These are not qualifications to be a public defender

Which is the odd man out?

burk-flyerNow, who won the election for Public Defender in the 25th Judicial District?

Yep, it’s pro-death penalty, 7-year prosecutor Bo Burk, who, if you zoom in on the image, touts his membership in the NRA as a plus to be the champion of individual rights for the poor and disenfranchised.

But as if that wasn’t enough, he is also a fiscal conservative who will use all resources available to save taxpayer dollars.

Perhaps since he’s never represented a criminal defendant in his life, he might be confused as to where the government largesse in the criminal justice system comes from: it is from over-criminalization and vindictive prosecutions, excessive prison sentences and lengthy terms of probation.

It isn’t the job of a public defender to worry about how much money is being spent on defense. In fact, if anything, the reality is that indigent defense organizations are criminally underfunded and could use significantly greater numbers of lawyers and investigators to provide constitutionally adequate defenses.

Of course, none of this mentions the greater philosophical problem: the stewardship of individual rights and defenses of poor people left to a man who, just yesterday, was trying to put those very people in jail.

How exactly will that prosecutorial mindset so quickly convert to one of defending rights at all costs? How will he suddenly bring himself to the attitude required of criminal defense attorneys: that whether the client actually committed a crime is often irrelevant; what matters is whether the prosecution can prove it?

It would also seem that in a jurisdiction like his, there may be a significant number of people dealing with mental health and drug addiction issues – topics that prosecutors are usually skeptical of. Can he immediately shed that skepticism and see these defendants for what they are – people who are in trouble and need help?

Logic dictates that the defendants of the 25th Judicial District in Tennessee are in for some worse times. Reality dictates that Bo Burk will continue to get elected, despite his complete lack of qualifications for the job.


The apathy of privilege

I don’t live in one of Connecticut’s big cities anymore. I used to, but I don’t. I live in a residential neighborhood that is decidedly middle-class. I have a dog and I often walk that dog on my street and the streets nearby, as middle-class suburban folk are wont to do.

Last week, after our supreme court issued its opinion and while I was in the midst of getting indignant and demanding that people pay attention, I went for a walk. And it was heavenly. I forgot about everything. I forgot about the anger. I forgot about the frustration. I looked at the trees, neighbors’ yards and their flower gardens. I heard dogs barking from windows, I saw birds at bird feeders. I said hello to a few neighbors mowing their lawns. A man stopped to pet my dog. I smiled at him. I politely made way for some kids bicycling.

It was great. It was serene. It was peaceful.

It was horrible. I forgot all about Jeremy Kelly. I forgot all about Michael Morton. I forgot all about Cameron Todd Willingham. I forgot all about Troy Davis. I forgot all about the sad mentally challenged client who had fondled his younger cousin and who was now going to a very bad place that he would no doubt be completely unable to navigate. I forgot all about the hundreds of drug addicted individuals who were inartfully balancing that fine line between treatment and prison. I forgot all about the innocent man who had been arrested and locked up for weeks, the investigation of whose case had stalled. I forgot all about the institutional racism. I forgot all about prosecutorial misconduct. I forgot all about Trayvon Martin. I forgot all about the NSA and the CIA. Everything was right with the world. It was peaceful, happy, just.

From my stupor, it was easy to see how 5 wizened justices would rule that, of course, officer safety would trump the minor incursion into an individual’s Right to Suspicionless Assembly. Of course, in my neighborhood, if I saw one person up to no good, then his friend was also in on the scam. That’s the way of the world. It was white and black. It made perfect sense.

It felt great.

I hated myself. I hated myself because it was so easy. Because it was so tempting. There was nothing to slipping into that coma of blissful ignorance. I could abandon this career and never have to test my conscience again. I could walk away and never have to justify my principles again. I could take the easy path: the path of apathy. The path of following well-trod progressive trails. I could stick to the easy causes: health care, education, marriage equality. They were hard, but they weren’t controversial. It would be easy. It would be serene. It would be relaxing.

I think about that today. Michael Brown would be forgotten. Ferguson would be forgotten. Dr. King would be a token I would pay infrequent homage to. Leave it all behind and embrace my privilege. I could devote my life to Shark Week and Kim Kardashian. The Central Park Five, The Angola Four, Renisha McBride, that Lockett fellow with the horrible death by lethal injection would all run together as post-it notes to be called upon to appear informed and tut-tut the anomalous shortcomings of our otherwise truly fine institutions. But really, there would be no need to worry. There would be no need to fret. My rights aren’t really going anywhere. No cop is shooting at me 5 times. They aren’t detaining me on the street just because of who I’m standing next to. It would be so easy to wrap myself in that cocoon of privilege and turn up the apathy to 11.

It would be a lie. It would be a betrayal. It would make me a coward. If I only express support for easy causes, then I have no real principles. If I only investigate “trendy” issues, then I am nothing but a fraud. Activism, contributing to society and making a difference are meaningful only if you’re doing more than greasing the wheels that are running fine without your presence.

The easy path isn’t always the right path. I am privileged in many ways, but the people I stand up for, the causes that make me wake up every morning and shout at others for ignoring are causes that affect all of us. Those with privilege and those without. And every day that you let your apathy stand in the way of the protections that I deserve, I will smack you in the face and remind you that you’re part of the problem.

Your rights are my rights. Pay attention, because I don’t want to lose them any time soon just because you’ve decided that you’re too white or middle-class to be bothered.

Things to read while you ignore erosion of Constitutional rights

So, if you follow me on Twitter, you know that I’ve been on a bit of a crusade in the last two weeks, trying to get any and every CT outlet that holds itself out to be a news organization to report on the CT Supreme Court opinion that effectively repealed the Right to Suspicionless Assembly.

