3.5 appointments a day

In all criminal prosecutions, the accused shall enjoy the right [...] to have the Assistance of Counsel for his defence.

It’s sad that in the 50th Anniversary year of Gideon v. Wainwright, we still do no more than pay lip service to one of the most important rights bestowed upon the people (it’s included in The Bill of Rights for a reason). It’s sad that the system has remained so overburdened that it is nothing more than an assembly line that must be kept moving at all costs. And if that cost is the rights of the defendants, so be it. Because in order for any criminal justice system to function, there must be turnover, because there is always volume. And you don’t get turnover if you don’t have attorneys who can “move” cases: plead ‘em out, convince clients to take deals, sell what the prosecutor is selling. To do anything else would be to tax the system and those who tax the system get punished.

So the system seeks out those who are compliant and rewards them. Rewards them to the tune of 3.5 cases for every business day in the calendar year. Rewards them for being one of the boys by assigning a fuckton of cases to them: 920 in the whole year.

Think about that for a second: 920 individuals are represented by one lawyer in one year. That means if he (and Geraldo Acosta of Harris County, Texas is a he) started 2013 with no clients, today he’d have 98 of them. 98 individuals relying on him for their liberty. 98 individuals relying on him to further their best interests.

What do you think happens? Do you think he manages 920 cases a year by rigorously investigating and defending each one? Do you think he spends every waking moment doing everything that is reasonably necessary for each client? Do you think he can?

And why does he get 920 cases a year? Because he’s so good? Or because he’s so good at moving them along?

Just for comparison’s sake, the “overburdened, overworked, underpaid, not a real lawyer” public defender in CT was assigned to an average of 462 cases last year  [PDF - Appendix Table 12] in the busy low courts. The highest per attorney appointment was 653: 267 cases short of Acosta by himself.

This is the state of your criminal justice system. This is the state of justice.

Tasered in the park

You’d really think they’d know better by now. You’d think that cops would be able to better control their desire to punch and kick helpless, flailing, down on the ground suspects who they’ve already tasered.

You’d be wrong. Courtesy this video uploaded to Youtube, three Bridgeport CT cops are on paid leave. The video records a May 2011 incident but was only just uploaded:

Yes, they were chasing him. Yes, he was reported to be carrying a gun (which was not found). Yes, sometimes cops have to fight and tackle people. But. Hear that sound right at the beginning? That pop? That’s the taser. He’s down after that. No movement, no fighting, no resistance. Nothing. And that’s when the kicking begins. That’s when Officer Friendly #2 decides to show off his big man shoes and stomp the guy in the head. That’s when Officer Friendly #3 runs in at the last second to get his rocks off.

But of course, this is Connecticut, so I wouldn’t have been surprised if the man in the video was charged with – and convicted of – assault on an officer while being kicked about the head so.

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.]