A fool’s competition: who can be more ignorant about the Constitution?

Yesterday, I wrote about world-renowned Slate columnist Matthew Yglesias’ nigh-moronic article on the ZImmerman trial suggesting that GZ (that’s what we call him) got lucky because he had high-paid attorneys and perhaps, just only, if he had public defenders, we’d have had “the right outcome”.

You’d think that’d be the extent of the stupidity. But someone mistakenly told Lawrence O’Donnell that it was a competition and so, on his show last night [warning: autoplay] on MSNBC, Lawrence (he goes by @Lawrence on Twitter, so I’ve taken the liberty of calling him that) decided to up the stupid ante and demonstrate that he either has forgotten about, or never heard of that thing called the Fifth Amendment.

most defendants in america are guilty, or at least are found guilty in court.

He opens with this, which is an absolutely critical distinction, but he makes no mention of it from here on out and doesn’t seem to actually understand that distinction. See if you can pick up on his theme.

when a lawyer wants to know how tough your case is, they always ask the same question. can you put your guy on the stand? and everyone understands what no means. no means your guy is guilty, very guilty, and putting him on the stand will prove that guilt beyond a reasonable doubt.

saying you can put your guy on the stand doesn’t mean he’s not guilty. it just means he might be a very good liar.

lawyers know the jury instructions will order the jury to not consider the fact that the defendant didn’t testify, but they know, the lawyers know that in a normal case jurors will hold it against the defendant. they will correctly in most cases interpret the defendant’s silence in the courtroom as an indicator of guilt.

Figured it out yet 1? No? Let’s see if Ken Popehat at Popehat can’t give you a clue. Yesterday, Ken wrote about that OG of imbecilic commentators, Nancy Grace. In a brilliant post, he solved the mystery of her and her seemingly discordant views that didn’t fit into one neat political label:

Nancy Grace’s political bent is quite recognizable to me. She’s not liberal or conservative, and no principled view of gun ownership or race or women’s rights drives her coverage. No, she’s a vigorous statist, at least with respect to criminal justice. Her political viewpoint is perfectly internally consistent. As a statist, purpose of the criminal justice system is to convict and punish to the maximum extent possible people accused by the government. To determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did. That’s why defense attorneys are worthy of contempt: they are, by definition, trying to obstruct justice. That’s why she questions and despises constitutional rights: they are mere impediments to the guilty being punished. (That view, no doubt, fueled her penchant for prosecutorial misconduct.)

As he writes further on, Nancy Grace is but the ugly personification of a viewpoint that has permeated and taken over large swathes of the American consciousness: if you are arrested, you are guilty and if you are guilty, you are, by definition evil and thus deserving of the most severe of punishments and you lose your humanity.

Now, go back and read @Lawrence’s comments again. See the theme? Lawrence makes no allowance for the ideas that: A) there are innocent reasons for not testifying; B) that the burden of proof lies entirely with the State and they must be rigorously held to that burden; C) that someone who is arrested is not guilty of the crimes with which they are charged 2.

He is but of a cloth with Nancy Grace: born of the idea that anyone who is arrested is validly arrested and, to borrow from Ken again, “to determine whether someone has committed a brutal and dastardly crime, all you need to know is whether the government has said they did.”

This is an extraordinary turn for a nation founded on quite different principles, ones that the Founders were sure to include in our organizational charter. America was not built to be statist. It was built to be skeptical of vast governmental powers and rubber stamps. It was built to protect the individual against the tyranny of the State.

The belief system that @Lawrence exhibits is anathema to the values we hold. I quote, again, my favorite quote:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. Consider his other comments, which are equally puzzling, if not more so:

lawyers who win controversial cases always tell us we must accept the controversial verdicts. but they’re lying. lawyers appeal jury verdicts themselves all the time specifically because they themselves do not accept verdicts that they don’t like. you do not have a civic duty to accept the wisdom of jury verdicts. the founding fathers didn’t want you to. that’s why they provided for an appeals process.

There is nothing in the law that dictates whether verdicts must be socially accepted, in that people have been – and will always be – free to disagree with verdicts. But that is quite different from defendants appealing guilty verdicts, which is what he seems to imply.

