Update: To be honest, on most days it feels more like this:
When I read this Reason post yesterday about a Federal District Court judge who ruled [PDF] that flashing headlights to warn oncoming traffic of a speed trap is Constitutionally protected behavior, I thought it fairly straightforward.
Then I came across this WaPo/Volokh Conspiracy post by uber-First-Amendment-law-prof Eugene Volokh, which sought to throw a wrinkle into the issue in that oh-so-insufferable-everything-is-complex-only-if-you-were-smart-enough-to-understand-it-way that this most recent generation of lawprofs has seen it fit to model themselves after1
Before we get to how I’m wrong and Volokh is correct, let me give you the facts. It went thusly:
In 2012, Missouri resident Michael Elli was pulled over and handed a $1,000 ticket for passing along just such a warning to motorists about a speedtrap [by flashing his headlights after observing a police car lying in wait]. While the charges were dropped, he promptly sued Ellisville, Missouri, for its speech-discouraging ways.
In ruling in his favor, the District Court judge wrote:
Defendant suggested that flashing head lamps might be illegal interference with a police investigation; however, the expressive conduct at issue sends a message to bring one’s driving in conformity with the law—whether it be by slowing down, turning on one’s own headlamps at dusk or in the rain, or proceeding with caution… Even assuming, arguendo, that Plaintiff or another driver is communicating a message that one should slow down because a speed trap is ahead and discovery or apprehension is impending, that conduct is not illegal.
Seems really straightforward. Except it’s complicated. From Volokh:
Whether this is the right answer is not clear. The situation is a special case of warnings to hide one’s illegal conduct because the police are coming — “abort the plan to rob the store” or “flush the drugs down the toilet.” True, here that is done by a stranger rather than by a lookout who’s in league with the criminals, but it’s not clear why that should make a constitutionally significant difference.
Really? It’s not clear why the former is criminal and the latter is not? Take two seconds to think about it. Got it, right? It’s because in the former scenario – “abort the plan to rob the store” – there’s a fucking conspiracy. In that, more than one person has agreed to do something illegal together and one of them has taken an substantial step in that direction. They’re both doing something illegal together and that was their goddamn plan from the beginning.
In the car-flashing scenario, there are complete strangers with no meeting of the minds. There’s no proof that the warning is even received by the intended recipient or that the recipient even understands what flashing headlights mean. Because if you believe in urban legends and you see headlights flashed at you, you might just shit your pants and hope that the girl you saved from being raped earlier somehow magically is the sister of the gang member who’s about to kill you and you remembered to take her wallet as proof2
Further, when you’re flashing your lights, you don’t even know if the intended recipient is breaking the law or not. How is flashing your lights, in of itself, illegal? Don’t you flash your lights at the person in front of you when they’re driving so damn slow and won’t get out of the left lane even though it’s rush hour and everyone’s trying to get to work and I need to eat the bagel and drink my coffee before court starts, WILL YOU JUST MOVE DAMMIT?
But what the hell do I know? I’m just a stupid trench lawyer and I don’t write for the Washington Post.
While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:
The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove petitioner’s innocence.
In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.
The intentionally withheld evidence was a police report about a meeting with Barber,
which show[ed] that before Barber said anything to the police about the crime, Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.
The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.
But the wretched scum who prosecuted Wolfe are quite another breed:
Commonwealth officials also intentionally suppressed other crucial evidence that contradicted their theory of the crime. For example, the prosecutors “withheld evidence of Barber’s personal dealings with the victim, including a claim that Barber owed Petrole money, a claim that Petrole had a hit out on Barber, and a claim that Barber and Petrole had recently associated with each other socially.” Pet. App. 135a. They also failed to disclose that Barber’s roommate, Jason Coleman, had told the prosecutors “that Barber said he acted alone.” Pet. App. 134a–135a n.9.
And why, exactly, would a prosecutor suppress this? Besides the obvious bloodlust to put a person on death row, it’s because of a blatant disregard and dislike of the Constitution and individual rights. It’s because they believe the lies they sell. It’s because their job isn’t justice, it’s vengeance. It’s because they think they’re better than you and they are the arbiters of your morality.
