Police chief: public defenders deserve to get shot

Durham, N.C. police chief Jose Lopez has some problems. Commenting negatively on shooting victims is one of them. He is alleged to have said about one David Hall that Hall “deserved to get shot because he was a public defender”. It should be noted that Hall was apparently an innocent bystander victim. It is also unclear from this backgrounder whether Hall deserved to be shot only because he was a public defender or also because he is black.

Anyway, these are the people who you want protecting you, whereas the victims of his shooting ire are the ones you need protecting you.

[Meanwhile in Florida...]

Judge imposes blanket internet ban on sex offender

Right on the heels of my post last week1 about a North Carolina Court of Appeals ruling holding that the state’s social media ban for sex offenders was unconstitutional, a judge right here in the idyllic town of Vernon, CT2 has apparently ordered a man to stay off the internet for the entire period of his 10 year probation.

Just, all of it. No emails, no Youtube, no Facebook, no Facebook, no Facebook, no Twitter, no Tumblr or Kickstarter or whatever the hell these kids are watching these days. Heck, no New York Times or CNN or Hartford Courant or WhiteHouse.Gov or SignThisEPetition.Com or whatever the web will become in 4 years’ time which is when he will get out of jail3.

Gregory Lindsey was sentenced to 10 years, suspended after 4 years in jail, followed by 10 years probation for possession of child pornography in the second degree, which is a subject I wrote about just the other day.

How do you solve a problem like Brady? Liu-k no further.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don't get it.

Liu-k? Is that pronounced lieuk? Loo-K? Look? I don’t get it.

Scott wrote yesterday about a blisteringly ineffectual 4th Circuit opinion in U.S. v. Bartko [PDF], which was notable not only for its lengthy reprimand of the Brady practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about the numerous Brady violations it noted. Via Scott:

And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty. But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:

“We do not mean to be unduly harsh here.”

But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.

“Whatever it takes, this behavior must stop.”

Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.

As noted repeatedly here on this blog and almost everywhere else where someone with half a brain cell writes about criminal law, the problem with Brady is that it’s essentially unenforceable as long as there is no oversight and no will on the parts of judges to do the really hard thing: punish prosecutors for violating their duty by reversing convictions and referring them to grievance committees.

Maybe, though, just maybe that is catching on. First there was Judge Sheldon’s blistering opinion a few months ago, reversing a conviction for “a deliberate pattern of improper conduct” by the prosecutor.

Then, there was this recent story out of Alaska that involved a suspension of a former prosecutor for hiding exculpatory evidence in a murder case:

Asking for a lawyer is not evidence of guilt

monopoly-go-to-jail-card

When the United States Supreme Court decided that horrible Salinas v. Texas – that silence is not the same as invoking your right to silence – it left many questions unanswered: primarily, if a person does invoke his right to be silent, can the prosecution still use that invocation as proof of guilt?

In Salinas, SCOTUS said that since Salinas had not properly invoked his privilege, his silence could be used against him. In a post providing commentary and analysis on that issue, Orin Kerr at Volokh asked two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

The Second Circuit answered that second question today: the invocation is sacrosanct and cannot be used a evidence of guilt.

Judging evil: what if pedophilia is an “orientation”?

Almost 4 years ago, I wrote this post pondering whether pedophiles have free will. In that post I said:

there is a very interesting question here. If the science does prove at some point down the road that pedophiles really are not in complete control of their urges and these urges are the result of a brain malfunction – an organic disorder, if you will – must we change our attitudes toward those that commit these crimes?

I further wrote that the discussion was about mens rea – the intent requirement inherent in almost all criminal statutes. That post was written with Klüver-Bucy Syndrome in the background and so it focused on societal responses to acts deemed abhorrent but which were committed by people without the ability to control their urges. I left for another day the thornier question of how society should treat those for whom pedophilia seems to be an “orientation”, just like heterosexuality is an “orientation”1.

Before going further, it is important to note two things: 1) that pedophilia is the term for attraction to young people; not the term for acting upon that attraction. That is called sexual abuse. 2) I am not writing to explore the possibility of legalizing child molestation or sexual abuse. As I’ve stated before, there are very good reasons why society should and must continue to criminalize acts of sexual conduct with pre-pubescent children2 If you have gotten that (#2) from what I’ve written so far then I suggest that you either re-read the above or click here to go somewhere else.

City wants defense lawyer to pay for wrongful imprisonment

kevin-pagean

You’re almost 18 right? No? 16? Well, let’s just pretend you said 17. Now smile for the camera while we destroy your rights1.

The lawyer for the city of Worcester acknowledges up front that his legal argument is frivolous and has no basis in the law2:

After the hearing, [the solicitor for the city of Worcester] Moore acknowledged there is no case, no precedent to cite to support the complaint against [defense attorney] Ryan.

But he’s doing it anyway, because anything to distract from the horrible violation of civil rights that his city inflicted on 18 year old Nga Truong. Truong, 16 at the time, was arrested because her son had stopped breathing earlier in the day. Police decided, as they often do, with no evidence and no basis other than they pulled it out of their collective asses, that she had killed him.

So they interrogated her3 for two hours, lying to her, threatening her and coercing her into confessing. Which she did4. Don’t kid yourself; you would have confessed too.

Her lawyer called it the worst interrogation he’s seen in 35 years, labeling it ‘psychological torture’. A judge agreed, suppressing her statement [PDF]. In that opinion:

When the judge, Janet Kenton-Walker, threw out Truong’s statements to police, she wrote that Truong “was a frightened, meek, emotionally compromised teenager who never understood the implications of her statements [to police].”

With no other evidence, the prosecutor had to drop the charges. But that didn’t stop him or the police chief from keeping their blinders on and backing their own:

The playing field is uneven

As written before, one of the greatest lies sold to the American public was Brady v. Maryland: that the prosecution has an affirmative burden to turn over exculpatory material. The problem, of course, is that they are also the ones who get to decide what is “exculpatory”, which has routinely been defined as evidence that would tend to negate the guilt of the defendant or undermine the credibility and believability of the government’s witnesses.

But just as easily as overzealous prosecutors take this exculpatory information, put it in a folder marked “work product” and pretend it doesn’t exist, do they hide witness statements that point to someone completely different and let an innocent man get convicted of murder and end up on death row.

Meet James Dennis, in whose case a federal judge begins a lengthy opinion [PDF] thusly:

James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit. I will grant Dennis’ habeas petition, vacate his conviction and death sentence, and require the Commonwealth to retry Dennis within 180 days or let him free.