Reciprocal discovery: should we have to?

The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine.

It’s not like you knew you had that right, anyway.

We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that’s what the value of your rights are. Are you guilty enough? That’s the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. “Well yes, this confession was obtained illegally, but he was really guilty, so it doesn’t matter” and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer’s word is as good as the defendant’s. 2. Except when the lawyer speaking doesn’t mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries



How long will you be lucky?

There are just about 315 million people in the United States today. You are one of them. So am I. You probably know what seems to you a large number of people but what is, in fact, impossibly small. Out of those, you may care about only 5 or 10 when all is said and done. But no one cares about you. No one cares about your friends. We aren’t special; we aren’t precious; we aren’t protected. We are all just numbers.

Mirriam Seddiq writes today about an issue I touched on in the Aaron Swartz post:

I’ve been defriended in real life and on this world wide computer for my never-ceasing preaching. I am called judgmental by those who hold views that I find appalling. It is disconcerting to me that so many people truly believe that because they don’t “do anything wrong” they will never face the terrible wrath of their very own government. I hope beyond all hope it is true for every last one of us.

I hope so too, but both Mirriam and I know that it won’t happen. We all know someone – maybe we already do – who’s been arrested and has served a sentence. They have a number. There are about 17,000 people in Connecticut right now who are in prison. Do you know any? I bet you do. Does anyone care about them? Do you think they’re lying when they say they got screwed? Who listens to them? How soon are they forgotten? How long would you be remembered?

And what of some nameless, faceless inmate in a penitentiary in South Dakota who got shafted because a court issued a frightful decision in his case and affirmed his conviction when the law and justice demanded a reversal? Do you know if he exists? Or did I make him up? Does it matter? Will he be a man who lives the rest of his life unjustly convicted and then swallowed by a system that takes no prisoners?

Are we content with a system of faceless defendants and “close enough” justice that is really nothing more than a medieval trading post? Who is this mythical “criminal” that you keep referring to? Is he a person or an idea? Does it matter?

Is it more important, as recently uncovered by an investigative journalist, that the justice system’s “numbers” look good; or do we care about the individuals that make up those numbers? So does it surprise anyone that to learn that deportations at ICE are at record levels because of tactics they’re employing that are designed to do just that?

Among those new tactics — detailed in interviews and internal e-mails — were trolling state driver’s license records for information about foreign-born applicants, dispatching U.S. Immigration and Customs Enforcement (ICE) agents to traffic safety checkpoints conducted by police departments, and processing more illegal immigrants who had been booked into jails for low-level offenses. Records show ICE officials in Washington approved some of those steps.

And how is the government keeping its pledge to deport only “dangerous criminals” and yet managing to maintain high numbers of deportations? By making everyone a dangerous criminal, naturally.

By the time the government’s fiscal year ended in September, ICE had deported 225,390 criminal immigrants — a record, and well above the agency’s target of 210,000. ICE has not specified how many of those deportations were based on minor offenses; the year before, it reported that more than a quarter of the people it classified as criminals had been convicted only of traffic offenses.

If today the government can decide that it is going to take your God Given Right Under The Constitution and make part of it a crime, do you really not understand that it’s just your number being called? Today, you’re a lawful gun owner; tomorrow, you’re in violation of a number of state and Federal laws. Everything everyone’s ever done has been legal, until some authority has declared it to not be so.

And if you realize that, then why haven’t you said anything? Or done anything? Why haven’t you cared? Why haven’t you demanded more of your legislators? Why haven’t you asked these important questions? Why haven’t you studied your rights? Why haven’t you applied those rights? Why haven’t you demanded others do the same? Why haven’t you understood?

Why are you so sure they’re going to come for you? Why are you so sure that if it does happen to you, it’ll get sorted out. Why are you so sure that there’ll be someone fighting for you, to make justice happen? Why are you so sure you’re not just another number?

Because you are. You just haven’t been called yet.


