Georgia’s retarded

In 2002, in the landmark decision Atkins v. Virginia, SCOTUS held that it was a violation of the 8th Amendment to execute a mentally retarded individual. In a beautifully succinct opinion, Justice Stevens (Kagan? Kagan who?) wrote for a 6-3 majority that the 8th Amendment’s ban on cruel and unusual punishments prohibited the execution of the mentally retarded. In that opinion, he noted a movement in state legislatures toward banning the execution of those who are mentally retarded:

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions…

Georgia, once at the forefront of radical movements in the criminal justice system, is now floundering at the bottom. Yesterday, the GA Supreme Court upheld [pdf] the constitutionality of a statute that requires defendants to prove beyond a reasonable doubt that they are, in fact, mentally retarded. In a decision that is short on logic or reasoning and long on law-and-order-fed-vengeance, a 6-1 majority relied – I kid you not – on the fact that SCOTUS, in Atkins said nothing negative about GA’s burden of proof. Don’t believe me? Here:

In Atkins, the Supreme Court praised Georgia as being the first state in the nation to have banned the execution of mentally retarded persons, and the Supreme Court made no negative comment about Georgia’s heightened burden of proof, but instead counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants.

Georgia, among other states with heightened standards for defining and proving mental retardation, was counted by the Supreme Court as being part of the national consensus regarding the treatment of mentally retarded defendants, and it seems to us entirely illogical that Georgia could have been a part of the consensus dictating a categorical rule and yet somehow simultaneously in violation of that rule.

(Emphasis in original.) Justice Melton, who authored the 6-1 GA decision, seems to have a massive reading comprehension problem. Atkins was a decision about whether the practice of executing mentally retarded people violated the Constitution, and to that extent the Court’s praise (such as it was) of the Georgia statute was warranted. What the court in Atkins was not deciding was the burden of proof required to find that a defendant is mentally retarded. But it gets worse. Here’s what Justice Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 399 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.

Nowhere in Atkins does the Court say that a defendant must prove beyond a reasonable doubt that he is mentally retarded in order to save execution. The paragraph above and its mention of the definition of mental retardation stems from the large number of briefs submitted to the court by psychiatric organizations highlighting that mental retardation isn’t a definite concept that can be given a fixed number. While we may now generally use an IQ range of 70-75 to separate those who are “retarded” from those who aren’t, any reasonably-versed practitioner will tell you that that is not something that can be set in stone. Individuals with an IQ of 80 may well be mentally retarded. In that vein, make sure you read this terrific law review article on the challenges of implementing Atkins. Here’s an excerpt, which highlights the problem:

What is so striking about Atkins is that the Court was persuaded to adopt a per se rule exempting all persons with mental retardation from the death penalty based on diagnosis alone. This is all the more remarkable in light of the fact that the line between being mentally retarded and being of borderline intelligence is operationalized statistically by an admittedly arbitrary line on a bell curve representing performance on an IQ test two standard deviations below the mean. In short, the diagnosis of mental retardation is in large part a statistical construct.

As for Melton’s claim that since they were praised for being on the forefront of this change, they should be allowed to rest on their laurels? The dissent rips it to shreds.

It seems that Georgia is now the only state in the country that requires such an impossible burden. Of the 35 states that impose the death penalty (and thus prohibit the execution of the mentally retarded), 22 require proof by a preponderance of the evidence – a much, much lower standard. Four states require proof by clear and convincing evidence and the three States (*cough*Connecticut*cough*) have not yet articulated the standard, though I would be surprised if it were anything but preponderance here.

The dissent also rightly points out the import of the language in Atkins, that the highest burden of proof needs to be reserved for the determination of factual allegations and scientific diagnoses are by nature more fuzzy. To subject the interpretation of test scores, manifested symptoms and perceived cognitive difficulties to that high standard would only serve to ensure that a mentally retarded individual will be executed, thus clearly violating the Constitution.

Even more puzzling, to me, is the fact that it seems that Georgia has no standard for proving mitigation in capital cases. It seems that juries can decide to recommend a sentence of life for any reason whatsoever. In fact, one of the complaints [pdf] about Georgia’s capital system is that its jury instructions are so poorly crafted that juries are regularly misled: a full 62.2% of jurors surveyed in this study believed that the defense had to prove mitigating factors beyond a reasonable doubt, which is incorrect.

Think about that. Georgia defendants aren’t even required to prove ordinary mitigation factors. A defendant may get up and say “spare me, I’m left handed” and the jury can say “but we saw you writing with your right hand” and still decide, that because he’s left handed, they’ll spare his life. A defendant can claim to be the love child of Amelia Earhart and Britney Spears, and based on that that jury can spare his life. But if the defendant is mentally retarded and thus protected by the Constitution, he must prove it beyond a reasonable doubt?

That’s not only troubling, it is what I call retarded. I think it’s about time Georgia got its own category on this blog.

I blue myself

I know what you were thinking. Pervert.

As I snarked (yes, it’s a verb now) on Twitter last night as Governor Malloy delivered his end of the session speech to a joint session of the legislature, yesterday was the first time since 1990 that a Connecticut governor uttered the words “criminal justice reform” and I didn’t want to throw something at the television.

The reason for this new-found restraint isn’t the deep meditation I’ve been practicing, but rather the reality that the legislature did indeed pass some sensible reforms this year. As the nation turns red, Connecticut turned blue, not only in the criminal justice arena but others as well. There was the paid sick leave [full coverage here] bill, the transgender identity bill and the in-state tuition for undocumented students bill. But as is the case with politics generally, there were many things left undone. Here’s a roundup of the criminal justice bills that passed and those that didn’t.

