It depends on what you mean by a fair trial (updated)

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial1, a right to a fair trial2 and a right to a trial by an impartial jury3.

Concurrently, the public and the press have a First Amendment right of access to courts and to trials4. These rights combine to form a “presumption of openness”5 and access to courts and judicial documents.

The core value of this right to a public trial is:

Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

“[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp.

An impartial jury is one which comes into a trial without any preconceived notions and can put aside whatever biases they may have formed and decide the case based on the evidence presented to it. Just because jurors have been exposed to news coverage doesn’t mean that the defendant is deprived of due process6. Jurors are not required to be “totally ignorant of the facts and issues involved” and prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance7.

Sometimes, however, these core rights are at loggerheads. This is when the public’s right of access and the media’s right to report on court proceedings creates an atmosphere of publicity in which it is impossible to find and seat impartial jurors. This happens in high profile cases where there is such extensive media coverage with inflammatory information and facts that create irreversible biases among potential jurors. In a case like that, the defendant need not prove that each potential juror is actually biased against him, but whether the pretrial publicity constitutes an “extreme circumstance where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”8 Since this would be done pretrial, most defendants would seek to have the trial moved to another location where there isn’t such publicity, or wait a long time for the prejudice to abate.

This Constitutional lesson is currently being enacted for the American public in Boston, where Dzokhar Tsarnaev is being tried in a capital case for the Boston Marathon bombings.

That there is immense pretrial publicity in this case is undeniable. The Boston bombing was the top MA story of 2014. This has already prompted Tsarnaev’s lawyers to file three motions for change of venue. [UpdateThe first two were rejected All three have now been rejected [PDF] as was a subsequent Writ of Mandamus filed in the 1st Circuit Court of Appeals [pdf] which that court denied [PDF].9 This is because courts like to think that jury selection can weed out the partial jurors and uncover those hidden gems who can profess to be impartial. In fact, it’s one of the minimization mechanisms required as an alternative to a change of venue.10

It is with that in mind that it seems the district judge and the court of appeals denied Tsarnaev’s first attempts at changing venue.

Then came jury selection, which has been an unmitigated disaster. According to his third Motion for Change of Venue [PDF] and his Second Writ of Mandamus [PDF], juror questionnaires and jury selection have uncovered irreparable biases:

[A]n extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified “connection” to the case, or both.

Fully 68 percent of prospective jurors already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.

Even more striking, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.

The news media has done an equally impressive job of documenting the utter futility of seeking impartial jurors and the investigations of potential jurors’ social media accounts have uncovered biases that may have otherwise remained hidden. In fact, a new poll published today in the Boston Globe reveals that almost 90% of people think he is guilty or probably guilty.

guilty3

11 days of selection have passed, 142 jurors have been questioned and we still don’t know how many, if any, have been selected11.

The First Circuit ordered the Government to respond to Tsarnaev’s Writ today. Whether it rules today and in what direction remains to be seen, but all of this does raise the question:

What do we really mean by a fair trial? Given the juror responses and the polls conducted, it seems obvious that everyone thinks Tsarnaev is guilty. Then why are we persisting with this charade in Boston? Our rules of law require that a decision be made only on the basis of the evidence presented in court. Yet if this trial is permitted to remain in Boston it will become clear that what we mean by “Fair Trial” is merely an “appearance of a fair trial” without regard to reality. Fair trial would mean “a fair trial to the extent that we can provide one under the circumstances”. The right decision here would be to move the trial but can we get past the legalese and make that difficult decision?12 Or is it going to be “good enough” for us to say that “well, we know he’s really, really guilty, so seriously, c’mon guys, the Constitution doesn’t count here”?

The Tsarnaev case has already once delivered a beating to a core Constitutional right. Will there be a second?


