Free after 17 years

Late yesterday afternoon, 4 men walked out of the New Haven, CT criminal courthouse, free men for the first time in 17 years. Earlier in the day, they got to stand in court and hear the judge say that all charges against them were dismissed.

17 years ago, Sean Adams, Darcus Henry, Carlos Ashe and Johnny Johnson were charged with, tried and convicted of the murder of one Jason Smith and the shooting of Andre Clark. They all were sentenced to prison terms of over 75 years.

The main evidence against them at trial was the testimony of Andre Clark. Andre Clark, however, was himself the defendant in several other criminal charges. Prior to the Adams’ trial (I’m going to use Adams as shorthand for all the rest), Clark had pled guilty in that same New Haven courthouse and instead of facing 35-38 years in jail, had entered into an agreement that would cap his sentence at 4 years, with a right to argue for less in exchange for his testimony against Adams.

Clark testified against Adams. Under intense cross-examination, Clark denied that he had pled guilty, or had any deal with the prosecutor or had any expectation of leniency in exchange for testifying. In other words, he flat out lied. No prosecutor uttered a word to correct him.

It’s not like even with Clark, the State’s case was strong. From the Supreme Court opinion reversing their convictions [PDF]:

Finally, the fact that the evidence against the petitioner was hardly overwhelming is borne out by the  apparent difficulty that the jury had in deciding the case. The jury deliberated for ten days before reaching a verdict on the petitioner’s charges. Moreover, the jury could not reach a unanimous verdict on any of the charges against two of the petitioner’s three codefendants, resulting in a mistrial as to them, and before reaching its guilty verdicts as to the petitioner and Henry, the jury requested that the testimony of Ogman, Andre, and Charles Clark be read back. Although not necessarily dispositive of the issue of the strength of  the state’s evidence, the foregoing considerations support the conclusion that the jury viewed the case as a  relatively close one.

Prosecutors have an independent an affirmative duty under Brady v. Maryland to disclose biases that witnesses might have if it could lead to their impeachment on the witness stand. A plea agreement for a significantly favorable sentence in exchange for testimony in another trial certainly qualifies as such. If there was any doubt that he received favorable treatment, it was dispelled at his own sentencing:

Although the court originally set sentencing for February 19, 1999, Andre was  not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December  14, 1996 shooting, including the petitioner’s trial.At  Andre’s sentencing hearing, [the prosecutor] recommended that the court vacate Andre’s pleas on two of the charges  and impose an unconditional discharge on the third charge. In support of this request, [he] observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. . . . He’s been enormously cooperative.’’

But here, there were two prosecutors: one prosecuting Adams and one prosecuting Clark. They set up a sort of “firewall” between themselves, agreeing not to talk to each other about the other’s case. So when Clark testified at Adams’ trial that he had no agreement, that prosecutor didn’t actually know if that was untrue.

But that’s not good enough, said the Supreme Court – and the State agreed on appeal:

Of course, as the respondent now concedes, the state certainly did have a duty to disclose  Andre’s plea agreement, no less than it had a duty to correct Andre’s false testimony denying its existence, because the prospect of a lenient sentence gave Andre an incentive to curry favor with the state and the sentencing judge, an incentive that the petitioner and his codefendants were entitled to explore on cross-examination. See, e.g., State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010) (‘‘[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence’’ [internal quotation marks  omitted]); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir. 1980)  (‘‘[u]nquestionably, agreements . . . to reward testimony by consideration create an incentive on the witness’ part to testify favorably to the [s]tate  and the existence of such an understanding is important for purposes of  impeachment’’)

Having found that there was a Constitutional violation and that the evidence was material to the trial, the Supreme Court had no choice but to vacate the convictions and return the matters to the trial court.

And that’s where we started, as did Adams and his co-defendants. And now they’re back. To start a new life; maybe a different life.

“I’m overcome with joy,” said Johnson’s mom, Gloria, after hugging her son.

“Justice finally prevailed,” declared Adams. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.” He held onto his daughter as he moved through the crowd. “Finally, I get to be with her,” he said. “She was born while I was in jail.”

Darcus Henry has two 14-year-old sons, both of whose lives he’s missed out on.  “I feel like justice is served,” said Henry as he hugged Darcus, Jr.

Alaska bans plea bargaining

Well, it’s happened. Glenn Reynolds and Michelle Alexander are going to get their wish. Alaska – for the second time in the last 35 years – has banned plea bargaining.

