8 mind-numbingly stupid years

I started this blog when I was just a teen out of high school, 8 years ago on a cold January day. It was snowing – I don’t remember, it must’ve been – and the combination of whiskey and marihuana had deluded me into thinking that other people might actually want to read what I had to say.

That was proved wrong over and over again. But somehow the buzz of that very special winter remained and I’ve written ever since. I’ve written when no one was reading and I’ve written when everyone was reading and I’ve written because I’ve had to and I’ve written because I’ve wanted to and now it’s eight years later and holy fuck that’s a lot of writing.

That’s eight years of cursing. Eight years of clever pop culture references. Eight years of terrible pop culture references. Eight years of jokes that no one got. Eight years of jokes that only I got. Eight years of opinionated bullshit. Eight years of insight that surprises even me. Eight years of suffering through people asking me if I’m Gideon and lying to them or telling them the truth. Eight years of wondering what’ll happen if someone “finds out” and eight years of not really giving a shit. Eight years of wanting to be a better lawyer and finding ways to realize that it’ll take eight more.

Eight years of you: loyal, loving, silent readers. Eight years of the most idiotic comments I’ve ever read in my life. Eight years of interacting with some of the nicest people from across the country. Eight years of disappearing for months at a time and coming back to find you’re still here. Eight years of learning and hating and making mistakes and learning. Eight years of engaging with bigots and narrow-minded people and hoping against hope that maybe, just like in my day job, I affected one person. Eight years of shouting against the ever loudening din of the obsequious. Your rights are my rights. My rights are your rights. Shut the fuck up and let me watch my reality TV.

I’m tired.

But I will go on, for what else is there to do, but to do that which you want? Sometimes, you have to go a long distance out of your way to come back a short distance correctly. I’ve been to the zoo.

Thank you. Each and every one of you.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Now get off my lawn.

A matter of perspective (updated)

Criminal law is mostly about perspective and the just outcome in each case varies depending on your own perspective. At their core, both the prosecutorial and defense functions are about forwarding related fundamental principles. In the abstract, both are about standing up for something and whichever appeals more to you depends on your perspective. They can both be called noble professions, depending on your perspective.

People shame defense lawyers and shun them for their choice of profession because of the company we have to keep, or so they say. Our clients are bad people, scum of the Earth, scourge of society, dogs and animals and so on. I’ve long argued that they aren’t that different from us and that tomorrow, you could be the one in shackles, standing next to me. Which is why I’d rather hitch my wagon to the fallible human beings who are subject to the wrath of society, than the fallible human beings who purport to bring that wrath and righteous indignation upon others.

Like this post at “Seeking Justice” which contains the video below that is making the rounds of the internet with the comment “Not a good idea to give the finger to the judge at your initial appearance.”

Or the judge in the video who thinks it’s amusing to abuse his power to deny counsel to, incarcerate and then significantly increase the bond of a woman teenager who’s clearly on some drugs and then hold her in contempt. Let me see if I can break down what’s happening and why I so vehemently disagree with the rest of the internet about her comeuppance:

1. She’s being arraigned on some charge and is not actually in a courthouse with a judge and doesn’t seem to have spoken to a lawyer. She’s clearly being warehoused.

2. He’s rude to her and mocks her throughout their interaction.

3. She’s clearly high.

4. He interrupts what seems to be a public application for public defender services (isn’t that information about personal finances confidential?) because she says “jewelry” in a funny way, then mocks her response and punishes her for it by refusing to appoint the public defender because she’s tripping on something and talks about “jewelry” she owns.

5. Lawyerless and told to “sell some of that jewelry to hire an attorney”, he then refuses to give her some sort of promise to appear bond and instead first sets it at $5,000. Then he smiles at her and stares as she walks away, in a jail, while he sits free in a courtroom. He still hasn’t disengaged and is quite proud of what he’s done. She says “adios” in a stupid voice; he’s still smiling, then calls her back, looking like he’s still laughing at/with her.

