Cellphones and the 4th Amendment: REP

As we move faster and deeper into the technology age, the law struggles to keep up with ever changing methods of communication and constant availability of modern day consumers. One thing the law has had to deal with over the last 10 years is just how “private” are cellphones and the data that can get gotten from them?

It’s one thing to say that the data on a phone is private and expected to be so – although if you don’t password protect you’re phone you’re an idiot – but what about the signal of the cellphone itself that lets you get reception and connect to the internet?

Law enforcement and cops have been using cell tower data to pinpoint the location of a cell phone (and by extension its user) for a few years now, but this was mostly done post-hoc, to prove that a particular individual was at a particular location at the time of the crime. I’m also fairly certain that prosecutors and cops have been getting warrants to track cell phones in order to locate an individual they are chasing.

But can all of this be done without a warrant? Is there a reasonable expectation of privacy in the location signal of your phone? Is this something that society today is prepared to accept? That one doesn’t generally expect someone to know where you are based on the contact your cellphone has (covertly and unbeknownst to you) with a cell phone tower and the cell phone company?

That’s what the 6th Circuit just said in a decision [PDF] released two days ago: that there is no reasonable expectation of privacy in that information and thus, no need to get a warrant in order to conduct surveillance. Not only does the Court seem to place much faith in the “well, he was a criminal, right, so screw his rights” doctrine, but also makes several false analogies to other, more traditional, no expectation of privacy scenarios:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

As that Cato post appropriately points out, reasonable expectation of privacy doesn’t mean what the 6th Circuit claims it means:

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

The decision also makes no mention of US v. Jones, issued by SCOTUS earlier this year, albeit that is a slightly different scenario. More telling, however, is that there is no mention of Kyllo. Further, as Orin Kerr points out, the technical mumbo-jumbo utilized by the Court is ridiculously hazy.

Decisions like these, in light of the fact that it was recently revealed that cell phone companies dealt with 1.3 MILLION requests for cell tower information from LEOs last year and the FBI’s reluctance to turn over new memos giving guidance on how to deal with electronic surveillance in light of Jones, make it an increasingly dangerous time for our privacy in this digital age.

Unless, of course, you’re one of those people who constantly tell the world where they are on Foursquare, Twitter and Facebook. In that case, you get what you deserve.


We may or may not be living in the age of Idiocracy, but there is no dearth of people doing and saying completely idiotic things. Take, for instance, Sung-Ho Hwang. Mr. Hwang is an attorney and president-elect of the New Haven County Bar Association. He also did something kinda dumb, or really smart, depending on your perspective. He took a gun to a movie theater late at night and settled in to watch the latest Batman offering.

Someone spied the gun, called police and hilarity chaos ensued. 23 of New Haven’s finest responded and went to the wrong screening. I imagine the 911 dispatch went something like this:

911: Hello?

Caller: There’s a guy in the movie theater and he’s got a gun.

911: Oh shit. We’re coming.

-End Call-

Apparently no one bothered to ask which movie, or what he was doing. Because the answer to that would’ve been “paying $3.75 for a fucking bottle of water and $14.00 for a tub of popcorn”, which is the real crime, if you ask me.

But I digress.

Mr. Hwang, apparently, is talking on his phone (frankly, he should’ve been arrested for that, amirite?) in the movie theater, when police swarm in and this happens:

Officers went into the theater, ordered the approximately 12 patrons to put their hands up, and had them file out of the theater. They were then patted down as they passed.

When officers located the armed man, who they later identified as Hwang, they drew their weapons and ordered him to put his hands up. He did not comply with their orders and remained in his seat while using his cell phone, police said.

Now, if you’re reading that thinking “wait a second, if he’s standing when they patted him down, how did he end up seated again?” that’s not your fault. That’s shitty journalism from the oldest continuously published newspaper in the country. What really happened, at least according to the police, is this:

According to police Lt. Jeff Hoffman, officers responded and searched two rooms of the theater at about 10:10 p.m. and found several people matching the description of the armed man.  Those people were given pat-downs and then told to leave the theater with their hands up, police said.