But this reverts back to the unyielding faith that @Lawrence seems to place in the system itself. The system must be correct and has to be correct because to be otherwise is too frightening a concept to comprehend. Ergo, anyone who appeals a verdict does so because he or she “doesn’t like it”. There is no no acknowledgment from him that an appeal may be necessary to vindicate the Constitution, which may have been violated during trial thanks to single-minded people like him who take for granted the purity of the State’s decision to accuse an individual of a crime.

But here’s the troubling part. While Nancy Grace is wholly internally consistent, @Lawrence, in closing, reveals some sensitivity to the plight of the oppressed that is wholly inconsistent with the foregoing.

lawyers are the only white people i actually know who have intensely felt experience with the sadness and anger of justice denied in this country. i’ve actually seen young lawyers cry in court when an unjust verdict is read. if you’ve never experienced it, if you’ve never felt yourself somehow connected to it, then you might be lucky enough not to know how painful and sad justice denied can be.

black americans have known that feeling since the time they arrived on this continent in chains. the first e-mail i got after the verdict on saturday night was from a black american mother of a 2-year-old boy. she sent this picture with just these words — “weeping with rage for my little american.”

Black Americans are routinely victims – just not the victims that @Lawrence is supporting in this diatribe. They’re victims of an overzealous system that incarcerates them at vastly disproportionate rates. They’re the victims of underfunding of defense systems that leaves them vulnerable and exposed to the behemoth that is the Government. They are victims of drug laws that target their minority status and their residential status, unnecessarily tacking on enhancer penalties. They are victims of the biased death penalty, making it more likely that they will be executed. They are victims of race.

But to people like Nancy Grace and @Lawrence, there is no nuance. People are either good or evil. Evil people get arrested and punished and good people are the rest of us. Or is it them?

Does @Lawrence weep for them when they’re victims of the system that he is so invested in? Because when that happens, they’re not called victims. They’re called defendants. And defendants are bad people that no one should weep over.

Oh hai.

Oh hai.


How to kill a man: I’d tell you but then I’d have to kill you

Warren Lee Hill, mentally retarded and thus unqualified for execution, is scheduled to be executed on Saturday. That’s because in Georgia, they just don’t want to believe someone is mentally retarded and can’t be executed, even if an inmate is given the highest (and most likely unconstitutional burden) to prove his own retardation and surpasses that.

In fact, they want to kill him so badly, that they have obtained the lethal injection drugs from an unnamed pharmacy and made that pharmacy’s identity a confidential state secret.

But that’s not all. It’s such an important state secret that the statute forbids its disclosure even under process of law. Which means that pursuant to that Georgia statute, even a court cannot force the executive to reveal the name of the pharmacy.

Stunning. The first thing I thought of when I read this was Marbury v. Madison, that most seminal of seminal cases that established the authority of the judiciary as an independent and equal branch of government: the watcher of the legislators and the arbiter of the Constitutionality of the laws.

Since then, I don’t think I have ever seen such a shocking end-run around the power of the judiciary and a denial of due process. (Except, well, you know.)

Think about this. The State wants to kill a man and they are so desperate to do it that they will make the method of that execution a state secret so one can question them about it or challenge that procedure.

And challenge they should, because the lethal injection procedure is cruel. This isn’t the first time Georgia has pulled this shit. In 2011, they illegally obtained drugs from London and were shut down when the DEA raided their drug supply. The drugs they got weren’t FDA approved and were tainted. The following are three examples, taken from Hill’s lawsuit (embedded below), which will be heard on Thursday:

Both executions that used this supply of illegally imported, compromised drugs resulted in significant pain and suffering for the individuals executed. In Brandon Rhodes’ case, his eyes remained open for the entirety of his execution,indicating that the illegally imported sodium thiopenthal used in his execution was sub-potent, leading to an “agonizing” execution for Mr. Rhode. In the case of Emmanuel Hammond, Mr. Hammond’s eyes also remained open, and appeared to be trying to communicate throughout during the first part of his execution.

In the summer of 2011, Georgia switched its protocol from a three-drug protocol using sodium thiopenthal as the first drug in that protocol to a three-drug protocol utilizing pentobarbital as the first drug in the injection cocktail. The first execution to take place with this protocol was widely reported by objective, third-party sources to have caused tremendous suffering for Mr. Blankenship, the person executed. The media reports of Mr. Blankenship’s execution note that he grimaced, appeared to gasp for air, convulsed, and like Mr.Hammond and Mr. Rhode, remained with his eyes open.

