Reforming prosecutions

[Update: Further thoughts here.]

I just happened to notice this Atlantic piece asking the logical question in the Aaron Swartz aftermath: now what? Having recognized that a problem exists, what are we going to do about it? Or, realistically, what can we do about it? The piece relies on this brief by LawProf Instapundit Glenn Reynolds. It’s only about 6 pages.

The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

But let’s start with where I left off with my previous post: if we are to have a serious discussion, then it should be an honest discussion. One that acknowledges that if the system is indeed flawed, it is flawed when it comes to all people. So when Reynolds writes:

Most of us remain safe. Prosecutors have limited resources, and there are political constraints on egregious overreaching. And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice.
Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.

It is easy to dismiss him as mighty naive (or professorial?) for believing that there is an “us” or that prosecutors only overreach in political cases. The biggest transgressions occur when no one is looking; outside of the glare of the media and in the dark shadows of the assembly line productions. That is the problem and folks like Reynolds and Conor Friedersdorf at The Atlantic miss the point entirely by assuming that mostly everything is kosher or that due process serves as an effective counter to any improper charging.

But I give them credit for trying because it’s not an easy thing to tackle. The suggestion, ultimately, is that the entire criminal justice system is flawed. And how do we repair it so as it make it more…just.

Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

Typically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer. More often than not, the side that wants to keep the pretrial offer secret is the prosecution: and for good reason. Offers before trial are significantly lower than what the same defendant gets after a trial. If judges were made aware of what the parties thought was appropriate, it might deter them from throwing the hammer at defendants. Or maybe we’d still get 100 year sentences. But odds are that some might think twice. This would certainly be the case if juries were given the power to sentence defendants.

Kerr’s idea is equally intriguing: eliminating the jury’s temptation to “split the verdict” when faced with multiple counts:

Multiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That’s the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can “split the difference” and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn’t know that, giving the prosecution an advantage. Relatedly, the jury likely thinks that the defendant’s conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.

If you’ve practiced here in CT – and I’m sure if you haven’t, your state has an equivalent – then you know that the worst offender is the Risk of Injury statute. It means nothing and everything all at once.

But these are piecemeal solutions that are inadequate and incomplete. For these problems with the system that we decry will remain so long as people believe that the system exists for guilty people only. We need to change the perception; to alter the dialogue. Until people stop asking “how can you defend those people?“, the system will remain broken.


They have always been us

An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.

It’s been 10 days since Aaron Swartz killed himself, facing down the barrel of a gun pointed by within-their-rights-but-a-tad-too-zealous federal prosecutors. Plead to 13 felonies and we’ll recommend “only” 6 months in jail, he was told. His apparent crime was of such magnitude and caused such harm that civil disobedience was not seen for and treated as it was.

Swartz was many things that are better left to others (and I’m sure you’ve read them all by now), but the growing sentiment is that he was also a victim. Despite being a defendant, he was the victim of a criminal justice system that was too harsh. On him. He’s being hailed as a hero; a martyr; the future of disobedience and because of that, an example to be made.He’s the catalyst for change: for alterations to the federal statute and for closer scrutiny of the DOJ (albeit the latter is probably more political than anything). And undeniably, the din of criticism of prosecutorial discretion in this case is loud (make sure you read this lengthy piece by Radley Balko on the power of the prosecutor and this one by Glenn Greenwald: there aren’t two people who’re doing more good work on the ever-growing unchecked power of the state).

To all of you who’ve been engrossed by the above; shocked by it, angered, even, I say: welcome to the real world. Welcome to the world that’s existed around you for decades, but that you’ve been too blind to see.

Because Aaron Swartz wasn’t special. Not in that sense. He was just like every other criminal defendant that walks through the doors of every courthouse in America: a conviction waiting to happen. He was an opportunity for someone to flex their muscle over; for someone to teach a lesson to; for a system to fail to live up to its promise. Aaron Swartz is no different that the guy who sat in jail for 5 years waiting for a trial, or the guy who was arrested 20 years after the crime and the Supreme Court changed substantive law just to ensure that he was prosecuted, or the guy in whose case the judge texted the prosecutor questions to ask, or the man who refuses to give up his First Amendment rights and keeps getting arrested or the inmate who loses his appeal because his lawyer didn’t file the right paperwork and the courts don’t care, or Ronald Cotton or Cameron Todd Willingham, or maybe tomorrow: you. In the eyes of the law, there was no difference between any of them: their crimes may have been disparate; their rights all the same to eviscerate.