Straight up. No deals. No agreements on sentencing. Done, with the swift stroke of the pen of their Department of Law 1. Prosecutors can negotiate charges, but in any case that is a sexual felony or involves domestic violence, they no longer have to discretion to agree upon a sentence in advance.

Essentially, they’re going to charge – or overcharge – and leave the sentencing up to the judge. Welcome to a world of “open pleas” 2.

How does this come about? As with all “great” ideas, it comes about with a horrific rape and murder by a guy who got out of jail earlier than he should have.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple — Touch Chea and Sorn Sreap — in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman.  Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

Well, I mean, if you put it that way. And so:

A new policy from the state Department of Law, effective immediately, instructs state prosecutors to stop negotiating sentencing terms in plea bargains for crimes like homicide, sexual assault, and other major felonies.

I have entirely mixed feelings about this. On one hand, I want to see if this experiment will work. On the other, I’m petrified that there are many people in Alaska who’re about to get fucked.

The system works as it currently does because there has to be a balance. While the defendant can always dangle the threat of trial, it’s usually a hollow one, because the potential for punishment after a guilty verdict – and it’s almost always a guilty verdict – is tremendous. You can bluff only up to a point. Pleas are entered to avoid that excessive punishment and to cut a bargain, essentially.

So what was the problem in Alaska?

Judges can now decide what sentence is fitting during hearings that make more information available to them: victim and witness statements, police reports and other information previously not known to the court.  While judges could always request the information and reject plea deals, Niesje Steinkruger — a retired Superior Court judge from Fairbanks — says that it rarely happened under the old rules.

She describes the absence of information previously presented to judges as troubling.  “When a plea is taken, usually all the judge has in front of her is a pretty thin file that only has the charging document, the complaint or the indictment,” Steinkruger said. “Judges do not have police reports. Judges do not have information from the victim, unless the victim has written a letter or is in the courtroom and provides information to the judge.”

Still not seeing it. What do defense lawyers say?

James Christie, an Anchorage defense lawyer, says the changes are beneficial even for lawyers who are intent on minimizing time served by clients. Christie says he supports the change because it puts an unbiased mediator in charge of decision-making, instead of biased defense lawyers and prosecutors.  “I would much rather have sentencing narrowly tailored in each individual case by an impartial judge than I would have the conditions crafted by somebody who has a dog in the fight, which typically are the prosecutors,” Christie said.

Let’s keep in mind that the prosecutors’ office has revoked the policy of plea bargaining. They’re not revoking it because their prosecutors were too harsh and they felt bad for defendants. it’s probably being revoked because it was too lenient and some guy got out and killed someone and they don’t want to be blamed ever again. This is not a policy change designed to benefit defendants. If it were, it wouldn’t be implemented.

So, you think you’re going to do better with judges? Judges who are almost certainly former prosecutors? Judges who’ve been watching his policy change and thinking oh, now you want us to put our necks on the line?

Defendants typically get higher sentences after “open pleas”. If it weren’t the case, wouldn’t that be the prevalent method of resolution of cases?

When you’re negotiating a plea – at least here in CT, for serious cases – the judge is almost always involved. In order to maintain a semblance of credibility, the prosecutor needs to make a “reasonable” offer: one that isn’t too far outside the norm of sentences for similar crimes and defendants. The judge “mediates” or negotiates and usually isn’t too far from either number.

With an open plea, however, the prosecutor is free to ask for the maximum in each case. And why wouldn’t they? it’s open season. And when faced with the choice of two recommendations: the harshest sentence from the prosecutor and the most lenient from the defendant, where do you think the judge will end up?

Almost everyone quoted in the news reports acknowledges that this change will place a greater burden on the resources of the judicial system in Alaska. So, in a time when the defenders of the accused are already overburdened and overworked, and indigent defense systems are crumbling and the injustices in the criminal system are racking up and sprouting up under the spotlight, Alaska has found the one remaining way to make it even harder for defendants to get individualized justice. You think having to hold a sentencing hearing in every single serious felony case is going to free up time for defenders to work on more cases?

If none of this convinces you, let’s go back to the last time Alaska tried this. It banned plea bargaining in 1975, before the ban eroded and plea bargaining was back in use by 1990. But in 1978, the ban was called “successful”. What do you mean by successful? I’m glad you asked:

[…] the length of prison terms for violent crimes had increased 50 percent; terms for felony sentences rose 200 percent for white-collar crimes and 300 percent for drug violations.