Among the pro-death penalty jurisprudence, this is one area that exhibits some humanity: we will execute people, but we will execute them humanely. So the Supreme Court said in Baze v. Rees that a lethal injection protocol can be cruel and unusual punishment. There have been challenges to the drug protocols of various states and anti-death penalty activists have pressured drug companies into not providing the lethal cocktail.

And so, afraid of not having a legal source of FDA approved drugs, the Georgia DOC turned to its legislature to suddenly making the whole thing secret and unreviewable. So the man who is to be put to use using this magic concoction has no way of knowing if the drugs are safe or if they’re going to make him convulse in agonizing pain while he may or may not die.

It’s one thing for a state to have state secrets, but as Hill’s brief points out, they all have de-classification clauses, i.e., a mechanism to make the information available to the public and the courts under the right circumstances.

Not this one:

(1) As used in this subsection, the term ‘identifying information’ means any records or information that reveals a name, residential or  business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.

(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures,supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence  shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.

The press cannot get this pursuant to a Freedom of Information request and no court in Georgia or the United States can order it be revealed. If they can do it for a lethal injection protocol today, what’s next? Maybe they make the process whereby the decision to seek the death penalty is made a state secret. Why stop there? Search warrants become a state secret. Confidential witnesses are state secrets. If you see something, say something and we won’t tell anyone that you told. Do you have a chill running down your spine yet?

If they’re that desperate to keep something secret, doesn’t it make you wonder what they’re hiding? And do you have any trust left in Government? How do you know there isn’t a secret law gunning for you? How could you?

This isn’t even taking into account the madness of executing him despite his mental retardation and the absurd standard imposed by Georgia in the wake of Atkins v. Virginia and SCOTUS’ failure to act on his petition that’s pending before it.

What if we focused on things that really mattered?

Matthew Yglesias, some guy who writes at Slate, writes this piece asking “What if George Zimmerman had a public defender?”

Obviously the natural response to that question would be: nothing different, but you know it’s a loaded question and you know what he’s getting at: banging the drum of the tired trope of the overworked, underfunded public defender.

Well, not exactly. Because he throws this in there:

What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he’d been inclined to do so. Wouldn’t that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost. And of course the last thing any sensible person wants to do is go to trial with his entire life on the line in a situation where his own attorney has just plainly said he’s not enthusiastic about running the case.

So, yes, Yglesias’ comments are moronic, but you don’t need to follow in his footsteps and become one.

There are so many errors with his premise: for example, a public defender has the same “financial incentive” that Mark O’Mara and Don “Knock, knock” West had: none. They both got paid up front – contigency fee agreements are illegal in criminal cases – you can’t get paid only if your client wins at trial. So they got paid. Just like any public defender would’ve been paid.

Emotional investment? You think public defenders like losing? You think we, who dedicate our lives to the defense of the poor, do so for money? Fame? Accolades? How does that even pass the basic logic test, because we’ve already established that everyone hates us and the clients we represent. We’re underfunded, underpaid and reviled. So, I’m doing this because…?

I bet if the State had made an offer to Zimmerman, O’Mara and West would’ve had to convey that to Zimmerman. Maybe they would’ve looked at the case and said “Hey, GZ, man, you really should think about pleading.” Or they would’ve said “Hey, you should take this to trial”.

Just like any other attorney would’ve said.

The logic is further missing in this argument because it presupposes that any privately hired lawyer in the world is per se and necessarily better than a public defender.

So it doesn’t matter if the private attorney has no experience in criminal law but charges exorbitant sums, he or she is, by the very nature of their existence, automatically better than a public defender.

That is what we call a damn fool argument. Because Zimmerman – who was poor and relied on donations to fund his defense – could’ve hired two morons like Yglesias to represent him. And then he’d have lost. And then? Then I don’t know because at this point I’ve officially thought about this more than Yglesias did before hitting publish. There are good attorneys and bad attorneys and they can be found everywhere.

Yglesias later apologized, to be fair, and said that his article was more about the lack of funding for public defenders. You read it and you decide, because if that’s what his article really was about, then he’d have spent a significant portion of it (read: all) focusing on the ways in which the federal government’s sequester is destroying the federal public defender’s office and the Constitutional right to counsel.

