Snitches get people wrongfully convicted: another exoneration

It’s not cute enough to be on a poster, or a warning sign in the neighborhood, but it should be. The Innocence Project estimates that about 18% of all wrongful convictions include snitch/informant testimony. Time to add another to that tally.

Last Friday, a judge in Los Angeles vacated the murder conviction of Susan Mellen, who had spent 17 years in jail for a crime she did not commit.

The judge said the only evidence against Susan Mellen during her 1998 trial was the testimony of “a habitual liar” who claimed that Mellen had confessed her involvement in the killing of a former boyfriend.

“I believe that not only is Ms. Mellen not guilty, I believe, based on what I’ve read, she’s innocent, and for that reason, I believe the criminal justice system failed,” said Superior Court Judge Mark S. Arnold.

The habitual liar, now deceased, was a woman named June Patti. She had the usual trappings of a snitch: a drug addict who constantly was involved with the police. For instance:

One year she called 800 times, recalled Skagit County Sheriff Will Reichardt.

For a decade, Patti was involved in more than 2,000 police calls or cases in the county. She was accused of theft, trespassing, fraud and harassment in some, but many incidents involved her complaints and tips about other people.

So much so that the Skagit County Public Defender’s office had a file on her and a brief that they submitted in every case in which her name was mentioned, resulting in routine dropping of charges by the prosecutor.

But none of that was in play at Mellen’s trial, despite the fact that almost no other evidence supported her guilt and that she had a rock-solid alibi. And, of course, her cause wasn’t helped by the obligatory poor defense attorney:

Her defense was overseen by a divorce attorney who had been disciplined by the state bar for failing to perform legal services competently. He had taken the job at the request of Mellen’s mother, a friend. The entire case, he said, rested on Patti’s word.

Patti’s word, described by her own sister – a police officer:

Patti’s own sister, a Torrance police officer, described her as a pathological liar. She recently informed the district attorney’s office that she told the same thing in 1997 to the lead detective handling the murder case. Los Angeles Police Det. Marcella Winn “asked me about my sister and I said, ‘My sister is probably the biggest liar I’ve ever met in my life and if I don’t see something happening directly that she’s involved in, then I don’t believe anything she has to say,’” she said in a recorded interview with a prosecutor and two investigators.

Finally, thanks to the work of a small Innocence group and its lawyer Dierdre O’Connor, Mellen is free to go home. But not after 17 years in prison for a crime she didn’t commit. Reintegration is tough, but it’s better than being in jail.

The horror of teachers making slasher films


The Twerking Undead

Hi America. There is a scourge in our nation today and that is sex. And gore. And children who might potentially be exposed to gore. And sex. and Violence. And bikinis. And those infernal zombies! They must be stopped! They must be eradicated from our puritanical nation and our children’s eyes scrubbed with caustic acid to remove all traces of heathen filth!

Wait, wait. Where are you going? Hollywood? Haha, no, no, there’s nothing wrong with Hollywood’s gratuitous nudity and glorification of violence. I’m talking about the bikini-slasher-horror-films written and produced by two Connecticut school administrators on their private time under fake names!

You see, my good friend Matthew Kaufman, long-time storied investigative journalist at the nation’s oldest flagging newspaper ran a tremendous expose the other week, doxxing a middle school principal and a guidance counselor as the shameful, sinful, pedophiles behind Moongoyle entertainment, which produces:

fairly typical bikini-and-blood slasher flick[s], featuring gratuitous nudity, sexually charged dialogue and a lead actress who “bares all as a kinky serial killer who loves to give her victims a satisfying but often morbid peep show.”

America, this cannot stand. I am outraged by the fact that these men – and remember, they are men, the worst kind of species God has made – are making pornographic movies with some nudity maybe I don’t know I haven’t watched it, but definitely some zombie devil nonsense and then they are going into our schools to touch our children(‘s hands and minds).

I am offended by this and if there is anything I know about the First Commandment it is that whatever offends me is illegal and must be stopped! This is America – the land of ME!

These creeps have no First Commandment rights because they are making movies with naked women in them while also teaching children! What can they be teaching our children?

Thank God they are now placed on paid leave. I cannot agree more with this letter to the editor in the Hartford Courant. This man had the prescience to write this letter three days before the story broke! Now there’s an American!