None of the people in the first room, where “The Watch” was showing, was the suspect. In the second room, where the Batman movie was playing, police with pistols and Tasers drawn approached a man on his phone fitting the description and told him to show his hands.

This, kids, is where, as they say, the plot thickens. Police say Hwang didn’t immediately comply with their request to please get off the phone sir so other people can enjoy their movie-going experience show them his hands (shouldn’t that be hand, since one hand was presumably holding the phone?). Hwang, of course, says he did.

Hwang, it turns out, has a valid license to carry a concealed weapon in the State of Connecticut. Bollocks. So what else is left to do but charge him with that catch-all, useless and routinely misapplied Breach of Peace as well as Interfering with an Officer.

I’m honestly fascinated by the thought process behind some of these arresting and charging decisions. Is there such faith in the presumption of guilt and the juggernaut like nature of the criminal justice system that cops just think “fuck it, let’s arrest him for something, the courts can sort it out later and we’re pretty sure he’ll get convicted of some crime or other?”

Listen very carefully, I shall say this only once. What he did is no Breach of Peace:

Here‘s the relevant Breach of Peace statute:

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

Openly carrying a licensed weapon into a public place doesn’t fit subsections (1), (2), (3), (4), (5) or (6). You know what that means? It’s not, by definition, a breach of peace.

Neither is sitting in a movie theater and having people panic around you while you’re doing something legal. If that were the criteria for a  Breach of Peace, wouldn’t a black man be guilty if he showed up at a KKK jamboree and the racists went nuts? Wouldn’t it be a crime if I wandered the halls at Yale reading ‘Fifty Shades of Grey’ and the literature majors booed and hissed at me?

I’d recommend that whoever has to prosecute this piece of shit case take a close look at subsection (6) above. “By an act which such person is not licensed or privileged to do”.

But what of the Interfering, you ask? If you believe everything a cop says, why don’t you come over and we can sign that deed to that bridge I’m selling you for $1,000,000,000. Don’t take my word for it? Here’s what someone else at the movie had to say:

In New Haven, Porsche Edmundson and a companion described a confusing, frightening scene when police first barged in.  They were in the theater next to where “The Dark Knight Rises” was playing, sitting in the back, when police entered with weapons drawn. She said there were less than a dozen people there and police told everyone to put their hands up. Police then frisked her companion and the other white males.

Edmundson was upset that before the lights came up it was difficult to tell that the men were police.  “It was a split second of indecision as to who they were,” said her companion, who did not want to give his name, but seemed shaken by the event.

So, you’re in a movie theater, in the dark, chomping on unhealthy popcorn and talking on your cellphone and men barge in and start shouting commands at you: you’re a lawyer, you have a gun, you don’t know what the hell is going on. Is it that unreasonable that it took him a few extra seconds to get his hands in the air like he just don’t care?

Hey, you want to throw up in your mouth a little? Here:

Had he immediately showed his hands, the official said, criminal charges might have been averted and instead “maybe he would have been counseled on how to better conceal his weapon while attending a ‘Dark Knight’ movie.”

Police Chief Dean Esserman, who was on scene late Tuesday, thanked the citizen who brought his fears to the attention of the manager and for the manager who called 911.

“New Haven police are remarkable,” Esserman said.  “Their response was prompt and it was clear to everyone that I spoke to that their discipline was notable,” Esserman said.

You know what they say: If you see something, say something.

Moral of the Story 1: On a serious note, shouldn’t this incident and the one last year that I linked to above and the general confusing about concealed carry laws in CT and the apparent hysteria that’s generated whenever someone sees someone else carrying a gun in public suggest that perhaps we might need to have a debate in CT about whether we actually want it to be legal to carry a concealed weapon in public? If we can’t handle it without overreacting and freaking out, then maybe it should be illegal. That way, we’ll stop crying wolf every time we see someone with a concealed weapon.