8 mind-numbingly stupid years

I started this blog when I was just a teen out of high school, 8 years ago on a cold January day. It was snowing – I don’t remember, it must’ve been – and the combination of whiskey and marihuana had deluded me into thinking that other people might actually want to read what I had to say.

That was proved wrong over and over again. But somehow the buzz of that very special winter remained and I’ve written ever since. I’ve written when no one was reading and I’ve written when everyone was reading and I’ve written because I’ve had to and I’ve written because I’ve wanted to and now it’s eight years later and holy fuck that’s a lot of writing.

That’s eight years of cursing. Eight years of clever pop culture references. Eight years of terrible pop culture references. Eight years of jokes that no one got. Eight years of jokes that only I got. Eight years of opinionated bullshit. Eight years of insight that surprises even me. Eight years of suffering through people asking me if I’m Gideon and lying to them or telling them the truth. Eight years of wondering what’ll happen if someone “finds out” and eight years of not really giving a shit. Eight years of wanting to be a better lawyer and finding ways to realize that it’ll take eight more.

Eight years of you: loyal, loving, silent readers. Eight years of the most idiotic comments I’ve ever read in my life. Eight years of interacting with some of the nicest people from across the country. Eight years of disappearing for months at a time and coming back to find you’re still here. Eight years of learning and hating and making mistakes and learning. Eight years of engaging with bigots and narrow-minded people and hoping against hope that maybe, just like in my day job, I affected one person. Eight years of shouting against the ever loudening din of the obsequious. Your rights are my rights. My rights are your rights. Shut the fuck up and let me watch my reality TV.

I’m tired.

But I will go on, for what else is there to do, but to do that which you want? Sometimes, you have to go a long distance out of your way to come back a short distance correctly. I’ve been to the zoo.

Thank you. Each and every one of you.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Now get off my lawn.

A matter of perspective (updated)

Criminal law is mostly about perspective and the just outcome in each case varies depending on your own perspective. At their core, both the prosecutorial and defense functions are about forwarding related fundamental principles. In the abstract, both are about standing up for something and whichever appeals more to you depends on your perspective. They can both be called noble professions, depending on your perspective.

People shame defense lawyers and shun them for their choice of profession because of the company we have to keep, or so they say. Our clients are bad people, scum of the Earth, scourge of society, dogs and animals and so on. I’ve long argued that they aren’t that different from us and that tomorrow, you could be the one in shackles, standing next to me. Which is why I’d rather hitch my wagon to the fallible human beings who are subject to the wrath of society, than the fallible human beings who purport to bring that wrath and righteous indignation upon others.

Like this post at “Seeking Justice” which contains the video below that is making the rounds of the internet with the comment “Not a good idea to give the finger to the judge at your initial appearance.”

Or the judge in the video who thinks it’s amusing to abuse his power to deny counsel to, incarcerate and then significantly increase the bond of a woman teenager who’s clearly on some drugs and then hold her in contempt. Let me see if I can break down what’s happening and why I so vehemently disagree with the rest of the internet about her comeuppance:

1. She’s being arraigned on some charge and is not actually in a courthouse with a judge and doesn’t seem to have spoken to a lawyer. She’s clearly being warehoused.

2. He’s rude to her and mocks her throughout their interaction.

3. She’s clearly high.

4. He interrupts what seems to be a public application for public defender services (isn’t that information about personal finances confidential?) because she says “jewelry” in a funny way, then mocks her response and punishes her for it by refusing to appoint the public defender because she’s tripping on something and talks about “jewelry” she owns.

5. Lawyerless and told to “sell some of that jewelry to hire an attorney”, he then refuses to give her some sort of promise to appear bond and instead first sets it at $5,000. Then he smiles at her and stares as she walks away, in a jail, while he sits free in a courtroom. He still hasn’t disengaged and is quite proud of what he’s done. She says “adios” in a stupid voice; he’s still smiling, then calls her back, looking like he’s still laughing at/with her.

