Judicial thuggery: FL judge assaults public defender (Update)

[2nd Update: A second post, highlighting further ethical violations by the judge.]

[Update below]

An outrageous video out of Brevard County, Florida (why is it always Florida?), in which a judge is seen verbally abusing a public defender who is ready for trial and refuses to waive his client’s right to a speedy trial, and then, according to the audio and witnesses, assaults the public defender in the hallway.

Here’s the mind-boggling video:


Here is the dialogue:

“If I had a rock, I would throw it at you right now,” Murphy said.  “Stop pissing me off.  Just sit down.  I’ll take care of it.  I don’t need your help.  Sit down.”

“I’m the public defender, I have the right to be here and I have a right to stand and represent my clients,” Weinstock said.

“Sit down,” Murphy said.  “If you want to fight, let’s go out back and I’ll just beat your ass.”

“Let’s go right now,” Weinstock said.

That’s completely reprehensible behavior from a judge. Granted, Weinstock probably shouldn’t have taken him up on his offer, but sometimes you need to stand up for yourself.

The incident continues, because a man wearing robes who doesn’t know how to behave in court, certainly has no qualms about escalating when in the hidden recesses of his power palace:

Weinstock’s supervisor told Channel 9 Weinstock thought they would just talk out the problem, but he said there were no words exchanged, just blows thrown by Murphy.

“The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck,” said Blaise Trettis, public defender of the 18th Judicial Court. “There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

The judge wasn’t arrested and wasn’t immediately reported for disciplinary action. Both of those are unacceptable. The ethics committee shouldn’t need anyone to report this to them to start an investigation. And the state’s attorney’s office needs to review the video and conduct interviews immediately to determine if criminal charges should be filed. This isn’t just an assault on an individual, this is an assault on the system itself.

Judges, of all people, are supposed to understand and believe in our judicial system, what with them being the guardians of justice and whatnot. They should have a firmer grasp on the roles each party has to play in the adversarial system. His behavior here shows that he thinks there are laws for everyone except him.

This person doesn’t deserve to wear the robes and have the power to decide the fates of countless others before him, who are, in reality, just as disempowered as the public defender.

Do you believe, for one second, that if the public defender had put his hands on the judge, that he wouldn’t have been tased, handcuffed and put in lockup by the marshals before you could dial 911?

When judges like these start to believe in the myths about their own greatness and power, you get judicial abuses like these that aren’t just metaphorical.

Update: Looks like Judge Kopf has posted on this and in his post he lays the blame on the public defender for setting up the bait and the judge for taking it. I think his perspective might cloud his judgment here a bit, unless you consider refusing to roll over on your clients’ speedy trial rights a “bait”, in which case, I guess it makes it obvious that some view this as no more than a game.

SC public defender forgets meaning of adversarial

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What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

“Stop and frisk on steroids”

A terrific piece of investigative journalism by Fusion TV reveals what they call “Suspect City” – Miami Gardens in Florida, where, of a population of 110,000, nearly 65,000 people have been stopped by police since 2008.

Fusion’s analysis of more than 30,000 pages of field contact reports, shows how aggressive and far-reaching the police actions were. Some residents were stopped, questioned and written up multiple times within minutes of each other, by different officers. Children were stopped by police in playgrounds. Senior citizens were stopped and questioned near their retirement home, including a 99-year-old man deemed to be “suspicious.” Officers even wrote a report identifying a five-year-old child as a “suspicious person.”

From The Atlantic, which covered this:

After a 6-month investigation, the TV network Fusion has documented a racist, illegal policing strategy that a local public defender calls “stop and frisk on steroids.” One Miami Gardens police officer reports that his supervisor ordered him to stop all black males between the ages of 15 and 30. Just 110,754 people live in Miami Gardens, yet going back to 2008, police have stopped and questioned 56,922 people who were not arrested. There were 99,980 total stops that did not lead to arrests, and 250 individuals were stopped more than 20 times. 

Racism is alive and well, America, and it’s far more than some ads on TV or some old white guy saying racist things to someone on the phone. This is real and it’s happening under our noses and we don’t care.

 

Connecticut still lacking in its treatment of children

My latest at the CT Law Tribune is up and it focuses on the disparate treatment of children when they come into contact with the criminal justice system and we suddenly treat them as the “other” criminal, and not the children that they are.

The column focuses on three areas of injustice:

1. The legislature’s failure to enact legislation in light of Miller v. Alabama that not only eliminates LWPOR as a mandatory punishment but also provides a second chance for all juvenile to demonstrate their rehabilitation.

2. The legislature’s completely blockheaded legislation of years past that vested only the prosecutor with the power to return cases to the juvenile docket and their seemingly oblivious decision to enact harsh mandatory-minimum sentences, which would then apply to these 14 year olds automatically transferred to adult court.

3. The legislature’s failure to correct an incongruence in the juvenile statutes that prohibits the use of statements taken from juveniles without parents or guardians present, but if the case gets transferred to adult court, then that very same statement is somehow now admissible as evidence of guilt.

And, as if on cue, here’s a great photo series in Time magazine focusing on the story of one family’s loss to juvenile incarceration.

Updates: Illinois v Martinez and the 13 year erroneous release

Two good news updates today:

First, SCOTUS finally issued its opinion [PDF] in Martinez v. Illinois, which you will remember as the case in which prosecutors declined to participate in a trial after the jury was selected, and the Illinois Supreme Court called a mulligan. SCOTUS, per curium, smacked down Illiniois, reaffirming that, yes, double jeopardy means double jeopardy.