“All employees, from the receptionist all the way up to me, have lost almost three weeks of pay,” he said.  The office has also seen its staff size shrink by about 10 percent because of early retirements and layoffs, Nachmanoff said.  Nationwide, federal public defender offices currently face between 15 and 20 furlough days and have had to consider declining work from indigent clients.  Nachmanoff said his office has had to turn down death-penalty cases, international fraud cases and other resource-intensive cases because of the cuts.  “And that’s just going to get worse in the year to come,” he said.

Aside from the financial hardships, the dangers of further unbalancing an already uneven playing field cannot be overstated. The DOJ and their AUSAs have suffered no such corresponding financial hardships. They haven’t had to lay off workers and cut budgets for training and experts. There are real people out there, whose lives are on the line, who will not get Constitutionally adequate defense because of the sequester. [See also this detailed and moving letter by the Federal Defender of Connecticut, which highlights the same problems.][Prior posts on pd systems here.]

His alleged point that there isn’t adequate funding is a valid one, but there’s more that he could have spent his time on: how the Government has all the power; how the purse strings are controlled by ‘tough on crime’ types, how judges and prosecutors are two big parts of the criminal justice system and we are but bit players. The “blame” doesn’t lie with us; most public defenders, as far as I know, are doing the best they can with the resources available to them.

If George Zimmerman had a public defender and lost because of the lack of resources available to him and his lawyers, then a greater injustice would’ve been done.

But that’s not worth writing about.

Martin, Zimmerman and the colors of injustice

This is not a Trayvon Martin post; this is not a George Zimmerman post. For that, go read these fine pieces with which I wholeheartedly agree.

This isn’t even a post about race, although race certainly fuels much of it.

This is a post about injustice. Injustice doesn’t come in one shape: the acquittal of a seemingly obviously guilty white-ish man for murdering a black teenager. Injustice comes in many stripes, shades and hues. Injustice is smaller than the Zimmerman acquittal and greater than it too. Injustice happens every day before your eyes, but you don’t see it.

Injustice is Warren Hill. In 2002, the United States Supreme Court said it was unconstitutional to kill mentally retarded people. Georgia is a part of the United States. Warren Hill is a prisoner in the State of Georgia. Warren Hill is mentally retarded. His experts agree. The State’s experts agree. Yet Warren Hill is scheduled to die tomorrow. A mentally retarded man, in direct contravention to the Constitution of the United States. Because it’s Georgia and Georgia does what it wants.

Injustice is the hundreds of thousand of black men who went to jail for years longer than their white counterparts because of an imaginary crack-cocaine disparity.

Injustice is when children like Trayvon Martin or younger are arrested and treated as adults by a harsh, unrepentant adult criminal system, sending them to jail automatically for a decade or more.

Injustice isn’t at the fringes of the criminal justice system; it isn’t in the extreme corners and reaches, rearing its head every 6 months or so for you to vent your moral outrage at.

Injustice happens to the wrongfully convicted, like Ronald Cotton or James Tillman or Miguel Roman or the hundreds of others who were convicted by duly sworn juries just doing their jobs.

Injustice is every day. Injustice happens like a death by thousand cuts. Injustice happens to the guilty and the innocent. And every injustice to the guilty is injustice to the innocent.

Injustice is when we spend millions of dollars to fund police and prisons and prosecutors and our legislators increase the number of crimes and multiply the punishment without nary a thought to covering the costs of defense. Injustice is when your rights are in the hands of underpaid, overworked lawyers who are doing their best but are overwhelmed by an overwhelming system. Injustice is when “tough on crime” trumps the promise of equality in access to justice.

Injustice is when prosecutors get to decide what to turn over and what not to. Injustice is when they don’t turn over evidence proving innocence. Injustice is when the courts protect their illegal and unethical ways.

Injustice is when the police department in New York has a policy of stopping every minority and “frisking them”, because they were “wearing clothes commonly used in a crime“. Injustice is when the police department wants the power to stop anyone on the street, for any reason, in violation of the Fourth Amendment.

Injustice is when “technicalities” are used to deny people their appeals, to forcibly impose convictions no matter the Constitutional violations or error. Injustice is when we elevate form over substance, format and rules over rights and freedoms. Injustice is when you punish people for exercising their rights.

Injustice is when they use fear to scare you into giving up your rights, telling you tales of the terrorist or the criminal whom you must punish.