This happens every day: we have less rights today than we did 10, 15, 20 years ago. And they keep getting curtailed. Because you don’t care. Don’t look at me; I care. I scream about it on this blog every chance I get. But you don’t listen. Because it doesn’t happen to you. It doesn’t happen to people you know. It doesn’t happen to people you like. Because they aren’t you.

First they came for the terrorists, and I didn’t speak out because I wasn’t a terrorist. Then they came for the criminals, and I didn’t speak out because I wasn’t a criminal. Then they came for the people they didn’t like, and I didn’t speak out because I wasn’t one of them… well, shit, there’s no one left but you and me.

There are only two kinds of people: those that they’ve come for and those that they’re coming for. And now what? Now that they came for your savant, your gentleman hacker; your prodigy and he took his life; what’s next? Why do you think they won’t come for you? What makes you that much better able to fend off their might? [Update: And when Carmen Ortiz says she won't do business any differently, do you think she's joking? Do you want to be the next defendant she's prosecuting?

And while it speaks volumes about her ego, her position is the clearest indication that it wasn't Aaron Swartz's case that was singled out for preferential treatment. This is how they do business. In every case. And if you think that there was injustice in Swartz's case, then doesn't it stand to reason that there's injustice in the murderer's case or the rapist's case or the bank robber's case?]

If you’ve started caring now, will you stop? Or have you finally realized that “they” have always been “us”? That we’re one overzealous officer or one slightly difficult prosecutor away from being Aaron Swartz. Aaron Swartz became one of “them”. Which one are you?


The quote that starts this post is by Dr. Martin Luther King, Jr.

What you should do when interacting with law enforcement

  1. Go read this article on Slate’s “crime” “blog”.
  2. Do the exact opposite.
  3. Slap yourself on the back of the head for relying on an internet article written by a non-lawyer for legal advice.
  4. Learn these phrases: “am I free to go?”; “I do not consent”; “I want a lawyer”.
  5. Pretend not to know or speak any other words in the English language.
  6. Download and install my iPhone/iPad app.
  7. Thank me later.

Corporations are people, my friend

Everybody knows that. They’re born in Maryland, incorporated in Delaware and then are given free reign to spread their wings nationwide, collecting all the money they can to fulfill their life’s only purpose: to contribute unholy amounts to presidential campaigns and then have meltdowns on national television when their guy gets beaten by the other guy. Duh.

But this is Socialist ObaMerica and apparently no one told this to hoity-toity Officer Troy Dorn of the California Highway Patrol, who presumably driving his fancy hybrid motorcycle pulled over God-fearing Real American Jonathan Frieman “a 56-year-old San Rafael resident and self-described social entrepreneur”, which, for those of you who only watch the liberal media, is what a Real American is, and gave him a ticket for driving in the carpool lane without another passenger.

Now, my friends, will someone please sit Officer Troy Dorn (what kind of name is that? He sounds foreign. He’s a European lazy hipster I bet.) down and explain to him that here, in Ammurrica, corporations are people, my friend. And what that means in American English is that they are free to overeat, underexercise and mooch off of welfare just like all Americans are.

So let’s sign a petition to send Officer Dorn and his socialist comrade in cahoots Traffic Jurist Frank Drago back to Russianistan or wherever they came from and let all Freedom Loving Americans like Frieman – can we spell his name Freeman? I’m just going to go ahead and do that now – Freeman drive around in their Mississippi built Kia’s with their Fair and Balanced Real American Friend, Mr. Paper O. Incorporation.

Now that’s a real American name if I ever heard one. Now everyone get up off your lazy 47% asses and stand up and salute the Great First American RoboPresidentWhoWasBeforeHisTime:

The joke’s on all of us

Our priorities have gone askew. Never has this been clearer to me than today, viewing from afar the circus surrounding an apparent once-in-a-decade event gathering steam: the utterance of words out loud by a Supreme Court Justice. Yes, he spoke. Yes, he said something incomprehensible. Yes, he and Scalia were making fun of Yale and Harvard. And that, apparently, is newsworthy. That, apparently, has been the impetus for hundreds of posts and BREAKING NEWS items and thousands of wasted pixels speculating exactly what he meant. Has the streak been broken, the L.A. Times – which I thought was a reputable newspaper, but apparently not – asks of its readers and also somewhat funnily has this sentence in the same article:

It’s a slow news day at the U.S. Supreme Court when the biggest story is whether an overheard, offhand comment by Justice Clarence Thomas means he has broken his nearly seven-year streak of silence.