  1. Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a … public trial.” Article 1, Section 8 of the Connecticut Constitution, as amended by Article XVII of the amendments to the Constitution, provides: “The accused shall have a right … in all prosecutions by information, to a speedy, public trial by an impartial jury.”
  2. State v. Crafts.
  3. Skilling v. United States.
  4. Press-Enterprise.
  5. Nixon v. Warner Comm’n.
  6. Murphy v. Florida.
  7. Irvin v. Dowd.
  8. State v. Marra.
  9. The Second Writ of Mandamus is still pending before the 1st Circuit.
  10. State v. Marra; U.S. v. Sabhnani.
  11. This is because the judge has decided to keep secret the actual selection or removal of jurors and challenges for cause, another First Amendment violation that requires a separate post. The Boston Globe has challenged this here (PDF) and there’s still no hearing or ruling.
  12. This might also explain the trial judge’s ludicrous dismissal of the presumption of innocence.

Good news, everyone

A couple of updates to some pretty awful stories of the last week, both of which involved the arrest of God’s Lawyers™ by police officers.

First, in Allegheny County, PA, the charges against Andrew Capone, who misled the court about whether he had seen his client on the day the client fled from court, were dismissed. Prosecutors, not being used to cases being dismissed over their objection, are still fuming and vowing further action.

Secondly, the completely idiotic arrest of public defender Tillotson by some moronic San Francisco cop that was caught on tape, will also lead to no charges, because sanity finally prevails. In a departure from the above case, while there will be further investigation here, it will be of the police department and their policies and procedures.

Seattle PD’s arrest of black man is every problem with the justice system in a nutshell

If there were a video and accompanying story that could be used as a textbook example of every problem with our criminal justice system, this is it. First, watch the cruiser cam video (you only need watch from 1:40 to 7:40):

What the video shows is Wingate standing motionless at the crosswalk and Officer Whitlatch pulling over and immediately asking him to drop his weapon and then claiming that he swung it at her.

She then cautions him that the entire encounter is being recorded. Wingate stands there dumbfounded, like someone who never had any negative interactions with anybody:

Wingate is a 70-year-old Air Force veteran and retired King County Metro bus driver had a daily habit of walking and using a golf club like a cane, according to his attorney, Susan Mindenbergs.

But Whtilatch’s version is quite different. This is from the police report:

In the police report filed by Officer Coles about the incident, Whitlatch said “she observed him look at her and aggressively swing his golf club in the direction of her patrol car.” “Because Wingate was still in possession of the golf club,” Coles wrote in the report, “and she was fearful of being assaulted by him, she said that she kept her distance from him upon exiting her patrol car.”

There are four disconcerting things about this:

  1. It seems that Whitlatch is a long-time racist:

Facebook user Cynthia Whitlatch accuses Davis of being a “black racist” and writes, “If you believe that blacks are NOT accusing white America for their problems then you are missing the point of the riots in Ferguson and the chronic black racism that far exceeds any white racism in this country. I am tired of black peoples paranoia that white people are out to get them. I am tired of hearing a black racist tell me the only reason they are being contacted is because they are black solely because I am NOT black.”

in a police department that has had several concerns about systemic racism:

Officer Whitlatch is one of 123 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely use excessive force.

And obviously a liar, as evidenced by the disconnect between her version and reality.

  1. The police don’t seem to think that it has anything to do with race:

“They know that had this been a white man,” said [former Democratic Washington State representative Dawn Mason], “we wouldn’t be here.” But, in fact, it appears they don’t know that. The Seattle Police Department insists racial bias played no role in the incident.

“If this person had been white,” said SPD spokesman Sean Whitcomb, speaking by phone on Tuesday, “I would imagine it would have been the same outcome. We don’t believe this was a biased policing incident. We don’t believe the officer acted out of malice or targeted this man because of his race.”

At the East Precinct, Mason said, they watched the video with Assistant Chief Nick Metz and East Precinct captain Pierre Davis.

But the police commanders, including Metz and Davis, didn’t see it that way. Mason said they “tried to convince me nothing was wrong.” Metz, in particular, “kept trying to convince us nothing was wrong here. He defended the officer.”