Moral of the Story 2: Don’t take a gun to a movie theater right after some whackjob’s just killed 12 people at a movie theater. With a gun. That was showing the same movie you went to.

Moral of the Story 3: People are idiots.

Monday Morning Jumpstart

Oh, hello. It’s been a while, eh? Yes, this former Monday Morning staple has unfortunately gone the way of the dodo, given my newfound love of sleeping in a little longer than I used to. Today, however, blessed with an oncoming cold, I have just enough time to throw some links your way before I drink a whole bottle of Benadryl and follow it up with some hand sanitizer.

So. Enjoy this one-off Jumpstart:

  • The AP has this piece on the litigation sure to be prompted by the repeal of the death penalty.
  • The Courant has this lengthy piece on the delays in awarding compensation to those exonerated by DNA in CT.
  • Here’s an Op-Ed on the repeal of the death penalty that purports to be deep, but in the end spews pro-death talking points and misuses stats.
  • Natapoff in Slate calls for all of us to start paying attention the millions of misdemeanor convictions entered each year.
  • The problem with composite sketches. See how many suspects are rendered in the sketches.
  • In case you spent the last few days buried under a rock, here’s a widely distributed AP profile of George Zimmerman.
  • The Senate should vote any time now to legalize medical marijuana and Sunday binges liquor sales.
  • Here’s a nice little rundown of some of the major bills in the legislature.
  • Ken Lammers at KrimLaw poses a self-defense hypothetical.
  • Gamso provides the counter-point to this David Dow piece on LWPOR being a terrible idea.
  • Antonin I. Pribetic, the Canadian Trial Warrior (TM), hosts this week’s Blawg Review.
  • The ACS Blog has this piece on Scalia’s ugly, unwield, ever-growing influence on the Roberts Court [Bonus from the same source: on originalism and cruel and unusual punishments].
  • Mark Bennett suggests that citizens can – and should – arrest TSA officers for violating the law (In Texas. Do not try at home).
  • Remember SOPA? It’s back, with a different name, but just as bad. Has the fight left us?
  • Finally, I wrote earlier about a stupid bill in the CT legislature and I should’ve added the video below to that post, but that would’ve been going too far. So it’s here instead.

Send soup.

The Contest

Neutered animals

There seems to exist a rule of lawmaking that every good policy decision must not go unpunished and must be equally balanced by a completely bone-headed one. That logic and good sense must be sacrificed at the altar of fear-mongering at least once every legislative session.

Given all the good work the CT legislature has done this year, it seemed inevitable that someone would end up being spanked. Sure enough, a bill has made its way out of committee that underlines the commonly-held belief that any good work that comes out of a legislature is sheer, blind luck and most of the bills passed are ineffectual at best or mind-bogglingly stupid at worst.

This particular euphemism would not only make it a Class D felony - punishable by up to 5 years’ incarceration – but also place the offender on a public sex offender registry. The act? Committing a “lewd act” while in prison.

The bill, says the Department of Correction, is necessary because inmates often expose themselves and masturbate in front of staff members. In 2011 alone, there were 390 such incidents committed by 94 inmates.

Wait. Hang on.

94 inmates? Out of approximately 17,000 at any given time? That’s 0.55% of the inmate population. That’s barely half of one percent of the entire population in all of CT’s prisons.

And for this we need a new crime? One that would impose a mandatory consecutive sentence no less? And one that would land the offender on a sex offender registry for 10 years, presumably with the short description that “this person exposed himself in prison”.

Have we suddenly solved every other problem that plagues the State of Connecticut that this is all that remains to be whipped? Are the administrative punishments so limp that this is even viewed as a necessity? (Clearly, they are not, as evidenced by the offender rate of 0.55%. There exists a deterrent, and an effective one.)

Although the masturbation aspect of this bill will garner the most headlines, it is important to note that the bill is broader than that. It criminalizes any “lewd exposure”. What that is will be known when we see it. Presumably, any exposure than a correctional officer decides they do not like will be lewd.