Indeed, one of the prosecutors later admitted that he routinely declines to turn over exculpatory material because defendants can use it “to fabricate a defense.” Pet. App. 38a.
The lead prosecutor, Paul Ebert, also testified. In a remarkable exchange, Ebert confessed that he has made it a practice to withhold exculpatory evidence, based on his own credibility and relevancy determinations, to ensure that defendants cannot “fabricate” a defense. Pet. App. 38a, 82a, 115a, 175a n.24. Ebert also acknowledged that the prosecutors had “choreographed and coordinated witness testimony through a series of joint meetings” between Barber and other key witnesses to resolve inconsistencies in the witnesses’ stories. Pet. App. 38a, 131a–132a. The suppression of critical exculpatory evidence at petitioner’s trial was thus “entirely intentional.” Pet. App. 38a, 84a, 115a.
That’s putting it mildly. Let me break down just what Ebert does: his police officers make an arrest. He is presented with evidence that then shows that the man who was arrested may not be guilty. He doesn’t follow that evidence to let the man go, but rather contrary to it doubles down, despite knowing that the man may be innocent. He then hides that evidence, because he believes that a defense centered around the evidence that shows the man is innocent may be used to “fabricate” a defense that the man is innocent.
In other words, he don’t give a fuck. If you’re arrested, you’re gonna get convicted goddammit, or his sister ain’t his wife.
This case is now pending before the United States Supreme Court, which will decide this month whether to hear the appeal.
Oh. The appeal isn’t whether the district court did the right thing in ordering his conviction vacated and making Virginia try him again. The appeal is about what the district court judge can do when it orders Virginia to try him within 120 days or release him and Virginia lets the 120 days go by and says “fuck off” to the judge.
You see, Wolfe is still sitting in jail. He was just recently denied bond. And he was indicted again for this same crime.
But, Barber, you remind us! Barber! He’s the guy! He said Wolfe had nothing to do with. Yeah, that was before Virginia prosecutors got to him. Again. Threatening him with the death penalty. Again. So now he’s recanted the recantation, because seriously, who doesn’t want ot live? And now he’s claiming his Fifth Amendment privilege against self-incrimination, so he can’t testify at Wolfe’s re-trial to prove Wolfe’s innocence. This latest misconduct is so outrageous that I’m going to throw a wall of text at you – read it:
Despite having been chastised by two federal courts, the Commonwealth neither released petitioner from custody nor even attempted to retry him within the required 120 days. Instead, the prosecutors devised a strategy that was deliberately calculated to deprive petitioner of a fair retrial. Recognizing that they could not prevail at retrial without Barber’s testimony implicating petitioner and if petitioner could use the previously withheld exculpatory evidence, the Commonwealth’s original prosecutors, joined by Detective Newsome (who came out of retirement for the sole purpose of participating in petitioner’s re-prosecution), arranged to visit Barber at Augusta Correctional Center just days after the Fourth Circuit issued its mandate. Pet. App. 8a, 74a. Over the course of an hour-long interrogation, which the Commonwealth secretly recorded, the prosecutors pressured Barber to revert to the same perjured trial testimony that the federal court determined had been “fed” to Barber by Detective Newsome. Pet. App. 8a, 41a; cf. Wolfe v. Clarke, 691 F.3d 410, 423 (4th Cir. 2009).
Significantly, at “no point did Barber relent”— instead, he continued to insist that petitioner had no involvement in Petrole’s murder. Pet. App. 42a (Thacker, J., dissenting). Barber thus told the prosecutors that his testimony at any retrial would be the truth, just as he had told the truth in federal court—that petitioner was not involved in Petrole’s murder. Pet. App. 47a.
