No solution at all

Let me ask you another question: of the following group, whom would you trust to protect your Constitutional rights? Judges, legislators, prosecutors, defense attorneys.

I’ll wait while you think about it.

So when you discuss ideas about reforming the criminal justice system and your ideas get traction and are picking up by national columnists, you should perhaps pay attention when they’re criticized by those who are best in a position to determine whether they might be effective or not.

You should. I say should because it doesn’t happen. There’s a large divide between legal practitioners and law professors and an even bigger chasm between practitioners and professors who have political clout. I don’t often write about law professors and their impact on the criminal justice system because I just don’t. But that doesn’t mean I don’t notice it. It doesn’t mean that most criminal defense attorneys don’t notice that we’re the red-headed stepchild; the distant cousin with leprosy who must be invited to the party, but seated as far as possible from the normal people. We see it. We ignore it because we’ve already got enough fights to fight; for you and for me. But sometimes it bears mention.

Judicial opinions don’t cite to my blog posts or that of Mark Bennett or Scott G or any of the dozen other criminal defense lawyers on the internet who write about the practice of law and the defense of your rights. No, they cite to Volokh and SCOTUSblog and the Instapundit, because apparently academia is better suited to understanding the actual problems of being “in the trenches” (which, to be sure, isn’t meant literally).

Why is that so? Is it because academia is so revered? Is it because it’s easier to hobnob with the elite and the powerful? Is it because, deep down, we may revere the principles of individual rights, but we hate those that trade in them? Is it because it is so inconceivable to use that there is value in the profession of criminal defense, that we can only deal with the idea of it?

“I have rights and they must be defended, except everyone who defends them is a murderous scumbag” is a very odd belief to hold.

The truth is, as I said before, that some ideas suggested for reform are intriguing and some are downright terrible. They’re not terrible because they’re suggested by someone whom I don’t agree with politically, or who called me a name. They’re terrible because they are, in fact, dangerous and unworkable.

For example, explain to me a workable system whereby the State would have to pay the costs of a winning defense and the defense the cost of a loser. I dare you. It can’t be done because it’s an idea that’s so incongruous with the nature of the system itself.

If the idea of “crashing the system” by taking every case to trial – or the differently stated ‘banning pleas’ – was workable in the least, don’t you think it would have been done before? It’s a terrible idea because it’s dangerous. Because not every criminal defendant can or should go to trial. Because it would be malpractice. Because it would be suicide.

Maybe it was Aaron Swarz, maybe it’s the NSA scandal, but people are starting to realize that the Government has too much power. There is overcriminalization and there is overcharging.

What is the solution? Immunity, but that’s been rejected by the Supreme Court. How else is one to check the power of the State? Who else is left, if not Congress or the Courts?

The people. It’s taken 7 years, but I think I’ve finally come to the conclusion that juries need to know punishment before verdict and juries have to be told they have the power to nullify.

But it won’t matter a damn because the people to whom we make this temporary grant of power are also all too quick to exercise it to condemn “the other”.

Because the problem always has been “the other“. The overcriminalization encroaches on “my rights”, I’m not talking about “banal” crimes like murder and rape.

When will you realize that the rights of a murderer are the same as your rights and my rights. The Constitution makes no distinction. An overreaching, high-on-power prosecutorial system won’t suddenly take a break from beating up on the powerless and the helpless just because you happen to walk in their path; you with your “technical violation” and “minor white collar transgression”.

So you may trumpet these reforms and you may get on your soapbox, but they’ll never work for everyone; they will never address the real problems with the system that you’re too high up to see. Not until there’s a seat at the table for those that have first hand knowledge of the problems with this justice system.

Otherwise all you’re doing is reinforcing the notion that there’s one system for “us” and one system for “them”.