  1. That Whitlatch’s “punishment” was a talking to:

Whitlatch has not been disciplined. “This did not go through the OPA process,” said SPD’s Whitcomb. “Basically, she was talked to by her supervisor.”

She has however, been removed from duty that involves interacting with others:

Seattle police chief Kathleen O’Toole said in a statement this afternoon that she feels “shocked and disappointed” at the way SPD officer Cynthia Whitlatch behaved on Facebook—tacitly confirming that a post-Ferguson Facebook screed about “chronic black racism” and “black people saying poor poor me” was, in fact, written by the same Officer Cynthia Whitlatch who arrested an elderly military vet last summer for “walking in Seattle while black.”  Officer Whitlatch, O’Toole said, is now on administrative assignment, “where she will have no interaction with the public” while a “comprehensive review” of her behavior in this and other cases is completed (along with an independent investigation by the Office of Professional Accountability).

  1. The system condones this behavior. Notice how, in the video, Whitlatch can be heard telling Wingate that it’s all recorded on audio and video. She’s not lying; it is. But she also has to know that the video tells a completely different version than hers. So why is she making that bold claim about the video? Because she knows that no one’s ever going to bother to see it. She knows that it’s a minor charge and the nuisance factor of it is enough to get someone to accept some sort of slap-on-the-wrist rather than spend months contesting what is essentially a minor infraction. She knows that she can get away with it because she’s a cop and what’s in the report will almost always be exclusively relied upon.

And she almost did get away with it:

The next day, prosecutors at the city attorney’s office decided to file a misdemeanor charge of unlawful use of a weapon against him, “based on the SPD incident report,” according to spokesperson Kimberly Mills.

“On that day,” she writes, “Mr. Wingate, who was represented by an attorney, agreed to enter into an agreement under which the case would be dismissed after two years if he complied with all conditions ordered by the Seattle Municipal Court judge.”

What the city attorney’s account of events leaves out, according to Mindenbergs, Wingate’s current attorney, is that the elderly man was told, “If you sign this stipulated order of continuance, it will all be over, basically.” She said her client followed a public defender’s instructions.

As a public defender, I think it’s entirely ineffective and completely defensible. Wingate must’ve been one of hundreds of clients that day. An elderly man accused of threatening a cop with a golf club; a man with no record who probably was just having a bad day. “Your word against the cop’s, Mr. Wingate. And they’re only offering you a deferred adjudication. Who knows if the dashcam even exists?”

And so Wingate pleads guilty. I call it guilt by convenience and that’s what happens when the nuisance value is high enough that people will pled to infractions and small offenses rather than spend the days, weeks, months litigating and fighting minor cases. Most people, believe it or not, don’t like to come to court. Wingate got lucky:

Weeks later, city prosecutors, after conferring with [Deputy Police Chief Carmen Best, who, like Wingate, is black] recommended dismissing both the case against him and the two-year stipulation.

But just imagine how many others there were on that same day, who were harassed, wrongfully accused, arrested and convicted just because an officer like Watlatch decided to flex her muscles.

Well, at least Wingate got his club back and an apology to boot.

H/T: PD Gumshoe

What’s in a word? Making ‘reasonable doubt’ understandable (updated)

[Update: See two proposed charges below, both of which are almost identical in content, but completely different in style.]
reasonable-doubt-motivational-poster

“Truth is a matter of semantics, whether we like it or not,” writes Michael Robotham in his novel ‘Suspect’. What he has done in that sentence, perhaps unknowingly, is describe in a nutshell the entire modern American criminal justice system. When it comes to jury trials, the guilt or innocence of a defendant rests in many cases upon the definition of the various elements that make up a crime, and most importantly on the definition of the standard of proof: beyond a reasonable doubt. For it is that standard governments across the country must clear in order to deprive another citizen of life and liberty.

As the Supreme Court said in In Re Winship, the reasonable doubt standard “provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” In other words, you can only have the presumption of innocence hold value if the State is permitted to overcome it by meeting the most exacting standard possible.

