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.

Disentitling your rights

In doing the math for this post on the rate of success in the CT Supreme Court, I ran across this opinion, again by the Chief Justice, in the matter of State v. William Brabham [PDF]. It’s one of those opinions that’s a slow boil, so I put it on the backburner, until my outrage was sparked again1 by this recent opinion from the CT Appellate Court in Saksena v. Commissioner [PDF].

If you needed more proof of the fact that our “Constitutional rights” are but a mirage, provenanced from the goodwill of those entrusted with the enforcement and application of those rights. They are more grants of favor by judges than inexorable and inimical fundamental rights.

How else would you explain the frequency and ease with which violations of these fundamental rights are dispensed with, overlooked and excused?

Take, for example, the aforementioned Brabham. Brabham was, to be sure, a lout. He was also an absconder. He wasn’t, shall we say, the most honest person. He was charged with larceny and burglary, so he decided to do what seemed logical: run. Then:

After the jury returned its verdict, but before sentencing, the defendant posted bond and fled to London, England. As a result, the defendant failed to appear for sentencing on September 22, 2000. He later was rearrested and returned to Connecticut. The defendant’s sentencing  was set for March 26, 2004, but before that date, he once again posted bond and fled to London, England,  and again, did not appear for sentencing. The defendant again was rearrested, and on November 18, 2008, he was sentenced to a total effective sentence of fifteen years imprisonment. This appeal followed.

On appeal, he claimed, among other things, that the State had failed to prove his guilt beyond a reasonable doubt and the judge had failed to properly instruct jurors. So these arguments, if successful, would undermine the reliability of the conviction, implicating due process.

But he ran. And we don’t like people who run. And the fact of his running apparently outweighs the reality of his conviction being unconstitutional. There is such a thing as the fugitive disentitlement doctrine.

What it means, basically, is that if you’re charged by the State and a jury convicts you, no matter how erroneously or unlawfully, your illegal, tainted conviction will stand because fuck you. No one shows up the State and gets away with it.

Keep in mind that Brabham wasn’t on the lam when this appeal was heard: he was in custody serving an obscenely inflated sentence2. There is an argument to be made that a defendant who is on the run isn’t entitled to an appeal while he’s on the run. Fair. I disagree in principle, but in effect, I might be inclined to agree. This is not that case. Here, he’s in the State, sentenced to an outrageous sentence (see footnote 3 above).

The court listed the 43 rationales for “fugitive disentitlement”. They are:

(1) the judgment on review may be impossible to enforce because the prisoner has escaped, (2) the  prisoner’s escape disentitles him to call upon the resources of the [c]ourt for determination of his claims, (3) dismissal will [discourage] the felony of escape and [encourage] voluntary surrenders, and (4) dismissal will [promote] the efficient, dignified operation of the courts.

The court rejects the first three rationales and instead adopts the FDD for that fourth reason “efficient, dignified operation” of the courts.

Seriously. Are you laughing yet? I don’t even know what that means. The court then makes up some nonsense about how since he was gone for so long, a few exhibits went missing so they can’t rule on whether the state actually proved beyond a reasonable doubt that he was guilty of breaking into some dude’s office. Seriously. Do you see what we have to deal with here in Connecticut?

[Yes, okay, he shouldn't run. Yes, okay, there has to be some disincentive. But those rationales were rejected by the Court.]

But that’s not all. That merely brings us to Saksena v. Commissioner, which I mentioned above. That’s a habeas corpus case in which the opinion lists the only claim as being that he was not properly advised of immigration consequences pursuant to Padilla v. Kentucky. Until you look at the footnotes4. Footnote 1 says:

The petitioner also claims that the habeas court erred when it proceeded to trial without him present in contravention of his due process rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, Practice Book § 23-40, and General Statutes § 52-470. For reasons set forth in this opinion, we conclude that any error by the habeas court in proceeding to trial without the petitioner present was harmless.

My laughter has turned to tears. In case you don’t get the irony in this, let me spell it out for you.

Habeas Corpus is Latinese for… you have the body. It is a Latin phrase literally commanding the warden to present the physical body of the petitioner and answer why his conviction is legal.

I swear to God sometimes I think I’m living inside an Onion article. In Saksena, he was transferred to ICE custody for deportation purposes and was held in MA. They’d transport him to CT for his trial if the CT judge ordered it, but the CT judge refused to do so5. So, Saksena’s “bring the body” trial was held without the body.