In response, the prosecutors made the same threats they had made in 2002. In particular, they showed Barber a highlighted copy of Ricketts v. Adamson, 483 U.S. 1 (1987), which they had brought with them, and told Barber that under Ricketts his previous plea deal could be undone if he did not cooperate. They made clear to Barber that if he did not revert to his original trial testimony, he could face new capital murder charges. Pet. App. 8a, 74a–75a. The prosecutors also made repeated references to Barber’s “prison privileges and responsibilities in a manner that create[d] the impression that they were either under threat or could be subject to enhancement if Barber testified in a manner favorable to the Commonwealth.” Pet. App. 75a–76a (Thacker, J., dissenting). These threats were designed either to force Barber to revert to his perjured testimony or to put him in the position of having no choice but to invoke his Fifth Amendment right, thus making him “unavailable” for any second trial. The prosecutors knew that under Virginia’s rules of evidence, a witness’s former testimony can be read to the jury if that witness is unavailable.
This is why the death penalty is dangerous and should be abolished. This is why prosecutors should not have immunity. This is why you should question everything the government does.
Update: Thanks to Popehat, we learn that Paul Ebert got an award a few years ago and the article is full of lulz:
Over the decades, he has prosecuted drug, murder and child-abuse cases. He has incarcerated numerous criminals and sent more than a dozen people to death row. He is perhaps most well-known as the prosecutor in the death penalty case of Washington area sniper John Allen Muhammad. But he has also been a supporter of programs that provide alternatives to jail for some nonviolent felons.
“He’s very fair,” said Ebert’s son, Pete. “He’s always said the law shouldn’t be so stringent that you don’t give somebody a second chance. He’s also never lost his belief in humanity, even though he’s seen the darker side of it.”
A second chance at ensuring that a likely innocent man gets executed, is more like it.
A number of readers have wondered whether Ebert has gotten sanctioned in any way for the behavior highlighted by the Fourth Circuit.
A short, dismissive laugh will have to suffice as response.
Update 2: Thanks to Radley Balko, I see that Paul Ebert is quite famous in these parts for being the worst prosecutor ever. Three time nominee for Balko’s “worst prosecutor of the year award“, Ebert was also challenged in an election by a Ham Sandwich, Esq.
I’m sure everyone’s read and talked about Woody Allen recently, what with his award and then Dylan Farrow’s open letter in the NY Times reminding everyone that ‘hey, this guy sexually molested me’.
Allen has rejected these claims again and reminded the world that a Connecticut prosecutor investigated the allegations and declined to pursue charges.
It ain’t gonna happen. He’s not gonna get reprosecuted. But, for purely academic purposes, could he?
That depends on a few things: mainly the facts of the allegations and the dates of the allegations. Assuming that the incidents were alleged to have occurred in 1992, the statute of limitation in effect at the time was 5 years for a sexual assault. That means the SOL ran out in 1997 and Sexual Assault in the First Degree, a Class B felony, is no longer a viable option.
There’s a new statute of limitations (none) for sex assault crimes with DNA evidence, but that wouldn’t apply here, nor would the Supreme Court’s convoluted rules for “lapsed” and “non-lapsed” statutes of limitation in Connecticut1
UConn Law Criminal Clinic professor Todd Fernow agrees:
The passage of time has likely barred the possibility Allen could be prosecuted on sexual abuse charges, said Todd Fernow, a law professor at the University of Connecticut. Under Connecticut law, the statute of limitations for all but the most serious sexual crimes lasts for five years from when a police report is filed, which if applied to Dylan Farrow’s claim of having been abused in 1992 would have run until 1997, Fernow said.
So does the original prosecutor who declined to pursue the allegations:
Connecticut state prosecutor Frank Maco in 1993 declined to bring charges against Allen and retired in 2003. He declined to speculate on Sunday about whether a criminal case could be brought based on the allegations Dylan Farrow has outlined. But he added that whether the statute of limitations had passed would depend on several factors including the nature of the evidence and changes in the law in the past decade. Maco said that he examined the question before he retired and did not believe then a criminal case was still possible. “When I left office, I was satisfied that the statute of limitations had long run in that case,” he said.
But a friend posed the question just the other day: can Allen be prosecuted for something else? That something else being the Class A felony – for which there is no statute of limitations – of kidnapping in the first degree.
Specifically, kidnapping in the first degree provides that:
(a) A person is guilty of kidnapping in the first degree when he abducts another person and: (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony;
In order to convict someone of Kidnapping in the first degree, the prosecution must prove beyond a reasonable doubt that a person “abducted” another person2 and then further restrained the abducted person in order to rape the victim.
