1. Always poll the jury.
2. Always craft your own, precise jury instructions. Read them to a layperson before submitting. Make sure they make sense and are easy to follow.
It seems, as with other parts of the Constitution, elected and appointment members of the executive branches in the Constitution State have but a passing familiarity with the First Amendment to the Constitution of the United States1.
Just so we’re all on the same level playing field, that first Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.
The press today takes many forms: it takes the form of traditional newspapers like the Danbury News-Times and it takes the form of dedicated, intrepid bloggers like Alfonso Robinson who runs both the HatCity Blog and My Left Nutmeg.
Both of these media outlets3 regularly cover politics in the border city of Danbury, which has been run for a long time by @MayorMark. Mayor Mark Boughton, who has had one unsuccessful run for Lt. Gov and is eyeing a run for Governor of CT is a Republican who might find more kinship with Sherrif Joe Arpaio than most people in the State of CT. While he is delightfully banal and irreverent on Twitter, his policies in Danbury have wreaked havoc on the lives of individuals4.
Most recently, in June 2012, he was sued by his former secretary who alleged that she was discriminated against when she was fired by his office. A lawsuit ensued and depositions were taken.
In October 2013, the News-Times reported that they’d made several Freedom of Information requests for transcripts of the deposition5. In October, apparently a month after the newspaper made the request for the transcripts, the city was still claiming:
they need time to review the evidentiary nature of the documents before releasing them to the public.
“If it were up to me we’d release the documents tomorrow but the legal department needs to complete its review,” Boughton said Monday. “Once that review is completed I’m sure they will be released
“Evidentiary review”? The only reason documents aren’t disclosable under the FOI is to the extent they contain privileged information. You redact that privileged information and turn over the transcript. It’s rather simple. Boughton’s claim that they’re just waiting for “review” is belied by the fact that for the last month, they’ve been fighting release of these transcripts in Federal Court.
On November 6, 2013, Robinson got a copy of the transcripts and posted two brief posts with an excerpt of testimony in each post. As you can see, neither excerpt has any identifying information and is essentially about 10-15 lines of Q&A each.
That’s it. Just a brief quarter page excerpt with the teaser “more to come”.
That was apparently enough for Boughton to flex his muscle. Represented by the fancy Hartford law firm of Rose Kellor, Boughton fired off a cease and desist letter to Robinson demanding that he return the transcripts – while acknowledging the pending FOI request – and alleging that he was violating several laws by publishing the excerpts. In doing so, she cites to Seattle Times Co. v. Reinhart for the proposition that depositions aren’t public and thus transcripts of that deposition aren’t protected by the First Amendment.
My knowledge of First Amendment law is weak – maybe the good folks at Popehat have an opinion and this article has a round up of opinions and quotes from local attorneys – but it seems to me that she’s right in the sense that if you advise someone who has given a statement to the police not to speak to them, you’re right, but you’re also sort of missing the bigger picture.
The bigger picture, of course, is New York Times v. US, which is commonly understood to stand for the principle that once the press gets hold of sensitive or even classified documents, the government cannot prohibit the press from publishing those documents. Consider the Pentagon Papers: they weren’t obtained legally and certainly while the First Amendment case was pending, a grand jury was conducting a criminal investigation. Further, consider the disclosures and revelations of Edward Snowden. Do you think there was a clause in his contract that permitted him to copy the NSA databases? Of course not. While there may be talk of the criminality of Snowden’s actions, no one has seriously suggested that the Washington Post and the Guardian not be permitted to print the articles. That would clearly be unconstitutional6.
The press exists, as Justice Black wrote, to shine a light on the government and the secret business it conducts, because it’s a government for the people.
The public certainly has a fundamental right to know just what its elected officials are doing behind closed doors and what they’re saying in sworn depositions about their conduct behind closed doors and this has to be made freely available to all.
An important factor in Reinhart that the letter also fails to acknowledge is whether the confidential documents are available to the public through another source, say, I dunno, the Freedom of Information Act.
In a bit of perhaps unrealized self-mockery, the cease and desist letter insists in its closing paragraph that not only is this not to be construed as an infringement on Robinson’s First Amendment rights, but that the cease and desist is only until they can just prepare the documents properly pursuant to the FOI request, please7.
I don’t think that’s how the First Amendment works. In fact, it’s quite the opposite. It’s precisely that which the First Amendment is designed to protect against: prior restraint.
And while you may not know exactly what sort of discrimination is going on at City Hall in Danbury, at least now you know what sort of Constitutional violation is going on outside it.
H/T: Cool Justice.
The video isn’t even the worst of it. Popehat explains in way that makes it all make sense.
We are a country whose favorite pastime is not football, but incarceration. In such a country, we take delight in locking up young, minority men from the age of 14 to the age of death. We disproportionately incarcerate men of color and we saddle them after the fact of their convictions by heaping consequences upon consequences that are so onerous that almost no one, once burdened by the shackles of a felony, can free himself of them and re-enter Valhalla: middle class America. Onerous and mercurial probation conditions and registries and the constant mass media coverage are enough to drive most men mad.
Standing against this tide that inevitably washes out any traces of opportunity is a thing called “ban the box”. I’ve written about Ban the Box since at least 2009. It’s a policy [more information here – PDF.] that “bans” a box on employment forms asking if the applicant has a criminal record.
The purpose of this is to ensure that people aren’t denied employment simply because they have a criminal record. Cities and states that have enacted BTB policies are required to complete the application process, make a conditional offer of employment to the applicant and then conduct a background check. At that point the applicant can voluntarily disclose any relevant record and explain it. The employer can then choose to continue with employment or withdraw the offer. If the offer is withdrawn, the applicant can appeal that decision.
But the problem with Ban the Box, just as with other rules of equality and fairness the Government is entrusted with enforcing, is that someone has to really want to.
Ban the Box is nothing without political backing or the fortitude of the hirer to stand behind her decision to offer a job to someone with a criminal record. We3 are aware that there is a large section of the population for whom a generic criminal is worse than the genetic offspring of Osama Bin Laden, Obama bin Barack and Adolf Hitler combined. These are the people who comment on news stories.
These are the people who are going to be outraged with pitchforks and demand that the newspaper investigate why the city is giving a job to a criminal when there are perfectly good people in America who aren’t criminals and need a job. In other words, people incapable of nuance and context.
If the policy is to succeed, it takes someone with the conviction4 to say “I am standing by my decision to hire this individual because they are qualified for the job and will be an asset, despite the criminal history of their distant past.”
Hartford Mayor Pedro Segarra apparently is not such a man. On Tuesday, he announced that he was hiring a man named Kennard Ray as a his Deputy Chief of Staff. On Wednesday, Mr. Ray had withdrawn his name from consideration because “questions were asked about his criminal record“. Mr. Ray had a criminal record:
Ray’s criminal history includes a 1997 conviction for the sale of narcotics, a 1998 conviction for possession of narcotics, a 1998 conviction for carrying a pistol without a permit and a 2004 conviction for criminal possession of a gun.
Shit, you can get that record in Hartford just by driving through the city5. Mayor Segarra had this to say:
“Mr. Ray is a qualified individual with solid references from former supervisors and community leaders,” Segarra said. “However, public servants, especially those in leadership positions, must be held to a higher standard.”
I am at a loss to understand what that means. If Mr. Ray was utterly qualified for the job and came with strong recommendations and a demonstrated dedication to the city of Hartford and public service, then the fact of his criminal convictions should not alter the equation one iota. In fact, Mayor Segarra didn’t seem too perturbed by the fact that this individual might suddenly become undesirable because he might turn out to have a criminal record, demonstrated by the fact that when the Hartford Courant contacted the Mayor’s Office on Wednesday, one day after announcing the hiring, he had not yet conducted the background check6.
And so something happened when the Courant contacted him and he realized that Mr. Ray has a criminal record. Either Mr. Ray suddenly became unappealing solely because of his criminal record, or Mayor Segarra got scared of potential “bad press” and suggested to Mr. Ray that he might want to withdraw.
He certainly could have taken a firm stance and said that this is America, the purported land of second chances, where we love redemption and the underdog and that the purpose of Ban the Box was to permit such hires and that it would set a tremendous example for the community.
