supreme court

Expanding Graham

May 17th

Posted by Gideon in criminal law principles

In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments. The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.

This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?

I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.

Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” Roper, 543 U. S., at 575. The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. Id., at 568; Kennedy, supra, at ___ (slip op., at 27–28); cf. Solem, 463 U. S., at 292. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at ___ (slip op., at 30–36); Roper, supra, at 571–572; Atkins, supra, at 318–320.

The Court then goes through all the research and data relied on in Roper on the mental development of juveniles to support its holding that LWOP serves no penological purpose for this category of defendants:

because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures,including peer pressure”; and their characters are “not as well formed.” Id., at 569–570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of-fenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Then the court ties together two threads: 1) that offenders who do not kill are categorically less deserving of the most serious punishments and 2) that LWOP is the second most serious punishment permissible. Thus, it concludes, juveniles who do not kill and are sentenced to LWOP have a “twice diminished moral culpability”.

The Court recognizes the fact that for juveniles – who have a diminished moral culpability – a sentence of LWOP is a death sentence and is unfair as it categorically denies them the opportunity to be rehabilitated and to atone for their mistakes and to prove that they are worthy of being given an opportunity to reintegrate into and contribute to society:

A sentence of life imprisonment without parole, how-ever, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community,the State makes an irrevocable judgment about that per-son’s value and place in society. This judgment is not appropriate in light of a juvenile non homicide offender’s capacity for change and limited moral culpability.

Which, if any, of the foregoing quotes excerpting the Court’s reasoning would be inapplicable to juveniles who have committed homicides? Certainly, I don’t disagree that it would be a tougher sell, but given the various rehabilitative and psychological factors underpinning the basis for the Court’s decision, one can make a strong legitimate argument that LWOP for all juveniles violates the Eighth Amendment ban on cruel and unusual punishments [and I'm not the only one to notice this potential]. The converse of that argument – that juveniles who kill are just incorrigible enough and irredeemable enough to warrant spending the rest of their natural lives in jail despite their particular characteristics and the development of their brains – doesn’t hold water, especially when viewed in light of the quote above.

Excited as I am by this historic decision, the potential for application of Graham to all juveniles has me doubly excited. Are you?

A Connecticut aside: the issue of whether LWOP for juveniles who commit a capital felony is cruel and unusual was considered and rejected by the Connecticut Supreme Court in post-Roper, pre-Graham 2008:

The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility, necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders. We disagree.

Maybe then, but perhaps no longer? Quoth Justice Stevens:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete…Standards of decency have evolved since 1980. They will never stop doing so.

I’m going to miss him.

« Hide It

Taking stock of Comstock

May 17th

Posted by Gideon in federal criminal issues

2 comments

[I can't believe no one's made the pun yet]

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

What Comstock may very well be: the start of a line of cases that holds, one at a time, that it is perfectly okay for states and the federal government to indefinitely confine sex offenders, well beyond the expiration of their terms of incarceration.

Mixing sex offenders and public safety is a sure recipe for the evisceration of the rights guaranteed and protected by the Constitution. A court following in the footsteps of Comstock could easily hold that, as per the decisions in Alaska and Dept’ of Public Safety, civil commitment is a regulatory function undertaken for the safety of the general public, is not a punitive measure and justify it using the following language from Comstock:

2. This type of legislation is a long-standing Congressional practice: “the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.”
3. The statute is merely an extension to persons already in federal custody (“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Of course, both of the above arguments are a smoke-screen for the real purpose: sex offenders are bad and must be put away forever, even in the face of evidence suggesting that they are the lowest to reoffend. The above argument also ignores the basic distinction between civil commitment of sex offenders and those who are “quarantined” for health reasons: that the “disease” of being a sex offender is the very reason the individual is incarcerated in the first place, thus, in a sense, making civil commitment a second punishment.

But we are talking about sex offenders, so it’s open season. For a preview, see this brief analysis of the potential interplay between Comstock and Kansas v. Hendricks.

Finally, it must be noted that there is certainly something odd about the timing of the two criminal justice decisions issued today: Comstock and Graham v. Florida.

Reading them both on the same day certainly leaves one with the sense that there is no direction on the court on criminal justice issues.

[For links to far more detailed coverage of Comstock, see this post at SexCrimes.]

« Hide It

Preempting Strickland

May 9th

Posted by Gideon in criminal law principles

4 comments

The Sixth Amendment right of the “accused” to assistance of counsel in “all criminal prosecutions” is limited by its terms: “it does not attach until a prosecution is commenced.” McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for purposes of the right to counsel, pegged commencement to “‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’” United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not “mere formalism,” but a recognition of the point at which “the government has committed itself to prosecute,” “the adverse positions of government and defendant have solidified,” and the accused “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689.

Rothgery v. Gillespie County (my prior post on Rothgery here). The importance of the Sixth Amendment right to counsel was underscored by the Supreme Court in United States v. Cronic:

Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.

In McMann v. Richardson, the Court recognize the right to counsel to mean “the right to effective assistance of counsel”. Drawing on the mandate of this most excellent quote from Marbury v. Madison (“every right, when withheld, must have a remedy, and every injury its proper redress”), the Court, in Strickland, gave teeth (however blunt) to that right, requiring a new trial for a defendant whose conviction was obtained in violation of the Sixth Amendment.

