‘I’m a trial lawyer’ is a terrible attitude

[This is my latest at the CT Law Tribune]

A few weeks ago, I attended an oral argument before a panel of the Appellate Court, which was hearing a direct appeal from a conviction after trial. There were interesting issues before the panel and the defendant had been represented by a colleague, so I made it a point to attend and show support.

While the interesting issues were, indeed, discussed, an all too familiar refrain resonated throughout the argument: a discussion by the judges about the clarity of the facts in the record and what could – and could not – have been before the jury. There were assumptions made about the facts as presented to the jury and they were, of course, viewed in the light most favorable to sustaining the conviction.

As I left the courtroom, I was struck by several things: first, the absolute necessity of watching oral arguments; second, the unfairness of appointing judges who have no criminal law experience to the appellate court who then rule on issues stemming from criminal trials; and, most importantly, how the practice of law for the criminal defense attorney must be a comprehensive endeavor that encompasses not only pre-trial and trial ability, but also a recognition of the long-view.

I’ve written before about the willingness of appellate courts to avoid deciding issues of fact and law and turning their backs on Constitutional violations by requiring impossibly high standards of performance by defense attorneys. The precision required of defense attorneys in raising and preserving claims for them to be even considered on appeal leaves the precision required before finding someone guilty beyond a reasonable doubt obscured in its dust.

But today I turn to the faults of my fellow defense attorneys and a prevalent attitude that there are two types of defense lawyers: trial lawyers and appellate lawyers.

To those that may be a bit surprised at this fairly simple statement of fact, let me elaborate that the implication of the dichotomy is that trial lawyers are only trial lawyers and appellate lawyers are only appellate lawyers. In other words, trial lawyers see their job as trying – and hopefully winning – trials without regard to what happens on appeal. If you’re relying on an appellate reversal, goes the philosophy, you’ve already lost.

While there is a certain superficial appeal to this thinking, it is fundamentally flawed and dangerous. How, exactly, is one to “practice law” if one does not know or understand the law. Knowing and understanding the law is – or must be – a broader concept than knowing the elements of, say, murder. Practicing law must mean knowing what the law is and what the law isn’t. It must mean knowing how the law has changed, or where it is bending and whether those are issues to raise in the representation of the current client. Practicing law must also mean knowing that is required of oneself as a criminal defense attorney in order to protect a client’s rights.

The “I’m a trial attorney” attitude shows a complete disregard for a client’s Constitutional rights. A client is owed due process: which means not only that the State has to prove its allegations beyond a reasonable doubt, but also that the manner in which it does so cannot offend the Constitution.

This may take many forms: the obvious like a lack of probable cause for a search, or a clearly inflammatory argument by the prosecutor during closing, to the more nuanced: a failure to file a defense request to charge the jury or to object to specific instructions, or to ensure that the reasons for objecting to certain testimony are clearly and succinctly stated on the record.

When the lawyer doesn’t explicitly state an objection on the record or make a clear and precise request, appellate courts are left to interpret the resultant vagueness in any way they choose and that usually doesn’t benefit the individual defendant. Further, a lawyer who doesn’t follow the strict rules set up by appellate courts to preserve claims of error simply provides those courts an easy way to dodge tackling difficult issues in unsympathetic cases.

The causes for these failures by defense attorneys are the subject of some debate. To be certain, it is unrealistic to expect attorneys to remember to do everything perfectly in the frenetic heat of the battle. A trial is a rush of days, with little sleep and tremendous stress. Even the most prepared often miss things and even the most prolific often overlook the obvious.

Unfortunately those who populate our courts of review don’t have that same experience and thus cannot relate to the pressures of being in a contested trial that lasts weeks. The luxury of hindsight, years on, combined with the obliviousness of the demands of that job allow courts to lament the missed punctuations in the preservation of issues and to hedge facts because it may be somewhat ambiguous upon a reading of the transcript what was abundantly clear to everyone present in the courtroom.

But that is a ship that the defense attorney cannot steer. No matter how many times I wish to invite appellate judges to second chair my trials to see what it’s really like in a courtroom, I know that they will not come.

So it falls upon us, the trial lawyers, to ensure that we do everything we can to make the record as clear as it can be. As lawyers who prepare for trial, we become intimately familiar with the facts of the case, the testimony of witnesses, their prior statements, our theories and strategies. As trials progress, the presiding judge and prosecutor also share that familiarity and a sort of shorthand descends upon it all.

I’ve read appellate decisions which held that I had not properly preserved an issue, been shocked because that conclusion conflicted directly with my recollection of the event and been miffed when I had to grudgingly admit that the appellate court’s reading of the statement in question was a plausible one.