Injustice is when you believe that you have nothing in common with the individual subjected to the full force of the government’s ire. Injustice is when you believe that you will never be a persecuted minority. Injustice is when you believe that you have nothing to hide, so you don’t say a word when they illegally look inside my house.

Injustice is when you pay attention when the media tells you to and you stop thinking for yourself. Injustice is when you go into court, predisposed to convict.

Injustice is when you think justice only applies to the innocent or the likeable. Injustice is when you decide that one set of rules apply to you and another set of rules to those that you don’t like. Injustice comes in a dazzling array of colors. Do you have the courage to not be afraid anymore?

Can you stop being colorblind to injustice?

No solution at all

Let me ask you another question: of the following group, whom would you trust to protect your Constitutional rights? Judges, legislators, prosecutors, defense attorneys.

I’ll wait while you think about it.

So when you discuss ideas about reforming the criminal justice system and your ideas get traction and are picking up by national columnists, you should perhaps pay attention when they’re criticized by those who are best in a position to determine whether they might be effective or not.

You should. I say should because it doesn’t happen. There’s a large divide between legal practitioners and law professors and an even bigger chasm between practitioners and professors who have political clout. I don’t often write about law professors and their impact on the criminal justice system because I just don’t. But that doesn’t mean I don’t notice it. It doesn’t mean that most criminal defense attorneys don’t notice that we’re the red-headed stepchild; the distant cousin with leprosy who must be invited to the party, but seated as far as possible from the normal people. We see it. We ignore it because we’ve already got enough fights to fight; for you and for me. But sometimes it bears mention.

Judicial opinions don’t cite to my blog posts or that of Mark Bennett or Scott G or any of the dozen other criminal defense lawyers on the internet who write about the practice of law and the defense of your rights. No, they cite to Volokh and SCOTUSblog and the Instapundit, because apparently academia is better suited to understanding the actual problems of being “in the trenches” (which, to be sure, isn’t meant literally).

Why is that so? Is it because academia is so revered? Is it because it’s easier to hobnob with the elite and the powerful? Is it because, deep down, we may revere the principles of individual rights, but we hate those that trade in them? Is it because it is so inconceivable to use that there is value in the profession of criminal defense, that we can only deal with the idea of it?

“I have rights and they must be defended, except everyone who defends them is a murderous scumbag” is a very odd belief to hold.

The truth is, as I said before, that some ideas suggested for reform are intriguing and some are downright terrible. They’re not terrible because they’re suggested by someone whom I don’t agree with politically, or who called me a name. They’re terrible because they are, in fact, dangerous and unworkable.

For example, explain to me a workable system whereby the State would have to pay the costs of a winning defense and the defense the cost of a loser. I dare you. It can’t be done because it’s an idea that’s so incongruous with the nature of the system itself.

If the idea of “crashing the system” by taking every case to trial – or the differently stated ‘banning pleas’ – was workable in the least, don’t you think it would have been done before? It’s a terrible idea because it’s dangerous. Because not every criminal defendant can or should go to trial. Because it would be malpractice. Because it would be suicide.

Maybe it was Aaron Swarz, maybe it’s the NSA scandal, but people are starting to realize that the Government has too much power. There is overcriminalization and there is overcharging.

What is the solution? Immunity, but that’s been rejected by the Supreme Court. How else is one to check the power of the State? Who else is left, if not Congress or the Courts?

The people. It’s taken 7 years, but I think I’ve finally come to the conclusion that juries need to know punishment before verdict and juries have to be told they have the power to nullify.

But it won’t matter a damn because the people to whom we make this temporary grant of power are also all too quick to exercise it to condemn “the other”.

Because the problem always has been “the other“. The overcriminalization encroaches on “my rights”, I’m not talking about “banal” crimes like murder and rape.

When will you realize that the rights of a murderer are the same as your rights and my rights. The Constitution makes no distinction. An overreaching, high-on-power prosecutorial system won’t suddenly take a break from beating up on the powerless and the helpless just because you happen to walk in their path; you with your “technical violation” and “minor white collar transgression”.

So you may trumpet these reforms and you may get on your soapbox, but they’ll never work for everyone; they will never address the real problems with the system that you’re too high up to see. Not until there’s a seat at the table for those that have first hand knowledge of the problems with this justice system.