6. What he does, then, is to double her bond. Maybe she did something off camera; I can’t tell. Then he mocks her by saying “adios”. The audience oohs and ahs. She’s obviously shocked and obviously still on something, so she flips him off (a stupid idea, no doubt, but consider the source) or says “fuck you”, which makes him bring her back, ask her an incriminating question after already denying her counsel and then finds her in criminal contempt and sentences her to 30 days in jail (which, in Connecticut, would be problematic, as you can’t be found in contempt if you goad the defendant into committing the contempt. as a judge now awaiting appointment to the Supreme Court tried to do.).

7. The attorney then speaks up (and is far too deferential for my tastes, but whatever) and gets appointed on the contempt matter, but nothing else. To what end, I have no fucking clue.

I suppose from his perspective, she was a coked-out mouthy teen who got what she deserved: no lawyer, excessive bail and 30 days in jail and he was a big man in a robe and played it up for his adoring and feckless audience.

From her perspective, she’s high, scared and yes, mouthy, but he did just deny her counsel and set a high bond. Should we tolerate someone being disrespectful to a court? Absolutely not. Is what she did, in the context in which it happened, worth 30 days in jail? Absolutely not. If you and I were in her place, we’d all be thinking it. Maybe we wouldn’t be inhibited enough to express it, but in our minds, we’d all be flipping him off.

This wasn’t a defendant who was combative, threatening or repeatedly disrespectful to the court. This was an 18 year old girl who was high and got carried away when even she, in her mind-altered state, could tell the judge was fucking with her. So she flipped him off. Give her a week to cool off and move on. Shouldn’t we expect better temperament?

Update: As per a link in the comments, it seems that the judge has had a change of heart and after accepting an apology from the teenager, has reversed his finding of contempt. I guess maybe he just wanted her to admit that she was on drugs or something? Or maybe someone pulled him aside and told him it was pretty bush league to mock a defendant and deny  her counsel and then sentence her to 30 days for flipping him off. Because, as you can see from the video, she already apologized for flipping him off at that time. But whatever. Let’s all celebrate this judge and make fun of the girl. Yay justice.

Or like the folks at Crime and Consequences, who have posted one of the most mind-boggling posts I’ve read in a long time, titled “Why LWOP (life without parole) is not enough, again“. The post is an apparent attempt to claim that a New York inmate should have been put to death because the consequences of not doing so are terrible. In this case, he got a female guard pregnant. Yes. That’s their justification for their rabid and bloodthirsty support of the death penalty. And their disturbing glee gets only more disturbing-er:

Who do you think is going to pay the bills for the kid’s upbringing when his daddy, a murderer, is in prison, and his mommy, a lawless ex-prison guard, is ALSO in prison? RIGHT!!! You and I are.

6. Notwithstanding the mucho money we’re going to shell out, what do you think the chances are that this kid is going to turn out to be a well educated, productive, contributing member of society, when (1) he has parents of that character, and (2) grows up on the public dole?

RIGHT AGAIN. No, it’s not the kid’s fault, and I hope and pray (for him and for us) that things turn out better than I think. But there is something really, really wrong with this picture.

Or like this prosecutor’s office which keeps a scorecard of its sentences and is proud of having the longest average prison sentences in the country, because justice is just a game and the defendants are merely goals to be scored.

Or people like this who so abuse their power to ruin the lives of other innocent people and then are rewarded for their acts of injustice by giving them even more power:

State District Judge Ken Anderson was the Williamson County district attorney in 1987 when Michael Morton was convicted of beating to death his wife, Christine Morton. Michael Morton was exonerated of the crime in 2011, after spending more than two decades in prison.

Now Anderson is accused of lying and concealing evidence that led to Morton’s conviction. Morton was released from prison after a bloody bandana found 100 yards from his home in 1986 was finally DNA tested.  The bandana had Christine Morton’s blood on it as well as DNA from a man identified in 2010 as Mark Alan Norwood. Norwood was later arrested and charged with the murder.

The bandana was ignored during the criminal trial.

I know where I want to make my bed. That’s my perspective.



Not even wrong on individual voir dire

It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.