But all of this – Strickland, Cronic, even the quote in Marbury – is somewhat contradictory and rather backward looking. On one hand, these rights attach at the very institution of a criminal proceeding and counsel has tremendous duties and responsibilities to ensure that the defendant has a fair trial:

Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan. From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See Powell v. Alabama.

On the other hand, any vindication of this Sixth Amendment right must come after a conviction is obtained. Thus, the “two-pronged” approach to deciding ineffectiveness claims:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

There may be an acknowledgment that the Sixth Amendment right to counsel has been violated due to sub-par performance on the part of the lawyer, but there doesn’t need to be any remedy because there was no harm – or, in other words, the “he’s guilty as hell so what difference does it make?” legal principle. What sort of a right is a right without any redress?

Certainly, the vast majority of trials will fall on two points on the spectrum: those with no errors and those with errors so debatable that one cannot know, during the pendency of the trial, whether they will have any impact on the outcome at all. Perhaps these are best reserved for review after the outcome.

But there are some errors, in the pre-trial context or even during a trial, that are so glaring, so immediate a denial of counsel that to proceed to a sham verdict and then “allow” the defendant to challenge his “conviction” would indeed be a manifest injustice. And yet the courts provide for no remedy for such a violation.

I’ve observed many trials and read just as many transcripts of trials. In a very small percentage of these, it was obvious to all present that counsel had absolutely no idea what he/she was doing. And yet, apart from the judge’s few feeble attempts to “assist” the attorney, the mockery was allowed to continue. For what can one do? Per the mandate of Strickland, there is no harm until there is a conviction, even though there will be one is abundantly apparent to all.

And even when the conviction is obtained and the challenge commenced, the institutional roadblocks to meaningful review of counsel’s performance are ever present. First, we must give high deference to the reasonableness of counsel’s performance:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101.

Then, when we’re done ticking that box, we must view counsel’s performance through his/her eyes at the time of that performance:

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

And finally, the defendant has to overcome the “it didn’t matter anyway” stonewall:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U. S. 361, 364-365 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

Even in the “denial of counsel” cases, the determination is always made ex post facto. Never has there been a case, to my knowledge, where a trial has been stopped midway and the parties have said: “this cannot proceed; this defendant must have adequate counsel”. Yet, the caselaw is littered with examples of poor lawyering and convictions being reversed. Why must we wait until a defendant has been convicted, spent years in jail, endured countless rounds of litigation to have a right vindicated that everyone knew was denied him in the first place?

the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. See United States v. Frady; Engle v. Isaac.

Oh. That’s why. Granted, I am talking about a very small universe of cases, but the fact that this occurs and there is no remedy begs the question.

The Sixth Amendment right is not – and cannot – be limited to a trial alone. Indeed, it is clear that “to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself”. Maine v Moulton. I suppose that there are some options available to defendants who feel like they are receiving ineffective assistance of counsel pre-trial: they can file a motion to fire the lawyer or they can file a motion to withdraw their plea based on ineffective assistance of counsel (here, in CT, pursuant to Practice Book section 39-27). We know, though, how these arguments are viewed by the establishment: “oh, he’s just being difficult” or “he’s trying to game the system”. In Connecticut, the 39-27 IAC claim is a joke. I’ve never seen it granted. Judges routinely deny the motion to withdraw the plea without so much as appointing new counsel to investigate the claim and almost always without an evidentiary hearing. In both those instances, it’s the word of the defendant against, well, the system. The lawyer is put in a terrible position of having to defend himself, while still representing the interests of the client.

It’s the juggernaut of the conviction and it keeps rolling, rolling.

And of what of the defendant who jumps up during a trial because he can’t take it anymore, who can see that his lawyer has so badly messed things up that his conviction is a foregone conclusion? What redress does he have? Is he entitled to any? Or does he just have to take his lumps and hope that down the road, someone will see it his way and give him a new trial with a competent lawyer?

One way to assuage some of the doubts is to ensure that states provide adequate and competent public defenders, with resources necessary to effectively represent clients. But, then again, these systemic claims do not implicate Strickland.

Strickland was a mutant born of a half-hearted attempt to give meaning to a core Constitutional right. It is time for it to die and to be replaced by a better, more effective standard that actually means something to those whose confidence in their convictions has been undermined.

—————————————————————————————————————————

1. As an aside, I found the following passages from Justice O’Connor’s opinion in Strickland to be rather interesting. I’ll have to give it some more thought, but perhaps the habeas practitioner could find some meaning in the attempted explanation of the prejudice prong.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. Cf. United States v. Johnson, 327 U. S. 106, 112 (1946). An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U. S., at 104, 112-113, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, at 872-874. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

2. Another aside: While writing this post, I had the nagging feeling that I’d touched upon this topic before. Turns out, I have. With a very similar title. Two years ago. Just goes to show that I’ve been blogging for a really long time and that there is such a thing as “dearth of topics”.

« Hide It

iac

Dealing with Padilla v. Kentucky

Apr 9th

Posted by Gideon in habeas

2 comments

SCOTUS’ decision in Padilla v. Kentucky has generated a lot of discussion and rightly so. As I noted in one post, some are concerned about the additional burden being placed on defense lawyers to learn and be informed of the highly complex area of immigration law.