Conviction reversed for man who was tried without an attorney

When we say that everyone is entitled to counsel, what we really mean is that everyone who can afford a lawyer can hire one and everyone who is this poor will be provided one. Everyone else is on their own. So the floor – the income eligibility – is the arbitrary cutoff which determines who gets a public defender and who doesn’t. As I’ve written before, it’s an imperfect system with a ridiculously low threshold for cutoff: 125% of the federal poverty level which amounts to slightly more than absolute poverty. And they’re guidelines, which means that the determination is left to individual offices to make. And offices are staffed by humans and humans make mistakes. Just ask Gene Newland:

For nearly two years, Gene Newland told a judge that he could not afford a private attorney to represent him following a 2007 arrest for sexual assault and risk of injury to a minor. “I’m trying to come up with the money,” he said in one courtroom appearance. “I’m barely making ends meet as it is right now. Believe me, if I could afford a lawyer, I would.”

Newland had been denied access to a public defender in Danielson because, someone decided, he had too many assets. He owned a house and worked two jobs, though he lost one of them after he was charged with the crime.

Just so we know what’s at stake, both sexual assault and risk of injury are Class B felonies, each carrying a maximum of 20 years in jail for a grand total of 40 years’ incarceration.

The problem with making such a simplistic determination that he has a house and a job and is therefore ineligible is that it fails to take into account the reality of hiring private counsel for serious charges. The house isn’t liquid and a job is a job even if it pays nothing:

Newland was earning $350 a week at the time of his criminal trial, had no funds in the bank and that he was unable to make payments on his $168,000 mortgage.

Despite this, Newland was denied a public defender and then no one told him that the decision could be appealed to the trial judge, who, according to our statute, makes the final appointment of counsel. In fact, when faced with an unrepresented individual facing serious jail time, the court made Newland state that he wanted to proceed without counsel, instead of acknowledging that maybe the man couldn’t afford to hire his own attorney.

But don’t be fooled. Newland didn’t do this voluntarily. Who, in their right mind, would?

When [Judge] Robaina asked Newland if he was sure he wanted to waive his right to an attorney before proceeding to trial, Newland replied: “I have no other choice.” He then stated that he had neither the training or skill to represent himself. He acknowledged that he had been arrested 23 months earlier, and he knew that he had to be tried sometime.

It may seem as if that’s a long time to save up money and hire an attorney, but that’s only if you don’t factor in any other expenditure to live. Rent, food, insurance, clothing, gasoline, taxes can all add up and even sizeable incomes can disappear with nothing left over to pay attorneys $5,000-$25,000.

Newland fell through the cracks and remained there. He was tried – representing himself in a case involving allegations that give even the most seasoned defense attorneys nightmares – and convicted. Then he was sentenced to 10 years in jail.

It’s been 4 years since he was sentenced to prison after being tried without an attorney, but a judge just reversed his conviction in a habeas corpus proceeding, holding that the State violated his right to counsel.

Attorney Jim Ruane, who represented Newland in his habeas wondered:

“How many other trials statewide did people go unrepresented, and was that a voluntary issue or forced upon them?” said Ruane. “I was practicing in 2009 and I had no idea this was going on in a courthouse. So it’s possible other people have slipped through the cracks.”

One would hope that this doesn’t happen often or even rarely; that the system is designed to pick up these oddities and that no judge or prosecutor would want a trial to proceed on some of the most serious charges with a man representing himself not because he wants to, but because he claims he can’t afford a lawyer.

The reality, though, is that it happens. I’ve dealt with similar situations and I know others who have too: clients who are appointed lawyers in one court but are deemed ineligible in another, merely because the people making the determination have different opinions on what qualifies as income.

While I don’t think any of this was ill-intentioned or malicious, the fact remains that a man was convicted without a lawyer and remains in jail 4 years later.

I don’t know if Newland is “truly” guilty or not, but I have no faith in a verdict that was obtained without the assistance of competent counsel and neither should you. The system is about fairness and protection of individual rights, not strict adherence to imaginary and arbitrary guidelines that bring about the opposite result.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

I can think of another inmate who faced a similar predicament. And we know his case changed the landscape of the legal system. It seems, though, that those lessons have yet to be learned.

