Category Archives: supreme court

Nullifying death

Today, all nine Justices of the Supreme Court met to decide whether to continue to permit juries in capital cases that are inherently biased toward imposing a sentence of death, or to finally revisit a much-maligned and problematic practice of “death qualification” of juries.

In 1968, the Supreme Court announced a seemingly bright-line test for determining when the State could unilaterally prevent jurors from serving on a capital case (exercising a peremptory challenge): when those jurors stated that they were unequivocally opposed to the death penalty and could not impose a sentence of death in any circumstance. In Witherspoon v. Illinois, the Supreme Court held that the State could legally excuse jurors:

who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon, reaffirmed in Wainwright v. Witt, still rules the day. Death qualified juries are the norm and community members are regularly excluded based on their moral opposition to the death penalty.

Forfeit what?

Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here's the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”:

Should dead women tell some tales?

Having had my egg for lunch, I spent the better part of the day attempting to untangle the evidentiary web that seems to have ensnared many following and participating in the Drew Peterson saga. Drew Peterson, for those of you who don’t know, was a sort of Black Widower: a man who left a trail of dead wives. A jury just found him guilty of murdering his third (?) ex-wife, while wearing matching outfits. The jurors were wearing matching outfits, not Peterson and his wife. Lacking physical evidence, the prosecution relied on statements made by both his third ex-wife (the decedent in the trial) and his fourth (who is also missing) to friends, family and clerics.

And this is where, as they say, the plot thickens. With help from these two fantastic posts at EvidenceProf and this equally detailed post by anonymous public defender “S”, the issue has become somewhat clear less murky.

So, let’s start at the very beginning:

The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay.

To plead or not to plead: a critical question

To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?

So muses Hamlet in Act 3, Scene 1 of Shakespeare’s play of the same name. So goes the quandary faced by criminal defendants in today’s criminal justice system: to plead or not to plead? Is it more advisable to suffer the ignominy of a conviction and lesser jail time up front than to press the sword of trial and hope that it doesn’t turn on you, often to more deleterious effect?

Hamlet had no one to guide him honestly; the modern criminal defendant, however, does: his lawyer. And it is upon this lawyer that he relies for a frank and learned assessment of the pros and cons of the various options available to him. To argue that the decision to plead guilty or to reject an offer is not a “critical stage” of the criminal process is to disingenuously ignore the realities of this modern day system.

And yet this is precisely what agents of the various States have been arguing for many years. This is a nonsensical fight that I personally have fought for at least 5 years now, without any direct guidance from the United States Supreme Court. Until yesterday.

In two sure to be seminal cases, Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages and yes, Dorothy, the plea bargain is a “critical stage”.

The argument for this holding is best explained by stating the position of those against it. The position against is this: so long as a defendant receives a fair trial, it is irrelevant whether – and to what extent – his lawyer erred in the time leading up to that trial. Reductio ad absurdum, to these folks, if a lawyer never speaks to his client prior to the trial and conveys no offer, it doesn’t matter, because the right to effective assistance of counsel only has force in the context of a criminal trial.

To a less absurd degree, take the case of Lafler, whose lawyer told him that he should reject a very favorable pre-trial offer and instead make the State prove its case because there was no way he could legally be convicted of attempted murder, since the victim was shot in the leg.

You don’t need 3 years of law school and a passed bar exam to tell you that’s just wrong. Stupid, wrong and dangerous. But the States would have you believe that it is of no moment that such patently faulty advice was given, because Lafler received a fair trial.

Justice Kennedy, writing for both majorities, explains it well:

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.  “To a large extent . . . horse trading [between prosecutor  and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.  It is not some adjunct to the criminal justice system;  it is the criminal justice system.”

While the significant role of plea bargaining cannot be diminished (also why ideas like taking every case to trial are stupid and unethical), I would argue that the right to effective assistance pre-trial is not a product of only that large impact of the plea process. It is also a matter of simple logic and ethical responsibility. As I’ve long argued, we are our clients’ shepherds through this complicated quagmire that we call the criminal justice system. The layman, untrained in the nuances of this system, look to us to proffer advice and most often follow our advice. How would you feel if you were given bad advice by the person whose only responsibility was to give you good advice?

Simply put, the issue boils down to this: if you have a right to have a lawyer give you advice, then you have a right to have that lawyer give you competent advice.

This is an outcome that everyone involved – judges, prosecutors and defense attorneys – should be cheering, because it ensures that the system is fair. That is not to say that all advice given by counsel that a defendant doesn’t like is per se ineffective, as some folks1 would have you believe. Rather that a court should evaluate that advice to determine whether it was sound. I suspect that in the vast majority of cases, the advice will be deemed so. But there will also be cases where, but for the misadvice of counsel, the defendant would have not been worse off.

The problem with these opinions lies – as it often does – with the remedy. Here is where I part ways with Justice Kennedy. He writes, in the context of a sentence after a jury trial and a rejected plea agreement:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms.  In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence.  This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial.  In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea.  If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

This proposed model of determining remedy is fundamentally unsound. The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible. In my mind, the only appropriate remedy2 is the first one: if the defendant can establish that the plea was rejected as a result of ineffective assistance and the plea would have been accepted by the judge, the only way to make the defendant whole is to sentence him to the terms of that plea. Anything else would be a band-aid on a gaping wound.

