Raison d’être

I could quote, as I have done before, Ammianus Marcellinus and his tale of Delphidius and Caesar. I could quote Martin Luther King, Jr., and his admonition that injustice anywhere is a threat to justice everywhere. I could even quote my namesake, but I’ve already written about him once today. Instead, I quote Jonathan Rapping, former training director of Public Defender Services and current something of Gideon’s Promise, a program dedicated to training and resurrecting crumbling public defender offices in the South.

Expectations for what poor people deserve have fallen so low that people in the system have come to accept these low standards. They have lost sight of justice and the role they are supposed to play in promoting it.

While limiting caseloads is certainly one part of the solution, if we expect to change America’s public defense system, we must change its culture. We must teach public defenders to resist the low expectations of a broken system. And we must prepare the next generation of public defenders to improve those systems.

Perhaps being fortunate to practice in a public defender system that has most everything one could ask for* has blinded me to the obvious realities of practicing in other jurisdictions where we are barely funded at all.

But the charge that it is the dedication of the public defenders that needs examining that gives me pause. Is it, like I want to think, that those public defenders who have accepted the low expectations of the broken system are few and far between, or is it like Rapping teaches it: an infestation that has taken root in a discordant system in states where there is little or no attention paid to indigent defense?

Gideon at 50: A stolen promise and the search for a soul

Q.E.D.

Q.E.D.

Clarence Earl Gideon, of Florida by way of many state’s penitentiary systems, was a thief. He was a rather poor one too. Gideon, whose name I have adopted and which I shroud myself in on a daily basis, was also a dreamer. And like most dreamers, he was also a fool. A thief, a dreamer and a fool, and in the end, he and his legacy have done us all in.

50 years ago today, Clarence Earl Gideon the man, the thief, was vindicated. Writing for an unanimous Supreme Court, Justice Black opined that

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.

Obvious in principle, obvious in necessity but hardly obvious in execution. Clarence himself bought into the lofty ideal idealized in his namesake decision, going so far as to put some grandiose on his tombstone:

And yet, somehow, here we are. There is no joyous celebration of the 50th anniversary. There are no pats on the back or accolades, let alone a sense of satisfaction of a job well done.

There is only a moment of attention that has drawn the pleas for help out into the open, as the world, for this instant and only this instant, has muted every other noise to pay perfunctory obeisance at the altar of indigent defense, because it is the right thing to do. So in these few fleeting moments, take note of the near-universal message of “dear God please help us we are drowning”.

In this moment, I am reminded of another favorite quote of mine:

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

While the meaning of the phrase “shall enjoy the right” may have been up for debate prior to Gideon v. Wainwright, that decision left little room for its continuation. What the Constitution (and by extension Gideon) did not provide is the will to enforce that right.

That will comes entirely from the people. And the people for about 49 years now, haven’t given a shit.

Oh, don’t get me wrong. The people – you – care very deeply about the criminal justice system. The people – you – have very strong senses of right and wrong. The people – you – have very strong opinions about what should be a crime and how swiftly, quickly and severely that crime should be punished. This hasn’t changed. Just remember Justice Black:

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.

Law & Order, DAs, cops, FBI agents, rogue cops, the triumph of good over evil are staples of our modern imagination. They are woven into the fabric of our existence and color the lens through which we view the world.

Every person arrested is guilty and those that are not are rare exceptions that don’t alter the perception of the system. We don’t care if the people who get arrested get good defenses; we assume they’re guilty. What we really need to do is pay the people who catch criminals. And prosecute them. And guard them. The guys who defend them? Scumbags. Criminals themselves. Government fatcats.

It’s not so much a funding problem (it is that too) as it is an attitude problem. The funding drought is merely a symptom of the greater issue with indigent defense: no one gives a shit.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

How many reading this today would agree that it continues to be true? Maybe it did when Justice Black wrote it in 1963. But I don’t know. I wasn’t conscious then.

Do these principles still matter in a Honey Boo Boo world? Are we still obsessed with being the best in the world at everything? The most noble? Is that even on the radar?

—–

Imagine, if you will, a world without a public defender. What would this world look like? Do you know that in Connecticut [PDF], we handle over 80% of the criminal cases every year? That means approximately 81, 500 cases last year were handled by public defenders.

