a public defender

Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.

Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”

This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:

Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.

But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:

[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]

I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).

As Scott summed it up:

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin’s comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer.  Never, but never, smear your own client.

I’m glad to say that no one I know would act like Martin did (although one has come close).

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:

“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?

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The first half of the title of this post (shamelessly plagiarized from our good friends at CapDefWeekly) should come as no surprise to anyone. Texas is a powerhouse when it comes to executions, rapidly putting people to death.

The second half of the title should also come as no surprise, though. And there’s a new report to back it up [here's a link to the actual report]. The man in question is Cameron Todd Willingham, convicted of setting fire to his house that killed his children in 1991. The new report states that Texas fire marshals had no basis to conclude that the fire was set intentionally and in all likelihood was an accident. Willingham was executed in 2004, maintaining his innocence to the end.

Among [Craig] Beyler’s key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.

The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

And it isn’t Beyler alone. Nine of the nation’s top fire scientists reviewed the Willingham case and concluded that “the original investigators relied on outdated theories and folklore to justify the determination of arson.”

And that’s not all. There was some other evidence of his guilt: jailhouse snitch testimony. That doyen of reliable information. To paraphrase Radley Balko, junk science and a jailhouse snitch do not a reliable conviction make.

Good job Texas. Good job death penalty advocates.

As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.

Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.

The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:

Following up on the DNA exoneration story from two weeks ago, I can happily point you to this report that Miguel Roman has been granted a new trial and was released from custody today, in time for the holidays.

Judge David P. Gold agreed after a brief hearing today to release Roman, 52, on a promise to appear in court. Roman’s lawyers, citing evidence that appears to exonerate Roman in the 1988 killing of 17-year-old Carmen Lopez, petitioned for a new trial for Roman.

Gold granted that motion today.

Prosecutor David Zagaja noted that the petition for a new trial stems from newly discovered evidence stemming from a technology that “simply didn’t exist” in 1988. It was not immediately clear whether the prosecution will proceed to a new trial or move for a dismissal of the case.

It would be remarkable if the State decided to prosecute him again, so  I don’t think that will happen. More likely than not, the charges will be dismissed.

The saddest part of this story is the 20 years of his life that Roman lost.

The Great State of Seacrest Connecticut might be close to its second DNA exoneration ever. (You know, it’s strange how these things play out. A few weeks ago I remarked to someone that I hadn’t heard anything about the Innocence Project lately and I wondered if they were working on anything.)

Nearly 30 years ago, three women either disappeared or were found murdered. One person linked all three investigations: Pedro Miranda. The police could never get enough to charge him and eventually another man – Miguel Roman – was convicted of the murder of one of them and sentenced to 60 years in prison.

to vote or not to vote

What has always struck me as rather curious about the various jurisdictions in the US is their disparate ways of employing judges and state’s attorneys and public defenders. Some states elect their officials, some states select them.

In Connectictut, I guess one could say that the state’s attorneys, public defenders and judges are akin to civil servants. It is, fundamentally, a merit-based system, where you are appointed and then promoted based on your abilites and performance. Not all states do it this way and I wonder why. Two recent stories would highlight my query:

The answer to your question about how much an inmate wrongfully convicted in Texas can get as compensation is $25K per year up to $500k $50,000 per year, or $100,000 per year for people sentenced to death, with no cap. Thank Mark Bennett.

See, I answer questions. It’s not all about me.

undercover mother

When John Giuca was convicted of murder in 2005 and sentenced to 25 years in prison, his mother was unconvinced. The evidence was weak, perhaps politically motivated and she was sure her son was getting railroaded. So he did what every mother would do: she went undercover.

Ms. [Doreen] Giuliano is the mother of John Giuca, a Brooklyn man who was convicted three years ago along with another man in the 2003 killing of Mark Fisher, a college student from New Jersey who was found beaten and shot five times after a night out in New York City. Ms. Giuliano claims her son is innocent and has mounted an unstinting campaign to free him from prison

She recently gave an interview to Vanity Fair, describing the last two years of her life and “the sting” that she performed to bring down one of the jurors in her son’s trial.

