Investigation into prosecutorial misconduct means no questions asked

On April 14th, I wrote about a Kentucky prosecution for murder during the midst of which an exculpatory statement was discovered in the truck of a detective and it was made known that the statement was “accidentally” suppressed by the former prosecutor, Tom Van De Rostyne. The man who replaced Van De Rostyne, Commonwealth Attorney Wise, promised an investigation into the suppression.

Turns out, by investigation, he meant “ve vill ask ze qveschuns!

In a motion filed last week, prosecutors acknowledge that they failed to turn over a summary of an interview with Hammond’s former girlfriend, Princess Bolin, until it was discovered after Bolin had testified, but asked a judge to quash the subpoena seeking testimony from Wine about what happened.

The case ended in a mistrial and the defense has asked that it be dismissed, in part, because of prosecutorial misconduct. A hearing could be held as soon as Wednesday on whether Wine will be called to testify.

Assistant Commonwealth’s Attorney Dorislee Gilbert said in her motion that, “while it might be inviting to want to know the reason that this happened, the reason it happened is not relevant” to the issue before the court, which is whether the case should move forward to another trial or be dismissed.

It only matters that the evidence was not turned over; the how and why of it is irrelevant because it involves a prosecutor. The fact that the reason for withholding the exculpatory information may lead to other evidence that may have been suppressed has apparently escaped the prosecutor seeking to quash the subpoena.

This attitude is an increasingly prevalent one wherein “the people’s attorneys” are answerable to no one but themselves. When you vest that much power in the hands of people, exculpatory statements naturally find their ways into trucks.

Fighting John Murphy: It gets worse

Everyone’s heard of Fighting John Murphy by now: the judge who acted like an immature tyrant and punched a public defender in the hallway.

He’s agreed to go to anger management and take a paid leave of absence, despite this glowing, fawning biographical piece in the Wall Street Journal that highlights his extensive military history.

Unsurprisingly, the chief judge of his judicial district hasn’t taken too kindly to Fightin’ Murphy’s actions and has issued a strongly worded statement.

Surprisingly, Judge Kopf of Hercules and the Umpire authored two posts yesterday, both seeking to minimize and absolve Fightin’ Murphy of responsibility in this fracas. The first one alleges that the PD laid the bait and the judge took it. Which is just completely absurd if you’ve watched the video. When he got pushback, he clarified that the judge’s behavior was unacceptable, but understandable given the context that the public defender was an “ankle-biter”.

I don’t know what that means. Is that euphemism for a zealous advocate for one’s client? Then I’m an ankle-biter too. Does that give a judge license to humiliate me in open court and then threaten to beat me and then actually lay a hand on me?

This mentality of Fightin’ Murphy and the implication of the “context” of Judge Kopf is evidence of an all-too familiar prevailing sentiment of the public and court personnel toward public defenders. We are scum, lower than the clients we represent and, as Rodney Dangerfield said, we don’t get no respect.

To try to justify Fightin’ Murphy’s actions is to perpetuate that myth that we are annoying irritants, who are relegated to the ankles of the giants that roam the courtrooms: the judges and prosecutors. They are the ones doing good; we are miscreants who are so low that we can never reach beyond their feet.

But you know who’s the only one who’s ethically challenged? Fightin’ John Murphy. The video that has gone viral is only a few minutes long. When you watch the entire video, you will see that the judge does something insidious: he gets the lawyer banished from the courtroom and then returns and proceeds to talk to the represented defendant and tries to get him to waive his speedy trial rights – something that the lawyer refused to do. Luckily, the client refused as well. He then proceeds to talk to the next defendant, also represented by Weinstock.

[Video is below the fold. Sorry, but it autoplays, so be warned.]

A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

Judicial thuggery: FL judge assaults public defender (Update)

[2nd Update: A second post, highlighting further ethical violations by the judge.]

[Update below]

An outrageous video out of Brevard County, Florida (why is it always Florida?), in which a judge is seen verbally abusing a public defender who is ready for trial and refuses to waive his client’s right to a speedy trial, and then, according to the audio and witnesses, assaults the public defender in the hallway.

Here’s the mind-boggling video:


Here is the dialogue:

“If I had a rock, I would throw it at you right now,” Murphy said.  “Stop pissing me off.  Just sit down.  I’ll take care of it.  I don’t need your help.  Sit down.”

“I’m the public defender, I have the right to be here and I have a right to stand and represent my clients,” Weinstock said.