6. What he does, then, is to double her bond. Maybe she did something off camera; I can’t tell. Then he mocks her by saying “adios”. The audience oohs and ahs. She’s obviously shocked and obviously still on something, so she flips him off (a stupid idea, no doubt, but consider the source) or says “fuck you”, which makes him bring her back, ask her an incriminating question after already denying her counsel and then finds her in criminal contempt and sentences her to 30 days in jail (which, in Connecticut, would be problematic, as you can’t be found in contempt if you goad the defendant into committing the contempt. as a judge now awaiting appointment to the Supreme Court tried to do.).

7. The attorney then speaks up (and is far too deferential for my tastes, but whatever) and gets appointed on the contempt matter, but nothing else. To what end, I have no fucking clue.

I suppose from his perspective, she was a coked-out mouthy teen who got what she deserved: no lawyer, excessive bail and 30 days in jail and he was a big man in a robe and played it up for his adoring and feckless audience.

From her perspective, she’s high, scared and yes, mouthy, but he did just deny her counsel and set a high bond. Should we tolerate someone being disrespectful to a court? Absolutely not. Is what she did, in the context in which it happened, worth 30 days in jail? Absolutely not. If you and I were in her place, we’d all be thinking it. Maybe we wouldn’t be inhibited enough to express it, but in our minds, we’d all be flipping him off.

This wasn’t a defendant who was combative, threatening or repeatedly disrespectful to the court. This was an 18 year old girl who was high and got carried away when even she, in her mind-altered state, could tell the judge was fucking with her. So she flipped him off. Give her a week to cool off and move on. Shouldn’t we expect better temperament?

Update: As per a link in the comments, it seems that the judge has had a change of heart and after accepting an apology from the teenager, has reversed his finding of contempt. I guess maybe he just wanted her to admit that she was on drugs or something? Or maybe someone pulled him aside and told him it was pretty bush league to mock a defendant and deny  her counsel and then sentence her to 30 days for flipping him off. Because, as you can see from the video, she already apologized for flipping him off at that time. But whatever. Let’s all celebrate this judge and make fun of the girl. Yay justice.

Or like the folks at Crime and Consequences, who have posted one of the most mind-boggling posts I’ve read in a long time, titled “Why LWOP (life without parole) is not enough, again“. The post is an apparent attempt to claim that a New York inmate should have been put to death because the consequences of not doing so are terrible. In this case, he got a female guard pregnant. Yes. That’s their justification for their rabid and bloodthirsty support of the death penalty. And their disturbing glee gets only more disturbing-er:

Who do you think is going to pay the bills for the kid’s upbringing when his daddy, a murderer, is in prison, and his mommy, a lawless ex-prison guard, is ALSO in prison? RIGHT!!! You and I are.

6. Notwithstanding the mucho money we’re going to shell out, what do you think the chances are that this kid is going to turn out to be a well educated, productive, contributing member of society, when (1) he has parents of that character, and (2) grows up on the public dole?

RIGHT AGAIN. No, it’s not the kid’s fault, and I hope and pray (for him and for us) that things turn out better than I think. But there is something really, really wrong with this picture.

Or like this prosecutor’s office which keeps a scorecard of its sentences and is proud of having the longest average prison sentences in the country, because justice is just a game and the defendants are merely goals to be scored.

Or people like this who so abuse their power to ruin the lives of other innocent people and then are rewarded for their acts of injustice by giving them even more power:

State District Judge Ken Anderson was the Williamson County district attorney in 1987 when Michael Morton was convicted of beating to death his wife, Christine Morton. Michael Morton was exonerated of the crime in 2011, after spending more than two decades in prison.

Now Anderson is accused of lying and concealing evidence that led to Morton’s conviction. Morton was released from prison after a bloody bandana found 100 yards from his home in 1986 was finally DNA tested.  The bandana had Christine Morton’s blood on it as well as DNA from a man identified in 2010 as Mark Alan Norwood. Norwood was later arrested and charged with the murder.

The bandana was ignored during the criminal trial.

I know where I want to make my bed. That’s my perspective.

 

 

Not even wrong on individual voir dire

It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.

The propensity’s on the other foot

Prosecutors and judges – and law and order types in general – are always on about “once a criminal, always a criminal”, and frankly, given some of the recidivism rates of our clients, sometimes I tend to think there’s some truth to some of it before I come to my senses.

