Discombobulation roundup


You must’ve heard by now about the Stop and Frisk decision and about President Obama’s press conference about something to do with reading your uncle’s spam emails to you. As you can see, there’s a common theme in the reactions of Messrs. Bloomberg and Obama. When politicians start to dissemble and resort to treating the public like idiots, you know the sh*t has hit the fan. Since you don’t really need my voice to add to the predictable reactions from those with my bent, I will instead do you a public service and compile a list of opinion and criticism pieces I think you should read:

It’s criminal!: An (updated) analysis of CT Supreme Ct opinions

not an actual judge

not an actual judge1

The last time I did this superficial analysis2 was three years ago. Let’s see what the Court has been up to since then, shall we?

First, some ground rules:

I may have missed one or two cases. Further, if you add up all the various numbers they might be off by one. It was difficult to figure out how to categorize partial “wins”. In a few cases I didn’t count them entirely, while in others I counted them. The percentages, however, should be unaffected by this. I’ve also ignored one which was deemed “moot”, so while I counted that in the stats for certification granted, I haven’t counted it in the verdict column. I also ignored the capital cases.

Further, I’ve compiled the number of times a Justice wrote a majority opinion or a dissenting opinion. I have not included, in each justice’s tally, every time they signed on to a majority, but I have counted each time they signed onto a dissent.

So, the stats from April 2010 till today:

In that time period, the Supreme Court decided approximately 137 cases dealing with criminal law.

Of those 137 cases, 81 were direct appeals to the Supreme Court. This is either a direct appeal by statute (few) or a transfer to the Supreme Court before the Appellate Court got to decide it (many, many more than in years past).

Of those 81 direct appeals, 68 were affirmances of convictions. That’s a remarkable 84% success rate for the Government’s position.

Of the 56 cases that went through the Appellate Court, the State was given permission to appeal in 24 cases, the defendant in 32 (this is a change from three years ago, when the State was given permission to appeal in more cases than the defendant. Does this mean that the State had less occasion to appeal? I don’t know).

Of all the cases that came from the Appellate Court, the breakdown is as follows:

  • When the State appealed a reversal of a conviction (25 times in all), the Appellate Court was affirmed 8 times, meaning the State was the loser in only 32% of the cases it chose to appeal.
  • When the defendant appealed an affirmance of a conviction (which he did 32 times), the Appellate Court was affirmed 25 times, meaning the defendant was the loser in 78% of the cases he chose to appeal.
  • When the defendant appealed an affirmance of a conviction (32), the Appellate Court was reversed a paltry 6 times, meaning the defendant “won” in only 22% of the cases he chose to appeal, and the big kahuna:
  • When the State appealed a reversal of a conviction, the Appellate Court was reversed 16 times.

So, in 24 cases where there was an appeal from the Appellate Court’s reversal of a conviction, the State won 16 times, which is 66%.

The Appellate Court was reversed by the Supreme Court in 22 cases out of 56, which is a 40% failure rate, down slightly from the 50% failure rate in 2010.

But there were far more affirmances of convictions being appealed by defendants than 3 years so, so that might account for the drop in percentages.

Of the reversals, the defendant “lost” 72.2% of the time. A conviction upheld by the Appellate Court was upheld by the Supreme Court 76% of the time.

A defendant was successful in the Supreme Court in only 14 out of 56 cases, which is a paltry 25% success rate. [Keep in mind that I have included partial wins as wins.]

Overall, out of the 137 criminal-ish cases considered by the Supreme Court, the defendant was ultimately successful in getting either an acquittal or new trial in 27 cases, which is a 19% rate of success. By contrast, the State “won” in 81% of all cases considered by the Supreme Court.

So, in the end, the overall “win” and “loss” numbers are pretty identical to those three years ago. What that means is that appeals are rarely successful.

Here are the stats on which justice wrote a majority or dissenting opinion, and how many times:

Justices Writing to Affirm Conviction:

Norcott: 20
Palmer: 14
Zarella: 13
Rogers: 13
Eveleigh: 10
Harper: 10
McLachlan: 8
Vertefeuille: 7
Katz: 6
McDonald: 2
Espinosa: 2

Justices Writing to Reverse Conviction:

Palmer: 6
Eveleigh: 5
Rogers: 4
Norcott: 3
Harper: 3
McLachlan: 2
Vertefeuille: 1
Katz: 2

Dissents to affirming conviction:

Palmer: 8
Eveleigh: 4
Katz: 2
Vertefeuille: 1
Harper: 1

Dissents to reversing conviction:

Zarella: 6
Palmer: 5
Rogers: 3
Eveleigh: 3
Vertefeuille: 3
Norcott: 2
McLachlan: 1
Harper: 1


The problem with the justice system (in a nutshell)

While doing an updated analysis of this post, I came across this “concurrence” [PDF] by the Chief Justice of the CT Supreme Court that perfectly encapsulates everything that is wrong with our “justice” system. Here it is, in its entirety:

ROGERS, C. J., concurring. I agree with the majority’s conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court’s decision in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered  question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.