Yes, that’s 81, 500. In one year. I think the public defender system in Connecticut employed 214 attorneys in the last fiscal year. Any time you get arrested and face jail time, we represent you. Doesn’t matter if it’s because you shoved your girlfriend in a fit of rage or because you broke into a house and murdered the occupants because they interrupted you while you tried to steal their PS4.

Eighty-one thousand. In one year. And that’s in Connecticut, one of the smallest states.

We’re like your neighborhood mechanic who works on your car for free, whether it’s an oil change or a transmission.

But there are 81, 500 cars and only 214 mechanics. We need more mechanics.

—–

The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.

“Arguing for more money to defend criminals is not the easiest way to win a close election,” said former Vice President Walter Mondale. As Minnesota’s attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states’ responsibilities to poor defendants.

Why is that so? Who is to blame? It is the height of cheek for politicians to say that seeking funding for criminals is an untenable platform when they themselves have made it so. ‘Tough on crime’ was a political policy, not an intrinsic way of life. Politicians have made careers on ruining lives of those arrested and now lament the lack of popular will to fix the broken system.

Or is it our fault for letting them? How many times have you said: “why don’t they just find them guilty already and sentence them?” How many times have you disrespected the Constitution?

And what will happen when it is you, facing a judge, standing next to a public defender with 25 files in his hand? Or your son? Or your grandfather?

—–

Funding indigent defense isn’t funding criminals. Funding indigent defense isn’t paying incompetent lawyers to do nothing. It’s funding something far more important. It’s funding the protection of the Constitution.

Do you know what happens every day in the criminal justice system? The law is followed, changed or challenged. And that happens in the brightly lit, heavily populated courtrooms on which no light is shined. Public defenders (and other defense attorneys) are playing a long, complicated chess game with the government. At stake: your individual freedoms.

Tomorrow, when you wake up and wonder why there needs to be a debate about whether the President has the authority to order drone strikes to kill American citizens on American soil without due process, it’s because every incremental battle leading up to that preposterous proposition has been lost. Tomorrow when you get pulled over and the cop looks through your cell phone or pulls you out of your car and frisks you or lies to you and gets you to admit that you committed a crime that you didn’t, realize that those battles have been fought and lost.

These battles aren’t won or lost in cases of innocent people. Name every single case that you might know. They were all guilty. Ernesto Miranda? Guilty. Clarence Gideon? A criminal. Michael Crawford? Stabbed a dude. Ferdinand Oquendo? Killed a dude.

And it may be that those battles were well fought and would’ve been lost anyway. But you’d have known about them, if you paid attention. And maybe you’d have cared and demand differently of your legislators and lawmakers and governors who appoint judges who make these decisions.

Because, whether you realize it or not, you have entrusted your rights to me. I am their guardian. My black-or-Hispanic-lives-in-a-shitty-neighborhood-has-a-criminal-record-was-probably-robbing-a-bank-client’s Fourth Amendment rights are the same yours. Or rather, your rights are the same as his. If you want the government to truncate his rights because you judge him as “the other”, then realize that you’re giving the government full license to truncate your rights too. Don’t worry, I’ll fight just as hard when you’re standing next to me, but it might be too late then.

So decide today, America. What is more important to you: liberty, freedom and justice or just the idea of it?

I’ll be here either way.

Video via.

——————-

Other reading (will try to update continually through the day):

Image of Clarence Earl Gideon’s tombstone credit Diane L. Wilson/Associated Press taken from this NYT article.

Sunday Stupidity: because sometimes all you can do is laugh

Discovered via the intertwebs, “What the Public Defender“, a site that uses moving images to make funny comments about commonly encountered public defender/criminal defense situations. Hilarity ensues, etc. For example, the below image is captioned “When a Judge scolds the DA“:

 

80HJ9vZ

Preparing for Gideon Day

You may or may not have been aware that my birthday is coming up on Monday, March 18, 2013. I will turn 50 on that day. I am ramping up my celebration efforts in advance of Monday, most of which include putting bandages on myself and drinking copious amounts of alcohol to deal with the pain, which then leads to further injuries and more alcohol and on.