Otherwise all you’re doing is reinforcing the notion that there’s one system for “us” and one system for “them”.

Conviction reversed for man who was tried without an attorney

When we say that everyone is entitled to counsel, what we really mean is that everyone who can afford a lawyer can hire one and everyone who is this poor will be provided one. Everyone else is on their own. So the floor – the income eligibility – is the arbitrary cutoff which determines who gets a public defender and who doesn’t. As I’ve written before, it’s an imperfect system with a ridiculously low threshold for cutoff: 125% of the federal poverty level which amounts to slightly more than absolute poverty. And they’re guidelines, which means that the determination is left to individual offices to make. And offices are staffed by humans and humans make mistakes. Just ask Gene Newland:

For nearly two years, Gene Newland told a judge that he could not afford a private attorney to represent him following a 2007 arrest for sexual assault and risk of injury to a minor. “I’m trying to come up with the money,” he said in one courtroom appearance. “I’m barely making ends meet as it is right now. Believe me, if I could afford a lawyer, I would.”

Newland had been denied access to a public defender in Danielson because, someone decided, he had too many assets. He owned a house and worked two jobs, though he lost one of them after he was charged with the crime.

Just so we know what’s at stake, both sexual assault and risk of injury are Class B felonies, each carrying a maximum of 20 years in jail for a grand total of 40 years’ incarceration.

The problem with making such a simplistic determination that he has a house and a job and is therefore ineligible is that it fails to take into account the reality of hiring private counsel for serious charges. The house isn’t liquid and a job is a job even if it pays nothing:

Newland was earning $350 a week at the time of his criminal trial, had no funds in the bank and that he was unable to make payments on his $168,000 mortgage.

Despite this, Newland was denied a public defender and then no one told him that the decision could be appealed to the trial judge, who, according to our statute, makes the final appointment of counsel. In fact, when faced with an unrepresented individual facing serious jail time, the court made Newland state that he wanted to proceed without counsel, instead of acknowledging that maybe the man couldn’t afford to hire his own attorney.

But don’t be fooled. Newland didn’t do this voluntarily. Who, in their right mind, would?

When [Judge] Robaina asked Newland if he was sure he wanted to waive his right to an attorney before proceeding to trial, Newland replied: “I have no other choice.” He then stated that he had neither the training or skill to represent himself. He acknowledged that he had been arrested 23 months earlier, and he knew that he had to be tried sometime.

It may seem as if that’s a long time to save up money and hire an attorney, but that’s only if you don’t factor in any other expenditure to live. Rent, food, insurance, clothing, gasoline, taxes can all add up and even sizeable incomes can disappear with nothing left over to pay attorneys $5,000-$25,000.

Newland fell through the cracks and remained there. He was tried – representing himself in a case involving allegations that give even the most seasoned defense attorneys nightmares – and convicted. Then he was sentenced to 10 years in jail.

It’s been 4 years since he was sentenced to prison after being tried without an attorney, but a judge just reversed his conviction in a habeas corpus proceeding, holding that the State violated his right to counsel.

Attorney Jim Ruane, who represented Newland in his habeas wondered:

“How many other trials statewide did people go unrepresented, and was that a voluntary issue or forced upon them?” said Ruane. “I was practicing in 2009 and I had no idea this was going on in a courthouse. So it’s possible other people have slipped through the cracks.”

One would hope that this doesn’t happen often or even rarely; that the system is designed to pick up these oddities and that no judge or prosecutor would want a trial to proceed on some of the most serious charges with a man representing himself not because he wants to, but because he claims he can’t afford a lawyer.

The reality, though, is that it happens. I’ve dealt with similar situations and I know others who have too: clients who are appointed lawyers in one court but are deemed ineligible in another, merely because the people making the determination have different opinions on what qualifies as income.

While I don’t think any of this was ill-intentioned or malicious, the fact remains that a man was convicted without a lawyer and remains in jail 4 years later.

I don’t know if Newland is “truly” guilty or not, but I have no faith in a verdict that was obtained without the assistance of competent counsel and neither should you. The system is about fairness and protection of individual rights, not strict adherence to imaginary and arbitrary guidelines that bring about the opposite result.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

I can think of another inmate who faced a similar predicament. And we know his case changed the landscape of the legal system. It seems, though, that those lessons have yet to be learned.

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.