Oh. I see. Success means more people getting fucked and put in jail. You can’t rely on an “unbiased mediator” when the system within which the mediator operates is rigged against the defendant. Such faith presumes that the system is inherently fair. Anyone who has spent a minute observing the system can attest to the falsity of that presumption.

There seem to be some legitimate problems with the way criminal cases are handled in Alaska. Eliminating plea bargaining will only add another.


  1. Yes. It exists. Yes, they call it that.
  2. An open plea is where the defendant pleads guilty to a crime with no agreement or recommendation as to a sentence and leaves the sentence up to the judge. No one in their right mind agrees to open pleas.

In these times

It is good to recall, from time to time:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.

How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Irwin v. Dowd, Justice Frankfurter, concurring.

CT legislature wants to “look” at self-defense laws

Well, it’s officially happened. The knee has been jerked and the members of the State legislature want to “look” at self-defense laws, so as “to make sure that a situation like the deadly shooting of Florida teenager Trayvon Martin can’t happen in Connecticut.”

I don’t even know what that means. Can someone explain that to me? If “situation” refers to the shooting of a black teen, that already happens. If “situation” refers to anyone being shot, that already happens. If “situation” refers to a jury finding that one citizen acted in self-defense when in reasonable fear of imminent death or serious physical injury, that already happens.

Oh. What you mean is your narrative, which is “unarmed innocent black teen gets jumped by aggressive over-eager wannabe cop white guy, who then starts to get beaten so he shoots and kills said teen who was only acting in self-defense”?

That? You want to legislate that specific scenario?

Yeah, that’s already covered. Again, by self-defense.

While we can sit here and argue all day whether “stand your ground” was part of the case or not, the bottom line is this: CT imposes a duty to retreat in a public place if you can do so with complete safety. Florida doesn’t. Which means, already, that CT’s self-defense law is stricter than Florida’s.

  1. You want a survey? Here’s a post at Volokh surveying the states.

An acquittal unlike any other

Just when you think you’ve heard it all with regards to George Zimmerman 1, you’re accosted by this…article…claiming to have uncovered stunning jury tampering in the trial. But you already know, without even reading the article, that that’s just bullshit.

I’ll leave the debunking in depth to the Windypundit, but the gist is that the jurors in the Zimmerman trial did not, in fact, look anything like the 12 Angry Men and were permitted, for two hours on the weekends, to have contact with their families, ergo there was tampering and the verdict is illegal or something.

But hidden in that catastrophe of an “expose” is the far more curiouser point. The author seems to be adamant – in the comments – that:

actually, yes, you can declare a mistrial after the verdict in cases where jury tampering is found. Florida has multiple cases of it on record and validated all the way up to the SCOTUS.

When pressed, he asserts that:

Actually yes, it can. In cases of jury tampering, the entire verdict can be thrown out and the whole case retried, per the laws of the state of Florida.


I checked the books, Florida has a statute of up to three years for such a mistrial declaration.

Of course, there’s no cite to any of this, nor is there a clarification of what “verdict” entails. Here’s a hint if you can’t wait for literally the next sentence: verdict means guilty verdict, because it is a violation of the Fifth Amendment to retry someone after an acquittal.

Nathaniel Downes, meet Justice Brennan:

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 (1896).

And Justice Day:

As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. United States v. Sanges, 144 U.S. 310.

There is, of course, no provision or allowance for the declaration of a mistrial after a jury’s acquittal of a defendant because of a discovery of “juror misconduct” which is nothing more than jurors acting like human beings and talking to their families.


Except that there’s Harry Aleman 2. Harry Aleman is now serving a sentence of 100-300 years in jail, after being tried and convicted of murder in the late 1990s. Harry Aleman is the subject of a very unusual ruling. You see, in May 1977, Harry Aleman was acquitted of that same murder.

And so arises the one strange instance in the last 50 years 3 where someone was successfully re-prosecuted after a prior acquittal. But to underscore how unusual and bizarre this is, the reasoning for permitting this reprosecution was that he bribed the judge to acquit him in 1977.

Yep. Straight up bribery of Judge Frank Wilson – $7,500 worth – to acquit Aleman of the charge of murder. Eventually, someone got wind of it, started a new prosecution and Aleman argued that it was prohibited by the Double Jeopardy Clause.

In what can only be described as an outcome-oriented decision, the Seventh Circuit Court of Appeals affirmed the re-prosecution, deftly arguing that since the judge was bribed, Aleman was never “in jeopardy” of conviction and thus, the Clause didn’t apply. Get it? He wasn’t in jeopardy.