Those 6 lines make me want to throw up.

The defendant claims that the jury was not told that the State had to prove an essential element of a crime. Imagine, for example, the scenario that in order to find a person guilty of stabbing someone else, the judge doesn’t tell the jury that they have to find that the victim actually got stabbed. That’s an “essential element of the crime”.

That’s what the defendant is arguing the jury wasn’t told about. But no. We (the Appellate Courts) don’t care, because we elevate form over substance. We are a bureaucracy first and a judiciary second.

Kitchens is a case that says if a defense lawyer doesn’t specifically request X or Y – even if the absence of X or Y would be a gross Constitutional violation – we don’t care and the person can rot in jail. Too bad.

The second part of that paragraph is even worse.

Courts are – we would hope – entrusted with the administration of justice. They are – or should be – charged with, in the end, doing what is right and what is just and fair. They should be zealously and jealously guarding our rights and our protections, not running roughshod over them in an attempt to adhere religiously to some overwrought ideal of being an umpire first and an inspiring jurist never.

Plain error. Error that is plain to see. Error that is apparent to everyone. A mistake that has so infected the trial that it cannot have been fair.

Except now it is not available unless you “request” it. The defense attorney has to fill out a form in triplicate, signed by your mother, asking permission, pretty please, could you acknowledge the existence of the manifest error that you clearly know is there but pretend not to. And then, maybe then, we will deem it worthy of our review. Until that time, we are quite okay with a conviction obtained by a trial infected with Constitutional error.

This is what “justice” has come to.

The error of their ways should be plain for everyone to see.

An exercise in minimalism

This post is meant for my entertainment purposes only. You can safely ignore it.

I ran across this piece in something called ‘In These Times’. It’s about the “illusion of juror sophistication”. So let’s see how few words it takes me to respond to this “article”. Just for fun. All emphasis mine.

American jurors, totally untrained in the legal system, are led to think they are more intelligent and sophisticated than they are. Alone, they are capable of some independent thought. Forced into a room with others, they are a disaster.

Especially if you disagree with their verdict.

Although states select potential jurors differently, they are usually drawn randomly from a list of driver’s licenses or lists of registered voters. They are average people, a cross-section of Americana, people content with their lives, unencumbered and blissful, just the type of people lawyers want judging their trials because most people lack the sophisticated skill sets of reasoning and logic needed to be a juror.

Don’t speak for me.

Lawyers often decide which jurors to use in a trial based on the potential juror’s perceived lack of ability to think logically.

It depends on the case.

The jurors thrown into the George Zimmerman murder trial were tossed into a situation, as are most jurors, for which they were totally unprepared.

Except those jurors who get juror training and go to juror schoo — hang on. I’m being told that doesn’t exist.

The defense attorneys outlined their parts in the show.

Meanwhile the prosecutors sat quietly and didn’t say anything. What? Also false?

They were to play rational, intelligent, sophisticated, impartial, and concerned citizens. Without realizing it, they played their parts perfectly.

No idea what this means.

The Zimmerman case was not difficult except to the pseudo-sophisticate jurors. He stalked, confronted, and killed an unarmed boy walking through a neighborhood. Zimmerman confessed to the crime.

That’s telling half the story. The other half is that whole self-defense, legal justification thing.

They signify that the truth may not be the truth, that there is more to the case than one man killing another.

Intellectual dishonesty because he gets it, but is pretending it doesn’t exist or isn’t valid.

The defense attorneys work their magic by convincing the jurors of their own sophistication. The jurors are lead to believe that there is much more to the case than most people realize and only a select few people with their intellectual complexity can see through it all.

Abracadabra you’re a SHEEPLE! Also, yes, they – and the lawyers – got to see all the evidence. You and I and 99% of the American population did not. But let’s keep pretending like you were there.

They vaguely suspect that a man with a gun has equaled a dead boy, but they start to doubt themselves.  What seemed understandable is not so simple for the newly ordained sophisticated jurors. The plain fact that a man stalked and killed a boy is okay for the Average Joe, but not for them. Lawyers have convinced them that they are too smart for that.

Or, again, they’re applying the law of justification. It exists. Deal with it.

Lawyers are trained in theatrics, illusion and magic.

And somehow I cannot use any of those skills to make you seem intelligent or coherent. Rats.

Acting classes may be more important than law classes. A good lawyer can toss a dummy to the floor and choke it in an instant.

Lol wut?

Top defense lawyers deserve Academy Awards and they always have the advantage over prosecuting attorneys because prosecuting attorneys are the working-class workers of the legal profession.