Never fear. Here’s a practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

Choice quotes from Padilla v. Kentucky

Apr 1st

Posted by Gideon in habeas

1 comment

Here are a few things that I noted in Padilla v. Kentucky that I left out of my last post, which I wanted to focus mainly on the immigration issue itself. But these are worth mentioning.

First, for the habeas practitioner, Justice Stevens delivers a powerful statement:

In [the Supreme Court of Kentucky's] view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

JACKPOT! Those who practice in the field know that courts are quick to dismiss viable claims of Constitutional defect on the grounds that the basis for that alleged defect is only a “collateral consequence” of the plea. Go forth, defense attorneys, and beat them over the heads with this quote.

In what is more evidence of the complete battiness of Scalia and Thomas, Scalia writes:

We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

I thought it needed pointing out that Scalia would only “assume the validity” of Gideon and Strickland. Nino, you crazy old man, you…

Padilla v. Kentucky: If it is clear, it is clearly your duty

Apr 1st

Posted by Gideon in clients

4 comments

Yesterday, in Padilla v. Kentucky, the United States Supreme Court finally got around to affirming and acknowledging that which most of us in the field already knew: immigration consequences matter.

Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when the immigration consequences of a plea are clear, it is Constitutionally deficient for a defense attorney to neglect to inform the defendant of those consequences. Well, duh.

As SCOTUS itself recognized in INS v. St. Cyr, for the non-citizen defendant, the fact of deportation may be the single most important factor in deciding whether to plead guilty. We’ve known this forever.

Moreover, several states, including Connecticut, require courts, by statute, to inform defendants during the plea canvass that their plea might have immigration consequences. In cases where the immigration consequences are unclear, Justice Stevens writes, the defense attorney must meet at least that threshold.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.

I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.

It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?

And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).

The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.

Finally, just a reminder of the ethical responsibilities. The Rules of Professional Conduct states:

Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

The commentary to and analysis of Rule 1.1 also provides handy guidance.

Individual Skill-ing

Mar 1st

Posted by Gideon in cheshire

No comments

Just when I was on the precipice of not writing any further on the individual voir dire “debate“, I got sucked back in. So here is this half-baked post with some references to studies that you may consider the written equivalent of diarrhea and a few other thoughts that are slightly more well-formed.

First, having already disproven the notion that Connecticut is the only state in the country that conducts individual voir dire, I point you, discerning reader, to some studies that highlight the relative benefits of ISVD. In 1999, then Federal Judge Gregor Mize wrote a paper about an experiment he conducted wherein he questioned jurors individually, regardless of whether they’d self-identified any biases in the “introductory” phase of voir dire. Here is his conclusion:

In view of these results, one cannot help but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions. The sometimes shocking, and always noteworthy, quality of the statements given above, have caused me to require that I interview all silent venire members. I am convinced that even if individual questioning took up significant amounts of time (which it has not for me), it would be well worth expending the effort in order to avoid juror UFO’s and the consequent danger of mistrials caused by impaneling biased or disabled citizens.

In 2003, he followed it up with another paper: “Be cautious of the quiet ones.” Voir Dire, 10, pp. 1-4.

In Judge Mize’s research, in the criminal trials, 1 in 5 of the silent jurors offered a highly relevant comment in individual voir dire that was withheld during group voir dire; at least one, and up to four, silent jurors were then struck for cause in 27 of the 30 criminal trials. Silent jurors in criminal trials withheld being the defendant’s fiancé, being related to the police, being predisposed toward the police, being predisposed against the police, having self or someone close shot with a gun, having lied in group voir dire, and religious convictions conflicting with duties as a juror.

In the civil trials, 1 in 10 of the silent jurors disclosed a highly relevant comment in individual voir dire, which translates into one significant disclosure for every two civil jury trials. Silent jurors in civil trials withheld having been represented by an attorney in the case, being in an auto accident one month before being called in an auto accident case, overhearing others discussing frivolous lawsuits, predispositions against the plaintiff, and predispositions against the defendant.

In both civil and criminal trials, silent jurors withheld medical conditions/hardship, financial hardship, and limited English proficiency.

The most common excuses jurors gave for failing to answer questions in group voir dire were shyness, embarrassment, and a belief that their answers weren’t very important.

Judge Mize concluded that individual voir dire is an indispensable means of identifying juror bias.

In 2005, Dax Urbszat published another study entitled The challenge for cause: Does it reduce bias in the jury system? I am unable to locate a free copy of the paper on the interwebs, so you’ll have to make do with this excerpt and summary:

Urbszat (2005) recently conducted three studies examining the effectiveness of voir dire in identifying jurors with bias or prejudice in a case. The challenge for cause was found to be ineffective in identifying and rejecting biased jurors. In addition, when the jury pool remains inside the court during voir dire, jury pool members were less likely to admit being prejudiced, and less overall rejections occurred. Individual voir dire, conducted outside the presence of other jurors, increased admissions of prejudice.

In addition, since the original series of posts, I did informally ask several local attorneys who have experience both in the Federal system and in other States, and to a person they all affirmed that they would prefer individual voir dire over group. But that is neither here nor there since I am anonymous/pseudonymous and it is only anecdotal.