Second, Cornealius “Mike” Anderson, who didn’t report to jail 13 years ago and no one came looking for him, was allowed by a judge to remain at liberty, thus providing a lone ray of justice in this justice system:

Judge Brown said that rather than Anderson being granted parole, he would get credit for the 4,794 days between when he was convicted and when he was arrested last year. The judge also lauded Anderson’s “exemplary” behavior during his 13 years of freedom. 

“You’ve been a good father. You’ve been a good husband. You’ve been a good taxpaying citizen of the state of Missouri. That leads me to believe that you are a good and a changed man,” he said.

“You’re a free man,” Brown continued, telling Anderson to go back to his family.

Legal fiction: the system operates on “good faith”

Andrew Cohen writing at The Week has a powerful and damning condemnation of the criminal justice system. He writes:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions. To even say this, I realize, is to cross some sort of decorous boundary that proper lawyers and judges are still conditioned to observe. But here we are. I am no longer a believer in the presumption of “good faith.” I’ve simply seen too much evidence of bad faith.

For Cohen, who’s been a lawyer for a long time and a distinguished legal writer, to come to this realization 25 years into his career is quite telling.

It reveals that we are all operating from the same basic assumption that the system, in the end, works: that everyone in it is doing the best they can do and that any injustices are the outliers. “The best system in the world” is the norm and the wrongful convictions and the prosecutorial misconduct are the inevitable bugs in a system manned by humans.

But if you’ve been reading this blog, or others, or have had any involvement with the system, you know that the assumption is false: it’s a fiction created to grant a sense of stability to the system.

If the system was predicated on good faith – that all parties were operating honestly and with noble intentions in mind, then we wouldn’t have Justin Wolfe or Esteban Martinez or our appellate courts wouldn’t contort themselves into positions deserving of perfect 10s at the Olympics simply to avoid providing relief to criminal defendants.

Just like harmless error is a legal fiction, so is the idea that there is a level playing field. Cohen again:

I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or “good faith” of public officials. I see now that I was taught wrong. The death penalty in America, indeed the entire criminal justice system, is worthy of trust and respect only to the extent that the men and women running it act honorably and in good faith, even if it means they take positions with which they do not personally agree. Think here of John Roberts’ famous “umpire” analogy. Now imagine that umpire calling only balls for one team and only strikes for another. The truth is that our justice systems are full of men and women acting in bad faith under color of law, and it’s time we all stopped pretending this isn’t so.

It took Cohen getting deeply involved in the reporting of criminal justice stories to have this epiphany. What will it take you?

Prosecutor threatens defense attorney with warrant for failing to help incriminate client

We’ve always known that the prosecutorial function requires somewhat of a solipsistic world-view, but failing to do one’s own job and then demanding that the defense do it for you is another realm entirely.

Charlie Rubenstein, Cincinnati prosecutor, may have an inadequate understanding of the adversarial process of the criminal justice system and seems to have never heard of the burden of proof resting on him. Rubenstein was prosecuting a man named Terrance Jones for the high crime of stealing candy from a store. This being 2014, there was a store surveillance camera which recorded the incident. Rubenstein, laboring under the mis-impression that convictions come walking in through the door without having to work for them, neglected to obtain the security footage.

Ray Faller, public defender and human with at least half a brain apparently, got his investigator to go to the store and obtain a copy of the surveillance video. The stores, as stores do, then erased the video so it could record the next robbery.

Rubenstein, ever so demanding, demanded that the defense turn over the video that purportedly incriminated Jones. Faller, as any good lawyer would do, told Rubenstein to go fuck himself.

So, like every misdemeanor prosecutor who’s been told to go fuck himself, Rubenstein flexed his muscle and got his pal and former co-worker Judge Lisa Allen to sign a search warrant for Faller’s office. In it, he claims that the video is evidence and the defense was hiding evidence and thus were guilty of “tampering with the evidence”.

The case settled and the warrant was never executed, but the idea that the warrant was sought and issued is a tremendously frightening one.

The surveillance video has evidentiary value, certainly, but it is not the job of the defense to provide that to the prosecution, when the prosecution had the opportunity to obtain it itself.

With the prevalence of 24-hour security cameras everywhere, retention of footage has become a big issue. The prosecution routinely secures footage when it believes it will be helpful, but not when it believes it to not be so or when it may be exculpatory. When asked to obtain video that might show the defendant was innocent, the prosecution routinely shrugs its shoulders and points out that it has no control over store owners and can’t legally be required to obtain the footage.

And yet Rubenstein thinks that a defense attorney is obligated to help incriminate his own client by turning over video of an incident that he himself failed to get.

The chilling effect of this line of thinking is obvious: defense attorneys would be extremely hesitant to conduct an investigation of their own because they would automatically have to turn over whatever they uncover that would incriminate their clients. This would cause a conflict of interest in all criminal cases: either fail to investigate and run afoul of the rules of professional conduct or investigate, refuse to turn over evidence and be subject to arrest or turn over incriminating evidence uncovered and violate the duty of confidentiality and zealous advocacy to the client.

In other words, Rubenstein’s thuggery serves to remove the defense attorney entirely from the adversarial process, leaving him free to steamroll pro-se defendants.

H/T: ABAJ