It’s a slow news day if you don’t really care about the issue of the massive funding crisis that is threatening indigent defense across the country; it’s a slow news day if you’re too fucking stupid to realize that everyone’s due process rights are about to take it in a most impolite way if it’s okay for the State to hold someone for 5 years without giving them a trial. It’s a slow news day if writing about Justice Thomas uttering half a sentence at the Supreme Court is what you do when you’re waiting for Lindsay Lohan to fire another lawyer.

I’m amazed at the number of articles that keep popping up in my feed reader about Thomas and his words of wisdom. Hell, the New Yorker got into it to remind us that, in their opinion, Thomas really hates Yale. Liptak engages in a Zapruder film like frame-by-frame analysis of what this man might’ve uttered. I could go on and on with links, but you get the point.

You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

The State of Louisiana which had the gall to argue before Justice Thomas and the rest of the Court that using funds to pay prosecutors to prosecute crimes but not defense lawyers to defend against those crimes is not a “deliberate choice”. It’s the same State that will argue that it’s the fault of the poor, jailed defendant with an 8th-grade education that he wasn’t tried for 5 years after arrest. It’s the same State that thinks it’s okay for him to proceed to defend a death penalty case with counsel who is ineffective.

You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day. And it’s this Court – Thomas and others – who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.

But no. Let’s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasn’t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just like Thomas always said.


TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

[Update: Sorry, couldn't resist this update. After my rant above, I stumbled across this stunningly bizarre, tone-deaf, self-important post by Tom Goldstein of SCOTUSBlog, who, apparently, chides the internet not for taking a serious issue and making light of it like I do, but almost the opposite: for taking the joke too seriously. That's some fucking serious level of meta that even I haven't been able to get to in all my years of internet trolling. Well played, TG, well played.]

Mandatory pro bono: silly season’s here again

January every two years is a goldmine for long-time bloggers and part-time comics like me. It provides just the sort of low-hanging fruit that I need to get the few remaining brain cells up off the couch and into some sort of athletic program.

I’m talking about the long session of the state legislature, which is sure to provide many moments of facepalming (kids still do that, right?) and with every new session comes a mighty challenger attempting to meet and surpass the high standard set by Senator Witkos.

This year, we have one such strong contender very early one: Rep. Christopher Davis of the 57th District thinks that it’s a splendid idea if any attorney who makes more than 50% of their annual income from state funds should be required to do 40 hours of pro bono service. The entirety of the bill is:

Be it enacted by the Senate and House of Representatives in General Assembly convened:  That the general statutes be amended to require that any person who is engaged in the practice of law and receives fifty per cent or more of his or her annual income from state funds shall complete not less than forty hours of pro bono legal work during the calendar year in which the income is earned.

I’ll tell you what is a great idea: pro bono. We should have lawyers doing more pro bono work; there is a glut of indigent defendants and plaintiffs who get screwed because they don’t have legal representation.

I’ll tell you what is a stupid idea: this bill. You know who’d be covered by this bill? Me. Every other public defender. Lots of private attorneys who represent criminal defendants as special public defenders or “assigned counsel”. Also: every prosecutor in this state. Would judges be covered? Perhaps. And he wants us to do 40 hours of mandatory pro bono work.

Putting aside the perhaps untrue joke that we criminal defense lawyers do pro bono work already (because our clients don’t pay us and those that do get paid by clients hardly ever get paid), there are several other problems with such an “idea”. For instance, could I stick to doing criminal work for free? Or would I be forced to learn and take up the practice of property law. Perhaps I could do a few closings a year or really slowly write a will or three (after all, is the State going to also monitor my 40 hours of pro bono?)

Who’s going to pay for my malpractice insurance? Oh, and who’s going to help me when I get fired for violating C.G.S 51-293(d)? Not familiar with 51-293(d)? No worries. That’s what I’m here for. 51-293(d) simply says:

(d) Each public defender, assistant public defender and deputy assistant public defender shall devote his full time to the duties of his office, shall not engage in the private practice of law, and shall not be a partner, member or associate of a law firm.

