Pardon me

Just before he left office in January 2012, Mississippi Governor Haley Barbour pardoned a whopping 198 people at once. Despite the fact that only 10 of them were still incarcerated, the pardons set off a firestorm and gave birth to a lawsuit seeking to invalidate the pardons, not because they weren’t deserved or that the Governor didn’t have the authority to issue them, but rather because he allegedly hadn’t followed the notice requirements.

Today, the Mississippi Supreme Court issued a 6-3 ruling [PDF] holding that the pardons were valid because to rule otherwise would violate the separation of powers. All the opinions together total 77 pages, but they are worth reading from start to finish because they provide an in-depth analysis of the separation of powers and our system of checks and balances. The opinions are an enlightening walk into history underscoring the pivotal importance of the independence of the three branches of government. The granddaddy of all separation cases, Marbury v. Madison, is front and center.

Of course, while this furor isn’t about the fact that almost two hundred criminals were pardoned, it really is. People are angry for nothing other than the simple reason that some “lawless convicted felons” (a quote from the operative dissent) got some supposed windfall.

But what really, does this pardon do? Does it negate the crime? Does it negate the years of punishment? Of course not. All it does is gives some people a chance at rebuilding lives unburdened by the stigma and trappings of a criminal conviction. You can argue that some of these 198 don’t deserve it. You can argue that some people deserve to have less than meaningful opportunities as punishment for what they’ve done. You can argue that the Constitution shouldn’t give a Governor unchecked power to do as he pleases in this regard. Heck, you can amend the Constitution to do just that.

As one concurrence points out, that’s not the issue. The issue, simply, is whether judiciary can even begin to examine the exercise of authority that exclusively belongs to the executive? As the majority eloquently puts it:

the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of  government has constitutional authority to void a facially -valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124’s publication requirement.

In other words, the procedure for exercising executive power is within the province of the executive alone. I’m not sure which side I come out on in this issue. It’s certainly not an easy one, nor one that was made lightly, I suspect. On the one hand, the implications of holding that courts can and should review executive decisions are staggering. Can you imagine courts reviewing and inquiring into every vote taken in every legislature throughout the country? The focus of the courts’ review has to be the content of the laws passed by the legislature and the actions taken by the executive, not the process by which those laws came into creation.

But, on the other, is the danger that facially void laws come into effect: what of a bill that is signed by the Governor that has not been passed by both chambers of the legislature? That, after all, is also merely the process by which laws are made.

There is a distinction, I suppose, but one that is ever so slight. And that’s what makes this opinion fascinating. It a decision of pure Constitutional interpretation that allows us all to act as if it were still 1803.

Seeing as how I mentioned Marbury, I have to link to this re-enactment again:

We need to talk about an injustice

While it was happening, I heard from many on Twitter that Bryan Stevenson‘s TED talk on injustice was riveting and a must watch. It’s now available online and I’ve linked to it below. This is your homework for the day. Watch it, think about it and we’ll come back tomorrow to talk about it (and injustice).


You really should object when…

An avid reader sent me this case that has been making the rounds of a local listserve and I figured it was too good not to share. I’ve tried to think of a reason why one wouldn’t object in the following situation, but I’m coming up empty handed. Candy for anyone who can think of a rational reason. One of the issues raised on appeal in Zabin v. Picciotto, 73 Mass. App. Ct. 141 (Mass: Appeals Court 2008) was:

e. As the trial approached the end of October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed the request. The defendants contend that the presence of jurors in costumes turned the trial into a circus and denied their rights to due process.[42]

With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.

[42] The defendants also assert that some of the plaintiffs’ counsel handed out candy to the jurors. They further claim that, on another occasion, a proposed “cast list” was circulated for a Hollywood movie version of the trial. The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the “cast list” was circulated to the jury.


The United States of China

China, not a country known for subtlety, has turned a mirror on ourselves by taking two of the most beloved forms of American entertainment and combining it into one: reality television and the death penalty. And they’ve struck viewership gold, with 40 million viewers every Saturday night for 5 years. The show, which is a slightly more twisted version of ‘To Catch a Predator’ features a Ms. Ding with:

harrowing – some would say voyeuristic – footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions.

The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.

The inhumanity of this all is staggering:

In one scene, a prisoner in his 20s falls to his knees before his parents, who have been allowed to see him. He pleads: ‘Father, I was wrong. I’m sorry.’

Moments later, his parents see him about to be led away to his death. His distraught mother apologises for beating him once as a child and implores her son: ‘Go peacefully. It’s following government’s orders.’

Prison officers then push her aside and drag him away.

We are in elite company, with only 3 other countries separating us from China in number of executions (2010 data). And yet, somehow, I have this nagging feeling that there are some within our country who rejoice at executions the way the Chinese have been riveted to their TV screens; that the increasingly louder howls for blood perpetuated by the 24 hour news cycle and its Voldemort make ‘Interviews before Execution’ an idea that is very much alive here in the US, even if it isn’t on our TV screens.