It went like this for a long time, Doreen in a daze, doing what needed to be done and feeling hopeless. Then, one day in early 2006, Doreen awoke from her stupor. The jurors, she told herself. Find something on the jurors. It was a desperate thought. She’d watched television cop shows: if you prove a juror engaged in misconduct, it could overturn the case. She obtained the jury sheet, which listed the names and neighborhoods of the jurors. She got her hands on a transcript of the voir dire, the pre-trial review of potential jurors’ fitness to serve on a case. She even managed, through a contact, to come up with a list of some of the jurors’ addresses.

She started trailing jurors, finding out where they lived or work, tried to get close to them.

The last few months have brought us a crashing economy and massive government bailouts to the tune of 34 trazillion dollars (it’s a real amount). As banks fail and the auto industry fails and the real estate market plumbs the depths of depression, an equally frightening scenario is unfolding in states throughout the country: the crumbling of indigent defense systems.

Just like the economy, however, this failure of the legal system should come as no surprise. Back in May, I wrote about the mess in Minnesota (and followed up with a June post about Florida) [full coverage here] and our sister blog PD Stuff has been covering money problems for years. Nevada will face some problems starting next year. Things don’t look all rosy in Connecticut, either, as legal aid is taking a hit.

The NYT piece is rightly drawing a lot of attention in the blawgosphere. Bob Ambrogi and J. Craig Williams devoted their recent podcast to this problem by interviewing the Miami public defender Bennett Brummer and NLADA research director David Carroll. [The podcast is at the end of this post.]

This is a very serious problem. As funding for indigent defense declines with no corresponding declines in prosecutions, defendants will experience greater wait times for their trials, resources will be stretched thin and the criminal justice system will produce far more wrongful convictions. There will not be enough time to conduct proper investigations, to hire experts and, frankly, to go to trial.

If a public defender has an obscene number of clients, a number which grows every day, there will a lot of pressure to resolve cases without much advocacy. This is where the rest of the justice system needs to step up. Prosecutors need to take their duty to seek justice more seriously and drop the pursuit of “wins”. Judges need to take a more mediation-oriented approach and broker fair deals and not permit the State to demand the moon.

From the NYTimes piece:

Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.

“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.

No defendant should ever have to put up with this. No lawyer should ever be in a position where he is advising a client based on incomplete information. This is not only a money issue, but a Constitutional issue. Skimping on public defenders offices now will only postpone the problem, because there will be a greater number of successful habeas corpus petitions or appeals, which will result in new prosecutions.

Or worse: Federal courts will have to step in and force the state to pay for adequate funding, something no one really wants. So you know, might as well bail them out now, right Prez-elect Obama? Seriously, who better to give federal money to? The banks that set up their own downfall? The auto-industry that refused to innovate? Or the hardworking public defenders that protect your and my rights, day in and day out, doing a community service for little money?

But these are tough economic times. Money is drying up. Perhaps this is a very appropriate opportunity to look at truly reforming the criminal justice system. Let’s provide more alternatives to incarceration and true rehabilitation, let’s not keep non-violent offenders in jail any longer than we absolutely need to. As costs of the prison complex go down, there will be more money to fund the defense of the innocent man. We should start to look at the exorbitant sentences handed down by judges. Do we need a 40 year sentence when a 15 year sentence should do? Do we have to be punitive in our punishments? Must people be on probation for 35 years? A true reformation of the criminal justice system would go a long way towards alleviating these woes.

Then, of course, there’s the death penalty.

 Discussing public defenders [38:46m]: Play in Popup

Prosecutors are special. They have their own little section [pdf - Rule 3.8] in the rules of professional conduct. For the most part, they’re people like you and me, trying to do their job, abiding by their special duties and responsibilities.

Then you come across prosecutors like Ben Field of Santa Clara County, so intent on furthering his career that he doesn’t care who stands in his way: defense lawyers, rules of professional conduct, rules of evidence, the U.S. Supreme Court or the bar grievance committee. Here’s the full investigation conducted by the Mercury News that, in part, led to the following.

Back in May, Field faced a disciplinary hearing, which was based on alleged misconduct in three cases dating back to 1995:

The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a “blatant” violation of requirements that prosecutors hand over any evidence that could help prove innocence.

The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.

Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field “willfully disobeyed a court order.”

In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney’s investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.

Prosecutors were beginning to get up in arms back in May. That was just the beginning. Last month, the grievance committee recommended that Field be suspended for three years. This is shocking to many because it shows that the bar committee has teeth and is downright earth-shattering to prosecutors because they may finally be held accountable for their actions. Here’s what the recommendations said about Field:

Field “still does not understand that he stepped far outside his professional obligations and committed serious misconduct,” states the filing of bar trial counsel Donald R. Steedman and Cydney Batchelor. The bar prosecutors also questioned Field’s claim that he will be more careful in the future, contending that Field “evinced no change in the arrogant attitude” throughout those cases, and up through the disciplinary hearing.

The bar contends the four cases demonstrated repeated “acts of dishonesty and an intent to subvert the proper workings of the criminal justice system.” In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Naturally, they’re not happy. The decibels have gone up several levels. So they’re doing what they do best – appeal try to change the law to restrict the power of the bar to suspend attorneys. I kid you not.

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

[T]he draft calls for a two-year statute of limitations for bringing any charges against attorneys.

This two year statute of limitations is quite ridiculous, btw. Many convictions are found to have been wrongful years after they are finalized. In some cases, prosecutorial misconduct may not come to light for a while. If justice is the goal – as prosecutors love to say – then there should be no limit on innocence and certainly no limit on punishment for those that subvert it.

“Are we doing this solely in response to Ben Field? No,” said union president and prosecutor Kevin Smith. “But when a member gets tried, you learn how the process works, and this process is unfair.”

It’s also particularly ironic that the prosecutors are complaining that Field didn’t get a fair trial when he was on trial for depriving defendants of a fair trial.

There’s a reason there is a special section for prosecutors in the Rules of Professional Conduct. It’s not to let them know they are special and exempt from the ethical requirements, but to remind them that their duty is and responsibility is greater than that of the ordinary lawyer and that additional demands will be made of them.

Not whining about being finally held accountable for ethical violations isn’t one of them, but it should be.

Thanks to loyal reader LJS for the tip.

The Supreme Court will hear oral argument Wednesday in Van de Kamp v. Goldstein, a case I blogged about previously. [Given that tomorrow is election day, I foresee that most of my time will be spent in front of the TV, watching election returns.]

In Van de Kamp, SCOTUS will decide whether the chief prosecutor for L.A. can be held civilly liable for a wrongful conviction, after members of his office failed to turn over ecxulpatory evidence to the defense.

From my previous post:

The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.

Despite this suit’s civil context, the implications for those of us in the criminal world will be immense. If prosecutors will be held liable for failing to turn over exculpatory information that its office possesses (just as information in the possession of cops is imputed to the state), then perhaps they will start to err on the side of caution in what materials they turn over.

One of the biggest problems with Brady material these days is not that prosecutors willingly hold on to it, but that they sincerely don’t believe that some exculpatory material is exculpatory. Whatever the result of this case, hopefully it prompts them to take a closer look at their determinations.

The 11th Circuit has stayed Davis’ execution – set for Monday – and asked both parties to brief whether Troy can file a successive petition. They also included this interesting question:

It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.

If someone has a copy of the order, please let me know. I’d like to link to it.

This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].

More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.

He writes:

There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.

I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.

Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.

Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:

Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.

I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.

Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?

Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.

Finally, we get this zinger:

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.

I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.

This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.

Troy’s execution date is coming up soon. Read more about him and make your own decision.

CapDefWeekly has the news that Troy Davis’ execution has been stayed another week, at least. He explains:

The stay appears related to his actual innocence claim – the scotusblog.com has the details. The Court appears to be concerned with the question left open in Herrera – whether factual innocence alone is enough to prevent an execution &, assuming the answer is yes, what standard must the condemned show.

Tune in to CDW to get updates.

Georgia almost (and still might) executed an almost certainly innocent man.