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.

This month at the supreme court: May 2013

not an actual judge

not an actual judge

Compared to last month, May 2013 seems like a bit of a snoozefest at the Connecticut supreme court. Not that the cases aren’t important, but they aren’t the sort of blockbusters affecting Fourth Amendment law and the death penalty like last month.

Monday, May 13, 2013 @10:00am: State v. Christopher Shaw [the briefs aren’t online yet]. The issue in this case revolves around just what should be admissible under the rape shield statute to prove that the defendant isn’t guilty of a crime and that the complainant has a motive to fabricate the allegations. Usually, a complainant’s past sexual behavior isn’t admissible to show that the defendant didn’t do it, unless it fits one of the exceptions to the statute. There’s also this interesting argument:

Also on appeal, the defendant claims that the trial court improperly admitted, under the excited utterance exception to the hearsay doctrine, testimony from the police officer who responded to the home on the night of the arrest concerning the victim’s mother’s statement that the defendant had raped the victim.

It’ll be interesting to see if an excited utterance can be stretched to apply a statement made by someone other than the complainant not immediately at the time of the crime.

Tuesday, May 14, 2013 @ 10:00am: State v. Richard Taylor [briefs not available yet]. Whether, in order to find someone guilty of conspiracy, the State must have to prove that the parties intentionally engaged in a plan or just knowingly. The Appellate Court has previously upheld the conviction and rejected that argument.

Tuesday, May 14, 2013 @11:00am: State v. Luis Rodriguez [briefs not available yet]. A fascinating case where the victim was given immunity by the State in order to testify and then the victim’s lawyer was called to testify as to the extent of the immunity agreement. The defendant objected on the grounds that the only purpose of the lawyer’s testimony was to show how clueless and sympathetic the victim was, but the Appellate Court said it was okay.

And that’s it!


Image via. License details there.

Depends on what you mean by justice: 50 years of Brady

It’s a brilliant concept, if you think about it: an adversarial system in which one side – the one trying to steal the liberty of the other – has to show all its cards up front. “Here”, they have to say “this is what we have against you and, oh, by the way, in the interests of justice, here’s what we have that might show that you didn’t do it.”

It’s the ultimate salvo in an open and fair system; where the goal is rigorous examination of the allegations, no tricks and traps by the government and an outcome that can then be reliably relied upon.

Justice. Such a grand notion; an admirable ideal. It is justice that prompted Brady v. Maryland – an unworkable, but yet noble attempt at drawing lines and taking stances:

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.

Perhaps it was a bit optimistic, but they can hardly be blamed for wanting the system to be above board; honest.

But it all got lost somewhere down the road. Why? Who knows. Politics, legislators baying for blood, a public with passions aroused – “tough on crime”, an overburdened system and overworked lawyers with a taste for resolution and no stomach for a fight? But it happened. And the calling was no longer “justice”, it was “convictions”.

Justice is never personal; winning always is. And when the nature of the game that one side is playing changes so dramatically that it becomes personal, the stakes are raised. Raised stakes lead to seeking the advantage and then Brady – and its very ideals – get turned on its head. Now the fox is the gatekeeper, not just the guardian: how do you know if something is exculpatory if they don’t turn it over? And the arbiter of what is “exculpatory” is that very prosecutor whose job it is to administer justice. Statements that cast doubt on the complainant’s version? Not believed by the prosecutor, so not exculpatory. You can imagine the machinations.

And when the goal becomes winning and convictions rather than justice, you get stories like this.

[Prosecutor Keller] Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered.

“When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said. According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

Did you get all that? Prosecutor Keller Blackburn is miffed that the legislature reduced penalties for low-level crimes, not because it offends justice, but because it makes his job harder. Prosecutor Keller Blackburn is more concerned with warehousing his fellow citizens, guilt or innocence be damned, because this makes it more difficult for him to put the squeeze on defendants.

Tough penalties were the worst thing this country did in the name of justice. It did exactly the opposite: it forced the hands of unwilling prosecutors and provided great ammunition for the sadistic ones. The greater the exposure in jail, the greater the chance of putting someone away for a disproportionate amount of time.

