“A deliberate pattern of improper conduct”

The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

Van Poyck: FL’s bizarre death penalty farce continues

Van Poyck, the poster child for the batshit insane death penalty doings in Florida is one step closer to a June 12 execution, armed with attorneys that don’t know or have time for his case. Last time we checked in, lawyers had filed an emergency appeal with the Florida Supreme Court on Friday, May 17, arguing that they had neither the time, nor the knowledge, nor the expertise to represent Van Poyck in this expedited timeframe. The Florida Supreme Court was expected to rule late Friday.

It didn’t. It waited all weekend to rule late Monday. In what the Palm Beach Post calls “a deeply divided” ruling, the Court said – 4-3 naturally – that the execution would remain on track, although the deadlines for various filings were extended by a day here or there. The majority wrote a two page opinion stating:

“We deny the request for a stay of Mr. Van Poyck’s execution,” Justices Ricky Polston, R. Fred Lewis, Charles Canady and Jorge Labarga wrote in a terse two-page ruling. “Noticeably absent from these recent (court) filings is any substantive reason for granting a stay.”

I’ll give you a substantive reason: the Fifth and Sixth Amendments. But in their bloodlust and desire for finality, due process and the right to counsel are mere obstacles on what must be an ever shortening path.

This obsession with finality and speedy finality has always troubled me. Especially in cases where the sentence is irreversible, like death. It is often said by those with the taste of blood in their mouth that delay is a tactic used by the defense and every day the client spends alive is a victory. I found that argument most curious: for one, I’d rather be on the side that regards the extension of another individual’s life for even a day as a good thing and second, I’d rather be on the side that ensures that we proceed cautiously, carefully and certainly.

In an apparent effort to accommodate the three attorneys, the high court extended the deadlines of when they must file various appeals.

Instead of this Wednesday, Burton has until May 29 to rule on whatever motions are filed. Possible oral arguments before the Florida Supreme Court are scheduled for June 6 instead of June 5. That would leave a week to launch appeals in federal court in hopes of stopping what would be the first execution for a Palm Beach County murder in 21 years.

The justices, however, said they didn’t want to hear from any outsiders. They rejected requests from the 1,700-member Florida Association of Criminal Defense Lawyers and Sandy D’Alemberte to weigh in. On Friday, both the association and D’Alemberte, a former state lawmaker and past president and law school dean of Florida State University, said they wanted to explain problems with the death penalty process that has led to confusion in Van Poyck’s case.

What does it say when an institution (or perhaps institutions if you add Congress) that is designed to serve the people – all people – acts with such hubris and disdain for the voices of those very people? Have our laws become the playground of the present whims of 5 or 7 or 9?

What’s even more puzzling is that the defense attorneys, two of whom have never handled a death penalty appeal before and one who doesn’t know this client from a hole in the wall, asked for merely a 30 day extension. 30 days to ensure that Constitutional representation was provided. And apparently that’s too much. I guess once you have a taste for killing, it’s hard to let go. Isn’t that what they say about defendants? The only difference is that one murder is state sponsored and the other isn’t.


If I smoke a joint in a forest, have I smoked one at all?

I'm not as think as you stoned I am

I’m not as think as you stoned I am

Judge Kenneth Post of Michigan will start a 30-day suspension this Wednesday, having been reprimanded for

a terse exchange with Montcalm County attorney Scott Millard over whether Millard’s client needed to answer questions about recent drug use. Post was asking the questions to make sure Millard’s client would not test “dirty” the next time he gave a drug-testing sample.

Millard interjected and wouldn’t permit his client to respond to these questions on the grounds that the answers would incriminate him and thus violate his Fifth Amendment privilege. Post wasn’t having any of it. He was downright rude to Millard as this transcript shows:

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.


MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.


POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment -

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

And on and on. Finally, perhaps sick of hearing Millard say Fifth Amendment, Post held him in contempt and ordered him remanded to custody. The Michigan Supreme Court affirmed [PDF] the grievance finding of 30 days’ suspension for violating judicial ethics. Which is fine, I suppose. I don’t have an opinion on this either way, except that intolerance of the law and disrespect in the courtroom cannot and should not be tolerated no matter the source.