While they are on leave, the Obama government should investigate what else they do: do they drink? Do they have the sex? Someone should check their palms! Can you imagine, America, if they masturbate and their hairy palms come into contact with our children? The horror! These infidels should not be allowed in our schools! This is Catholic nation and any teachers who do not abide by catholic ideals should be fired immediately! This is how our country has given birth to the gays and pedos and blacks. But not lesbos, they’re fine with me.

Tolerance is the wrong message to send our children. We cannot make them weak and learn to accept other people’s viewpoints. We have to raise them to eradicate all filth that we disagree with. That is the only way that America will go back to its former glory. Remember Benjamin Franklin, the greatest man who ever lived, who said that “I do not agree with what you say and I will fight you to the death to prevent you from saying it!”

So go, America, to this terrorist sympathizer page and tell these horror loving, bikini ogling creeps that they aren’t welcome here. What is this, Japan?

See also.

Some lawyers in CT are also mandated reporters

That's your constitution in the middle, getting fucked over.

That’s your constitution in the middle, getting screwed over.

I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.

In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.

In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:

(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.

The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.

What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.

What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.

All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.

Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.

But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.

Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.

This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.

Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.

Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.

Defense social workers shouldn’t have to rat out their clients

[This is my latest in the CT Law Tribune and Part One of a two-part series. Part Two is here.]

Child abuse is a terrible thing. There is no dispute that in the hierarchy of most despicable crimes, the abuse – physical or sexual – of a child takes one of the top three spots. If the investigation, prosecution and punishment of child abuse were a policy that could be realized without coming into conflict with other important policies, this column would end here. Clearly it does not.

Currently, there is an untenable conflict between the law on mandated reporting of suspected child abuse and the Constitutional right to zealous, conflict-free representation of children and adults accused of crimes. The legislature had an opportunity to rectify this last session, but ultimately failed to do so. It should not be so remiss again.

While we, deservedly more so in recent times, have placed greater emphasis on the protection of children, we also, in this country, give great deference to our rule of law. Those great principles carry with them certain uncomfortable rights – that the accused has to be given notice of the charges, that he cannot be forced to give evidence against himself,that he has an attorney to represent him and that his attorney represents him free of any conflicts of interest.

Wigmore, in his seminal Treatise on the Anglo-American System of Evidence in Trials at Common Law, wrote that the importance of the social policy of attorney-client privilege has never been disputed. He wrote that by the end of the eighteenth century, the justification for the attorney-client privilege focused on the importance of providing an opportunity for a frank discussion between the client and the attorney. The risk of not having such a privilege is that clients would not feel free to provide all the information relevant to their legal conundrum and would this hinder attorneys from providing adequate representation. This would, in turn, diminish the ability of the court system to do justice.

This is why every code of professional conduct for attorneys involves rules on confidentiality and delineates a very strict set of circumstances under which attorneys can reveal information that would expose a client to criminal prosecution. While attorneys thus far have escaped the reach of the child abuse reporting laws It seems as though some attorneys in CT are also now mandated reporters, but this post focuses on another integral member of the defense team has not: the social worker.

The social worker is an absolutely critical component of any individual’s defense because people charged with crimes involving the abuse of children typically aren’t evil people who do it for the sport. It is far more likely that the abuser himself has been abused or has mild to severe mental health issues and may come already diagnosed with a disorder. Many of them are low-functioning and have mild-to-moderate mental retardation or are on the cusp of such a diagnosis. Even those that the public might label as sociopathic have a diagnosis and require understanding and counseling. Sadly, a large number of them are also children themselves, stuck in an uncooperative juvenile system.

The defense attorney’s job isn’t limited to defending the accused at trial: It also involves investigating and providing mitigating information to help put the offenses and the individual who is alleged to have committed those offenses in context and perspective and thus negotiate a just and fair resolution. Lawyers, being lawyers, aren’t social workers or equipped with mental health training. Which is why every public defender office in the state employs one or more social workers.

The social workers can’t do this job, however, if there is a legislated divide between them and their client. Connecticut General Statute 17a-101a – the mandated reporter statute – does just that. Not only does it set an extremely low bar for the reporting of child abuse – “reasonable cause to suspect or believe that any child under the age of eighteen years has been abused or neglected…or (3) is placed at imminent risk of serious harm” – it also includes any social worker as a mandated reporter.