And of course, the Constitutional violation doesn’t matter because he was guilty anyway.

 

Blech-er: confronting the venomous

Odious people tend to up the ante the most when they’re schilling something: like NY Law Professor Robert Blecker1, who’s got a book out about the death penalty. So naturally he takes to the beatified pages of CNN’s op-ed section to write an unholy screed about how lethal injection is just too easy.

When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer’s quick but painful death? By ensuring death through anesthesia, however, we have nearly severed pain from punishment.

An unpleasant life in prison, a quick but painful death cannot erase the harm. But it can help restore a moral balance. I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.

So what is his solution?

Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best. It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.

Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned. This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections. Anger and responsibility seem to lie everywhere elsewhere — that is, nowhere. And where we cannot fully escape responsibility — as with a firing squad — we diffuse it.

Both Greenfield and Gamso have taken this on today, with Scott pondering the value of televising and making executions a public spectacle once again:

But it’s made me consider whether the issue would be best brought to a head by putting executions on the television, prime-time, hosted by someone who used to be on MTV, so that all the agnostics who are kinda for it without having to give themselves headaches by thinking too hard can watch it in high-definition.

and Gamso echoing Scott in that maybe, just maybe, we all don’t have this bloodlust of Blecker:

Except, you know, maybe not everyone’s so hot to kill.  Maybe not everyone thinks matching evil for evil is a moral command.  Maybe some of us absorbed the lesson that two wrongs don’t make a right.  Maybe mercy is a higher value than retribution, more something we should at least aspire to.  And maybe those folks who just don’t trust the government to get it right have something there.

They both recognize – correctly – that not everyone is like Blecker and there are those2 who are moving in the opposite direction.

But there are more Bleckers out there than Gamsos and Gideons and Greenfields. The death penalty is still heavily favored across large swathes of the country. So who, exactly, are the Robert Blecker’s of the world? And what can be done about them? Let’s start with Blecker himself. From his “bio“:

With a gleam in his eye, Robert Blecker, a nationally known retributivist advocate of the death penalty, has managed to alienate both sides of the debate on the politically divisive and morally complex issue of capital punishment.  But his position as designated outcast is nothing new, nor is his strongly held conviction that the most vicious and callous offenders deserve to die and that society is morally obliged to execute those “worst of the worst” criminals.

His entire bio is a manifesto of his “outsiderness”, his “unpalatable” positions and his “radical” agenda.

His positions, however, are hardly radical when it comes to the death penalty. Retribution is a such a simple emotion and requires little to no thought. It is base, unadulterated and intoxicating.

“You hurt me so I hurt you.”

Forgiveness is difficult. It takes understanding. It takes swallowing of pride and absorbing the wounds of pain and humiliation. Revenge is easy. As with anger, it consumes and obfuscates. It takes over one’s entire existence.

And so people across the country succumb to its allure. “Hang him by his penis“, they shout. “All murderers should be executed.

These are our jurors. Our death penalty jurors. Some of whom might even be death-qualified. So what do we do about the Bleckers of the world? How do we confront that which is so venomous, just as Blecker would have those condemned confront the guns of a firing squad?

A commentator on a national listserve pointed out that one might be able to look at Blecker’s philosophy itself to counter this wall of rage and retribution.

Blecker makes much of executing only “the worst of the worst”.

Yet we all know that there’s no such thing. That “the worst of the worst” is an euphemism for the defendant du jour. There’s always someone, somewhere, who’s done worse. Or appeared to do worse.

In Lockett v. Ohio, the United States Supreme Court held that the decision to sentence someone to death must be based on an individual assessment of moral culpability.

The decision to vote for death is a deeply personal, moral and individual one. Even people like Blecker must be forced to admit that not every case is “the worst of the worst” otherwise that distinction will have no meaning to him.

The death penalty is a punishment imposed on an individual, not on an act. Acts may be the “worst of the worst”, but as applied to people, that term is meaningless. Because people are damaged and broken and flawed and disabled and mentally ill and provoked and oppressed and angry.

In the end, this approach perhaps covertly reinforces the abolitionist position all along: that no matter what people do, they are still people, individual human beings who don’t deserve to be summarily executed in anger, or in the name of some collective good.

So, Robert Blecker, you’re closer to a true abolitionist than you thought.