People ask why I do what I do. This is one reason. Not because I condone crime; not because I like it. But “justice” is hard to come by in the American system. Because of prosecutors like Keller Blackburn. Because there is no oversight of prosecutors. They can get away with almost anything because law and order and criminals and other buzzwords. And if ever found to have violated the Constitution, there is no punishment. Just a stern wag of the finger and be set free to do the same again and again, leaving how many untold victims in their wake while they pursue their quest of “convictions”.

Brady was a valiant effort. Too bad justice doesn’t mean what it used to.

[I swear to God if one of you says “hey, not all prosecutors are like that”, I will tie a peacock to your butt and sprinkle birdseed on your head. Of course they aren’t.]

H/T: SL&P.


An arraignment is a critical stage

It seems almost silly to me to have to blog about an opinion that declares that yes, an arraignment is a critical stage in a criminal proceeding. But this was apparently a matter of first impression in Connecticut courts and there is a dissent and the state has been pushing this issue for years, so it might be worthwhile as my civic duty. We’ll see.

But let’s start with basics, since basics are where things go wrong most of the time. In Connecticut, when you get arrested, you have to be arraigned. You’re brought before a judge, usually within 48 hours of your arrest, and either a finding of probable cause is made (if it’s an “on-site” arrest) or not if the arrest was made by warrant. That’s it. There’s no grand jury indictment, despite the State’s best efforts.

So what happens at arraignment? Several things:

1. If you have retained a private attorney, that attorney should enter an appearance on that behalf and actually appear there with you.

2. If you have not or cannot retain a private attorney you can make an application to be represented by the public defender, who will then stand with you when the judge calls your name.

3. Your bond is reviewed and set.

4. 3 above affects your liberty: do you stay in custody or do you bond out?

Now lets imagine that a bond is set, but you cannot post that bond, meaning that you remain in custody – in jail – throughout the entire time your case remains pending.

You have a due process liberty interest in pre-sentence confinement credit. Which means that all the days you spent in jail because you could not post bond, are counted as part of your sentence.

It has to be that way, otherwise there would be an equal protection violation and liberty would depend on how much money you have.

So while you sit in jail, waiting for your sentence, you’re “accumulating” “credit”. And then you get sentenced and that credit is applied to your sentence, that is, subtracted from it and viola! It’s as if you started serving your sentence on the day you first were held in lieu of bond.

And if it were only that easy, we wouldn’t be there.

Because what complicates things is multiple cases. Some more background: the only way DOC knows you’re in custody is if there’s a bond set on you. So you need to have bond set in every file that you’re in custody for. Where it gets a little hairy is if you post that bond on the first case, but then can’t on the second.

Example: You get arrested for getting into a bar brawl and are charged with Assault 3rd, a misdemeanor. The court sets bond in the amount of $1000, which you promptly pay, so you’re “out on bond” in the street, living at home. Let’s say three weeks later, the guy you got into a fight with passes you on the street, you lose your shit and you take a gun and shoot him. He’s not injured (we’re a family blog, after all) but you’re arrested and charged with attempted assault in the first degree – a Class B felony – and now a judge sets bond in the amount of $100,000 which you can’t post so you’re held in jail.

Remember, DOC thinks you have only one charge, but actually you have two. Lets say a 6 months go by and the victim in the attempted shooting relocates to Indonesia and the State is going to drop that case. But the barfight has other witnesses so they want you to plead guilty to a misdemeanor and a sentence of 6 months in jail.

Great, you think. I’ve got 6 months in the bank! I’ll plead, they’ll apply the credit and I’ll go home today. Done.

Errr. No. DOC never had you in jail for that case, so there’s no credit to apply to your sentence. You have to do 6 months in jail to satisfy that sentence.

Well, now what? You blame your lawyer, obviously! He should’ve known and if he’d done his job I wouldn’t be here!