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

We need to talk: the fourth, the Fourth and an unrecognizable land

This is a Fourth of July post, for which it is a bit too late, and this is a Fourth Amendment post, for which it is far too late.

Let me ask you: what sort of a government do you want? No. Scratch that. More basic. What sort of society do you want? Do you want a society where there are rules and laws and everyone, including you, has to abide by them? Of course. Do you want a society in which people are punished for transgressions of those laws? Most would say yes.

Well, who is to decide whether a person has broken that law? We have opted for the public prosecution system, where an appointed or selected individual or individuals take on the function of representing the interests of our collective society. it’s a fair system; designed in some part perhaps to minimize the possibility of individual vendettas.

But that system would perform that minimization role only if the agents of the collective were to exercise their individual authority and judgment in the pursuit of what is right and what is wrong and not just the chase of convictions – but that’s a story perhaps best left for another day.

So having established this system; having vested these enormous powers in our fellow citizens, do we wish to impose any checks on them? Do you have faith that these people perform their jobs in an admirable and honest manner? If so, why? Do you personally check on their performance? Is it measured to any standard for you? Or have you given then unfettered powers – carte blanche, so to speak. “If you do it in the name of Justice; your powers are limitless.”

Certainly, even the most Law & Order amongst you would argue that we can take a hands off approach to the daily machinery of the Justice system precisely because we have these rules in place: rules that not only govern our individual conduct in relation to one another – penal laws, for instance – but also how the Government must behave before it is allowed to take away one’s Liberty – that other ideal worthy of a capital letter.

So there is an interplay, most would agree, between Justice and Liberty. And most of you would point to those rules, those Constitutional technicalities as ensuring that the system is worthy of your continuing faith and disregard. We have the best Constitution in the world, and the best system in the world, ergo, everything must be operating as it should.

So would you like the Government to be able to enter your home, just to look around? What if the police officer you passed on the road flagged you over and wanted to look inside your car, just because? Certainly, most Red Blooded Americans would have a strong visceral reaction to that. Why? Perhaps because it’s enshrined in our Constitution. The Founders had the good sense to include, in very strong language, such a prohibition:

“One of the most potent grievances that led the colonists to declare independence 237 years ago was the practice of British officials conducting door-to-door, person-to-person ‘general’ searches,” IU Maurer School of Law Distinguished Professor Fred H. Cate said.

Because they knew and  because they suffered. Because those who have the power, have power over us that don’t. Can you physically resist an armed officer entering your house to search because he feels like it? No, of course not. What stops them? The need for a warrant.

Why? Because we have these rules. The rules that say:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“The People”. That’s you. And your mother and your sister and your babysitter and your neighbor down the street and your boss. And me.

It is a right that you and I have. To be secure from warrantless searches and seizures. And the warrants must be particular.

Because we don’t want witchhunts. We don’t want blanket searches of anyone who we decide is undesirable.

But apparently we’ve forgotten the lessons of the past. We’ve forgotten that this Government – any Government – has the tendency to oppress those who are not like them. We have forgotten that at one time, a large percentage of the human beings in this country weren’t considered human. We’ve forgotten that until very recently our very same federal government didn’t recognize the rights of our brothers and sisters to marry whom they wanted. We’ve forgotten that in the last century, it was illegal and punishable by jail. We’ve forgotten that the world went to war to prevent the persecution and oppression of the “other”.

We’ve forgotten that parts of the world, until recently, lived under a surveillance state. States that we, the United States, sought to end. States that had far less surveillance powers than we now do:

East Germany’s Stasi has long been considered the standard of police state surveillance during the Cold War years, a monitoring regime so vile and so intrusive that agents even noted when their subjects were overheard engaging in sexual intercourse.

Even Schmidt, 73, who headed one of the more infamous departments in the infamous Stasi, called himself appalled. The dark side to gathering such a broad, seemingly untargeted, amount of information is obvious, he said.  “It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”


The reaction to Snowden is saddening. People are lining up to freely hand over their information to the Government. Is it because we’re desensitized? Or because we truly don’t understand that this cocoon of protection you think you have around you, this “other-ness” (I’m not those people, i.e. a criminal) is tenuous at best and imaginary at worst.