I have been utterly unsuccessful, prompting some deep thinking which has resulted in a deep post. This is not that post. This is me just taking potshots at the news media, making fun of their ostrich-in-the-sand behavior when it comes to this opinion.

So. Our CT news media is apparently so occupied with heady news and reporting that they can’t cover this important decision. What are they busy with? I’m glad you asked (these are all taken from the CT or state sections of newspapers):

I could go on, but why.


Dog running in election to be prosecutor

The jokes write themselves:

Whatcom County prosecutor David McEachran, a Republican, will face his first opponent in 10 terms. Nyima, a fluffy, adorable Tibetan terrier, is running as a write-in candidate against the state prosecutor. Nyima’s owner, Frank James, a Democrat, family doctor and assistant professor at the University of Washington, said his mission is to have fun and make a statement about Washington politics, according to ABC News.



The consequences of guilt by association: racial profiling and preventing videotaping

[This is my latest column for the CT Law Tribune, republished here because they’re stuck behind a paywall.]

In 1979, the United States Supreme Court in Ybarra v. Illinois held that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”.

Indeed, it is one of the core requirements of the right to be free from unreasonable searches and seizures and also the right to expectation of privacy, that officers of the government need independent, particularized suspicion and cause as to the person they seek to search or detain.

In other words, if police want to stop you, they have to have some reasonable suspicion that you committed a crime or are in possession of a weapon. Even the watered-down “stop-and-frisk” standard of Terry v. Ohio required this ‘particularized’ suspicion:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.

There are several important reasons for this, stemming from the Founding Fathers’ strong dislike for a practice of the British crown at the time called ‘General Warrants’ or ‘Writs of Assistance’. As I’ve written here before,

these writs of assistance were permanent search warrants which decreed that any place could be searched at any time at the whim of the holder. The colonists’ hatred for these general writs gave birth to the Fourth Amendment and its mandate of specific, particularized warrants and its protection of papers and effects from search without probable cause.

Despite these specific, unambiguous protections afforded all citizens of the United States – and by extension the State of Connecticut – our state supreme court last week somehow managed to ensure that the conviction of one Jeremy Kelly remained intact.

Guilt by association and retconning reality

[This is going to be a lengthy post, so bear with me, but you must read it in its entirety. This has tremendous implications for those who are concerned about the imbalance of power in our society, especially when it comes to the ever-increasing encroachment of the government into our civil liberties and the already alarming abuse of power against minorities.]

I’m going to posit two scenarios. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom?

The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”.

This is all important, as you will see in a second, because the Connecticut Supreme Court yesterday [PDF] in State v. Jeremy Kelly, in its ever expanding love-affair with convictions and a not-so-shocking-anymore disregard for Constitutional protections, engaged in some blatant retconning of “factual findings” with the help of the trial judge to ensure that the “facts” supported their interpretation which supported a conviction.

But first:

You can now be legally detained/seized/stopped on a street by police even if they have absolutely no reason to stop you.

As I wrote in my preview post and then the argument recap post, the police and the prosecution in the State of Connecticut were seeking extraordinary authority to detain/seize anyone lawfully walking down the street in a public place in Connecticut, if they believed that people in the vicinity may have committed a crime. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you.

This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. In Kelly, the opinion at issue, they had the wrong guy they wanted to stop. In other words, they completely botched their job and as a result, we’ve all lost our ability to freely walk down the street without being forced to submit to police authority for no reason at all.

In some other countries, we call that martial law. In America, we call that officer safety.

I would encourage you to read the masterful dissent [PDF] that lays waste to all the majority’s purported “reasoning”. Here’s a sample:

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would  require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.

Oceania has always been at war with Eastasia

What problem is?

What problem is?

As mentioned above, one of the chief conceits in the legal system is that facts exist not as they are, but as a judge or jury finds them to be. This has great value in the way our system operates because it defines a universe according to rules of evidence and the primary goal is to ensure reliability.

In recent months, the Connecticut Supreme Court has shown a greater willingness, on appeal, to consider legal arguments that were not raised before. While this has raised some hackles, I generally view it as a good move.

Never before, in my opinion, however, has the Court engaged in retroactive fact-finding. So here’s the setup from the majority opinion:

The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found.

In other words, the trial court, in finding the need for officer safety, relied on clearly erroneous fact A and then, the Appellate Court ignored the trial court’s error as to fact A and instead said that the trial court was correct because of fact B. The trial court had never explicitly considered fact B.

You will have guessed by now that both fact A and fact B support a conviction.

In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it.

The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court.

The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation.

But here’s where it gets weird. After the case was argued in the Supreme Court, they send a letter to the trial judge and asked:

  1. Did you mean felony warrant for violation of probation?

  2. Did you consider the evidence that they received a tip that the guy was armed and dangerous?

The answers, of course, to both were yes, despite there being absolutely no evidence of that in the trial court’s ruling.

It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal.

This is highly unusual and should trouble everyone. I’m not assuming that there was anything malicious about it – that would be ridiculous – but even with a benign intent to “get to the truth” or whatever you want to call it, giving a trial judge an opportunity to change his responses in order to conform them to what the Supreme Court is clearly looking for really undermines faith in the process and the system.

Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority?

Oh, right.

Oceania has always been at war with Eastasia.

On lethal injections: academia vs. reality

The Wood botched execution in Arizona and others elsewhere have shocked many and rightly so. But it’s also opened up an interesting debate in the legal world. On the one hand, you have academics arguing the academia and the technicalities of the law and the meaning of words and on the other, you have former lawyers turned professors who are arguing that, really, what we should do is avoid torturous executions. The latter is a post at the ACS blog which I’d recommend that you read in its entirety. It is long and technical, but it really is worth reading to understand why the secrecy surrounding the lethal injection protocol is dangerous and cannot be tolerated.

H/T: Nancy Leong