The second clause of the bill, presumably inserted because even the drafters recognized the outrageous nature of it, is a red herring and a lie. It states that this lewd exposure or masturbation “may reasonably be expected to be viewed by a reasonably identifiable employee of the Department of Correction”. Umm, hello? It’s a fucking prison. Every living second “may reasonably be expected to be viewed by a reasonably identifiable employee of the Department of Correction”.

Public indecency, in the free world, is defined as:

(1) an act of sexual intercourse, (2) a lewd exposure of the body with intent to arouse or satisfy his or her sexual desire, or (3) a lewd fondling or caress of another’s body.

When not in prison, this act is designated as a Class B misdemeanor, worthy of no more than 6 months in jail. In that same jail, it is apparently 10 times more despicable.

Masturbation in prisons – or lewd exposure – is about two things: sexual release and maintain a modicum of dignity. We strip inmates of their humanity, we strip them of their privacy, we strip them of their freedom, we strip them of their clothes and perform cavity searches, we strip them of any semblance of privacy, we treat them like animals and then we act surprised – shocked, even – when they use the only thing we can’t take away from them, their bodies, to regain a sense of control over their situations.

Meanwhile, rapes in prison go unnoticed, condoms aren’t passed out, disease is rampant and staff exert immense physical and sexual control over their wards. And yet all we want to do is flog the prisoners more. Treating them like animals isn’t enough, we want to neuter them.

[Let's not forget the preposterous cost implications of this 5 year consecutive requirement: the current average cost of housing an immate is $44,000+ per year. For every inmate who is convicted of this nonsense, we're adding $220,000 to the DOC's already bloated budget.]

Norm has more.

Relegating McCleskey

Twenty five years ago yesterday, the United States Supreme Court issued one if its most shameful opinions in recent history: McCleskey v. Kemp, in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences. The Court in McCleskey, assuming that the Baldus study [.doc] was accurate, nevertheless:

categorically rejected the idea that statistical evidence was sufficient to show a constitutional violation, requiring instead that a defendant show “exceptionally clear proof” of discrimination under the facts of his or her own case. This near impossibility effectively shut the door to any thing short of “smoking gun” evidence of intentional discrimination — evidence that is unlikely to exist, or unlikely to be discovered by the defense.

From this post the ACLU’s McCleskey project website. That is to say, the Court made it near impossible to prove the standard, particularly in light of the fact that contacting individual jurors and asking them about their personal racial biases is a non-starter. The Court’s rationale in rejecting McCleskey’s claim wasn’t that racial discrimination in the criminal justice system didn’t exist, but rather that it was “inevitable” and, as Justice Brennan put it, the majority was afraid of having to dispense too much justice. Rather than confront the reality that the system is terribly flawed and skewed against people of color, especially in the death penalty context, the Court did what was natural to any petulant 5-year old: run in the other direction, hands over their ears, yelling at the top of their lungs so as to not let reality set in.

[Interestingly, as heretofore unknown to me, was a Scalia memorandum prior to the decision in McCleskey, which said:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Shorter Scalia: it's there, it's real and we can't change it, so why even bother?]

McCleskey, of course, is also famous for being the one vote that Justice Powell, in his later years, regretted. Which brings me to the point of this post. While no courts would ever seriously consider a systemic bias claim in light of McCleskey, that doesn’t mean legislatures aren’t free to mandate such a consideration. In 2009, North Carolina did just that, with its Racial Justice Act. And last week, we saw the results. In the first ever decision applying the RJA, Superior Court Judge Greg Weeks held [PDF] that Marcus Robinson’s death sentence must be commuted to life without the possibility of release because of racial bias in the jury selection process:

Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.

The Michigan State University study [PDF] produced some stunning findings:

It reported that, of almost 160 people on North Carolina’s death row, 31 had all-white juries, and 38 had only one person of color.

