Reasonably close

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship. Is there any doubt about what this sentence means? To you and me and regular practitioners of the English language, perhaps not. Which is why I was surprised to read this Maryland Court of Appeals (it’s another one of those states with a non-conventional name for its Supreme Court) opinion [PDF] holding that the above quote, while probably accurate, isn’t something juries need to know per se. In Carroll v. State, the defendant appealed, arguing that the jury instruction was unconstitutional because the trial court refused to tell the jury that the state had to prove every element of every crime beyond a reasonable doubt.

You know, that thing that In re Winship makes explicit. Because apparently when it comes to convicting A Very Bad Man, close enough for government work is the appropriate standard.

Here is the instruction given by the trial court in its entirety:

Don’t be a part of the problem

The problems that plague our criminal justice system are well known. Equally well known are the deficiencies in indigent defense systems country wide. Public defenders are overworked, underpaid and represent a lot of ungrateful clients. It’s tough to do this job out there in the world; there’s no doubt about it. There are inadequate resources, little to no time to study and investigate each case and an immense pressure to keep the line moving.

But to mistake that explanation for a justification is to submit to the oppressiveness of the system and to take the easy way out by playing the victim. It reeks of a certain whining and invokes the image of a 5 year old on a playground who fancies himself the coolest kid on the block but regularly gets his lunch money stolen only to be left there, empty handed, yelling “Moooooooooom!”

Special sex offender syllogism

In the criminal law, there are experts and then there are experts. While you will find no shortage of people willing to line up and testify for a hefty fee that things are just as you wish them to be, some have more credibility than others. Falling in the former camp are those who deal with scientific evidence, like DNA or ballistics (and even then…). Squarely in the latter camp are those who are nothing more than anecdotal data compilers who then come to conclusions about that data through biased lenses: the so-called “forensic child abuse experts”. Really, they’re no more than lay witnesses who state their observations in their particular “practice”. Most don’t conduct research of their own, or write peer reviewed scientific papers or have more than the most basic medical training, if that.

And yet they’re allowed to testify with impunity about their so called “expertise”, which surprisingly happens to exactly coincide with whatever behavior the complaining witness exhibits. Courts have bent over backwards to permit this “expert” testimony, going so far as to classify it as non-scientific, thus placing it squarely outside the realm of Daubert scrutiny. [In CT, see State v. Sorabella, which doesn’t answer the question of whether Daubert scrutiny is still required for this anecdotal expert testimony pursuant to Kumho Tire.]

Nullifying death

Today, all nine Justices of the Supreme Court met to decide whether to continue to permit juries in capital cases that are inherently biased toward imposing a sentence of death, or to finally revisit a much-maligned and problematic practice of “death qualification” of juries.

In 1968, the Supreme Court announced a seemingly bright-line test for determining when the State could unilaterally prevent jurors from serving on a capital case (exercising a peremptory challenge): when those jurors stated that they were unequivocally opposed to the death penalty and could not impose a sentence of death in any circumstance. In Witherspoon v. Illinois, the Supreme Court held that the State could legally excuse jurors:

who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon, reaffirmed in Wainwright v. Witt, still rules the day. Death qualified juries are the norm and community members are regularly excluded based on their moral opposition to the death penalty.

Monday Morning Jumpstart: Damn it’s getting cold edition

Where did summer go? Bring it back, please. While you do so, read some of these weekend stories, sure to light a fire unde-oh, whatever, just read the damn things:

  • Constitution Daily has a post about the drama and controversy that marked the first Supreme Court justices.
  • Connecticut’s top federal judge is seeking outside help to clear through a huge backlog of civil cases.
  • Former Waterbury prosecutor John Connolly has died. Search the blog for his name if you want to know more about him, but he’s dead, so no comments here today.
  • U.S. District Court in Minnesota rules that forcing a student to provide his Facebook/Twitter passwords violates the First and Fourth Amendments.
  • One of the East Haven police officers charged with civil rights violations has pled guilty, possibly  to testify against others?
  • Missouri’s public defenders will be able to cap their caseload, per their Supreme Court [PDF].
  • Michigan’s indigent defense system is on its way to an overhaul.
  • Is the Obama flag logo violating Federal Law? No.
  • CT News Junkie has a nice report on StandDown, the annual event that provides free legal and health services to veterans.
  • The Juvenile Justice Blog writes about that 13-year old in Florida charged with murder.

Okay, that’s enough.

How not to represent a client

Imagine that you represent a man accused of a bank robbery. He is in jail and you’re in your office. You receive a letter from this client in an envelope marked “Legal Mail”. That envelope contains within it another sealed envelope with a letter directing that the second sealed envelope be delivered to the client’s cousin. You:

a. Leave the envelope sealed and tell the client you won’t/can’t send that on, or;

b. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi and tell the client that you won’t forward the letter and that he shouldn’t be sending letters like that, or;

c. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi, turn the letter over to the prosecution, move to withdraw from representation and then testify against the client at his trial.

Corvet T. Williams’ lawyer Dennis Ryan chose option (c). At the criminal trial: