Blawg Review 325.9

There is nothing more rewarding than creating something in this world that will forever be associated with you. We will all die eventually, but it is our ideas that survive us. As I wrote earlier this week, Ed of Blawg Review passed away after a tough battle. In his memory, here is one last Blawg Review, version 9 (see this post at Blawg Review for the other Blawg Reviews going up today, all in memory of Ed).

As with previous Blawg Reviews hosted here, I’m terrible at themes. I’m terrible at bringing things together into one coherent message. I’m terrible at coherent messages. So instead – and I know Ed would appreciate this because he’d send me links on a wide range of topics – I’m presenting the most interesting posts and stories that I’ve found in the last week or so. There are, of course, loose ties, this being a law blog, but the one thing I want to convey about Ed is his sense of wonder and his desire for information and knowledge. If the goal is to learn, then everything is interesting.

So, without further nonsense:


As we Americans listen to the news these days and ponder whether our listening to the news is news to anyone or whether the NSA is aware that we are, at that moment, listening to the news about the NSA listening to us listen to the news, we can perhaps also sit and reflect on whether the Constitution has expired. That, really, is the only conclusion one can reach when one reads stories like this one: where a comment on Facebook about marijuana is reasonable suspicion to believe that the commenter is a drug dealer.

It’s not that it wasn’t a good Constitution or that it embodied wonderful ideas, but that it has outlived its utility – or rather that we have outmaneuvered its utility. This post at The Atlantic1 asks just that question:

America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years.” By that calculation, we’re more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn’t pretty.

If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now.

And the one we have now hasn’t been working that well, because it means different things to different people. Like the split between Judge Shira Scheindlin and the Second Circuit on just what makes “stop and frisk” unconstitutional. Even if you assume, as blogger Judge Kopf does, that it wasn’t politically motivated, it is still mindboggling. Is it any wonder, then, that those who are paying attention have little to no confidence in the American judiciary?

But the law is more machinery than a Transformer and as such is hard to move and change: one option suggested recently was to permit jurors to ask questions. An idea that isn’t exactly new, it breathed a gasp of life into the blogosphere last week when Judge Kopf (again) posed the question and Greenfield reminded us that it was asked and answered.

If, suppose, jurors were permitted to ask questions, perhaps they’d look a bit like our non-lawyer blawger friend Windypundit, who took crack at the Federal Rules of Evidence this week and quickly devolved into a metaphysical discussion with the other resident philosopher Jeff Gamso about what, exactly, is a fact. Jamison Koehler, not to be outwaxed, offered his own thoughts on one indisputable “fact”: that the truth rarely matters in a trial.

One seeming universal “fact” is the love affair Americans have with the death penalty. But even there, the perception of the thing is far more impressive than the reality of it. A new report issued last week revealed that Americans are shedding their support for the barbaric punishment, but more troublesome is our misunderstanding of its application and fairness.

In other words, we don’t think it’s racist or applied in an arbitrary or unfair manner. Which, you know…ask Ronald Phillips. Ronald Phillips, who the State of Ohio is so desperate to murder that they will literally try anything to kill him. And, if this guy at Slate has his way, “anything” would include the guillotine. I swear. I know it’s the Slate. But still. C’mon.

Or would you have more faith when you learn that a San Diego judge was “exiled to traffic court” after several Superior Court rulings favoring defendants’ constitutional rights”. As Will Baude writes at Volokh, Judge Kreep2, an avid “birther”, decided to issue rulings upholding the Fourth Amendment rights of defendants. Naturally, prosecutors who are citizens who aren’t ever going to be in real danger of having their Fourth Amendment rights violated, boycotted the judge – a practice that is not new to the prosecutors in San Diego, having boycotted another judge in 2009.

Because the last thing we as Americans should want is a fair and impartial justice system where prosecutors aren’t whiny bitches when they lose a case once in a fucking generation. Not bitter at all.

Speaking of prosecutors losing, no Blawg Review worth its salt will fail to mention the monumental victory of one of our own, The Texas Tornado Mark W “the other” Bennett in the Texas Supreme Court of Criminal Appeals. In a case Mark handled on appeal, the ridiculously conservative Texas court held unanimously that a criminal statute was unconstitutional because it violated the First Amendment.

Bennett has since been on a roll, identifying other statutes susceptible to doom and Grits for Breakfast has this delightful post chronicling the apoplexy exhibited by prosecutors on their forum.

And since there is never going to be a better note to end on, I shall end. The next post in the Blawg Review chain is at Likelihood of Confusion. Don’t forget to check out all the posts at Blawg Review.

Goodbye, Ed.

Not my town-itis: Norwich, CT edition

It seems, does it not, that sex offender hysteria has died down a bit? The outrageous calls for inhumane residency restrictions seem to have abated1. Except CT. You see, Connecticut never did succumb to the grip of the madness, relentless rejecting calls for residency restrictions2. But we’re not to be outdone, because if there’s anything that CT is good at, it’s doing things late.

So after the town of Montville got its panties in a bunch in 2010 over a sex offender treatment house that was scheduled to open3, there really hasn’t been much noise here about this.

Enter Norwalk, New London, Norwich, CT. I’m telling you this news article reads like a cut and paste job from many similar news articles years ago. First, you have the children:

Norwich residents are concerned about the number of sex offenders in town, several of which are concentrated in a neighborhood full of children and teens.

What’s concentrated, you ask? They’re hoping you’ve stopped paying attention after that first sentence and are now fuming in your living room, hurling obscenities at Obama, liberals and the Devil:

According to police, four of the city’s 75 registered sex offenders live on a stretch of Central Avenue, which borders a park in the Greeneville section of town.

Sound of record scratching from 80s sitcoms.

Four. Out of Seventy-Five. Live on a “stretch” of road which “borders” a park. Cue quote from parent:

“I’m appalled,” said Norwich resident Melanie Silva. “I’m a parent of four. This playground here is a hub for teenage and young children.”

Oh man, Silva is appalled. I bet some perp showed her his penis or something:

Silva said she hasn’t had any direct contact with the sex offenders, and neither has her personal trainer, Jessica Doubleday, who opened a studio in a garage facing the park.

At this point, any self-respecting journalist would walk away after rolling her eyes and mouthing, “get the f*ck out”. But, of course, this is Connecticut journalism we’re talking about, so strap in.

But this park is apparently the arboreal embodiment of the bogeyman:

“There’s no lighting in this playground, there’s no bathrooms in this playground, and there’s people walking around with open-bottled liquor and there’s people walking around that are selling drugs, and it’s very obvious,” she said.

And then failed to explain just what, exactly, was so “very obvious”, because I have no clue what she’s talking about or – more importantly and here I’m bringing this lesson back, kids – what the motherloving hell this has to do with sex offenders.

“With that many people around that are sex offenders, you never know when something is gonna happen,” she said.

Nope. Still no clue what she’s referring to. Because, Ms. Silva and Doubleday. Let me let you in on a secret. Come closer. Closer still. I’ll whisper in your ear:

There are sex offenders among us. Every day. You see them. They see you! BOO! Happy Hallooween.

But no faux outrage story in Connecticut would be complete with a legislator trying to re-reinvent the wheel:

Norwich officials met Monday with State Sen. Cathy Osten of Sprague, who is pushing for reform and hopes to to develop proposals by late winter.

“We will be looking at the rules revolving around parole and probation to see what we can impact there,” said Osten.

“Many of the sex offenders that are identified are not controlled by the state any longer.”

Osten said some are beyond probation or parole and are living with family or on their own. She said she also wants to see more information reported on the state police website regarding the sex offenders’ crimes.

Forget a sex offender registry. I want a dumb legislator registry. An independently maintained list of idiotic comments by our elected officials, so I know whom to avoid the next time I’m at the legislature.

Not ready for this


One of the upsides of having a blog and being active on social media is meeting people from different parts of the country and the world whom I’d never have met otherwise.

The downside is that people pass away and it’s incredibly sad.

So yesterday, we lost Ed, the pseudonymous editor of Blawg Review, the carnival of law bloggers. I’ve never met Ed, but he and I emailed frequently back when the ‘sphere was just blossoming and we were coming into contact with one another. He’d send me links via email or on Twitter with pithy comments, as was his style. He wasn’t particularly verbose with me, but I knew he was there. He’d randomly ReTweet a link to a post of mine and follow up with an encouraging comment.

I had no idea he was fighting a battle. I was shocked to learn that he lost that battle. I encourage you to read the posts by lawyers who he met in person, but I can tell you that this is a void that will be noticeable.

I wasn’t ready to hear of his passing and he will be missed.

Sherman Screwed Skakel: New trial ordered

Well. This is something I never thought I’d type, but Michael Skakel has just had his convictions reversed and a new trial ordered [PDF] by former Appellate Court judge Thomas Bishop1, who was designated to preside over and adjudicate Skakel’s petition for writ of habeas corpus.

The allegations revolve mostly around Skakel’s representation by famed celebrity lawyer Mickey Sherman, in that Skakel alleges that Sherman did a terrible job representing him.

See, the Constitution not only requires that you have a lawyer, but that you have a lawyer who is competent and whose performance is within the norm2.

And that makes sense: what good is a lawyer if the lawyer performs terribly, is asleep and incompetent and completely mucks up your case? The lawyer must be required to act in an universally acceptable way.

So Skakel alleged that Sherman did many things wrong. In support of his allegations, he presented the testimony of three very respected Connecticut lawyers, all of whom seemed to have some very choice things to say about Sherman’s performance.

In a very lengthy, detailed and thorough opinion, Judge Bishop finds in Skakel’s favor on most of the serious allegations of ineffective assistance.

In other words, Sherman did a piss poor job of representing Skakel and that piss-poor representation deprived Skakel of his Constitutionally protected right to effective assistance of counsel and there is a reasonable likelihood that his piss-poor representation led to Skakel’s conviction.

Before I go any further, some background: Skakel is some rich and politically powerful dude (“a Kennedy cousin”) who was 15 years old when his neighbor – a 15 year old girl – was found bludgeoned to death. About 23 years later, in 1998, a grand jury was convened and in 2000 Skakel was charged with the murder.