However, I may not even have written this post, were it not for oral argument today in Skilling v. United States (transcript) before SCOTUS. There are two issues before the Supreme Court, both interesting in very different ways. The first is of relevance here. Skilling claims that his “trial was unfair” (and I’m paraphrasing) because of the immense pre-trial publicity his case received that rendered it impossible to empanel an impartial jury, especially given the manner in which voir dire was conducted. For a case of this magnitude, an entire jury was selected in just 5 hours, with limited questioning by the judge and even more limited questioning by the attorneys. Their primary reliance was on a 14 page questionnaire that each potential juror had filled out well in advance of jury selection. It is especially important to note that in Skilling, the voir dire was individual voir dire (and this is the much vaunted Federal “quick pick” system).

In Skilling, 60 percent of the jury venire affirmatively acknowledged in the responses to questionnaires that they would be unable to set aside their deep-seated biases or doubted their ability to do so, or that they were angry about Enron’s collapse, an anger that was manifested in the vitriolic terms in which Skilling was referred to repeatedly both in the questionnaires and in the community more generally.

Here, in CT, a similar trial is underway in New Haven. I mentioned this in a previous post and it seems that this trial is the gunpowder that has ignited some calls for doing away with ISVD. Any such reliance on highly-publicized trials is misguided. As with the Skilling trial, there is an overwhelming percentage of people called to serve who immediately are disqualified due to the immense publicity in the press and the overwhelming emotions the case evokes. That, in of itself, takes up a lot of time. In the Hayes case in New Haven, it is my understanding that only 14 jurors have actually been questioned on their suitability, with 4 of them being selected to serve. The rest have either been excused for hardships or for cause.

And yet some would have us pick a jury in a capital case which evokes the strongest of emotions in a matter of hours. I wouldn’t do it if my life were on the line, would you?

And if you cannot answer the above question in the affirmative, then we must stop calling for a truncated process when the lives and freedom in question are of those who trust us with them.

In the vast amounts of time that I have to myself, dragging the wheel as an indentured servant of The Man, I have thought about ISVD. Perhaps it is my feeble mind that cannot escape the conclusion that ISVD is a tool to be cherished by the true believer in the fairness of the system. Perhaps it is the lack of dollar signs impeding my vision that does not let me see reason. Perhaps none has been given.

voir dire

Another conviction reversed: Exhibit n for no prosecutorial immunity

Nov 15th

Posted by Gideon in confessions

No comments

In what is becoming routine, another conviction was reversed this past week in New York, this one too based on the eyewitness testimony of 5 individuals. This, though, isn’t the usual case of mistaken ID nor is it a DNA exoneration.

Convicted of murder in 1992, Fernando Bermudez has wrongly been in jail for 17 years. Interestingly, it took only a year from his conviction for the eyewitnesses to recant citing police and prosecutorial pressure and manipulation:

A year after Mr. Bermudez’s 1992 conviction, five witnesses who had identified him as the killer at trial recanted, saying in sworn affidavits that, they were coerced or manipulated by the police and prosecutors to identify Mr. Bermudez as the killer. Several of those witnesses reiterated their recantations in September at a hearing before Justice Cataldo.

Not only that, but all 5 testified at the most recent hearing that they viewed his mugshot as a group and discussed his likeness to the killer: a big no-no in photo array identifications. All the science in this field shows that we have a tendency to compare pictures to each other and to what we think the suspect looks like and pick the one that most closely resembles the person sought to be identified, instead of picking the person who actually is. If you don’t believe me, try this simple test from expert Gary Wells‘ website.

In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.

But that doesn’t deter prosecutors. In fact, they’re so wedded to the notion that once a conviction is obtained it must be defended at all costs – and certainly one where the reversal is based in part on misbehavior by one of their own – that they utter nonsense like the following:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

“We don’t think the defense has shown anything wrong with the verdict,” Mr. Dwyer [the chief assistant Manhattan district attorney] said.

I’m not sure what world Mr. Dwyer lives in that 5 recantations don’t imply something wrong with a verdict, but wherever it is, I don’t want to live there.

What cases like these ought to do is put more focus on SCOTUS’ upcoming decision in Pottawattamie County v. McGhee [oral argument transcript here; scotusblog recap here]. The issue in Pottawattamie is whether prosecutors should enjoy immunity for intentionally coercing false testimony in the investigation phase of a prosecution and then introducing that same testimony at a trial that leads to conviction. In that case:

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.

The oral argument in Pottawattamie is something to read. It shocks the mind that something so simple as intentionally framing an innocent person is a phrase never once uttered by any party (not that I remember anyway). Some of the justices were more concerned with the chilling effect on prosecutors. Look, we all acknowledge that most prosecutors try to do their jobs fairly and very, very few of them wouldn’t be bothered by a wrongful conviction on their conscience. But how does removing immunity for intentionally framing someone produce a “chilling” effect on their prosecutorial function? It seems bass-ackwards. If anything, wouldn’t it make prosecutors more careful in whom they pursue and whom they charge? Would removing such immunity not provide the very result which we seek: no wrongful convictions and certainly none that are obtained by intentional falsification of the evidence? [Listen to NPR's Morning Edition's coverage of this case last week, which includes listener calls from prosecutors and public defenders.]