The phrase “reasonable doubt”, however ingrained it is in our lexicon, is difficult to pin down and define. By its very nature it is vague – what is reasonable, for instance and reasonable to whom and in what context; what is a doubt, etc – and thus in of itself provides very little reliable guidance to judges and juries whose job it is to interpret and apply it.

Thus, there are probably more discussions devoted to the definition of reasonable doubt than any other phrase in the criminal law. Unfortunately, after more than a decade grappling with this phrase, I am no more certain of its meaning today than I was when I started practicing criminal law.

Courts have developed several definitions that they claim pass Constitutional muster, but I’m afraid that the problem is more akin to that experienced by Justice Steward in Jacobellis v. Ohio; that reasonable doubt is something you know when you see. This, of course, is utterly useless because it provides no guidance.

So what do our courts provide for? There seem to be three primary schools: those that use Massachusetts’ venerable Webster description with its phrases of “moral certainty” and “abiding conviction” [PDF]. There is the other school, notably headlined by Justice Ginsburg in Victor v. Nebraska and the Federal Judicial Center’s pattern instruction, which favors the use of the phrase “firmly convinced”. Finally there is the school that follows neither, most notably Connecticut’s own model instructions. All three schools are ripe for criticism.

While the “moral certainty” in the Webster definition is centuries old and is loosely translated to “I am as certain as I can be, based on what I have seen and heard”, the masking of that more every day definition behind the charged “moral” is a tremendous disadvantage to the accused. For requiring a conviction only upon a moral certainty seeks to bring morality – and thus subjective opinions of what is right and wrong – into the equation. An equation that most accuseds in this day and age are sure to lose. It also does nothing to clearly define the phrase ‘reasonable doubt’.

Connecticut’s instruction, which can be found on the Judicial Branch website, focuses almost entirely on what a doubt is – it is a serious doubt that you would heed, an honest doubt, a real doubt – and does little to define the certainty level required. The first sentence of the instruction – “[t]he meaning of reasonable doubt can be arrived at by emphasizing the word reasonable” – is itself a head scratcher, liable to sidetrack even the most sophisticated listener.

Finally, Justice Ginsburg’s favored requirement of being “firmly convinced” comes closest to In re Winship’s mandate that no person should be adjudged guilty with a fact finder being convinced of guilt “with the utmost certainty”. Our supreme court, in State v. Jeffrey Jackson, implicitly approved this formulation but did not require it of our trial judges and it is not routinely given in our courts.

In order to formulate a clear, succinct and accurate definition of “reasonable doubt”, I think it would help to first understand what exactly we wish to convey to jurors. To me, the essential points seem to be the following:

  1. That every person is presumed innocent when arrested;
  2. That they can be found guilty and have their liberty deprived only if the evidence presented by the prosecution creates a high degree of certainty that the correct person has been arrested for the correct crime;
  3. That the high degree is not mathematical absolute certainty;
  4. That the high degree is greater than a possibility or a probability that the accused is guilty;
  5. That any realistic doubt must lead to an acquittal;
  6. That this decision must be made based on the evidence presented in court or evidence that could have or should have been presented but was not.

If that is what we want to convey, then why do we not simply say that? Why must we muck about with terms like “moral certainty” and “abiding conviction” and “a serious doubt that reasonable men would heed”. Why are so averse to speaking in plain English?

With all of the above in mind, I propose the following, which is a variation of the “firmly convinced” formulation:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt1. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: You must be fully and firmly convinced2 of the defendant’s guilt before you may return a verdict of guilty. Your state of mind must be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude3 in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty4.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture5.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

I am certain that my formulation will have its critics. I invite them to send me their concerns and suggestions, so that we may open a dialogue that seeks to fix the incomprehensible legalese we throw at jurors today and ask them to make the most solemn decision they might ever have to in their lives.