That’s exactly what happened in Odilio Gonzalez v. Commissioner [PDF]. Gonzalez argued that if his lawyer had simply asked the court to raise his bond a nominal amount on the barfight charge when he got picked up on the shooting charge, DOC would’ve recognized the existence of that case and he would have started “earning” credit. Had that happened, he’d have been a free man 6 months earlier.

Simple, right? No. Because the State, in its infinite wisdom, has for years argued that there is no right to have a competent lawyer advise you in regards to bond matters. That your bond is not a critical stage in a criminal proceeding and that there is no Constitutional right to have proper advice.

Luckily the court didn’t buy that, instead arguing what I’ve just laid out above. It concluded:

In the present case, it is clear that ‘‘potential substantial prejudice to the [petitioner’s rights inhered]’’ to the arraignment proceedings and the petitioner’s counsel had ‘‘the ability . . . to help avoid that prejudice  . . . .’’ Jackson v. Miller, supra, 260 F.3d 775. Specifically, because the petitioner’s counsel failed to timely request that the petitioner’s bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required.

The petitioner was thus denied an essential liberty interest as the result of his counsel’s deficient  performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner’s bonds on the first two cases. The fact that counsel’s performance  affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel’s ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings.

Of course, we shouldn’t blame the state. Logic isn’t their strongest suit. Although I suspect they’d feel very differently if their liberty was on the line and their lawyer forgot to have their bond raised.

The madness of death

It is never enough to want to kill someone; the desire to murder is always accompanied by the desire to do so quickly and without question. One could liken it to a madness that makes one talk quickly, ranting and foaming at the mouth. While it was ultimately thought that King George suffered from Acute Intermittent Porphyria, it remains to be seen what afflicts the modern day proponents of the death penalty.

How else does one explain the Florida legislature’s passage of a new bill “streamlining” (such a beautiful euphemism: “streamlining”; what do the British call it? “Redundancies”. Such a way with words) the death penalty process. What they really mean is jetlining it. Making it fast. Quicker than quick. No room or time for questions or doubt. Under the bill – “The Timely Justice Act” – deadlines for filing appeals are getting shorter and the time between an affirmance by the Florida Supreme Court and the issuance of an execution warrant has been reduced. Because it isn’t like there have been 24 people exonerated in Florida who were on death row. Because doing it fast is the same as doing it right.

“This is not about a question of innocence, this is about making sure that timely justice is realized,” [Republican Senator Rob] Bradley said.

Bradenton Herald. [More here, here, here and here.] It is not a question of innocence, for innocence is irrelevant. The only dynamic in this game is finality. Once it is done, it must never be spoken of again. For if we speak of it, we must acknowledge that the system doesn’t work. And if the system doesn’t work, maybe we can’t fix it. And if we can’t fix it, maybe we can only get rid of it. But it’s not about innocence. It’s about speed. It’s about victims. It’s not like DNA could tell you if he’s really guilty or not. And even if it did, would you care?

Willie Manning thought you would, but prosecutors in Mississippi didn’t. Manning, who sits on death row, inches away from execution, doesn’t have much direct evidence linking him to the murders.

There is no physical evidence linking Manning to the 1992 murders of two Mississippi State University students. The “jailhouse informant” who once told trial jurors that Manning “confessed” to the crime, has since recanted, telling defense lawyers he thought he would receive “consideration” from prosecutors for incriminating Manning. And Mississippi officials now are refusing to test DNA and fingerprints found at the crime scene — evidence which did not directly incriminate Manning before, has never been tested using modern procedures, and which might definitely resolve the case one way or the other.