So the question is, could Allen be guilty of this? The answer, in my opinion, is it depends. It would depend specifically on the facts of the allegations: did Farrow allege that Allen shoved her in a car and drove her to an abandoned building on the outskirts of town and there touched her? Or is the allegation that when she was in his house, he would touch her sexually?
These factual distinctions are critical because in 2008, the Connecticut Supreme Court clarified the requirements of Kidnapping in the First Degree, ruling that restraint that is required for the commission of another felony and is merely incidental is not kidnapping. In other words, the restraint of liberty must be over and above and independent of any restraint that is required to commit sexual assault.
But this, of course, is a deeply factual scenario. Clients have been convicted of kidnapping for preventing the victim from leaving the room so as to enable them to sexually assault the victim and they have been convicted of dragging a victim to the back of an alley to perform a sexual assault.
As I said, I don’t think anything will come of it at this stage, but the possibility certainly exists, however academic, that a prosecution for kidnapping might be viable.
Thanks to this video recording from August 2013, the public gets another glimpse into the power trips that some people go on when they get elevated to the bench.
Back in August last year, a woman named Ebony Burks was arrested and brought before a judge (Judge Gary Bennett) for arraignment. He asked her how she wanted to plead (not guilty) and then set bonds. As a condition of bond, he directed her to stay away from her partner, who was the victim of a domestic charge. When she realized that that meant she couldn’t go to her own home, shit hit the fan:
“How you going to tell me I can’t go to my home?” Burks asked.
“I just did,” Bennett replied.
“Well, I bet I do,” Burks said.
That brought the initial 30 day sentence.
Burks got 60 days when she held up her hand and walked away from the camera. Bennett ordered her back. Burks continued to talk back.
Here are her words and the resulting jail sentences:
“So what?” (90 days)
“So?” (120 days)
“Okay, and?” (160, 180 days)
“What else you got to say?” (Bennett replies that he will have nothing more to say until they meet again in six months.)
Burks makes an off camera remark, gets a 200 day sentence, and then Bennett asks Burks if she has anything more to say.
“F— you,” Burks replies, bringing the 300 day sentence.
Glad to see today’s definition of judicial temperament includes the ability to get into a childish pissing match with an indigent defendant who’s been told she can’t return to her house.
Yes. Take another second. Re-read that. It means what it says. A New Hampshire house committee has just passed a bill 18-1(!!!) that would prohibit the establishment or existence of sex offender residency restrictions in that state.
This, frankly, is completely unheard of. It’s one thing to simply not pass residency restriction bills, but it’s quite another to pass a law that explicitly prohibits them. They’re doing it for all the right reasons, too:
In 2009, a district court judge in Dover ruled that city’s residency restriction invalid because the city had not shown a “substantial relationship” between the ordinance and the protection of children. In 2012, Merrimack County Superior Court Judge Larry Smukler came to the same conclusion when the New Hampshire Civil Liberties Union appealed Franklin’s ordinance.
Cushing, a member of the House Criminal Justice and Public Safety Committee, said the bill prohibiting residency restrictions is necessary because it will take costly legal fights to undo the 11 ordinances still in place across the state. “The simple thing that can be done is to pass a bill that incorporates the . . . courts’ decisions.”
And apart from the Constitutionality of residency restrictions, they’re a bad idea for public safety reasons too:
Cushing also argued that restricting housing for sex offenders pushes them “underground,” in campgrounds, under bridges and to other places the police cannot monitor. He said communities are safer if the police know where sex offenders live and require yearly registration with the local police.
Meanwhile Connecticut, which has for so long resisted the lure of the residency restriction, might see a bill proposed this year that would create them here. A terrible idea, needless to say. It’s common knowledge that we here in Connecticut are rather slow to catch up to the times, but this is one fad that we would be well served to avoid entirely.
Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?
Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?
Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:
“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.
York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”
Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.
Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:
Rule 8.2. Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(4) Engage in conduct that is prejudicial to the administration of justice;
I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.
As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.
And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.
The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.
As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.
But we are all lawyers. The irony is lost on us.