Which is why I really enjoyed this delicious bite of schadenfreude. Remember the three cops in this video beating the tasered man in a park in Bridgeport? (I mean, how could you not? It was three days ago.) Turns out two of them are the subject of a previous separate brutality complaint. Filed by a disabled man. Shame on you, officers.

On May 23, 2011, three days after the Beardsley Park beating reportedly took place, Officer Christina Arroyo stopped Ramon Sierra for questioning, Sierra claims in a letter that he wrote to Chief Joseph Gaudett Jr. seeking an investigation.

Another officer, Elson Morales — who is one of the officers identified in the Beardsley Park videotape — soon arrived at the scene at the corner of Boston and Noble avenues.

Sierra said that, without warning, Morales “put his hands on me, and I asked him what he was doing.”  “The next thing I knew, Officer Morales and an officer later identified as Officer (Joseph) Lawlor both threw me violently to the ground, and on the way down, the left side of my face struck one of the police cars on the scene, causing a bad laceration,” the complaint states.  Lawlor is also identified in the Beardsley Park videotape.  Sierra said that one of the officers then told him to put his hands behind his back, but because he has limited use of his right arm, he was unable to do so. Sierra said that he is disabled and is partially paralyzed on the left side as well as having limited mobility on his right.  “I told the officers this, but they continued to assault me violently, finally handcuffing my hands in front of my body,” Sierra wrote in his letter to Gaudett.

So what happened to Sierra? Exactly the same thing that happens to people who “force” officers to use “physical force”:

The defendant’s right to confront a mustache

statevmustache

So you’re reading the Constitution. And the Constitution says many things implicitly and a few things explicitly. And one of those things is that the accused shall have the right to confront witnesses against him face-to-face (Pennsylvania v. Ritchie). What the Supreme Court has never explained is just whose face that has to be.

Yes, that’s an odd statement, so let me explain: the Ninth Circuit ruled today [PDF] that it was okay for a confidential informant to testify in a trial wearing a ridiculous wig and mustache (I’m only assuming the wig was ridiculous; all wigs are ridiculous unless worn for medical purposes) to protect his identity because he was involved undercover with the dangerous Sinaloa Cartel.

Why, exactly, is it important for someone to be able to look at the person testifying against them square in the eye? Why is it even more important for the jury to be able to do that? Justice Scalia, writing in Coy v. Iowa, explains:

3.5 appointments a day

In all criminal prosecutions, the accused shall enjoy the right [...] to have the Assistance of Counsel for his defence.

It’s sad that in the 50th Anniversary year of Gideon v. Wainwright, we still do no more than pay lip service to one of the most important rights bestowed upon the people (it’s included in The Bill of Rights for a reason). It’s sad that the system has remained so overburdened that it is nothing more than an assembly line that must be kept moving at all costs. And if that cost is the rights of the defendants, so be it. Because in order for any criminal justice system to function, there must be turnover, because there is always volume. And you don’t get turnover if you don’t have attorneys who can “move” cases: plead ‘em out, convince clients to take deals, sell what the prosecutor is selling. To do anything else would be to tax the system and those who tax the system get punished.

So the system seeks out those who are compliant and rewards them. Rewards them to the tune of 3.5 cases for every business day in the calendar year. Rewards them for being one of the boys by assigning a fuckton of cases to them: 920 in the whole year.

Think about that for a second: 920 individuals are represented by one lawyer in one year. That means if he (and Geraldo Acosta of Harris County, Texas is a he) started 2013 with no clients, today he’d have 98 of them. 98 individuals relying on him for their liberty. 98 individuals relying on him to further their best interests.

What do you think happens? Do you think he manages 920 cases a year by rigorously investigating and defending each one? Do you think he spends every waking moment doing everything that is reasonably necessary for each client? Do you think he can?

And why does he get 920 cases a year? Because he’s so good? Or because he’s so good at moving them along?

Just for comparison’s sake, the “overburdened, overworked, underpaid, not a real lawyer” public defender in CT was assigned to an average of 462 cases last year  [PDF - Appendix Table 12] in the busy low courts. The highest per attorney appointment was 653: 267 cases short of Acosta by himself.

This is the state of your criminal justice system. This is the state of justice.