Ask yourself this: if PRISM is so useful, then why limit its use to “terrorism”? Make a difference to you now? What if your “metadata” is used to track what time you leave home, where you go, what time you come home and where you stopped for how long. What if it’s used to track your purchases online or your downloading of the latest single from a less than legitimate site? What if it’s used to figure out that you smoke marijuana recreationally? What if it’s used to monitor your speeds on national highways and send you tickets in the mail automatically? Where will it end?

Have you given the Government permission to do any of this? Would you? How quickly do you foresee yourself going from average citizen to criminal. And you know what happens to criminals, right? You’ve carried the pitchforks yourself.

The measure of a society is in how it treats its most vulnerable.

What does that mean. Have you ever thought about it? Today, you are in the majority and the majority cares about its rights. What happens tomorrow, when you are no longer in the majority and now your interests and rights are different than those in power? Will you acquiesce as easily as those you imposed yourself on?

Who will stand up for you? Why would anyone?

Compare and contrast this quote of Thomas Jefferson:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

with this from Dianne Feinstein, doyen of intelligence in the Senate:

“I feel I have an obligation to do everything I can to keep this country safe,” Feinstein told The New York Times. “So put that in your pipe and smoke it.”

Eloquent and telling. She’s telling you that she doesn’t care about your rights. That she has made the decision for you, that your Safety (another capital letter word) is more important than your Liberty.

And then, when that National Safety Threat doesn’t materialize – or it does but the intelligence is useless – and the Government is sitting on mountains of data about you, what makes you think it won’t go looking, just to see what’s there, because maybe, just maybe, the definition of “terrorism” isn’t what it used to be:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

And by turning a blind eye, by not caring, you’re giving up the right to ever be invited to the table to discuss this. Your rights and protections are now in the hands of secret courts.

Quis custodiet ipsos custodes?

Who will guard the guards? You didn’t use to be like this. This was a country that cared, before “soft on crime” ruined our youth, our cities and our wallets.

Remember, too, the fight against the death penalty, and the days when the left was on the front lines to join most of the civilized world by doing away with it. Justices William Brennan and Thurgood Marshall and ultimately Harry Blackmun and John Paul Stevens, judicial heroes of the left, eventually refused even to consider the legal arguments in individual cases because time had proved again and irrefutably that the “machinery of death” could not be, and was not, administered justly. Can anyone credibly claim that this machinery is more just today? It is not. DNA exonerations in the triple digits should make us worry deeply about executing innocent people. And most defendants singled out for the death penalty don’t get the high-quality lawyers they need. But then came Willie Horton, and victims insisting they had rights too, and suddenly being for the rights of the accused and against capital punishment could get you labeled weak on crime, and that was political suicide.

I am reminded at this time of another quote, one that you may be familiar with:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”

A land for the downtrodden, for the oppressed, of second chances. A land unrecognizable today. Might as well replace that inscription with the more terse and apt: “I got mine, you can just fuck right off.”

Gideon’s Army: part of a whole

Last night, HBO aired the much-awaited documentary “Gideon’s Army“, which focused on the plight of public defenders in The South, aka Georgia. It really is great to see the spotlight being shone on the struggles on indigent defense especially in the 50th anniversary year of Gideon itself.

Judging by the reaction on Twitter, there seem to be a fair number of people who were rather surprised to learn of public defenders’ existence or of the problems faced by those who decide to represent the indefensible.

But there’s also a fair number of people whose reactions seem to suggest that they weren’t even aware that there is an “underclass”, so to speak, of people who are poor and steamrolled by the State. Whose lives are in the balance on an uneven playing field.

To all those people, I say welcome to the real world. Now, there’s more to know.

The documentary is moving, eye-opening, enlightening and a bit ho-hum. Yes, I said that. It is because it isn’t new – at least not new to those who know – and I was left feeling a bit lost at its message after the fact.