So, if you wish to pay tribute to Gideon Day, write a short essay, not exceeding 1000 words and post it on your blog. Then send me the link and on Gideon Day I will admonish you to hug a public defender (any public defender, not ‘a public defender’) and then I will compile the links into a Gideon Appreciation Day post where your appreciation can be appreciated.

Get on with it.

A questioning jury

Every thinking criminal defense lawyer is, at some point every year, occupied with the idea of improving the jury trial process. Having readily concluded that the lawyer himself is not to blame and is at the peak of his abilities, the focus naturally turns to the only laymen in the room: the jurors. For once, though, the lawyer’s narcissism isn’t misplaced. The jury is, most often, the ultimate arbiter of whatever it is at dispute. Having spent thousands of hours ranting on this blog about how the system is flawed and how jurors are like black boxes and you should ELI5, I can’t pass up the opportunity to comment on something unusual that’s occurring in a high profile trial in Arizona.

Jodi Arias is someone who’s accused of doing something and for some reason the trial is getting a lot of publicity. The interesting thing, from my perspective, is the fact that Arizona seems to be a state that permits juror questioning of witnesses during criminal trials. And so Ms. Arias has spent the last few days answering over 100 questions from the jurors in her case. Much to her supposed dismay, the questions in her case seem to indicate that the jury thinks she’s full of shit.

There’s no doubt in my mind that our system is imperfect and even the jury trial itself could use improvement, but whether jurors should be permitted to ask questions of witnesses at all is a very interesting question that I’ve neglected in the past. I’ve written about proposals permitting questions, among others, and of a proposal to permit Q&A during closing arguments (which I still think is a fabulous idea), but the idea that jurors will get to ask questions of my defendant sends a shiver or two down my spine.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not. I’m the lawyer who hangs out in the courtroom after a verdict so I can talk to jurors, because I want to know why they voted one way or another, so I can learn and put it to good use next time. But that’s merely educational. Wouldn’t it be great to know what they’re thinking while the trial is going on?

This excellent article in The Jury Expert argues just that: that lawyers needs to get over their fear (and indeed they do once they’ve gone through a trial with juror question) and embrace the positives (see also the ABA’s 19 principles to improve jury practice [PDF]). Surprisingly, there is some clinical research on the impact that permitting jurors to ask questions has on trials:

Larry Heuer and Steven Penrod examined the impact of allowing jurors to take notes and ask questions in both civil and criminal trials through two experiments, one conducted in Wisconsin state courts, and the other involving both state and federal courts in 33 states. […] They found that when jurors were allowed to ask questions, jurors felt more informed about the evidence, thought the questioning of witnesses had been thorough, and were more confident they had sufficient information to reach a verdict.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Of course, this is not a practice that should be wantonly permitted: there have to regulations on instructions, objections and what, exactly, is the standard that would permit a question to be asked. Do both parties need to consent? These are questions about implementation, not the wisdom of the practice itself.

The idea scares me because I think of the frustration mid-trial when I learn that the jury may be leaning toward convicting my client. But that eventuality exists whether I am aware of it or not. And if I am aware, I may be able to do something about it. In this instance, it might be better to kill Schroedinger’s cat.

Surprisingly, it seems Connecticut may already permit juror questions. See Spitzer v. Haims & Co., 217 Conn. 532 (1991) and see footnote 3 for the jury instruction related to juror questioning. In Spitzer, the CT Supreme Court held:

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App.3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v.Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 188, 165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors’ objectivity. People v.McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

For a lengthy list of cases discussing this issue, see footnote 8 of Spitzer. To see if your state permits it, see here. While Spitzer was a civil case, State v. Mejia seems to indicate that the practice would likely be extended to criminal trials as well (approving juror note-taking in criminal trials).

Has anyone out there tried it? I am willing to shed my steady habit for this and take juror questioning for a spin.

See also: Turkewitz’s blog.

Safeword: Get out of my bedroom

One of the questions I deliberately side-stepped while ranting about the fiasco that was the media coverage of the Connecticut Supreme Court’s decision in State v. Fourtin, back in October, was the question of whether people who are disabled and mentally ill can legally have the capacity to consent.