What I want to know is this: did the defendant have a 5th Amendment privilege in that circumstance? Or would any prosecution be barred by corpus delicti?

Another example: if I were to go to Officer Friendly patrolling my street as soon as I’m done writing this post and say “Hello Officer Friendly, I just wanted you to know that last week I snorted coke off a hooker’s belly”, could he arrest me? What if I said I’d driven drunk a month ago? I’ve clearly admitted to a violation of a criminal statute, but can I be arrested and prosecuted?

Is there a difference between incriminating myself and not being able to be charged with a crime? Have I incriminated myself (in the legal sense) while avoiding prosecution?

The principle of corpus delicti means that I cannot be prosecuted based solely on my confession; there must be independent evidence that a crime has occurred. Assuming that was the case in the excerpt above, did Millard’s client have a Fifth Amendment privilege?

This law school final counts for half of your grade. Govern yourself accordingly.

Sped up death warrants producing bizarre farce in FL

There’s something really strange going on in Florida right now. Apart from Gov. Rick Scott’s puzzling failure to sign the ‘Timely Justice Act’ which I’ve excoriated here and here, there’s an absolutely insane set of circumstances playing out in the imminent execution of William Van Poyck.

It seems that, rather than sign the bill, Gov. Scott signed some sped up death warrants for 3 inmates, one of whom is Poyck.(who has a blog). At the time, Van Poyck was represented by an attorney named Gerald Bettman who runs a two-lawyer office in FL, never having represented a death row client. If you’ve been paying attention, you know that the closer the execution gets, the more intense and hurried the work gets. Bettman was totally out of his league, recognized that and then asked the Court to let him out and appoint someone who was experienced in this area. Nope, said the lower court and nope said the Florida Supreme Court. So Van Poyck, facing the last month of his life was saddled with an inexperienced defense attorney who had no clue how to navigate the maze of Florida death penalty appeals work, who didn’t want to do it.

But that was last week. That’s when things started to get really fucking strange. After that ruling, the Florida Supreme Court reversed itself last Friday, stating that Bettman didn’t have to represent Van Poyck, but instead that every lawyer who ever had his name associated with Van Poyck was eligible to be appointed.

In a surprise move, the Florida Supreme Court reversed itself and said Jacksonville attorney Gerald Bettman should not have to represent Van Poyck alone in the high-pressure, high-stakes appeals that lead up to any execution. Possibly, he won’t have to represent him at all.

The high court ordered Palm Beach County Circuit Judge Charles Burton to review the qualifications of more than a dozen lawyers who have filed appeals on Van Poyck’s behalf since he was convicted of killing Glades Correctional Institution guard Fred Griffis in a failed attempt to free a buddy from prison.

The attorneys Burton ordered to attend a hearing on Monday include two of the top death penalty lawyers in the state. It includes out-of-state civil litigators who took on Van Poyck’s cause to win pro bono points and could now find themselves saddled with handling the complex, time-consuming and expensive appeals.

The problem is that half these attorneys don’t know shit about the case; some don’t even practice in Florida. Now these lawyers are on the hook for a mad, choatic, intense and intensely specialized death penalty process? Would you want to be in that position?

But that was last Friday. On Monday, Judge Burton had his hearing and appointed three lawyers to navigate this complex maze. They weren’t happy and had the same thing to say:

In a two-hour long hearing Monday that most involved described as bizarre, Palm Beach County Circuit Judge Charles Burton appointed the three lawyers even though all said they have neither the time, resources nor expertise to represent Van Poyck as the clock ticks toward his scheduled June 12 execution.

[Jeffrey Davis, who practices civil appellate law in Milwaukee] and Jacksonville attorney Gerald Bettman were tapped because they have represented Van Poyck, 58, in appeals he has launched since his conviction for the 1987 murder of Glades Correctional Institution prison guard Fred Griffis outside a West Palm Beach doctor’s office.Therefore, Burton said, they have the most knowledge about the case. He appointed Tallahassee attorney Mark Olive to help them navigate the complex appeals that occur after a death warrant is signed.