The reasons for that, I think, are two-fold: one is the necessity of the medium itself and the constraints placed. You can’t very well have a 6 hour documentary and there is a desire, on some level, to tell a good, happy story even in this context. Two, the problems spread throughout the justice system are so vast, that no one documentary can tackle it all.

So what did I get from this documentary? That a lot of public defenders are passionate, hard working, underpaid lawyers who do their best for their clients against some odds?

But we never really get a sense for just how overworked they are; or how poor their funding is; or just how overwhelming the system can be.

We don’t see the “meet and greet pleas”; we don’t see the failure to investigate because there’s a lack of funding; we don’t see plea negotiations where prosecutors play hardball because there are mandatory-minimums; we don’t see suppression hearings where the police officers violate Constitutional rights.

We are told that a client in the film has decided to accept a plea, but we don’t see it: isn’t that the real tragedy of this system? To see the balancing that people have to do in order to come to the point where they abandon their hopes and desires because they are faced with certain doom?

Isn’t that the failure of this system: that we punish people for exercising their Constitutional rights? That the presumption of guilt is so strong that in almost all circumstances the risk-benefit analysis is not in your favor? That jury selection brings a parade of people all too eager to convict?

Public defenders contribute – some voluntarily; most not – to the problems in the system. But our plight needs to be told in the context of the bigger picture. Discovery violations, harsh judges whose every whim and fancy can bring great differences in resolution between two identical cases. The crushing numbers of clients that necessitate cutting corners. At one point, we’re told that one of the public defenders has a caseload of 120. Is that a lot? Depends on whom you ask. Here, in CT, in the busiest courts, public defenders carry caseloads of 200-300.

In the end, I was left with a sense of camaraderie but also the foolish notion that everything always works out in the end.

But it doesn’t. It never does. That’s the problem with the criminal justice system. And you wouldn’t know it from yesterday.

Scott has his review here. What’re your thoughts?

Narcotics field tests subject to Daubert and other tales of scientific evidence

In an opinion released two days ago in State v. Anthony Martinez [PDF], the CT Appellate Court held – in what was apparently an issue of first impression – that those narcotics field tests that officers do to determine whether the “powdery white substance” was indeed cocaine and not talcum powder are subject to the standards “enumerated” in Daubert v. Merrell Dow Pharmaceuticals. In CT, that standard was adopted in State v. Porter and challenges under Daubert are called “Porter challenges” or “Porter hearings”.

Prior to Daubert, the generally accepted standard was the “Frye” standard and it was that the examination or procedure had to be generally accepted in the scientific community. Daubert then altered that standard – and lowered it – to whether the scientific evidence would assist the trier of fact and whether it was scientifically “valid” as opposed to generally accepted by that scientific community.

The irony is that in CT, the defendant wanted the Court to adopt the lower Daubert standard in Porter so as to let in polygraph evidence. The defendant won on Daubert, but lost on polygraph, thus not completely fucking every criminal defendant over for eternity, but only slightly.

What the Supreme Court didn’t do in either Daubert or Porter is define just what the hell “scientific evidence” is, thus opening a gaping door for all sorts of pseudo-scientific testimony (more on that in a bit).

But clearly, dipping a stick into some chemical and then applying a drop of that chemical to a “powdery white substance” to determine if that substance changes color, thus revealing the presence of a narcotic, seems “scientific” enough.

But just because it’s scientific, doesn’t mean a court has to conduct a hearing to determine if it’s valid. Some scientific evidence is so scientifically accepted that it’s a foregone conclusion:

In one line of cases, ‘‘we have concluded that certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary  . . . .’’ Id., 170; see State v. Porter, supra, 241 Conn. 85  n.30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d  1171 (1996) (ordinary fingerprint identification evidence); see also Hayes v. Decker, 263 Conn. 677,687–89,  822 A.2d 228 (2003) (effects of discontinuation of blood pressure medication); State v. Kirsch, 263 Conn. 390, 405, 820 A.2d 236 (2003) (reliability of alcohol blood testing done at hospital well established); State v. Legnani, supra, 109 Conn. App. 418–21 (matching of fired cartridges to magazines on basis of magazine marks).