Although a juvenile at time of the murder, he was tried as an adult. But lest you think this is a case of one brand of justice for the rich and one for the poor, let me explain to you that Skakel got screwed.

They’ve fucked him at every step. 15 at the time of the murder and should legally have been in juvenile court? No worries, we’ll just rule that sure that may be but now he’s an adult so he should be tried as an adult. Easy. Oh what’s that, you say? The statute of limitations ran out 20 years ago? No problem, we’ll just create a brand new rule out of our asses whole cloth that statutes of limitations don’t expire if the legislature changes statutes of limitations while they’re still running. Or something. Did we throw enough legal words at you so now you’re confused and have no idea what we said? Yes? Good. Go away. Don’t look here any more.

So, no. He hasn’t gotten preferential treatment from Connecticut courts. In fact, if anything, it seems to be almost the opposite3.

Judge Bishop finds that Sherman was ineffective in some pretty serious ways: first, that he failed to argue to the jury that there was someone else who had committed the crime – Thomas Skakel, Michael’s brother. Judge Bishop has this to say:

Attorney Sherman’s failure to point an accusatory finger at T. Skakel was and is inexplicable. Given the evidence of T. Skakel’s culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel.

He further finds that there was an independent, detached reliable alibi witness Dennis Ossorio, who would’ve testified that Skakel was at his house around the time of the murder. This was not investigated or presented to the jury.

Equally damning is the Sherman’s failure to undermine the state’s star witness: Gregory Coleman who alleged that Skakel had made some specific confessions to him about murdering Moxley. Judge Bishop found that there were several other witnesses who would’ve testified that Coleman was a liar, proud to be a liar and that some of the described encounters with Skakel never occurred.

Sherman’s handling of the trial and his attitude throughout can best be summed up by this quote of Attorney Michael Fitzpatrick, one of Skakel’s experts:

Sherman’s failure…was a significant strategic error born of an overabundance of self-satisfaction with his [performance]

Here’s something I didn’t know: after closing arguments, but before the judge instructed the jury on the law, the trial judge had to specifically instruct the jurors that several comments made by Attorney Sherman were improper and they should ignore those comments. I can tell you that I’ve never seen that happen in relation to a defense attorney’s closing argument.

The real question, of course, is whether this will survive appellate review. I think the fact that it clocks in at 136 pages already gives the ruling a strong chance of survival4. Think of the work it will take to undo it. It’s possible – and if there ever was a case where it would happen, it would be this – but I think it’s somewhat unlikely. Further bolstering its chances are the other parts of the ruling where Judge Bishop finds either that Sherman did nothing wrong or that he did, but it didn’t affect the trial.

However one cannot come away without the sense that Sherman’s performance was so below par that it fundamentally affected the reliability of the outcome and called into question the fairness of the trial.

And that is something we should all be concerned about, whether the defendant is a Kennedy cousin or just your cousin.


Come on, we’re not even pretending anymore


If you for some reason start a judicial opinion with the following:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was   scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

[No. Stop. You really need to read that blockquote. Don't skip it.] And then recite more facts like these: He worked for an hour and a half on Thursday. On Friday he worked on the case for 2 1/2 hours. Then, on Saturday:

defendant’s counsel conducted a three- to four-hour review of relevant evidence rules and suppression law to prepare himself for proceedings in adult criminal court

and on Sunday, he spent three hours reviewing discovery and preparing cross-examination. In all, he spent 10-11 hours preparing for a trial. For his first criminal trial in 7 years. For a client he’d never met.

In Ohio, it is June 24, 2008

In Ohio, the clock hasn’t moved past June 24, 2008. The residents of that state have been reliving that one day for the last 5+ years.

Or at least that’s the only explanation for this bill proposed by State Rep. John Becker, which would make horrific sexual crimes against children punishable by the death penalty.

So why June 24, 2008? Because the next day, June 25, 2008, the Supreme Court of the United States of America issued its opinion in Kennedy v. Louisiana [PDF], which held that it was a violation of the Eighth Amendment to the Constitution of the United States to punish a crime that did not result in death by death.

In Kennedy, Kennedy wrote that the 5 states that had authorized such a penalty did not constitute a “national consensus” and that it violated the prohibition against cruel and unusual punishment.

Rep. Becker wishes to create that “national consensus”, stating that the bill is modeled after the law in half a dozen states. Which is 6. 6 states out of 50. And which is decidedly not the law. See, Kennedy, supra.

He said:

his House Bill 244 would give prosecutors another option when negotiating plea agreements and could help to persuade the U.S. Supreme Court to allow capital punishment for heinous crimes against children.

Oh, that’s great. “Take this plea deal or we’ll kill you” has proven real effective in ensuring that only the guilty get sent to prison.

But what could be causing him to suddenly propose such a bill?

“In light of the Ariel Castro kidnapping case of three young women in Cleveland,

I don’t need to finish that quote. Thankfully (or not?) Ohio is still part of these United States and thus subject to the law of these United States as interpreted by the Supreme Court of these United States, which said, quite clearly, that what Becker is proposing is unconstitutional.

At least we can sit comfortably here in CT knowing that no legislato-nevermind.