As one of Florida’s top death-penalty defense attorney, Olive said he has the legal chops but knows nothing about Van Poyck’s case. “It’s just a farce, frankly,” he said.

A Friday deadline, three attorneys who either don’t have the time or the experience or the knowledge required to file appeals. A man who sits on death row. A system that weeps silently.

But. But then came Thursday. On Thursday all three filed separate motions with the Florida Supreme Court stating that they wanted off.

“With a mere four days to prepare Van Poyck’s final pleading, any attempt to mount a viable challenge on behalf of Van Poyck would be a farce,” attorney Jeffrey Davis, a civil litigator from Milwaukee, Wisc., wrote in his motion.  He suggested that the high court delay Van Poyck’s execution for 60 days to give him and other attorneys time to prepare. He asked the court to appoint an attorney who is skilled in death warrant appeals to assist him.

Mark Olive, a Tallahassee attorney who was also appointed Monday, has such expertise. But, in his motion, he said it would be a violation of professional standards to take on Van Poyck’s case on such short notice. Not only would he be unable to mount a thorough investigation of possible appeals but he would have to do so at the expense of other clients. Olive said he would be willing to help Davis represent Van Poyck if he was given more time to prepare.

Another disturbing fact: there was no attorney to represent Van Poyck in his appeals because his first appellate attorney:

was arrested for possession of cocaine, claimed insanity as a defense, disappeared from the case and let his Florida Bar membership lapse.

And all this because we want to “speed up” the appeals process. The Florida Supreme Court apparently hasn’t ruled yet. Stay tuned. This could get worse.


No confidentiality in PD applications

Public defenders, pursuant to Gideon v. Wainwright, are provided to all indigent people accused of crimes. Seems simple enough in theory, but in practice, there has developed over the years a battle over what “indigent” means exactly. Some states, like CT, use the Federal poverty guidelines and set eligibility at 125% of that. Other states do… I don’t know what.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about thisover and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.


Through the looking glass

“Would you tell me, please, which way I ought to go from here?’

`That depends a good deal on where you want to get to,’ said the Cat.

`I don’t much care where–‘ said Alice.

`Then it doesn’t matter which way you go,’ said the Cat.

`–so long as I get somewhere,’ Alice added as an explanation.

`Oh, you’re sure to do that,’ said the Cat, `if you only walk long enough.”

It’s curious how quick we are to draw lines and take sides. People are either Alpha or Beta; victims or perpetrators; weak or bullies. This compartmentalization does more harm than good, because we are a little bit of everything, depending on the demand of the circumstances.

But stances we take, so perhaps it was a bit jarring for many this week when it came to light that the DOJ had subpoenaed two months worth of phone records of the Associated Press in an effort to determine the source of a leak. These subpoenas, obtained without judicial oversight [an effort thankfully rejected here in Connecticut], has caused a maelstrom of criticism for the Obama administration.

But, as Glenn Greenwald writes convincingly, this isn’t exactly Earth-shattering news to anyone who’d been paying attention; the problem is, of course, that very few people had. Because we all have staked out positions: we are either Democrats or Liberals or Republicans or Victims or Tough on Crime or Criminals or Those People. We are no longer people with opinions but rather opinions given corporeal form.

Yet there are more people troubled today than there were yesterday. This can only be a good thing. Would it trouble you more to know that what the DOJ did is likely legal? Are you comfortable with the government having that much unregulated authority over you?

Perhaps now, your outrage can be focused on other worthy things. Like the fact that the same DOJ also purports to have unfettered, warrantless access to your e-mails. Or that cops are making up the rules on phone surveillance of regular citizens like you and me.

You’re not a criminal yet, but are you starting to feel like one? Has your perspective changed?

And what sort of perspective do you need to want to rush to executions? Florida, which I wrote about last week, is poised to pass legislation speeding up executions. You have the victim’s perspective, now here’s the exoneree’s:

“If the bill would have been in effect at the time of me being sentenced, I wouldn’t be here talking to you today,” said Penalver, who five months ago was acquitted on charges related to a triple murder. New evidence was uncovered years after he exhausted his original appeals, winning Penalver his freedom after 18 years behind bars.