Some of the arguments seemed to indicate that people in the position of the complainant in Fourtin – people with physical and/or mental disabilities – are never able to consent and thus any sexual encounters with them are perforce illegal. I expressed some misgivings at the time and I still do: I think that love and sex are two fundamental aspects of what make us human and just because someone has a mental illness or a physical handicap doesn’t mean that we, as whole and able bodied beings, have the right to legislate away their right to be happy.

And now the CT Supreme Court is back at it again, considering just this issue. In Kortner v. Martise, as best I can tell, the two issues are as follows:

1. Whether the trial court properly let a jury decide whether a woman with mental illnesses could consent to BDSM-type sexual encounters.

2. Whether anyone can consent to BDSM-type sexual encounters.

Essentially what happened is this: there was a woman named Caroline Kortner, who, when she was 24 in 1994 was deemed to be incompetent by a probate court and her mother Mary Kortner was appointed her conservator. Sometime in 2003, she met Martise and the two of them started a relationship that involved BDSM:

the relationship included Martise dragging her daughter by a leash and dog collar, slapping her with his hand and a belt, pinching and twisting body parts, tying and gagging her and dripping burning hot wax on her. [The jury in Stamford ruled there was no proof to the dragging and pinching allegations.]

Some other, more “benign” acts alleged were: slapping her buttocks with his hand and belt during intercourse, dressing her in a crotchless black stocking and cat’s mask (?!), and “repeatedly” showing her pornographic pictures and videos. Mary Kortner was appointed conservator because:

In 1994, a probate court had ruled her incapable of managing her own affairs during a period when she refused to eat.

She had other problems as well:

[She] had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia, and she tried to commit suicide twice, according to court documents. She also had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.

In 2006, the mother sued Martise, alleging the torts of sexual battery, assault and battery and intentional infliction of emotional harm, seeking $500,000 in damages because she claimed that he had abused her daughter and that because of her daughter’s mental and physical condition, she couldn’t consent to anything. Martise responded that Caroline was an adult woman and could, indeed, consent to sexual activity.

The mother then argued to the judge that because of the conservatorship, Caroline couldn’t legally consent and therefore whether she actually consented was not a question for any jury to determine. The trial court disagreed and let the jury decide whether Caroline had indeed consented. They found that she had and thus, did not render verdict in the mother’s favor. Here [PDF] are the questions posed to the jury and their responses.

[At this juncture, it’s important to note that this was not a criminal trial. I don’t think Martise was charged with a crime. This was a civil trial, a lawsuit filed by the mother against Martise seeking money.]

So this presents an opportunity for an intellectual exercise on the first question and a clear, unequivocal rant on the second question. Can someone be so mentally ill or physically disabled that they cannot, by operation of law, consent to an act? I think the answer has to be yes. There has to be a line at which we say that no consent is knowingly given. But that line, I think, must depend on individual circumstances. And so, by default, the inquiry must be fact-specific.

A jury must determine whether a person with a disability: 1) has, in fact, consented; 2) if they have consented, how intelligent was that consent: in other words, was that consent given with an understanding of the consequences of that consent and a willing participation in the actions that followed that consent.

In that sense, consent given by someone with a mental illness is no different than determining whether someone without a mental illness has consented. The reason, I suspect, why there can’t be a bright line “anyone with mental illness cannot consent” rule is that such a rule would cover well over 70% of the population1 of the United States. It’s got to be on a case-by-case basis. The court may well rule that the conservatorship is a factor to be considered in determining whether the person has the ability to consent and whether consent was actually given, but it won’t be the whole shebang.

As to question number two, which is phrased thusly in the summary: “The plaintiff also argues that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation.” let me simply say this: get. the. fuck. out. of. my. bedroom.

If I want to whip a consenting adult in my bedroom, it’s none of your damn business. If i want to be tied up and made to squeal like a pig while my lover attaches electrified nipple clamps to my nipples because I like it, I’m going to do it and it’s none of your damn business. If I want to have sex while my lover reads transcripts of my worst moments in court and calls me a public pretender and rules that I provide ineffective assistance of counsel, it’s none of your damn business.

Just because you don’t get off doesn’t mean you get to tell me how I can’t get off. Or you can, but only if I like that sort of thing.

 

1Not a scientific stat, but based purely on personal experience. You people are fucking nuts.