That doesn’t seem to be what happened and it certainly isn’t the stance taken by the Mayor in public. It also isn’t something that has been implied by Mr. Ray.7
It’s sad. Here was a perfect opportunity to explain to residents of a city with a massive crime problem and an even bigger reintegration problem that people are deserving of second chances. That people are better than the worst thing that they’ve done and that there is no shame in hiring someone with a criminal record – and to a position of trust and importance at that.
But instead the Mayor wants to “review” the policy and perhaps revise it to conduct background checks before job offers are made, which would render Ban the Box completely useless.
Because one should only do the right thing if it looks good.
In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.
Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.
The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.
This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.
However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.
In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.
Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.
Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.
Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.
So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.
It is incredibly hard to explain to a person accused of serious crimes by the state that:
As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.
There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.
If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.
It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.
In it, it states:
The Registry will eventually catalog thousands of cases of prosecutorial misconduct around the country. This information will allow policymakers to pinpoint priorities for reform.
The Registry will report the prosecutor’s jurisdiction, type of crime, type of misconduct, whether the case was referred to an ethics oversight body, whether sanctions were imposed, and other information.
Determinations of misconduct will be based on holdings of trial courts, appellate courts, state supreme courts, and legal disciplinary committees.
Maybe the next step can be to establish buffer zones for repeat offenders: you can’t get within 500 feet of a file without adult supervision.
In a death penalty case:
Guided by neither rule nor standard, “free to select or reject as it [sees] fit,”a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.
In the 31 states (only 31!) that leave life or death to juries1, 27 have rules stating the the verdict of the jury is absolute and must be enforced. Only 3 permit a judge to override a jury’s verdict of life. No prize for guesses: Alabama, Florida and Delaware2. Out of those 3, only one has consistently been doing so for the last 20 years: Alabama.
In the 1980’s, there were 125 life-to-death overrides: 89 in Florida, 30 in Alabama, and 6 in Indiana. In the 1990’s, there were 74: 26 in Florida, 44 in Alabama, and 4 in Indiana.3 Since 2000, by contrast, there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.
In 1985, Harris asked SCOTUS to rule this “life override” unconstitutional. In Harris v. Alabama, they refused. On Monday, in Woodward v. Alabama, they were asked once again to rule this arbitrary practice unconstitutional. Mario Woodward was tried for a capital offense. The prosecution wanted death. The jury voted for life 8-4. The judge however, had other ideas. He overruled the jury’s determination and sentenced Woodward to death.
SCOTUS once again declined to even hear the case, just as it did last year in a case challenging the practice of excluding people opposed to the death penalty from even serving on juries. In a blistering dissent [PDF], Justice Sotomayor points out just why it is critical that juries be allowed to make this decision and that their decision be respected:
Because “ ‘capital punishment is an expression of society’s moral outrage at particularly offensive conduct,’ ” Harris v. Alabama, 513 U. S. 504, 518 (1995) (Stevens, J., dissenting), jurors, who “express the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), seem best-positioned to decide whether the need for retribution in a particular case mandates imposition of the death penalty. See Harris, 513 U. S., at 518 (Stevens, J., dissenting) (“A capital sentence expresses the community’s judgment that no lesser sanction will provide an adequate response to the defendant’s outrageous affront to humanity”).
But what, exactly, makes Alabama so different and why is it so offensive? Alabama is a state where judges are elected. And when judges are elected by “popular” vote, they pander to the lowest common denominator:
The judges are not shy about this fact. A 2000 campaign ad for one said he “has the tough-on-crime record to be chief justice.” Another bragged that he “looked into the eyes of murderers and sentenced them to death.” One judge told The Birmingham News in 2011 that voter reaction does “have some impact, especially in high-profile cases.” Nor is it any more comforting when the judges decide to explain themselves. One judge justified his override of a life sentence for a white defendant because otherwise, he said, “I would have sentenced three black people to death and no white people.”
This is anathema to the function of the jury and the to belief system of America itself. Some Americans love their death penalties, but even they, to a person, will admit that they love the freedom to choose more. They love the freedom to do whatever the hell they want, government be damned.
To legally constitute a jury, to give it the power to decide life and death – to choose – and then to take it away because a judge felt political pressure to kill another human being is obscene and absurd.
For more, read Andrew Cohen at The Atlantic.
Update: Also read Scott’s take, in which he focuses on the Sixth Amendment “jury must determine punishment” jurisprudence and calls out Scalia for his hypocrisy.