Finally, there will always be naysayers even among the defense bar. To them, I repeat words I wrote just under two years ago:

Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.

IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.  At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.

This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.




1. The analogy given by the good folks at C&C is, simply put, stupid and inapposite. This is not a situation where “you offer to buy my car for $10,000.  After consulting with my expert, I reject the offer.  Turns out my expert gave me bad advice.  The next week, I want to go through with the deal.  In the meantime, though, I have wrecked the car.  Would it be fair to make you pay me $10,000 for the now-wrecked car?” The expert has no duty to give me advice and my “wrecking the car” is not analogous to going to trial with that expert as my advocate.

2. The same good folks at C&C suggest that the appropriate remedy should be that “the defense lawyer should be personally liable for the cost of the trial.  If the defense was the public defender’s office, the cost of prosecution should be transferred from the public defender’s budget to the district attorney’s budget.” If it wasn’t clear prior to today that the good folks at C&C were only concerned with obtaining convictions and watching people murdered by the State, it should be now. Such a rigid, simplistic view of the by-its-nature murky and unclear business of assigning guilt does a disservice to everyone.


Connickally yours

The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.

The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.


A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.



This, that and the other

Here are some stories that are deserving of more attention than 140 characters provides, but not interesting enough to get me to write a whole post about them:

  • In what is reminiscent of the plot of an O’Henry short story or an article on, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?

That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.

  • Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:

Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.

Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:

The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.

Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.

Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.

The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.

In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.

In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.

Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.

  • An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.

And you say I don’t post anymore.


The engine that just didn’t give a f*ck

mom ran you over in a car? dad beat you? GTFO

[Yes, I'm mixing my children's stories here in order to come up with this creative title, but 'Justice Thomas is an effing hypocrite' just doesn't have the same oomph.]

On the twentieth anniversary of Justice Thomas’ confirmation to the highest court in the United States, USA Today has this “retrospective” piece on the work of the Silent Assassin. Focusing primarily on his work in criminal justice cases, the article lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes. And no story of this ilk is complete without a quote that makes you groan and your eyes roll so far into the back of your head that you’re not quite sure if you’re awake or dreaming:

Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, “But for the grace of God, there go I.”

During his confirmation hearing, Thomas explained that he would identify with defendants: “So I can walk in their shoes and I could bring something different to the court.”

It’s okay. Gagging on whatever you’re eating/drinking/throwing a fist through your monitor is an acceptable reaction. I’ll wait till you call 911/poison control/customer service. Back? Feel better? Didn’t think so.

That the same man could utter the words quoted above during his confirmation hearings and then spend 20 years on the bench imposing his morality and punishing others for not being as stoic as he is reflects two things: 1) a truly distorted view of himself as a hero figure; and 2) the utter uselessness of confirmation hearings.

The USA Today piece focuses on Thomas’ opinions in recent cases like Connick v. Thompson and Cullen v. Pinholster. On Pinholster:

Thomas wrote: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

In her rendition of the facts, Sotomayor noted that it was Pinholster’s mother who ran him over as child. Regarding the stepfather, Sotomayor offered no “nearly so” caveat: “Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board,” she wrote. “There was so much violence in the home that Pinholster’s brother dreaded coming home each day. Pinholster’s half-sister was removed from the home as a result of a beating by his stepfather.”

Thomas allegedly has this on his office wall: “If you do the crime, I’ll damn well make sure you do the time. Constitution? What Constitution?”* The article collects quotes from legal beagles like Jeffery Fisher and the inimitable Orin Kerr, who, due to the possibility of appearing before said Justice have to employ the use of euphemisms in describing his “jurisprudence”:

“When he steps in the shoes of people,” says Stanford University law professor Jeffrey Fisher, “he’s more likely to say tough-love is necessary and you have to take responsibility.”

“He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them,” says George Washington University law professor Orin Kerr [...]. “The themes you see in his criminal law cases are the themes that you see elsewhere. He says, ‘If you do wrong, you have to take the consequences.’”

Delicately put. In other words (my own): he just doesn’t give a fuck. He thinks he’s better than you and is not afraid to tell you so. He’s on the Supreme Court and you’re just a convicted murderer-scum-of-the-earth. It’s not that Thomas exhibits a failure to understand the nuances and circumstances of individuals’ lives or to appreciate the different shades of gray that make up each human. He’s too smart not to get that. He just intentionally disregards them. Quoth Gamso:

Suck it up is his mantra. Whether you deserve it or not. Them’s the breaks. If your life sucks, live with it. If someone hurts you, too bad. No remedies. No relief. No comfort. No apologies.

So what if you spent decades in prison for a crime you didn’t commit, almost got executed for it? That’s life. Why should the people who cheated to put you there have to pay for what they did? Some people are winners, others losers.

And who cares about the losers?

Not Justice Thomas.

*That’s not a direct quote. In fact, I may have made it all up. Actually, I’m pretty sure I did.