Okay, he’s trolling now. He’s definitely trolling.

They become prosecuting attorneys for many reasons, often because they are average and might starve in an independent market situation, or because they have certain noble and naïve ideals about justice.

What is this I don’t even.

Notable trials are fights between unequal participants. Only in a small local trial does a person get convicted, and then sometimes unjustly and for the same reasons.

Yes. But the cognitive dissonance is strong with this one.

If they are poor, lawyers even worse than prosecutors often represent them.

Not a sentence.

A person in the U.S gets as much justice as he can afford.

What if the lawyer is free? Then justice is infinite?

His lawyers talked about Trayvon Martin turning on Zimmerman and attacking him and poor innocent George Zimmerman had no recourse except to kill him.

Or, you know, argued self-defense and/or justification. Like it’s their job to.

No one knows what happened during that time nor does it make any difference.

That’s what I’ve been trying to tell you. Also why your article is worthless.

A sign in a French zoo cautioned about the animal inside. It said, “This is a very dangerous animal. If attacked it will defend itself.” If Martin hit Zimmerman he had every right to defend himself against an armed stalker. Again, an armed man stalked and killed an unarmed boy.

Presented without comment.

A course on being a juror should be taught in every high school. Among other things it should include logic, independent thinking, reasoning, and ways to guard against theatrics, and illusion.

This is not Hogwarts, you fucktard.

If a person is guilty of murder, convict him. That’s sophistication.

Or if he’s not guilty, acquit him.

Or if you’re really angry and don’t understand the criminal justice system write an article about how the world is wrong and everyone should just listen to you because magic.

CT: New rule for jurors and media

New Rule for Jurors: Don’t listen to media coverage about the case you’re serving on and if you do, let a judge know.

Oh? That’s not so new, you say? Well, welcome to CT, where yesterday is 1950 and tomorrow might be the landing on the moon.

Roughly 30 years after the invention of the internet and about 15 years after the invention of internet comments, the CT Supreme Court has issued an order [PDF] directing all trial court judges to instruct jurors after they’re selected that they have to avoid all media coverage.

This all came about in a civil case that was really contentious 1 and the New York Times published an in-depth article about the case. The plaintiff got mad and asked to poll 2 the jury if anyone had read it. But by this time the jury was already seated, because in CT, in civil trials, the judge doesn’t sit on the bench for jury selection. Seriously. He’s got other “judicial business” to attend to, while civil lawyers civilly agree on jurors. Bizarre. Anyway. The judge refused because, I don’t know. 3

The Supreme Court, while not agreeing that the trial court should have inquired into whether anyone was exposed to the media, nonetheless said that going forward trial courts should give an instruction to disregard the media and inquire into it, if brought to their attention. Because logic.

So they exercise their supervisory authority, which means, “we decree”:

Pursuant to our supervisory authority, we now direct all trial judges in this state to enforce the following policy when presiding over a jury trial: immediately after each juror is selected, he or she must be instructed by the court, either orally or in a written order from the presiding judge, which the juror must read and sign  before leaving the courthouse, that: (1) his or her sworn duty as a juror will be to decide the factual issues of the case for which he or she has been selected based only upon the evidence presented at trial; (2) consistent with that duty, he or she must avoid all publicity about the case and all communications to or from anyone about the case or any issues arising in it; and (3) if he or she is exposed to any such publicity or communications despite his or her best efforts to follow this instruction to avoid it, he or she must immediately inform the court about the exposure in writing, without advising any other jurors about the fact or the nature of the exposure, so that the court can follow up, as necessary, with him or her and/or other jurors, to protect the parties’ right to a fair trial.

Welcome to 2005.

Billy Slagle and the tragedy of death

Billy Slagle, when all is said and done, will cut the most tragic figure. His story is ripe for a Shakespearean tragedy 1 or at the very least a documentary with a most somber soundtrack. Consider the evidence:

1. He was sentenced to death for a crime he committed at 18, when there was no option for LWPOR 2

2. The chief prosecutor for Ohio, Ted McGinty, recommended to the parole board that he shouldn’t be executed, which is pretty extraordinary.

3. In yet another surprising twist, given that parole boards and Governors usually do whatever prosecutors tell them to, both the board and the Governor’s office rejected his plea for clemency and continued on with the death sentence.

4. Three days before his scheduled execution, early Sunday morning, Slagle said “enough” and hung himself. 44 years old, having spent the last 26 years in jail, he took his own way out.

5. And then this. This that will just break your heart. This, this missive of reprieve that arrives too late or never arrives. This message of hope that, but for a series of harmless and innocuous actions would’ve gotten there in time, but didn’t.

Parallel Construction: the government lies

[Update: Oh, look. There's more. "NSA handing over non-terror intelligence.]

Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.

And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

Go on…