional stake in the outcome who might proffer a middle finger by way of remedy.

We may end up with a situation with absolutely no relief for a proven Constitutional violation. A harm without a remedy is no harm at all.

This court has managed to take the “best and only sufficient defense of personal freedom” and turn it into a harmless piece of paper.

—–

Restoring sanity to child sex cases

For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.

There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.