For me, the answer in Pottawattamie is simple: If you’re a prosecutor who intentionally frames an individual, you should be sued. Not only should you be sued, but you should be disbarred. The latter is less likely to happen than I am to become the next Chuck Norris, but the former should be a real threat. The power of a prosecutor is awesome and that power should be wielded with great care and never with malice or dishonesty.

Had police and prosecutors not pressured 5 people into falsely identifying Mr. Bermudez, he probably wouldn’t have spent 17 years in jail for a crime he didn’t commit. That’s the real moral of this story, not the legal fiction of “opening floodgates” or “chilling effects”. Anyone who gives any weight to such an argument needs to spend 17 years in jail in his place.

And because it’s a Sunday night, I give you this little joke:

Get it?

« Hide It

Drunk driving is different

Oct 20th

Posted by Gideon in criminal law principles

11 comments

Ordinarily, on a criminal law blog, the words “is different” would usually be preceded by the word “death” and an accompanying rant about the futility of the death penalty and the special standards to be applied in deciding whether a State should be in the killing business (I do not disappoint: see next post). However, today we learn that our esteemed Chief Justice uses another “d” word to finish that sentence: drunk driving.

In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.

The story in Harris essentially was that some woman called the cops refusing to give her name, but said that Harris was driving drunk in a green Altima and wearing a striped shirt. The police found a green Altima in the general vicinity of where she said it would be, and the license plate was “close enough” to the partial description she provided. Importantly, however, Harris did not commit any traffic violations (damn those pesky drunk drivers not providing any bases for a pretextual stop!), so when he pulled over to the side of the road, the cop followed suit and initiated a traffic stop. It is not clear why he pulled over (probably because he was drunk and saw a cop following him) or what the cop initiated a stop for (probably because he was a cop and he could). Anyway, Harris reeked and was arrested.

Not so fast, said the Virginia Supreme Court, relying on Florida v. J.L. SCOTUS, in its wisdom, determined less than a decade ago that anonymous tips, by themselves are worth diddly-squat:

An anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip. See J.L., 529 U.S. at 270. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ ” J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. at 329) (citation omitted).

The indicia of reliability of an anonymous tip may be bolstered when the tipster provides predictive information, which the police can use to test the tipster’s basis of knowledge and credibility. However, for such predictive information to bolster the tipster’s basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only “help the police correctly identify the person whom the tipster [meant] to accuse.” J.L., 529 U.S. at 272. An anonymous call that provides no predictive information leaves the police without a means to test the tipster’s knowledge or credibility. J.L., 529 U.S. at 271.

And it makes perfect sense. if this were not the case, I could call the police and say I saw Scott walking down the street, carrying an AR-15 and a suitcase full of meth and he told me he was going to go rob some prosecutors. That’d be enough for them to arrest him. Now, I know he’s not actually doing any of those things, but he’d be harassed a bit. Chief Justice Roberts’ response to this, though, is that “drunk driving is different”. Okay, he didn’t actually use that pithy phrase, but that’s essentially what he thinks:

The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.

Riiight. So a cop who is following a driver based on an anonymous tip couldn’t pull him over if the driver was say…driving erratically? No, of course not. That would make too much sense. There’s definitely more harm there than, say, a drug deal gone bad. You know how those cops love to point out to juries that drug dealers are violent types known to carry guns.

I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky J.L. case altogether.

Either way, good thing he was all alone in his dissent. Well, besides that MADD amicus brief, which I won’t link to because this is a respectable, family oriented blog.

4th Amdmt gets CPR (Arizona v. Gant)

Apr 22nd

Posted by Gideon in ct state law

4 comments

In what is overwhelmingly being described as a “rare” or “never thought I’d see it in my lifetime” move, SCOTUS yesterday effectively overruled lower courts’ incorrect interpretations of Belton v. New York in Arizona v. Gant and restricted the ability of police to search vehicles without reservation.

In an delightfully oddly split 5-4 decision, Justice Stevens (penning the majority) wrote that police could no longer search the interior of a car after the suspect had been secured. The rationale given by Courts (perhaps stemming from an inartful explanation in Belton itself) prior to Gant was that officer safety demanded that they be able to search the interior of a car – the so-called “wingspan”, once a lawful arrest had been made.

Stevens’ majority debunked that:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We do not agree with the contention in JUSTICE ALITO’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although itappears that the State’s reading of Belton has been widelytaught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years,11 many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interestthat all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence.

…

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’”453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.

The decision is also a great primer on search incident to arrest law (and Bennett’s post does a nice job of recapping the history of it). Notable, however, is another holding within this decision: that police will always be entitled to search the interior of a vehicle if the evidence of the instant offense might be discovered within it. Obviously, this would not apply to traffic violations.

Scalia’s concurrence is also rather notable and packs a lot of punch in a few short pages. Here is a choice quote:

I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much roomfor manipulation, inviting officers to leave the scene unse-cured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we shouldsimply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehi-cle search incident to arrest is ipso facto “reasonable” only Cite as: 556 U. S. ____ (2009) 3 SCALIA, J., concurring when the object of the search is evidence of the crime forwhich the arrest was made, or of another crime that the officer has probable cause to believe occurred.

As always, he concludes with a bang:

I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide thedegree of certainty I think desirable in this field; but the former opens the field to what I think are plainly uncon-stitutional searches—which is the greater evil. I therefore join the opinion of the Court.