But there’s more. The FBI has sent letters in the past days to Manning’s lawyers, disavowing their own “forensic science” that was used to convict Manning. And so today, after just last week denying Manning’s request for a stay 5-4, the Mississippi Supreme Court reversed course and agreed to stay his execution 8-1. Eight-to-One. There was still one. The Madness of Justice Randolph:

The letter also states that the Department of Justice is “assist[ing] [the Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations.” “The Innocence Project supports a moratorium on capital punishment.” The “NACDL has been an outspoken critic of the death penalty system. Of critical concern is the language contained in the first FBI report stating that, “[g]iven the abbreviated time frame for review, the FBI requests the Innocence Project (IP) to advise as to whether or not they agree with the FBI’s conclusions as soon as possible.” Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of the victims of the clandestine “Fast and Furious” gun running operation can’t get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants.” [emphasis in original]

The madness is upon him. Manning must be executed because fast and furious Obama and the FBI have juxtaposed the commission of the offenses of felonies in the circumvention of the current regime and the syncopation of the circumstances of the revolution of the conspiracy of the freedom of guns and religion in this Communist extravaganza.

There’s another form of madness at play here – and that is blame. If there is a fault with the system, that fault lies with the defense; if there is a problem, the problem is too many rights. It seems that the Constitution has become a roadblock on the fastrack to summary justice and execution.

The Florida “Let’s Speed up the Murder Yeehaw!” Bill has the following provision:

Notwithstanding another provision of law, an attorney employed by the state or appointed pursuant to s. 27.711 may not represent a person charged with a capital offense at trial or on direct appeal or a person sentenced to death in a post conviction proceeding if, in two separate instances, a court, in a capital post conviction proceeding, determined that such attorney provided constitutionally deficient representation and relief was granted as a result. This prohibition on representation shall be for a period of 5 years, which commences at the time relief is granted after the highest court having jurisdiction to review the deficient representation determination has issued its final order affirming the second such determination.

and this one:

(2) In a capital postconviction proceeding in which it has been determined that an attorney of record provided constitutionally deficient representation and relief has been granted as a result of such determination, after the highest court having jurisdiction to review such determination has issued its final order affirming the determination, the court making such determination shall furnish a copy of the findings to The Florida Bar for appropriate disciplinary action.

Blame the defendant; blame the lawyer. It’s taking too long. We never make mistakes. There never is a “report the prosecutor; fire the prosecutor” provision. The system cannot make mistakes; the system cannot admit fault. If the lawyer caused a problem, punish the lawyer. Nevermind that the specter of habeas is already a problem in the criminal defense bar with many taking the position that it’s a lawsuit against them personally, causing them to gleefully throw their clients under the bus, thus further compounding the failure of justice.

But can one really blame Florida when its an attitude that permeates from the top? A week or so ago, the United States Supreme Court did the unthinkable. It dismissed as improvidently granted [PDF] Boyer v. Louisiana. What that means is that after deciding to decide the important issue of just who pays when the system can’t pay to prosecute the cases prosecutors initiate, 5 justices of the august court decided that they didn’t want to decide that issue after all. Not because it isn’t an important issue, but because it was the defendant’s fault for raising that issue:

In sum, the record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone’s control. It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor. The state court observed that petitioner’s assertions of his speedy trial right were “more perfunctory than aggressive.” 2010–693, p. 34 (La. App. 3 Cir. 2/2/11), 56 So. 3d 1119, 1143.

And as noted, most of this delay was caused by the many defense requests for continuances of   hearings on the issue of funding. If the defense had not sought and obtained those continuances, the trial might well have commenced at a much earlier date—and might have reached a conclusion far less favorable to the defense.

Justice Alito, apparently with a straight face, because he just gone writing that if only the damn defense didn’t raise that issue of the systemic lack of funding for capital defendants, the case wouldn’t have taken 7 years and we’d have had a death sentence already. So it’s the defendant’s fault that his right to a speedy trial was violated, but we’ll never say that because that would mean a new trial. So dismissed. And good luck with the next case, because the money still isn’t there but don’t you dare bring it up again.

Justice apparently need only be speedy when it is racing toward execution. The rest of the time, the system could grind itself to a halt for all anyone cares.

“Only God can judge,” Matt Gaetz, a Republican who sponsored the bill in the House of Representatives, said last week during House debate. “But we sure can set up the meeting.”

Let’s be sure we’re sending the right person to that meeting, first.