More here. The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.

It isn’t enough for us in the system to “know” that there is racial bias. It isn’t enough for us to throw our hands up and shrug. It isn’t enough that we pay lip service. We must relegate McCleskey to the dustbin of history, alongside cases like Dred Scott and Plessy v. Ferguson. We must do something more. David Baldus, may he rest in peace, did. Gov. Beverly Perdue, who vetoed a repeal of the RJA, did. Judge Greg Weeks did.

Who’s next?

Recording racial profiling

In somewhat of a banner day at the CT Senate (this is turning out to be quite the legislative session), two bills passed that chamber of the legislature and move to the House for its approval. Both bills have to do with police behavior, both having been in the spotlight recently.

The first is a bill that not only makes it clear that it is legal for citizens to record police officers, but also provides a cause of action for a lawsuit against officers who illegally prevent citizens from conducting such video recording:

(b) A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer’s duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.

There are some exceptions, however, to civil liability:

(c) A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.

Some of which seem to be somewhat vague in their definition and might lend themselves to overbroad application. But hopefully this codification will prevent what happened to Luis Luna from happening again. For more on the debate on this bill, see this Capitol Watch post.

Second, there was the bill to strengthen the racial profiling law in CT, in the wake of the East Haven fiasco. The bill would require:

1) A standardized form, in both printed and electronic format, to be used by police officers of municipal police departments and the Department of Emergency Services and Public Protection to record traffic stop information. The form shall allow the following information to be recorded: (A) Date and time of stop; (B) location of the stop; (C) name and badge number of the police officer making the stop; (D) race, color, ethnicity, age and gender of the operator of the motor vehicle that is stopped, provided the identification of such characteristics shall be based on the observation and perception of the police officer responsible for reporting the stop; (E) nature of the alleged traffic violation or other violation that caused the stop to be made and the statutory citation for such violation; (F) the disposition of the stop including whether a warning, citation or summons was issued, whether a search was conducted and whether a custodial arrest was made; and (G) any other information deemed appropriate. The form shall also include a notice that if the person stopped believes they have been stopped, detained or searched solely because of their race, color, ethnicity, age, gender or sexual orientation, they may file a complaint with the appropriate law enforcement agency, and instructions on how to file such complaint;

The CT Mirror reports on the basics of this bill:

The anti-profiling bill sets standards for reporting the information and shifts responsibility for its analysis from the Commission on African-American Affairs to the Office of Policy and Management, which has staff and resources unavailable to the commission.  The new legislation also allows OPM to withhold public safety-related state funds from communities that don’t comply.

Though most GOP senators backed the anti-profiling bill, Canton Republican Kevin Witkos, a 28-year veteran of that community’s police force, argued that while profiling is wrong, the measure was flawed.  Rather than requiring officers to guess at a motor vehicle operator’s race and ethnicity, Witkos said the legislature should mandate that drivers provide this information on their driver’s license.

But [Judiciary Committee Co-Chair Sen.] Coleman argued this would work against efforts to end profiling, adding that it’s crucial to know what an officer’s beliefs about an operator were when the decision to stop the motorist was made.  Witkos also tried, unsuccessfully, to amend the bill to ensure that state funds couldn’t be stripped from community policing or youth athletic programs tied to municipal departments found not in compliance with profiling reporting rules. “It’s not fair to the other areas of the police department that do good work,” he said.

All in all, a good start.


There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.

First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.

You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.

Yet, we have Labriola:

He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.

I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:

Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.

[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]

This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:

1. The death penalty is appropriate.

2. Because DNA evidence provides great assurances that offenders are actually guilty.

3. He knows this because he represented an offender.

4. In whose case DNA evidence was presented.

5. And the DNA evidence excluded his guy.

6. And still his client was convicted.

7. And spent 20 years in jail.

8. ????

9. PROFIT!!!!

Labriola concludes with:

“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.

It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”.  As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?

For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.

It does not compute.


Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.