For the CT reader, I decided to look up whether our Supreme Court had adopted Belton. My limited, preliminary research left me a little confused, so if you know the answer, leave a comment. Our Supreme Court first confronted Belton in State v. Badgett, 200 Conn. 412 (1986), in which they refused to extend Belton to permit law enforcement to conduct searches of vehicles willy-nilly.

We refuse, however, to extend the “fiction” that the passenger compartment is always within reach of the arrestee; New York v. Belton, supra, 467 (Brennan, J., dissenting); to circumstances, as here, where the defendant is no longer at the scene of the arrest when the warrantless search was undertaken. It is undisputed that in this case the defendant was strapped and handcuffed in the police cruiser leaving the scene when the heroin was discovered by officer Kiernan. Because Belton does no more than apply Chimel to a “particular and problematic” context, and “in no way alters the fundamental principles established in the Chimel case . . .”; id., 460 n.3; we hold that the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee’s removal forecloses any possibility that he could reach for an article within the vehicle.

This is close to Gant, but not quite. In Badgett, the emphasis was on whether the defendant was on the scene as opposed to secured and unable to access the interior.

But it gets murkier. In States v. Dukes, 209 Conn. 98 (1988), the Court wrote this:

With reference to the legitimacy of the search of the defendant’s vehicle, we conclude that it was proper. There is no need for us in this case to decide what authority the officer would have had under our constitution to search the vehicle for contraband when the only provocation for that was a traffic violation. This is so because once the officer had searched the defendant incident to a lawful arrest and found contraband, he then had probable cause to search the vehicle as he had grounds of the probable guilt of the defendant of a “crime,” as defined under General Statutes § 53a-24. New York v. Belton, supra. The discovery of the contraband in the defendant’s pockets, coupled with all the officer knew at that point, including the fact that he was now presented with a misdemeanant and not a mere traffic violator, gave him probable cause to search the vehicle for contraband. Black’s Law Dictionary defines “contraband” as “any property which is unlawful to produce or possess.” See United States v. Williams, 533 F. Sup. 448, 450 (E.D. Pa. 1982). We point out here that the officer’s ability to search the vehicle is not to be justified as any continuation of his authority to conduct a pat-down search specifically for weapons in order to protect himself, but is justified on the ground that the escalation of the defendant’s involvement had now risen from that of a mere traffic violation to probable guilt of a “crime” as our statutes define that term. Despite the fact that one does not enjoy the same expectation of privacy as to the interior of his motor vehicle as one does in the interior of one’s home, nevertheless, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). The same applies to an “automobile” under article first, § 7, of the constitution of Connecticut. The exception to the warrant requirement in an automobile search demands that the searching officer have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 153-54, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Badgett, supra, 429. So does article first, § 7, of our constitution. We believe that this officer had, as we have outlined, objective facts upon which could be based a finding of probable cause to search the defendant’s vehicle for contraband. Accordingly, the motion to suppress was correctly denied by the trial court.

You tell me what that means. (There’s more, but it’s late. I’ll update later.) If you’re interested, see State v. Wilkins, 240 Conn. 489 (1997), specifically the end of the majority decision and all of Berdon’s dissent.

« Hide It

Careful what you wish for

Jan 23rd

Posted by Gideon in clients

6 comments

Someone needs to explain to me why this case ever made it to SCOTUS. Actually, I have several questions:

What are you asking for, exactly?
Is this a case of getting too greedy or too literal?
Did anyone consider the ramifications of an unfavorable decision in this case? (Let me spell it out for you: it could spell complete evisceration of a well-established and solidly pro-defense line of cases starting with Santobello)
How do you get selected to argue in front of SCOTUS and then produce a complete clunker [pdf] (and not just one counsel – both!)?
Does anyone think either lawyer has any clue as to what is being asked of them?

I fear that Puckett might win the battle, but lose the war. That would be bad news for all of us.

A red Herring, masked by Ma(r)sala

Jan 17th

Posted by Gideon in ct state law

11 comments

I’m awfully late to this dance, but as a criminal law blog, I might as well shut down completely if I don’t post about Herring. As you may be aware, this past week SCOTUS held in a 5-4 decision that mere negliglence doesn’t require the suppression of evidence obtained as a result of a 4th Amendment violation.

Some have called it the death of the exclusionary rule (or certainly the death knell) and others don’t think it’s such a big deal.

The underlying premise of this decision can be traced, in part, to the “good faith” exception enunciated in United States v. Leon. In Leon:

The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Herring furthers that proposition by holding that mere negligence of a police department does not trigger the exlusionary rule and thus the evidence seized as a result of an arrest made based on a mistake should be admissible.

If you’re not from CT, you can weep now. Those of you in CT don’t have any reason to be particularly concerned about Herring. This is because, in CT, there is no “good faith exception” to the exclusionary rule.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

19 years ago, our supreme court considered Leon and its application in CT and decided that under the CT constitution, there is no such thing. The issue came before the august tribunal after two rounds of apeals and an adoption of Leon by the Appellate Court, in State v. Marsala. In Marsala:

the trial court issued a written decision in compliance with the directive of the Appellate Court to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480 (1989)

The Court then turned to the question du jour: Whether Article 1, Section 7 of the Connecticut Constitution provides for a good faith exception. Justice Shea and the full panel of supreme court justices simply declined to adopt Leon. Writing for an unanimous court, Justice Shea opined:

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447 (1987); State v. Brown, 199 Conn. 47, 51 n.3 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12 (1983).