Update: Based on conversations in the comments below and taking into account feedback I’ve received via email, I’ve formulated this second alternative instruction:

Remember that every person is presumed not guilty when arrested. This presumption and status of being not guilty can only be overturned if the evidence presented creates a high degree of certainty by firmly convincing you that the correct person has been arrested [has committed?] for the correct crime. The high degree of certainty is not mathematical absolute certainty but it is also not a possibility, or a probability, or a likelihood that the accused is guilty. What prevents a juror from being firmly convinced to a high degree of certainty is what we call a reasonable doubt. If you have a realistic doubt, you cannot overturn the presumption that the accused is not guilty and you must vote accordingly. A realistic doubt can form based on the evidence presented in court or evidence that could have or should have been presented by the prosecution but was not.

Thus, only if you are firmly convinced to a high degree of certainty that the accused did, in fact, commit the charged crimes, can you overturn the status of being not guilty. If you do not reach that level of certainty, you must keep that status of not guilty in place and render a verdict accordingly.

Thoughts you have are, as always, welcome.


Cops’ thuggery continues unabated; now they’ve moved on to arresting lawyers

This is the hubris that is leading to the downfall of America’s police forces and the public’s erosion of trust in them.

A plainclothes detective in San Francisco had the temerity to arrest a public defender who represented the individual he was seeking to question and photograph. When she fulfilled her Constitutional Duty to tell him to go fuck off (in entirely more polite terms than I would have; I’d have laughed in his face), he threatened her with arrest for, get this, resisting arrest.

After his cronies escorted her from the scene, he continued to question the represented individual about his criminal activity.

During the time Tillotson was not present, Stanbury photographed and questioned her client and another man who did not have an attorney present, acccording to Adachi.

Do you think you’d feel free to refuse the officer’s questions at that point? Go ahead, make his day.

It’s one things for officers to get their way by removing civilians from the scene who object to their searches and seizures, but it takes quite another level of totalitarianism and disregard for the law to arrest and make absent an officer of the court.

But police said the five officers, led by a plainclothes sergeant who was accused of racially profiling a fellow officer in a 2013 traffic stop, were merely investigating a burglary case in which her client and his co-defendant were persons of interest.

Tillotson was cited for misdemeanor resisting or delaying arrest because she obstructed a police investigation, police officials said.

As I wrote just yesterday, there seems to be a growing idea among police officers that people must comply with their orders, regardless of the legality of their actions and anyone who gets in the way, questions or refuses those orders is automatically guilty of resisting or hindering.

Now imagine what these cops would have done if they weren’t in a courthouse, on camera. How many convictions have been obtained on the basis of their representations of confessions by bullied and threatened citizens on the streets.

It might be time for some civil disobedience.

Reminder to cops and prosecutors: it’s not my job to help you

I swear, sometimes, I think everybody needs to go back to grade school for remedial lessons in English and Civics.

I’ve said it again and again, our system of laws is an adversarial system, as opposed to a “truth-seeking” or inquisitorial system. This means there are two sides in opposition: those that try to put people in jail and those who try to ensure that only those who are guilty beyond a reasonable doubt are put in jail. The system can build trust and work relatively properly only when the two sides fulfill their stated roles and don’t exercise improper influence over the other1.

So that means, for instance, that a public defender shouldn’t be arrested and charged with hindering prosecution because his client failed to return to court at the start of a trial.

An Allegheny County public defender was arrested Monday on charges that he gave inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case.  [He] was arraigned Monday night on charges of hindering apprehension and obstructing the administration of law. Court records show Mr. Capone, who could not immediately be reached, was released on nonmonetary bond.

He was arrested for giving “inaccurate information”? What in Blackbeard’s black beard is that?

Mr. Capone represented Jeffrey Derosky, 44, of Imperial, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Mr. Derosky was scheduled to go to trial Jan. 12. Four days later, he was found dead of a self-inflicted gunshot wound in West Virginia.

Sorry, I forgot it mention it gets pretty serious. But here’s the crux of it:

A detective with the county sheriff’s office wrote in a criminal complaint that Mr. Capone told a staff member for Judge Donna Jo McDaniel that Mr. Derosky “had not appeared at court.” The judge’s tipstaff told investigators Mr. Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial,” the detective wrote.