This means that if a social worker, during the course of fulfilling the Constitutional duty of providing effective representation of an individual accused of a crime, learns of information that merely causes her to suspect that a child under eighteen has at any point in the past, no matter how remote, been “abused” or “neglected”, that social worker must destroy that confidential relationship, must violate the individual’s right to conflict-free representation and essentially became an agent of the government in an instant.

The United States Supreme Court just granted certiorari in a case that implicates these very concerns. In Ohio v. Clark, the Court will decide whether being a mandated reporter – a teacher in that case – makes a person a law enforcement agent, thus rendering any statements made to them testimonial. If the Court rules that mandated reporters do become agents of the State then the already fraught reputation of public defenders will take a further hit. Clients are loathe to trust us public defenders because we are “paid by the State” and we only do this job while waiting to become prosecutors. Imagine if our social workers have to testify against our clients?

Last year, Chief Public Defender Susan Storey eloquently explained these problems [PDF] to the legislature in written testimony submitted. Language that would have solved this problem was added to a bill and passed out of the Judiciary Committee, but mysteriously removed from the final language that gained passage in the legislature:

(14) any social worker, except a social worker employed or retained by an attorney or law firm who, in the course of his or her duties for such attorney or law firm, has knowledge of a communication from a client of such attorney or law firm about such client that would otherwise require such social worker to make a report pursuant to section 17a-101a

Whether that was the result of scared legislators or intervention by DCF or some other state agency, I do not know. What I do know is that now, in our criminal and juvenile courts, every person accused of a crime will receive cautious representation. Attorneys will be hesitant to involve social workers and clients with mental health issues may have to make the difficult choice of being frank in an effort to seek treatment but exposing himself to potential further criminal charges, or being circumspect and not getting the help he deserves.

This is to say nothing of the horrors in juvenile court where delinquents are mere children who come from messy homes and complicated backgrounds. Making public defender social workers mandated reporters does nothing to help children in difficult situations and serves only to further mistrust and perpetuate the chaos and disaster in their lives.

As Chief Storey suggested in her testimony, public defender social workers should fall under the umbrella of the attorney-client privilege and the same standard for disclosure of confidential information that applies to attorneys should apply to social workers.

The policy interest in having any social worker report any suspected abuse cannot be so rigid as to not accommodate the defendant’s right to conflict-free representation.

Facts are what judges say they are

A fact, in the real world, is defined as: something that truly exists or happens : something that has actual existence. In the legal world, a “fact” is defined as: something that the jury could “reasonably” have found. But even that’s not certain. Because judges also “find” facts, based on the evidence that they hear.

But, you say, that seems incredibly subjective. And subjective it is. Because what the judges hear and how they interpret what they hear is also colored by their own opinions of important things like credibility – who to believe and how much to believe. It’s also informed by their personal opinions, experience and beliefs about the world.

I wrote most recently about the importance of making sure that “facts” on the record are as clear and as indisputable as they can be and I’ve written in the past about the fallacy of calling legal facts facts and so it comes as no surprise that this paper, written by a former police officer turned law professor, makes the claim that Supreme Court decisions involving police and police concerns are based on unsupported “facts”.

‘I’m a trial lawyer’ is a terrible attitude

[This is my latest at the CT Law Tribune]

A few weeks ago, I attended an oral argument before a panel of the Appellate Court, which was hearing a direct appeal from a conviction after trial. There were interesting issues before the panel and the defendant had been represented by a colleague, so I made it a point to attend and show support.

While the interesting issues were, indeed, discussed, an all too familiar refrain resonated throughout the argument: a discussion by the judges about the clarity of the facts in the record and what could – and could not – have been before the jury. There were assumptions made about the facts as presented to the jury and they were, of course, viewed in the light most favorable to sustaining the conviction.

As I left the courtroom, I was struck by several things: first, the absolute necessity of watching oral arguments; second, the unfairness of appointing judges who have no criminal law experience to the appellate court who then rule on issues stemming from criminal trials; and, most importantly, how the practice of law for the criminal defense attorney must be a comprehensive endeavor that encompasses not only pre-trial and trial ability, but also a recognition of the long-view.