Oops. Rep. Davis would make lawbreakers of us all. Sorry, Rep. Davis, but I break the law on my own terms, not on the law’s terms.

That this is very low-hanging fruit is not in dispute; that this bill probably goes no further than one man’s fancy and one blogger’s delight is pretty set in stone, but the fact that it was actually proposed by someone who is elected to be our representative in the legislative body should give pause. And perhaps when we pause, we should think. It’ll be more than Rep. Davis did.


A ray of sunlight in East Haven

the land of steady racism

East Haven, Connecticut’s most famous modern day “sundown town“, has just learned what it feels like to be on the other end of a good scrubbing. The town, you will recall, made the news when the DOJ filed a federal lawsuit alleging racial profiling and violation of civil rights for its policy of targeting minorities for traffic and other violations. From the DOJ report [PDF]:

  • The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
  • However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
  • Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
  • Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
  • Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

Yesterday, in the wake of another guilty plea by one of the embattled police officers, the town and the DOJ announced an agreement that they entered into, which will halt the lawsuit for the time being. The consent decree is 54 pages long and I’ve embedded it below. In it, East Haven agrees that:

  • EHPD officers shall conduct investigatory stops or detentions only where the officer has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime.
  • EHPD officers shall not use “canned” or conclusory language in any reports documentinginvestigatory stops, detentions and searches. Articulation of reasonable suspicion andprobable cause shall be specific and clear.
  • EHPD officers shall not use or rely on information known to be materially false or incorrect in effectuating an investigatory stop or detention.
  • EHPD officers shall not use demographic category as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • EHPD officers shall not use demographic category in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • Where an officer seeks consent for a search, the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, articulate and document the independent legal justification for the search, and document the subject’s consent on a written form that explains these rights
  • EHPD officers shall only arrest an individual where the officer has probable cause. In effectuating an arrest, EHPD officers shall not rely on information known to be materially false or incorrect. Officers may not consider demographic category in effecting an arrest, except as part of an actual and credible description of a specific suspect in an ongoing investigation.

Sadly, I could go on. This is pretty basic stuff here that the EHPD has failed to do in the past and needs to do in the future to rectify their despicable practice of targeting minorities. What’s interesting, though, is that the decree also includes a provision stating clearly that citizens have the right to observe and record police conduct and that the EHPD cannot interfere with that. This is obviously a response to the glut of arrests state-wide and across the country of people who were merely recording police activity:

  • EHPD shall ensure that onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force in accordance with their rights, immunities, and privileges secured or protected by the Constitution or laws of the United States.
  • Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and EHPD shall ensure that officers understand that exercising this right serves important public purposes.
  • Individuals observing stops, detentions, arrests and other incidents shall be permitted to remain in the proximity of the incident unless there is an actual and articulable law enforcement basis to move an individual, such as: an individual’s presence would jeopardize the safety of the officer, the suspect, or others in the vicinity; the individual violates the law; or the individual incites others to violate the law.
  • Individuals shall be permitted to record police officer enforcement activities by camera,video recorder, cell phone recorder, or other means, unless there is an actual and articulable law enforcement basis to deny permission.
  • Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities.
  • Officers shall not seize or otherwise coerce production of recorded sounds or images,without obtaining a warrant, or order an individual to destroy such recordings. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no more than three hours while a legal subpoena, search warrant, or other valid order is obtained.

Of course, this does nothing but force the members of the town’s police department and the mayor to behave in an orderly fashion. The consent decree does nothing to actually enhance their tolerance of minorities. East Haven Mayor Joseph Maturo, after all, is the same man who upon being re-elected in 2011, reinstated suspended Police Chief Gallo and then allowed him to retire. He’s also the man who, upon being asked what he was going to do for the Latino community in the wake of these allegations, glibly stated that he might go home and eat a taco.

The question, of course, is whether this ray of sunlight will disinfect the whole town in years to come or whether, when the FBI has moved on, the windows will be shuttered again and embedded racism allowed to fester again. Rev. Manship, whose arrest for videotaping the harassment of a Latino shop-owner kickstarted this effort, says just as much:

“When the spotlight’s on, everybody’s behaving well,” Manship said, “so the real test for this will be years after the Department of Justice has left East Haven and [see if we] can have a Police Department where everybody is comfortable, safe, and can go to and not be afraid of.”

Isn’t that what we should want?