We must put aside our ego and our hubris and realize that the system is engineered to defeat our clients. Most trial lawyers recognize the obstacles in the pre-trial and trial arena, but become surprisingly unconcerned by the existence of the very same obstacles in post-conviction review. This makes no sense.

Back in the old days, trial lawyers would handle their own appeals. Perhaps it is time for a return to that era, at least once, so trial lawyers can realize that everything that they do – and don’t do – impacts the ability of their clients to get vindication.

Otherwise, they might as well sleep through the trial.

8 Mind-Blowing Basic Things About The Justice System You Won’t Learn From The Media

Mind-blowing:

Literally

Literally

In fact, if this is not you after reading this post, you should ask for your money back:

utter-shockSo without further adieu, here are, in some random order, 6 basic truths about the criminal justice system you won’t learn by reading mainstream media:

1. Everyone pleads not guilty.

Everyone. By everyone I mean everrrryone1. You get arrested, you show up in court, you plead not guilty. Next. It’s as routine as tying your shoelaces. Even if you were caught red handed with 47 cameras trained on you, 230 eyewitnesses, 17 confessions signed in blood and the eyeball of your dead victim hanging from your mouth, you’d still plead not guilty on your first day in court.

Apparently a Google search for "man eating eyeball" returns a relevant result.

Apparently a Google search for “man eating eyeball” returns a relevant result.

 2. Not everyone who is arrested is actually guilty.

This is somewhat related to the one above and the one below. It doesn’t take a rocket scientist to figure this one out but you wouldn’t know it from the wholesale adoption by the media of whatever garbage is contained in police reports. Failure to understand this principle is what leads to stories that are clearly slanted with a “how dare he enforce his constitutional right?” bias.

barney-fife-i-dun-goofed-caption

Police make mistakes. They arrest the wrong people and discard evidence of their innocence. They develop tunnel vision. They have biases that they don’t hide. They fabricate evidence. But you’d be hardpressed to find many criminal justice stories that display even a hint of skepticism of police claims. Rather, most of them are a mere regurgitation of the allegations contained in police reports and press releases.

3. Not everyone is or should be treated the same.

Here’s a secret: those who are arrested and charged with crimes go through a rigorous screening process to determine their planet of origin. To date, each and every single person ever charged and convicted has been determined to be human. They’re people. All of them. Just like you and me. Some are worse than us, some are better than us. And we should treat them all as if they were individuals who did bad things rather than the bad things they did.

That’s why we have sentencing ranges, maximum punishments. The legislature, at least in this State, decides what the maximum punishment should be for a particular crime. A judge, either by himself after trial, or with input from both sides before trial, determines what that sentence should be. No one gets the maximum sentence before trial. No one. Because it makes no sense to. The phrase “plea bargain” has in it the self-explanatory word “bargain”. Who the hell would bargain for the maximum? No one, that’s who.

arrested-development-police-line-up-full-289220335

This should not be surprising. Individualized sentencing is the only fair way to sentence a person for a crime. If we were sentencing only the physical acts, without regard to the individual who committed them, we’d have no need for maximum or minimum punishments: all crimes would be punished the same way.

So when you read a news report that laments that the defendant got only 6 years in jail while facing a maximum of 20, ask yourself why. What is it about that person that warranted a lower sentence? What is it about the crime that warranted a lower sentence? Why does the newspaper reporter think you’re an idiot?

After all, there must be a reason. We don’t just pick numbers out of a hat.

3a. We pick numbers out of a hat.

Metaphorically speaking, of course. There is no sorting hat. There are just discussions about the values of types of cases, taking into account the attendant circumstances. But if were to make films of the origin stories of the “going rates” for certain types of crimes, we’d have an awful lot of ass-birthing scenes.

4. Not everyone who pleads guilty is actually guilty.

I know, I know, this is basic stuff. But can you imagine the level of criminal justice reporting if I have to tell you this?

People plead guilty all the time. For all sorts of reasons not having to do with actual guilt or innocence. Here, I’ll list a few off the top of my head:

  • They can’t afford to post bond and have been in jail for as long as the prosecution is offering in exchange for a guilty plea.
  • They’re covering for someone else.
  • It’s a case of he-said/she-said and no one will believe what he said and he can’t testify anyway.
  • Our mandatory-minimums and maximums are so outrageous and out-of-whack that any sane person, when arrested, would seek to plead guilty for as low a sentence as possible.
  • It’s easier to go to jail than deal with a difficult probation officer and an unrelenting world that sees nothing but a felon.