“Sit down,” Murphy said.  “If you want to fight, let’s go out back and I’ll just beat your ass.”

“Let’s go right now,” Weinstock said.

That’s completely reprehensible behavior from a judge. Granted, Weinstock probably shouldn’t have taken him up on his offer, but sometimes you need to stand up for yourself.

The incident continues, because a man wearing robes who doesn’t know how to behave in court, certainly has no qualms about escalating when in the hidden recesses of his power palace:

Weinstock’s supervisor told Channel 9 Weinstock thought they would just talk out the problem, but he said there were no words exchanged, just blows thrown by Murphy.

“The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck,” said Blaise Trettis, public defender of the 18th Judicial Court. “There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

The judge wasn’t arrested and wasn’t immediately reported for disciplinary action. Both of those are unacceptable. The ethics committee shouldn’t need anyone to report this to them to start an investigation. And the state’s attorney’s office needs to review the video and conduct interviews immediately to determine if criminal charges should be filed. This isn’t just an assault on an individual, this is an assault on the system itself.

Judges, of all people, are supposed to understand and believe in our judicial system, what with them being the guardians of justice and whatnot. They should have a firmer grasp on the roles each party has to play in the adversarial system. His behavior here shows that he thinks there are laws for everyone except him.

This person doesn’t deserve to wear the robes and have the power to decide the fates of countless others before him, who are, in reality, just as disempowered as the public defender.

Do you believe, for one second, that if the public defender had put his hands on the judge, that he wouldn’t have been tased, handcuffed and put in lockup by the marshals before you could dial 911?

When judges like these start to believe in the myths about their own greatness and power, you get judicial abuses like these that aren’t just metaphorical.

Update: Looks like Judge Kopf has posted on this and in his post he lays the blame on the public defender for setting up the bait and the judge for taking it. I think his perspective might cloud his judgment here a bit, unless you consider refusing to roll over on your clients’ speedy trial rights a “bait”, in which case, I guess it makes it obvious that some view this as no more than a game.

SC public defender forgets meaning of adversarial

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What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

“Stop and frisk on steroids”

A terrific piece of investigative journalism by Fusion TV reveals what they call “Suspect City” – Miami Gardens in Florida, where, of a population of 110,000, nearly 65,000 people have been stopped by police since 2008.

Fusion’s analysis of more than 30,000 pages of field contact reports, shows how aggressive and far-reaching the police actions were. Some residents were stopped, questioned and written up multiple times within minutes of each other, by different officers. Children were stopped by police in playgrounds. Senior citizens were stopped and questioned near their retirement home, including a 99-year-old man deemed to be “suspicious.” Officers even wrote a report identifying a five-year-old child as a “suspicious person.”

From The Atlantic, which covered this:

After a 6-month investigation, the TV network Fusion has documented a racist, illegal policing strategy that a local public defender calls “stop and frisk on steroids.” One Miami Gardens police officer reports that his supervisor ordered him to stop all black males between the ages of 15 and 30. Just 110,754 people live in Miami Gardens, yet going back to 2008, police have stopped and questioned 56,922 people who were not arrested. There were 99,980 total stops that did not lead to arrests, and 250 individuals were stopped more than 20 times. 

Racism is alive and well, America, and it’s far more than some ads on TV or some old white guy saying racist things to someone on the phone. This is real and it’s happening under our noses and we don’t care.

 

Connecticut still lacking in its treatment of children

My latest at the CT Law Tribune is up and it focuses on the disparate treatment of children when they come into contact with the criminal justice system and we suddenly treat them as the “other” criminal, and not the children that they are.

The column focuses on three areas of injustice:

1. The legislature’s failure to enact legislation in light of Miller v. Alabama that not only eliminates LWPOR as a mandatory punishment but also provides a second chance for all juvenile to demonstrate their rehabilitation.

2. The legislature’s completely blockheaded legislation of years past that vested only the prosecutor with the power to return cases to the juvenile docket and their seemingly oblivious decision to enact harsh mandatory-minimum sentences, which would then apply to these 14 year olds automatically transferred to adult court.

3. The legislature’s failure to correct an incongruence in the juvenile statutes that prohibits the use of statements taken from juveniles without parents or guardians present, but if the case gets transferred to adult court, then that very same statement is somehow now admissible as evidence of guilt.

And, as if on cue, here’s a great photo series in Time magazine focusing on the story of one family’s loss to juvenile incarceration.