The Court relied heavily on the dissent in Leon and the subsequent criticism of it to reject the good faith exception:

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionaryrule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” 12 Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not designed “to punish the errors of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1 W. LaFave, supra, § 1.3(d), p. 55.

Over the years, I have become embroiled in several discussions with opponents of the exclusionary rule, whose primary argument is far too simplistic and myopic: The Fourth Amendment itself says nothing about the exclusion of evidence obtained via a violation of itself.

I have a hard time responding to this because on its face it makes no sense. To take the stance taken by the anti-exclusionists, one would have to believe that the Fourth Amendment reads something like this: the right of the people to be free from unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, except if you violate this provision, we will scold you, but not really do anything about the violation, so it’s okay, go ahead and subject the people to unreasonable searches and seizures. So, violate this provision. It is what future generations will call a “technicality” and really, we can’t let those criminals go free on a technicality, can we?

As for Herring, I think my position is a little closer to the doomsdayers than it is to the laissez-fairers. I suspect many defendants will be the victims of “negligence”. But if you’re in CT, you don’t have to worry about this. Unless you’re a fatalist and decide to notice that the entire bench at the time of Marsala is no longer there and we now have 7 new justices who might want to revisit it.

« Hide It

When does police coercion make a confession involuntary?

Dec 25th

Posted by Gideon in confessions

15 comments

We're gonna get what we want, see?

Here’s the quick answer: almost never. If you’re still interested, read the rest of the post. Be warned, though. It is long.

I realize this is a slightly heavy topic for Christmas Day, but such are the conversations I have over lunch. What precipitated this line of thought is this Kansas Supreme Court decision, up for cert. before SCOTUS in the coming weeks.

In Morton, the Kansas Supreme Court held that the [police officer]‘s deliberate misleading of the defendant led to her confession being involuntary. The officer lied to Morton about her need for an attorney during the interrogation and lead her to believe that all he had were clarifying questions. The KS Supreme Court held thusly (more on Morton and CT law after the jump):

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.

However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.

SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.

In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:

Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.

I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.

It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:

Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State v. Shifflett, [199 Conn. 718, 728 (1986)].

So, um…torture?

Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.

Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.

An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.

So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.

Merry Christmas!

« Hide It

A few thoughts on the death penalty

Dec 12th

Posted by Gideon in ct legal news

14 comments

Several occurances in the last week have got me thinking about the death penalty. Miguel Roman should be the new posterchild for abolishing the death penalty. Yes, he wasn’t on death row, but here is a man who spent 20 years in prison for a crime he didn’t commit.

Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.

The arbitrariness of the death penalty is also something to ponder.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Orin Kerr, over at Volokh, wrote this comment a few days ago:

I suppose I don’t like the idea of living in a world in which our constitutional rights depend entirely on what 9 people think would be a cool thing to do on any particular day: I think our rights should be more grounded and more stable, even if I think I would probably agree with what the 9 people think is cool.

This comment made me pause and reminded me of Justice Berdon‘s dissent in Ross II in 1994:

Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.

In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty. And yet it continues to be imposed and applied. Consider that in light of the fact that three US Supreme Court justices (former and present) have changed their views on the death penalty.

Justice Blackmun, dissenting from the denial of cert. in Callins v. Collins wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1 Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

Justice Powell, who voted in the majority in McCleskey, soon regretted his vote:

The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. 28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1.

Berdon, J., dissenting in Ross II. The lack of any deterrent, the racism in the application of the death penalty, the growing number of exonerations all militate toward abolishing the death penalty.

Those in favor of the death penalty have no real argument other than to poke holes in the constitutional arguments of abolitionists. For there is but one reason to support the death penalty: retribution. If I am wrong, correct me. Why is the death penalty necessary? What purpose does it serve other than to exact revenge?

Since Gregg, the number of states that actually execute inmates has reduced. With the exception of CT, all New England states have abolished or stopped using the death penalty. Perhaps the reluctance to impose the death penalty is gaining momentum. 2008 saw only 37 executions, the lowest since 1994. [Read the DPIC's year end report here.]

Because I am not half the jurist that Justices Brennan and Berdon were, I will let them conclude (again quoting from Ross II):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws. The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.

« Hide It

11. Be (intellectually) honest

Dec 11th

Posted by Gideon in ethics

9 comments

Since the last post was mostly tongue-in-cheek, I couldn’t include #11: be honest, or intellectually honest.

The legal profession, despite the number of students graduating from law school every year, is small and insular. The local bar is small. The attorneys who practice in your given field are even smaller. And when you deal with the same attorneys over and over again, there is nothing more valuable than your reputation and your integrity.

Which is why it is imperative that you be honest. That you be intellectually honest. Opposing counsel and judges can see through your prevarication.

The law is not always friendly to you or your client or the position you want to take. It happens to all of us. That doesn’t give you a license to lie, or to make up arguments that ignore the law or the facts of the case.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The hallmark of a good lawyer is the ability to take bad facts or bad law and still make a cogent, convincing argument.