“There’s no ifs, ands or buts about it. You’re going to put innocent men to death,” warned Lindsey, who was exonerated after three years on death row.

You complain about endless appeals. Maybe you’ve heard it on TV, maybe your neighbor said it, maybe you are in the system and you actually believe it. Have you ever stopped to think about why there are appeals? Do you think that factual guilt is all that matters? If that’s the case, then why are you up in arms about the DOJ?

I mean, if the AP is guilty, well then, who cares how the evidence was obtained. I mean, if the AP hasn’t done anything, then they should have nothing to hide, right? Can I look through your e-mails now? I’m not even from the police.

We appeal because the law is on trial just as much as the facts are. The facts, however, are specific to one case. The law applies to us all. Do you want some criminal’s case deciding your rights?

Maybe, we thought, it would change after Aaron Swartz. Maybe we were wrong. Will it happen now, after AP-gate? Will there be just the slightest shift? Will you realize that when they come for your pet project, it’s already too late? Quoth Greenwald:

Leave to the side how morally grotesque it is to oppose rights assaults only when they affect you. The pragmatic point is that it is vital to oppose such assaults in the first instance no matter who is targeted because such assaults, when unopposed, become institutionalized. Once that happens, they are impossible to stop when – as inevitably occurs – they expand beyond the group originally targeted. We should have been seeing this type of media outrage over the last four years as the Obama administration targeted non-media groups with these kinds of abuses (to say nothing of the conduct of the Bush administration before that). It shouldn’t take an attack on media outlets for them to start caring this much.

Someone once said “we see world not as it is, but as we are”. If we see the world as the DOJ and Florida legislators see it, as the anonymous prosecutors who submit these “reactions” see it, what does it say about us?

When the law is mistreated and disrespected and ignored, we are all victims. The question that remains is: what will it take to get you to see it that way?

Well, that escalated quickly


From Photograpy Is Not A Crime, a man takes a photograph of the Sandra Day O’Connor (remember her? Former Supreme Court Justice?) United States Courthouse, which, last I checked, was a public building on a public street. Then all hell breaks loose because Raymond Michael Rodden:

ended up jailed, unemployed and homeless; his iPhone, iPad and Macintosh laptop confiscated as “evidence.” All because they found it odd he was taking photos at 3 a.m. “They told me they’re going to keep my computer because they want to see my search history,” he said Saturday evening in a telephone interview with Photography is Not a Crime.

No, really. That’s it. He took a photograph of a Federal building on a city street at 3am. He chatted with the Federal officers guarding the building and then noticed that police officers were following him. In their cars while he walked. So, he decided not to drive because he was sure they’d pull him over on some bogus traffic violation. Little did he know that they’d stop him walking on some bogus violation:

They kept trying to talk to him but he kept asking if he was being detained and they said no, so he kept walking and they kept following, He walked around for more than an hour as the cops kept following, waiting for him to slip up.

That was when he walked into an alleyway, thinking he was not breaking any law.

Little did he know that Phoenix Municipal Code 36-61 states that “no person shall use an alley within the city as a thoroughfare except authorized emergency vehicles.”

“As soon as I walked into the alley, they descended upon me,” he said.

A fucking municipal code. Which, you know, applies to vehicles, not humans. But who’s keeping track, right? This is what your dollars are doing at work, ladies and gentlemen. At least I sit around playing Solitaire all day not harassing regular folk.

So they detain him, admit that he wasn’t doing anything wrong, search him and his belongings, then search and dismantle his car:

Meanwhile, they discovered that a key in his backpack fit a Toyota Tundra that was sitting in front of their building, so they called the bomb squad to dismantle it in the hopes they would find something illegal.

The car? His bosses. Who obviously wasn’t pleased with this whole thing, so he fired Rodden.

Fired. Lost his computer and his phone and his camera and his bosses car and he has now left town, all because in Soviet America it is now suspicious to take a photograph of a public building at 3am.

When you see something and say something, something fucking stupid like this happens.

All for a stupid photograph. I mean, maybe if he pissed on it, like the Government is pissing on our rights.