5. The Constitution’s protections are available to the guilty and innocent alike.

I’ve tried very hard to find that exemption clause in the Constitution: the one that says that the following provisions do not apply if, like, you totally did it, dude. Alas, so far, I have not been able to find it.

lebowski-opinion

The Second Amendment protects you today, when you’re law-abiding and it protects you tomorrow, when they take your right to own a gun away. The Fourth Amendment protects you today, when you’re sitting at home and it will protect you tomorrow, when your shipment of high-grade cannabis arrives from Mexico. The Fifth Amendment will protect you today when you have sex with a woman who isn’t technically physically unable to consent and it will – you know what, you get the picture. The Constitution protects you in ways you know and in ways you don’t know.

So when a conviction is “reversed” on a “technicality”, you should cheer, instead of jeer. Because the Constitution just got stronger and one day, you might need it.

6. The law is complex.

A lawyer’s favorite answer to any legal question, immediately before being punched in the face by the questioner, is “maybe” or “depends”. In fact, there’s a whole sub-industry in the legal field that is devoted exclusively to getting lawyers to the point of being able to say “maybe”. Lawyers make bank over saying “maybe”.

joey-shrug

Here’s my bill for $750.

The point is that thousands of lawyers spend every day parsing the nuances of ridiculously boring texts to find wiggle room to convince a judge or jury that their case is different from the 50,000 other cases out there and this time it really was an anal probe so they should totally get the $4 bajillion that they’re demanding. Heck, the internet is full of lawyers and unemployed lawyers either making or defending fraudulent claims.

The newspaper ain’t going to get it right, especially if the reporter is someone who doesn’t have any understanding of points 1-6 above.

7. Shit takes time, yo.

You read a newspaper story about some guy in your town getting arrested for shooting his ex-girlfriend’s uncle’s sister’s dog and dammit you want justice. But days go by and nothing. Weeks, months and maybe a year. The paper keeps reporting delays and continuances. Maybe an op-ed in the paper about how justice delayed isn’t justice served or some such nonsense. You’re outraged! OUTRAGED!

Let me tell you something: shit takes time.

For instance, your everyday public defender in Connecticut is representing about 180-200 people at a time. On any given day, they are responsible for 20-odd people. That’s 20 stories to learn and understand. 20 allegations to digest. 20 investigations to conduct. 20 clients to track down. 20 offers to negotiate.

Maybe 5 of them don’t have available witnesses so you need more time. You don’t know when they’re going to be available so you estimate 2 weeks to get the job done. Too bad. 2 weeks from now the court already has an unmanageable docket, so you need to continue it 4 weeks.

That’s just today.

And on and on and on it goes.

Investigations take time. Negotiations take time. Research takes time.

Justice takes time.

Anyway, time’s up. Tell me what you think the media gets wrong in the comments.


More than 3.5 million reasons why the death penalty should be abolished

The death penalty is crazy. It’s barbaric. It’s sanctioned murder.

urkel-gifWe should end it.

inmate-downvote

Here are more than 3.5 million reasons why:

1-3.5 million: $3.5 million is how much the defense expert billed the public defender services for his work in the racial disparity hearings. Of course, the Courant when writing about it, misses the mark entirely (again) in its description of the need for this sort of work:

For many taxpayers, it’s an unwelcome fact of life that they bear the cost of preserving the legal rights of convicted killers. The counter to that is that it’s the price of being civilized. And if an exclamation point is needed to punctuate either statement, it could be the story of the recent payment to Donohue.

The most obvious explanation, completely glossed over, is that it’s the price we have to pay for having a death penalty. It’s not the rights of convicted killers, it’s the cost of a death sentence. If the state wants to prosecute people and kill them for those crimes, it shares the responsibility and burden of making sure those convictions are legal. Why is there no blame on the prosecution for this cost?

And it’s a cost incurred to ensure that the death penalty isn’t racist. Which, you know:

thats-racist

3,500,001-????: We actually don’t know how much the prosecution spends on the defense of murde the death penalty, but it stands to reason that they too spend a lot.

There are still plenty of death penalty appeals pending, perhaps with some retrials to come. There is decades worth of work to be done fighting against the death penalty. That means lots more money.

It’s not the defense’s fault. The state is trying to kill someone. We’re trying to prevent further murder.

Channel your outrage accordingly.

 

A series of Rorschach – part one

no-turn-on-red

You know those “no turn on red” signs that hang from wires next to traffic signals? Some of them have holes in them. Do you know why? One theory I’ve heard is that it’s done to prevent homeless people from stealing them and using them as cover. The holes make them an ineffective blanket.

