The persecution of justice (updated)


One of the more important things I write about here at ‘a public defender’ is the notion that “Justice” is a complicated concept. It is not limited to what you are fed through your televisions and it is certainly not a government-centric idea.

Justice takes many obvious forms, such as the apprehension and conviction of a criminal. But limiting the definition of justice to something as simplistic as “good guys vs. bad guys” leaves you with a very narrow worldview and an over-inflated sense of morality.

Justice can mean that the right person was punished and that the punishment was just. Justice can mean standing up for unpopular causes, maybe sometimes precisely because they are unpopular.

The persecution of this nuanced meaning of justice, however, has never been more fervent than in this day of “speak by shouting at others” discourse and base politics that pander to ever-extreme hysterical idiots who have found a sure-fire method of whipping up political points and ire by removing any semblance of complexity from American politics and intellectual discussion.

I speak, of course, of the shameful defeat of the president’s nomination of Debo Adegbile to head the civil rights division at the Department of Justice. Joined by 7 democrats, Republicans torpedoed this highly qualified, lifelong public servant from running the civil rights division because a long time ago, he spent some part of his career working for the NAACP Legal Defense Fund, during which time he worked on a brief seeking to overturn the conviction of “noted cop-killer” Mumia Abu-Jamal.

Your bias is showing

My second column for the CT Law Tribune is online now. Since it’s technically behind the paywall, you have to click on the link in this Law Tribune tweet.

The column is about a South Carolina supreme court justice who publicly warned prosecutors to shape up on Brady violations and other misconduct and was the subject of recusal motions as a result.

It’s good. Go read it.

Wednesday is link dump day

Another Wednesday, another link dump. Don’t complain. Be happy that I care enough to share.

  • The Volokh Conspiracy has the next in a series of posts on the problems with the exclusionary doctrine.
  • By Radley Balko, a Fifth Circuit opinion that turns its back on a huge forensics scandal in Mississippi.
  • New Haven’s prison re-entry program gets a new name and a ‘Fresh Start‘.
  • A Federal District Judge in Connecticut essentially dismisses all of Mayor/Gubernatorial candidate Mark Boughton’s complaints about the disclosure of deposition transcripts and his ensuing thuggery. (Opinion [PDF])
  • Andrew Cohen is righteously angry about an Eight Circuit ruling that requires defense attorneys challenging lethal injection to propose an alternate, acceptable method of execution. No, really.
  • Florida cops do warrantless surveillance of cell phones and then claim that a non-disclosure agreement with the manufacturer prohibits them from seeking judicial oversight. No, really.
  • The official review of the Annie Dookhan state lab scandal in MA was completed, naming her the only “bad actor”, but leaving us all to wonder just how many people got screwed.
  • The opening briefs in the cell phone incident to arrest cases Riley and Wurie have been filed in the Supreme Court. Orin Kerr at Volokh has uploaded them.
  • Adam Steinbaugh, who you should read early and read often, investigates and exposes yet another revenge porn creep.

Erroneous release for 13 years leads to reincarceration

In yet another story that highlights the many cracks in the criminal justice system that a man can fall through, Cornealius “Mike” Anderson was recently taken into custody to begin serving a 13 year sentence for armed robbery, precisely 13 years after he was convicted of it.

While the story may sound like a comedy of errors, it really does raise important questions about the criminal justice system and its primary purposes of punishment and rehabilitation and which one should take precedence.

Anderson, who filed appeals and remained out on bond, was never taken into custody to start serving his sentence when all his appeals were denied. In an interview with ‘This American Life‘, he says:

he saw it as a sign from God, so he decided to transform his life. He went to school, became a master carpenter, got married, built his home, opened several small businesses and had four children. Anderson volunteered at his church and coached his son’s football team.

This is somewhat akin to the stories of Judy Lynn Hayman and Marie Walsh, except those two were actively on the run from their sentences.

Anderson, on the other hand, remained put:

  1. There are two other theories that some other courts have employed: 1) The waiver of jurisdiction theory; Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967), and 2) the estoppel theory; see Johnson v. Williford, 682 F.2d 868 (9th Cir. 1982). Deciding which theory to apply has traditionally rested on the facts of the case. Courts in various jurisdictions have applied more than one theory to cases in that jurisdiction.

A new venture

In the clash between a lack of time and the stroking of my ego, the latter will always win. Ergo, I have now signed on to the Connecticut Law Tribune, the statewide weekly legal newspaper as an “opinion columnist”. Here is my first column, (if you can’t access it because of the paywall, click on the link in this tweet, which I’m told should bypass it) which is an introductory one. In future weeks and months I aim to…well, write more of the same that I’ve always written.

If you’re new to the blog and have found it through the column, well, I don’t know what to say to you. Welcome? Where have you been hiding? You know this is 2014, right?

The same caveats that apply to the blog apply to the column, obviously. I don’t yet have permission to reprint the entire column here (primarily because I haven’t asked) so for the time being I will post a link to the column and then you can comment here as always.

What if they gave a prosecution and the prosecution took its ball and went home?


From the ‘don’t-try-this-at-home-kids‘ department, a truly flabbergasting story out of Illinois of hubris, hissy-fits and the Double Jeopardy Clause.

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing.

No, that’s not hyperbole or “insider-talk”. They literally did nothing. From the Illinois Supreme Court opinion:

According to the report of proceedings, “the jurors were duly sworn by the clerk.” The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

“[The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.


HE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard?

[Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we’ll take a ten-minute break.”

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

“[Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they’ve indicated their intention not to present any evidence or witnesses. Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges.”

Here, let me help you with your jaw.