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.

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.