The vengeance in Ms. Ding is something oft seen stateside:

Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard.

‘When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’

And when we are face-to-face with the same sort of glee exhibited by a country that shares nary another value with us, it should give us pause. Is this who we really are:

The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body.

Three extra episodes were devoted to his story as viewing figures soared. Homosexuality is still regarded as taboo in most of China, and the sensational trailers described his interviews as ‘shining a light on a mysterious group of people in our country’.

When Bao was executed, no family members turned up to say farewell. His final conversation before being led to his death was on camera with a decidedly wary Ms Ding, who admitted to being unsettled by his sexuality. In a remarkable scene, he asks if she will do him a last favour by shaking his hand before he dies. She hesitates, before lightly touching his hand with her finger and then pulling it away.

She later confessed to being unsure if she should have shaken his hand, saying with obvious distaste: ‘There was a lot of dirt under his nails. For a long time there was a feeling in this finger. I can’t describe that feeling.’

Is this who want to be? Aren’t they doing what we already do, just more explicitly? A spokeswoman for the BBC, which is scheduled to air a documentary on this show, said:

The programme provides a revealing insight into Chinese attitudes to the death penalty. By showing rare footage of China’s death row alongside interviews with convicts, judges and journalists, it opens up an aspect of China that is normally hidden from the world.

It’s also opening up an aspect of ourselves that we wish to hide. Are we strong enough to face it and reject it? Or do we succumb to the power of anger and turn up the volume?


Alabama, United States

Back in December, 2010, Alabama’s preposterous prosecution of Gabe Watson caused me to write this post questioning whether The Yellowhammer State (seriously?) had forgotten that it was located within the territorial boundaries of these United States and not in Oceania, which it was at war with.

Concisely, Gabe Watson’s wife died during a diving incident in 2003. 5 years later, because that’s how laid back they are in Oz, he was indicted in Queensland for murder and eventually pled guilty to manslaughter receiving an 18 month sentence.

But that didn’t sate Alabama Attorney General Troy King, who is reported to have remarked: “18 months? In Alabama you get 18 months just for being black!”1 So he opened his favorite refrigerator and pulled out his favorite lunchtime snack: that venerable ham sandwich and had Watson indicted in Alabama for murder. For a death that occurred in Queensland, Australia. The theory, naturally, was that he planned his crime in Alabama and thus that – oh, I don’t know, just go with it, okay?

And so on went the prosecution of Gabe Watson, all the way to trial, causing most people with any knowledge of how things are done in Alabama that a capital conviction was forthcoming.

But those people don’t know Judge Tommy Nail, apparently (Can I point out how awesome it is that he goes by Tommy, not Thomas or Tom? Does he wear leather to work and ride a hog?). Because Judge Nail reminded the Yellowhammers that we still operate under laws and those laws come from the Constitution:

“The evidence is sorely lacking that it was an intentional act,” Nail said in response to a defense motion for acquittal after the prosecution completed its case.

“The only way to convict him of intentional murder is to speculate,” Nail said. “Nobody knows exactly what happened in the water. I’m sure we’ll never know.”

Nail also said the prosecution’s evidence about financial gain was a stretch, and he heard no evidence proving a profit motive.

And you know why there wasn’t any evidence of financial gain or profit motive? Because Watson couldn’t have profited. The beneficiary of his ex-wife’s life insurance policy was her father, who pushed King to prosecute Watson.

This silly, wasteful prosecution was rightly dismissed by the judge, but not after much money was spent and stress caused and the loss of liberty threatened. All for what? A political ploy? Publicity? I refuse to believe that King honestly thought he was pursuing justice in this case by prosecuting Watson on the most threadbare of theories. Someone who takes elected office must have a greater sense of responsibility to the citizens of the state and to justice. But there are or will be no consequences stemming from this for King. He’s free to terrorize someone else tomorrow, perhaps someone without the media attention surrounding Gabe Watson, thus escaping close scrutiny. Maybe there are other judges who aren’t Judge Nail, willing to give the prosecution the benefit of the doubt and deposit barely-weak cases in the laps of mercurial jurors.

Judge are the second gatekeepers of justice; prosecutors are the first (jurors are the last). We should demand more of them; we should expect more. If we don’t, we’re all a few minutes from midnight, about to turn into ham sandwiches.



1He said nothing of the sort that I know of. I mean, anything’s possible, I suppose, but I just made up that quote because I wanted to perpetuate stereotypes about Alabama. It’s parody. Don’t sue me.

It’s time for real reform

Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.

But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.

Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.

First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:

[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]

The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.

For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.

Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.

That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?

The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.

A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.

The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.


Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.

Q: Is it true that all sex offenders kill their victims?

A: No.

Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?

A: No.

Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?

A: No.

Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?

A: No.

A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:

The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.

Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.

Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.

Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.

The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.

Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.

And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?





Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.

Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:

whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.

Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.

The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.

Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).

How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.

Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.

Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?

The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.