This, the Appellate Court notes, is not one of them. While the argument the state makes, that these tests have been admitted into evidence in CT Courts for a very long time, is appealing as to their validity, that doesn’t close the inquiry, nor should it. Just because something has been admitted forever doesn’t make it scientifically valid. It just means we defense lawyers have been terrible about objecting to it.

In this case, there was no evidence presented – and indeed the trial court did not allow it – of the scientific method used in these field tests, nor their acceptance in the community or their validity. So the Appellate Court did hold that there was error in this case. But don’t be fooled. It wasn’t that bad. The guy was still guilty as sin, so we don’t care that there was a mistake in his trial. It was found to be harmless error.

In the second line of cases ‘‘we have concluded that  certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not ‘scientific’ for the purposes of our admissibility standard for scientific evidence, either before or after Porter.’’ Maher v. Quest  Diagnostics, Inc., supra, 170 n.22; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000) (testimony of criminologist regarding visible characteristics of and  similarities between strands of hair not ‘‘scientific evidence’’ for Porter purposes); State v. Hasan, supra, 205  Conn. 490 (testimony of podiatrist as to likelihood that certain pair of sneakers would fit on defendant’s feet was not ‘‘scientific’’ evidence under Frye).

When evidence is “not scientific” it doesn’t mean that an expert is not permitted to testify about their “expert conclusions”; but just the opposite: that the expert opinion is not subject to a gatekeeping function by the court to determine if that “expert” is an expert or an “expert”.

The big unmentioned area where the State has driven a truck through this hole is the testimony of “child sexual abuse experts” whose job it is to take the facts of a case and opine, based on their training and experience that such behavior is consistent with being sexually abused.

If a complainant does poorly in school, that’s consistent. If a complainant does well in school, that’s consistent. If a complainant discloses abuse immediately after it happens, that’s consistent. If a complainant discloses 5 years later, that’s consistent. If a complainant is left-handed, that’s consistent. If a complainant is right-handed, that’s consistent. You get the picture. And this is permitted, routinely, without limit or caution, because it’s not “scientific” evidence:

We first consider whether the trial court abused its discretion in declining to subject Lanning’s testimony to a Porter hearing. On appeal, the defendant concedes that Lanning’s testimony was not “scientific” but argues that the testimony nevertheless required the trial court to conduct a Porter hearing because it was “other specialized knowledge” within the meaning of § 7-2 of the Connecticut Code of Evidence. The state argues that no Porter hearing was required because Lanning’s testimony was not based on any scientific theory but, rather, on his training and experience in the field of child victimization. We agree with the state that, because Lanning’s testimony was not based on scientific knowledge, the trial court properly determined that a threshold admissibility hearing under Porter was not necessary.

State v. Sorabella. So these “experts” show up in court, talk about the 2000 children they’ve interviewed and in their (anecdotal) experience, what the characteristics are of those that have been abused, which incidentally happen to be every single child they’ve ever examined.

So, clearly, it’s not scientific. More like junk, but whatever.

But that’s not the end of the road. There’s this decision called Kumho Tire Ltd. v. Carmichael, which essentially applies Daubert to “non-scientific” evidence.

In Kumho Tire Co., Ltd., the United States Supreme Court held that a trial court’s gatekeeping function under Daubert applies not only to expert scientific testimony but also to expert testimony based on technical or other specialized knowledge. Id., at 149, 119 S.Ct. 1167. We decline to consider the defendant’s claim, however, because the defendant failed to raise it in the trial court.

That’s from Sorabella again, a shining example of what the CT Supreme Court does best. Surprisingly, in the 7 years since Sorabella has been decided, not one single appeal has challenged the admissibility of this type of “expert” testimony under Kumho Tire.

That should be next.



Silence as guilt and the silent death of the Fifth Amendment

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.