The legal conclusion urged by Aleman might not be an unreasonable application of Supreme Court precedent,[6] but the highly deferential standard of collateral review leads us to hold that the contrary interpretation —the one adopted by the Illinois courts in this case — is also not unreasonable. The Illinois courts viewed the authority cited by Aleman as begging the question; the Double Jeopardy Clause may well be absolute when it applies, see Burks, 437 U.S. at 11 n. 6, 98 S.Ct. at 2147 n. 6, but determining if it applies is the real issue in this case.

Similarly, the State argues that the protections of the Double Jeopardy Clause only extend to a defendant who was once before in jeopardy of conviction on a particular criminal charge; the State contends that, by bribing Judge Wilson, Aleman created a situation in which he was never in jeopardy at his first trial. The first trial, therefore, was a sham and the acquittal there rendered has no effect for double jeopardy purposes. Under this theory, the State was free to re-indict him because he has never been in jeopardy of conviction on the Logan murder charge.

SCOTUS held its nose while denying certiorari and the rest is history, relegated to the stacks never to be cited again. Literally. No one has cited that case for that proposition in the last 16 years 4.

That’s because, as this law review article willed into existence solely by the Aleman case argues, the downsides of carving out such an exception are tremendous 5. The purpose of the Double Jeopardy Clause is that the Government gets only one opportunity to bring its might and power to bear on the individual and if the Government is unable to use that opportunity to convince 6 or 12 people that the weight of its evidence proves guilt, then they are not deserving of a second chance.

If we are to permit States to continually re-try people until they get a favorable verdict, then defendants will forever live in fear of prosecution and the burden will be too great to bear. While the State may have (comparatively) unlimited resources, no individual would be able to match it and would necessarily eventually succumb to pressure and either admit guilt or be unable to defend himself. Who is to determine that the acquittal was obtained in an illegal way? What is the standard of proof? What is to stop vindictive prosecutors from asserting, time after time, that the acquittals were products of tampering or other illegality and thus keeping the individual forever under the unyielding microscope that is the State’s attention? Convictions would be the product of tyranny and coercion rather than an adversarial testing of the evidence.

Certainly, arguing that the principles that we hold so dear should be ignored and altered because of one unfavorable and undesirable result creates a situation that undermines those rights for all of us.

  1. Yes, he apparently did help rescue a family of 4 from an overturned vehicle.
  2. Hat Tip to Windypundit for this as well.
  3. That I could find.
  4. But see this case from the First Circuit which is tangentially but not really related.
  5. Even this other law review article, also spurred into existence by the Aleman case, which seems to reach the opposite conclusion, carves out an exception only in cases of judicial misconduct.

“Lie-detector Indian”

Apropos my last post – and in its own right – read this compelling tale of the first case Bill Howe handled. A taste:

Newsweek, which ran the story after the trial, used the exotic title “Lie-Detector Indian,” as if my grandfather possessed supernatural powers: half witch doctor, half defense attorney.

Justice is allegedly blind, but the court of public opinion follows no rules, now or in 1953. And, when the case involves a former felon and a murdered girl, the truth can be buried deeper than Phyllis Jean Warren ever could be.

My grandfather knew better. While, like any man, Bill Howe had his flaws, his trademark characteristic was an almost stubborn fairness. Certainly he understood how much he was risking in taking Youngwolfe’s case. Even so, I suspect it simply never occurred to him not to. He had an innocent man to defend and didn’t give a damn about the consequences, personal or professional. That sounds just like him.

H/T: Jared.

The discomfort of principles

One of the first things you learn when you become a criminal defense attorney – and really learn, not just recognize ideologically – is that your emotions will get in the way of your job. I can almost guarantee that on the first day of your job as a defense lawyer, you will see something that is morally repugnant to you.

The second thing you learn as a criminal defense attorney is that your emotions are to be ignored. It will take time to achieve full zen, but the process starts on that day. That’s not because you are a heartless, soulless person who cares only for the defendant and not the victim, but that you have to be.

Because emotions and principles clash, every day, all the time. And you in order to effectively stand up for and defend the latter, you have to sacrifice the former.

Take the ACLU, for instance. A venerated champion and defender of civil liberties, the ACLU last week demanded that the Department of Justice investigate George Zimmerman to see if he can be prosecuted by the Federal Government after being acquitted by the State of Florida 1.

  1. For more on dual sovereignty and related issues, see this post at Overlawyered.