The sine qua non of legitimacy

What is more important? A system that protects the rights of the individuals subjected to it, but that is fundamentally unfair in the treatment of those individuals? Or a system that is equally concerned with rights and fairness? While the Right To Counsel is a wonderful thing, has it been co-opted as a proxy for fairness in a system and has it been abused by courts to move as far away from the F word as possible? Have counsel truly been subsumed into a subset of the system – a cog in the machinery – so that the extent of our influence diminishes day by day?

Yes, says Alexandra Natapoff, LawProf and author of the Snitching Blog, in this fantastic new paper titled ‘Gideon Skepticism’. I’d really recommend reading the entire thing. She argues persuasively that Gideon, while great for the system, was terrible for criminal defendants, because it permitted courts to get away with all sorts of unfair outcomes because the defendant was represented by an attorney.

There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.

When I’m asked why I do what I do, my response is multi-fold. It isn’t only about our individual rights and protecting the innocent, but also about the fundamental fairness of a system as large as the criminal justice system. As you may well know by now, over 97% of convictions are obtained via plea agreements. And quite possibly well over 90% of criminal defendants are guilty of something (not an accurate figure; don’t quote me).

But no two circumstances are the same: each person is different; each case is different and each outcome should be tailored to its specific causal circumstances.

Having set the bar so low for competent representation, and making the remedy also dependent on the likelihood of a different outcome, courts have effectively rendered it impossible for any one individual to rectify an unfair situation (there are exceptions, of course, but even those come at a cost).

And the clearinghouse role assigned to defense counsel is unfair and improper. As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.

We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.

But in reality it is not well. In reality there is unfairness everywhere one looks. There are harsh penalties for people who don’t deserve them; lack of treatment options for people who need them; laws that promote a wanton disregard for individual rights (see the exclusionary rule, harmless error, etc.); prosecutors and juries that believe in the presumption of guilt; judges that punish the exercise of those rights and a system that is built on a foundation of contempt and disdain for “the other“; and yes, defense attorneys who are more interested in protecting their own ego.

I suppose the analogy to Sisyphus is accurate after all.

The Mercy Project

It takes a lot for a judge to look a defendant in the eye, while sending that person to jail for 15 years, and say “This is one case where the guidelines work an injustice, and I’d like to do something about it but I can’t”. It’s a staggering admission by a sitting judge that his hands are tied by a legislature and a Congress that can’t see beyond the headlines they want to generate.

Mandatory sentences are reviled by judges and defense attorneys; prosecutors secretly love them and the pitchfork public revel in them. And people’s lives are ruined under their aegis. Mandatory sentences are the single most dehumanizing feature of the criminal justice system: it is the explicit admission that the system is stripping people of their individuality and instead treating them as cattle, with numbers branded upon their chest.

Robbed a bank to feed your starving child? Doesn’t matter. Found a little bit of crack on your person? Treated like a kingpin. It’s a one-size fits all approach that has led to gross inequalities, most notably in the crack-powder cocaine scenario. Thousands of people were caught in drug sweeps in the 80s and 90s and thanks to these mandatory sentences, banished to jail for extraordinarily long periods of time.

Like Denise Dallaire.

In which we thank Judge Seeley and go on our way

From time to time, we have to pause in this world of 24 hour news cycles, internet commenters who are like Pavlov’s dogs with keywords and shameless trolling by news organization to get eyeballs on their screens and sift through the sensationalist bullshit and pull out one shining diamond from among the steaming piles of dung.

Judge Hope Seeley is one such diamond. Judge Seeley, former criminal defense attorney extraordinaire (and one-time moot court professor of yours truly even those she did give me a ghastly B- in that class), you see, did something that every judge would do.

When faced with the troubled lives of individuals before her, she took measure of the situation and acted like a human being is supposed to.

But you wouldn’t know it from the coverage by the Hartford Courant – miraculously America’s oldest continuously published newspaper. From the click-bait title “Bristol Man To Watch Baby’s Birth Despite No-Contact Order Protecting Mom-To-Be” to the glaring omission of crucial facts in the article (is it fair to call it an article?), the setup is obvious. It’s written in a way specifically designed to up the outrage of today’s unthinking ADD masses. “Baby”, “birth”, “no-contact”, “Order”, “protecting” “mom-to-be”. Trigger words, all. Cue the outrage!

Because the real story would have the following words in the title “Because Mom-To-Be repeatedly requested that Bristol Man be present for the Birth of His Child”.

Now, anyone who’s covered criminal courts for half a minute would know that there is no judge who is that far out of his or her mind to grant a modification of a no-contact order without any victim input. Far less a new judge, and even far-er less-er a new judge who used to be a criminal defense attorney. So either the reporter was terrible at her job or willfully omitted the key pieces of information. I don’t know which is worse. It wouldn’t have been that complicated to figure out whether the mother objected to or consented to the modification. I suspect all one would’ve had to do was listen to what was being said in court.

But that wouldn’t make a good story, would it? The truth, it seems, is often ill-suited for what passes for modern day journalism.

The woman, who is unnamed, apparently sent a barrage of text messages to the defendant requesting that he be present for the birth.


He wisely did not respond to any of them. However, since it was the birth of his child and the woman was pretty insistent he be there, his lawyer requested a modification from Judge Seeley.

Judge Seeley granted a most reasonable modification. Three hours to see the birth, in the hospital and that’s it.

That’s it. What could’ve been a wonderful human interest story, instead is a half-baked, inaccurately reported anger piece without any redeeming value whatsoever that leaves me with only one firm conviction: never trust another report by Christine Dempsey of the Hartford Courant.

Oh, and that Judge Seeley is going to make a damn fine judge. And sometimes, we need to appreciate that because we don’t need judges who are afraid to do the right thing because of you, mad internet commentor. We need judges who treat the people who come before them as individuals and act accordingly. No matter how hard you try, they’re not going to stop being real people with real lives and real problems and turn into stereotypes.

[For my previous rants about irresponsible and shoddy media coverage, see herehere, here, here and here.]

No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Links and ends: RIP Anthony Lewis

Are you sure?



We put a lot of trust in juries. We pluck every day people, with varying backgrounds and varying life experiences and education levels and skills and throw them into a courtroom where were bombard them with “evidence” and legal arguments and ask them to sift through it all and determine the “truth”, all without giving them any training or a dry run.

And then we trust in their decision, no matter how absurd or inconsistent or strange it is. And that trust – that finality – in their decision is revered, put on a pedestal and those that dare to approach it or question it are roughed up at the pointy end of a bayonet.

But sometimes things happen that made you think: do they really know what they’re doing? Are their decisions really worthy of this level of reverence? (Spoiler: the answer is yes and no.)

As I’ve said before, I’d love to know what a jury is thinking while they’re deliberating and even after they’ve deliberated. I want to have a dialogue with them, to explain why they were wrong or see what I didn’t see. But we never get that chance. We never know if the jurors went home secure in their decision, or if they had a doubt but weren’t sure if it was a reasonable doubt, because who the hell knows what that means. Given the chance, would they undo what they did?