Now imagine the “no turn on red” sign at your local intersection goes missing and the cops go searching for it. It’s found in the possession of the local homeless drunk/drug addict, who sleeps on the town green and was using it to cover himself at night.

It’s theft of town property, so should he be arrested and charged? If so, what sentence should he get?

Imagine now that the police don’t find it on the town drunk, but rather it’s spotted in the bedroom of a local teenage kid, who took it as a prank late one night with some friends. Should he be arrested and charged? If so, what sentence should he get?

If your answers for both are different, explain why.

List week: an experiment doomed to fail

I am dubbing next week list week here at APD. Which means everything I post will be in the form of list, to keep up with changing stupidity levels and shortening attention spans.

If you have things you want to learn about in re: criminal law, post topics here. For instance: 3 ways to not make the prosecution’s case against you easier, or; 4 rights you are in danger of losing, or; are prosecutor’s really evil? a study in GIFs.

 

Man. Black. Guilty.

seems legit

seems legit

“Tall”, “bald-headed” and “black male” are apparently the only identifiers of Charles Belk, who spent 6 hours in police custody last week because he fit the description of a bank robber. He was positively identified by a witness to the robbery and charged with very serious crimes. His bond was set to the tune of $100,000.

Charles Belk happens to be a very successful film producer, an electrical engineer and the holder of an MBA, who was in the neighborhood to go to a pre-Emmy Awards party.

Charles Belk also happens to be “tall”, “bald-headed” and a “black” “male”.

The content of his character, however, mattered little when compared to the color of his skin and it is a tale that is repeated across America, every single day. Most of those arrested, however, aren’t Charles Belk and don’t get let out 6 hours later with an apology.

Most people have heard of Driving While Black: an euphemism for pretextual stops of people of color, simply because of their race. The justice system has a far uglier secret: existing while black.

People of color and communities of color are treated fundamentally differently than those with wealth, affluence and privilege. It is common knowledge that certain areas are “high crime areas” and that justification is used to excuse flagrant violations of individual rights.

Police officers routinely testify in front of juries and swear to in affidavits that they have special training and expertise in what makes a person a criminal: baggy pants, low waistbands, furtive movements, making eye-contact, not making eye-contact, more than one cell phone, a beeper when they were in fashion, loitering and on and on. If these sound like benign states of existence, that’s because they are. There’s nothing inherently suspicious about clutching at one’s waistband, but our courts have accepted this as code for a minority with a gun.

Even if there is no gun, as was the case with Caesar Ray Cruz, shot and killed by Anaheim Police in 2009, shooting 20 rounds in a few seconds. In a blistering opinion, Judge Kozinski of the Ninth Circuit just reinstated a lawsuit by Cruz’s family against the city. In that opinion, he ridiculed their justification that Cruz ‘reached for his waistband': “Most obvious is the fact that Cruz didn’t have a gun on him, so why would he have reached for his waistband?” Turns out one of the officers involved gave the exact same reason for shooting and killing another man years later.

The reality, of course, is that these phrases are nothing but code for the presumed guilt of those caught up in the state’s web. When the description of a suspect is as specific as “black, bald-headed male”, it’s a wonder that entire city blocks aren’t arrested en masse.

One of the greatest causes for the disparity in the criminal justice system is that it’s the embodiment of the “us vs. themattitude. If you haven’t lived in an urban area, then any amount of crime makes a neighborhood “high crime”. If you haven’t had to walk to the corner store every evening for your cigarettes or milk, then it’s easier to suspect that once a drug dealer makes an appearance there, everyone is complicit. If you haven’t grown up among hundreds of others who wear baggy pants and sagging waistlines and exposed underwear, you will always be afraid of the worst that could represent.

Our criminal justice system is divided among lines of privilege: those who almost never have had to experience significant economic hardship or be on the losing end of a power imbalance judging those who constantly struggle to keep their heads above water. How is there any surprise that the system is unfair and prejudiced?

The system rigidly tries to maintain a black and white view of a most decidedly gray world. In a world that can only be understood with context, our justice system does its best to make context irrelevant.

What we need are more police officers, judges, prosecutors and defense attorneys who come from the communities that are over-represented in the criminal justice system. We need them not to fill some quota, but to provide much needed context. Our justice system should, no doubt, punish the guilty, but only do so to the extent that is appropriate and necessary. We shouldn’t be using the system as a tool to banish from society those who make us uncomfortable and whose lifestyles we don’t understand.

If we don’t stop, Charles Belk is the best case scenario. Caesar Ray Cruz is the more likely one.


This column is the my latest for the CT Law Tribune.