The last thing you want to do is pretend that you’re right when you’re not. It’s hollow and transparent. Everyone sees through it and it’s sort of like the boy who cried wolf. No one will believe you again, even when you’re right.

It’s something Jennifer L. Smith, Associated Deputy Attorney General for the State of Tennessee would have been well served by, had she remembered it and followed it.

Smith represented Tennessee before SCOTUS yesterday in Cone v. Bell. At issue in Bell was some boring nonsense about procedural default in habeas corpus practice. But what it devolved into was a discussion of whether the State had intentionally misrepresented the status of a Brady claim to a state court and then made disingenuous arguments to cover it up later.

What happened was this: The defense, in attempting to prove mitigating factors in the penalty phase of Cone’s trial, argued that Cone was a drug user and in the throes of a drug induced psychotic state when he committed the murders. To that end, they provided testimony from two experts. The State, during cross-examination, took greats pains to point out that the experts’ only source of such addiction information was Cone himself and went to some lengths to prove that Cone was not addicted to drugs.

The only problem is that the State possessed a wealth of information that showed that Cone was indeed addicted to drugs and seemed to be in a drug induced state at the time of the murders. The only logical conclusion here is that the prosecutors intentionally did not turn over this evidence to the defense. This is where Ms. Smith starts to get into some trouble. She has hardly begun speaking when she gets hit with the first questions:

JUSTICE STEVENS: May I ask — let me get something on the table. Do you agree that the evidence shows that this evidence was deliberately suppressed?
MS. SMITH: Your Honor, I don’t think there’s been any — any finding about the –
JUSTICE STEVENS: But is there any explanation for — was there any explanation for it other than the tactical explanation?
MS. SMITH: There’s no explanation in the record, there has been no finding about whether the evidence has been suppressed at all in this case because both the district court and the Sixth Circuit decided as a matter of law that the materials –
JUSTICE STEVENS: It seems to be relevant because if it was suppressed for tactical reasons, it seems to me hard to say that the prosecution thought it didn’t make any difference.

It doesn’t get any better for Ms. Smith:

JUSTICE KENNEDY: Do you think the prosecutor had an ethical duty to turn over this material?
MS. SMITH: I think that the material — if the material — if the subject was immaterial –
JUSTICE STEVENS: It’s a simple question, yes or no?
MS. SMITH: I think that as a legal matter there was no — no need to turn it over because it was immaterial.
JUSTICE STEVENS: That’s not my question. Can you answer my question? Did he have an ethical duty to turn this material over?
MS. SMITH: I’m unaware of any ethical requirement that he turn it over, and I don’t think that — and certainly under Brady if it’s not material, we don’t think it was material, then it’s certainly not required as a constitutional matter. And the reason is not –
JUSTICE SOUTER: You believe that the materiality judgment is yours to make, the State’s to make as sort of a gate keeping measure? Isn’t the materiality an issue for the fact finder?
MS. SMITH: Well, I think it’s — it’s –
JUSTICE SOUTER: You exclude — do you believe that you can, in effect, suppress any piece of evidence on — on — on the State’s judgment that it will not prove to be material in the context of the whole case?

Yikes. But wait. There’s more. After this little subterfuge of hiding the Brady material, the State twice argued to post-conviction courts and appellate courts that the Brady issue had already been decided. When, in fact, no Court had ever actually ruled on the merits of the issue. So it was deemed procedurally defaulted.

Not content with doing that much damage, the State them proceeded to change its tact on subsequent appeals. Accepting that the issue had not actually been decided, the State then argued that the defendant had waived the issue, despite several paragraphs in the habeas corpus petition alleging the Brady violation.

Any time you get a Justice of a Supreme Court, be it state or federal, to utter the following words, you know you’ve made a misstep along the way:

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

…

JUSTICE BREYER: Well, “waiver,” my goodness.

Why the State feels the need to defend every action it has ever take, however wrong or contrary to the law, is beyond me. If they were being intellectually honest, they would admit previous errors and make an appropriate argument. They might lose a case or two, but they at least wouldn’t end up in the position of having their credibility questioned by Supreme Court justices.

[This is not to say that Attorney Smith herself did anything untenable. It may well be that she was handed a deck of cards that lead to this result, and had to defend the questionable actions of others. It is the institutional resistance to admitting errors that irks me.]

« Hide It

supreme court

Expanding Graham

Taking stock of Comstock

Preempting Strickland

Dealing with Padilla v. Kentucky

Choice quotes from Padilla v. Kentucky

Padilla v. Kentucky: If it is clear, it is clearly your duty

Individual Skill-ing

Another conviction reversed: Exhibit n for no prosecutorial immunity

Drunk driving is different

4th Amdmt gets CPR (Arizona v. Gant)

Careful what you wish for

A red Herring, masked by Ma(r)sala

When does police coercion make a confession involuntary?

A few thoughts on the death penalty

11. Be (intellectually) honest

search the blog

recent comments

recent posts

posts of note

terms of use

Meta

syndication

stats

September 2010
M	T	W	T	F	S	S
« Aug
		1	2	3	4	5
6	7	8	9	10	11	12
13	14	15	16	17	18	19
20	21	22	23	24	25	26
27	28	29	30

supreme court

search the blog

recent comments

recent posts

posts of note

terms of use

Meta

syndication

stats

most commented posts

popular posts this month

Tags