I’ve written before about the willingness of appellate courts to avoid deciding issues of fact and law and turning their backs on Constitutional violations by requiring impossibly high standards of performance by defense attorneys. The precision required of defense attorneys in raising and preserving claims for them to be even considered on appeal leaves the precision required before finding someone guilty beyond a reasonable doubt obscured in its dust.

But today I turn to the faults of my fellow defense attorneys and a prevalent attitude that there are two types of defense lawyers: trial lawyers and appellate lawyers.

To those that may be a bit surprised at this fairly simple statement of fact, let me elaborate that the implication of the dichotomy is that trial lawyers are only trial lawyers and appellate lawyers are only appellate lawyers. In other words, trial lawyers see their job as trying – and hopefully winning – trials without regard to what happens on appeal. If you’re relying on an appellate reversal, goes the philosophy, you’ve already lost.

While there is a certain superficial appeal to this thinking, it is fundamentally flawed and dangerous. How, exactly, is one to “practice law” if one does not know or understand the law. Knowing and understanding the law is – or must be – a broader concept than knowing the elements of, say, murder. Practicing law must mean knowing what the law is and what the law isn’t. It must mean knowing how the law has changed, or where it is bending and whether those are issues to raise in the representation of the current client. Practicing law must also mean knowing that is required of oneself as a criminal defense attorney in order to protect a client’s rights.

The “I’m a trial attorney” attitude shows a complete disregard for a client’s Constitutional rights. A client is owed due process: which means not only that the State has to prove its allegations beyond a reasonable doubt, but also that the manner in which it does so cannot offend the Constitution.

This may take many forms: the obvious like a lack of probable cause for a search, or a clearly inflammatory argument by the prosecutor during closing, to the more nuanced: a failure to file a defense request to charge the jury or to object to specific instructions, or to ensure that the reasons for objecting to certain testimony are clearly and succinctly stated on the record.

When the lawyer doesn’t explicitly state an objection on the record or make a clear and precise request, appellate courts are left to interpret the resultant vagueness in any way they choose and that usually doesn’t benefit the individual defendant. Further, a lawyer who doesn’t follow the strict rules set up by appellate courts to preserve claims of error simply provides those courts an easy way to dodge tackling difficult issues in unsympathetic cases.

The causes for these failures by defense attorneys are the subject of some debate. To be certain, it is unrealistic to expect attorneys to remember to do everything perfectly in the frenetic heat of the battle. A trial is a rush of days, with little sleep and tremendous stress. Even the most prepared often miss things and even the most prolific often overlook the obvious.

Unfortunately those who populate our courts of review don’t have that same experience and thus cannot relate to the pressures of being in a contested trial that lasts weeks. The luxury of hindsight, years on, combined with the obliviousness of the demands of that job allow courts to lament the missed punctuations in the preservation of issues and to hedge facts because it may be somewhat ambiguous upon a reading of the transcript what was abundantly clear to everyone present in the courtroom.

But that is a ship that the defense attorney cannot steer. No matter how many times I wish to invite appellate judges to second chair my trials to see what it’s really like in a courtroom, I know that they will not come.

So it falls upon us, the trial lawyers, to ensure that we do everything we can to make the record as clear as it can be. As lawyers who prepare for trial, we become intimately familiar with the facts of the case, the testimony of witnesses, their prior statements, our theories and strategies. As trials progress, the presiding judge and prosecutor also share that familiarity and a sort of shorthand descends upon it all.

I’ve read appellate decisions which held that I had not properly preserved an issue, been shocked because that conclusion conflicted directly with my recollection of the event and been miffed when I had to grudgingly admit that the appellate court’s reading of the statement in question was a plausible one.

We must put aside our ego and our hubris and realize that the system is engineered to defeat our clients. Most trial lawyers recognize the obstacles in the pre-trial and trial arena, but become surprisingly unconcerned by the existence of the very same obstacles in post-conviction review. This makes no sense.

Back in the old days, trial lawyers would handle their own appeals. Perhaps it is time for a return to that era, at least once, so trial lawyers can realize that everything that they do – and don’t do – impacts the ability of their clients to get vindication.

Otherwise, they might as well sleep through the trial.