Unfortunately, it turns out that he had seen Derosky on the morning of the trial and had conveyed an offer of 5 to 10 years to serve. Derosky and his girlfriend had left, both intending to not return. It doesn’t seem that Capone was aware of their intentions to flee.

But it’s still not clear what exactly happened:

The detective contacted the judge’s staff again and asked them to clarify whether Mr. Derosky had come to the courthouse for trial. Confronted with the information from Ms. Blystone, Mr. Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege,” the detective wrote.

He said Mr. Capone told the judge’s staff that Mr. Derosky and Ms. Blystone had come to court for the trial, he informed them of the plea deal and Mr. Derosky then cursed and said, “I’m out of here.” Mr. Capone told the staff he went to another courtroom and when he returned about 10 minutes later, Mr. Derosky was gone, according to the complaint.

So it seems that Capone rightly told the cop to fuck off and then did tell the staff that the defendant had come to court.

He was charged with hindering apprehension or prosecution. In Pennsylvania, that crime is defined as:

§ 5105.  Hindering apprehension or prosecution.

(a)  Offense defined.–A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:

(1)  harbors or conceals the other;

(2)  provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3)  conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4)  warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5)  provides false information to a law enforcement officer.

I’ve put a strikethrough through those parts that aren’t implicated leaving only those that possibly might be. Those remaining parts, however, are a stretch. First, can it be said that he provided or aided a means of avoiding apprehension or escape? He just told the client the offer, the client said that he’d be back and then he pretended to not have seen the client that day.

Let me tell you. This happens all the time. Clients are late. They show up and then they disappear and you have no idea where they are. Some of them run off when you tell them you’re going to jail. It happens every single day every where in America, multiple times.

My job as a lawyer is to make sure my client doesn’t screwed and even doubly so when he’s doing the screwing to himself. So if I can avoid eye-contact with the judge or go disappear in my office for a few hours and pretend to have forgotten that they’re waiting for my client, you can damn well be sure I’ll do that, because clients that run and stay gone are rare. Most often they’re outside smoking a cigarette, calling their relatives arranging for bail or off for one last decent meal. If making myself sparse for an hour or so while they get their shit together avoids the hassle of a re-arrest warrant and then the subsequent vacating of that warrant, then I’m all for it. Call it judicial efficiency.

(4) is pretty damn stupid to be applied in this context. We warn our clients of their apprehension every day. “Hey, Jimmy Jones, you’re going to jail today.”

Finally, “tipstaff”, whatever that is, don’t qualify as Law Enforcement.

What was the problem here? Clearly, he shouldn’t have pretended to not have seen the defendant when he, in fact, did. But how much different is that than him saying “I don’t know where he is”? What if he had said “I can’t divulge any information without violating attorney-client privilege”? Would that be hindering apprehension? Or are those with guns and gavels simply mad that he dared “lie” to them?

This scenario has been discussed many times in my office and no doubt in other public defender offices across the country. I can tell you that there is a difference of opinion and sharp one at that. There are those who believe that it is not within their job description to do one thing to help cops or prosecutors in arresting and prosecuting their clients. There are others who believe that to omit information such as is the case here is to play with one’s word and trust and potentially expose one to professional sanctions.

Not a single person believes that it rises to – nor should it – a criminal act. That’s nothing more than flexing of the thug muscles by law enforcement and should be denounced from every quarter.

Frankly, I’m more concerned about a system that makes an offer of 5-10 years of jail on the day of trial and then causes a man to take his own life rather than be arrested and incarcerated. Isn’t that the real problem here, worthy of scrutiny?

To make it incumbent upon criminal defense lawyers – at the risk of arrest, incarceration and loss of license no less – to divulge the whereabouts of every client and assist in their apprehension is to make attorneys complicit in the machinery of the prosecution and to fundamentally erode the bedrock foundational principles we pretend to be so proud of.

  1. They must, of course, cooperate with each other, because in the end, that’s how most cases are resolved and rightfully so.