First, the good bills that passed:

  • Decriminalization of possession of less than half an ounce of marijuana.
  • Risk Reduction Credit: the first piece of “smart on crime legislation” to pass the legislature this year (scroll to section 22), this bill provides for 5 days per month of credit towards a reduction in the overall sentence of an inmate. It seems similar to a “good time” bill, but it really isn’t, because there are several offenses that are ineligible for this risk reduction credit and the credit applies only to inmates who participate in programs and maintain good behavior.
  • Home confinement for DUI and drug offenders: as advertised. Scroll to section 26 & 27.
  • Electronic Recording of Custodial Interrogations: finally a videotaping of interrogations bill and yet it feels so incomplete. This bill applies to people accused of capital felonies and Class A & B felonies only. Plus, it doesn’t go into effect until 2014, because apparently, in the 21st century, it’s far to burdensome for police departments to buy a goddamn videocamera and record something. Still, better than nothing.
  • Eyewitness ID reform: another half-measure as the bill now requires double-blind identification procedures “where feasible” but leaves sequential procedures for a “task force” to study. Study what, exactly, I don’t know.
  • An Act Concerning Competency To Stand Trial: I haven’t fully perused this bill yet, but it seems to make some changes to the restoration to competency procedure.
  • Prevention of Prison Rape: this is a terrific bill designed to prevent rape in prisons, which is a real problem. Read the NH Advocate for more.

Bills that should have passed but didn’t:

  • Reducing the radius around schools, within which drug offenders face enhanced penalties, from 1500 feet to 200 feet: This was another great bill that died at the last second, with time running out. This would’ve made another “smart on crime” change, reducing the enhanced penalty zone around schools to 200 feet. As it currently stands, at 1500 feet, major cities have almost no spots that aren’t within that radius of a school. In New Haven, there’s only one: in the middle of a golf course. Too bad. Maybe next year.
  • An Act Making It Clear That It’s Legal To Record Police Officers: This bill, ostensibly proposed in the wake of the Luis Luna fiasco, had great momentum, passing the Senate last week, but then it languished on the House calendar and was never put to a vote.
  • An Act Concerning Speedy Trials: another smart bill that sought to prevent the problem of people being incarcerated pre-trial for longer than the maximum punishment. Unfortunately, it didn’t get as much as a sniff in either the House or Senate.
  • An Act Concerning Sentence Modifications: a favorite of inmates, this bill would’ve removed the current requirement that all inmates serving sentences of 3 years or more need the permission of a prosecutor to even have their modification request heard by a judge. Essentially the bill would’ve removed prosecutors’ ability to cock-block. It didn’t get far.

The bills that shouldn’t have passed and didn’t:

  • An Act Designed To Make a Mockery of The Great Writ: This stupid bill keep getting proposed every year and every year it gets tougher and tougher to beat it back, for some reason. This year it made it out of committee, but thankfully died before a vote in either chamber. I’ve written extensively on why this is a bad, stupid, dangerous bill.
  • An Act Equating a Motor Vehicle With A Fiream: Here. I’ll let you read the summary: ‘To make the penalty for the offense of manslaughter with a motor vehicle while under the influence of intoxicating liquor or any drug, or both, consistent with the penalty for manslaughter in the first degree with a firearm and provide for a rebuttable presumption that any person who causes the death of another person while operating a motor vehicle under the influence of intoxicating liquor or drug, or both, did so evincing an extreme indifference to human life in a manner that constitutes manslaughter in the first degree.’ The penalty for manslaughter with a firearm? 45 years. That’s forty five. Thankfully this abomination, after passing the Senate (!), stalled in the House.
  • The DNA upon arrest bill: I wasn’t aware of this, but the bill passed with a great amendment: it applies only to those accused of serious felonies and who have been convicted of a felony in the past and haven’t provided a DNA sample. So, basically, it means no change in the law. [Link is to the House Amendment that was approved by the Senate, essentially the relevant portion of the bill.]
  • Establishing a ‘gun offender’ registry: this was a novel idea but didn’t make it far.
  • Thanks to Capitol Watch for reminding me about the stricter penalties for cell phone use while driving bills that apparently went quietly into that gentle night.

The bill I wish never passes, so we can keep talking about it forever:

  • The Ryan McKeen loves Susan Bysiewicz bill: This would have eliminated the hotly contested “active practice” requirement for someone wishing to be Attorney General. The House passed it, the Senate didn’t vote.

You can find a very unhelpful list of all the bills passed here. If any of you so much as thinks about mentioning ‘d____ p______’, I will /kickban you.

For those who don’t get the title of this post or the hilarious picture of Tobias Funke, here’s context:

CT decriminalizes pot

yes, officer, this weed is mine.

Connecticut’s legislature today voted to decriminalize the possession of less than half an ounce of marijuana. For those who don’t know, the picture above is of half an ounce of pot. That’s a lot.

In celebration of the impending signing of the bill by the Governor, I am conducting an experiment: this post is being typed while I am completely high1. I have Pink Floyd playing in the background, Half Baked on the television and my good buddy Jim Breuer mumbling on the telephone.

The bill makes it an infraction to possess less than half an ounce, resulting only in monetary fines and confiscation for said pot, presumably for the officers to smoke.

[Former Judiciary Committee co-chair and current criminal justice advisor to the Governor Mike] Lawlor said many of the 2,000 people each year who are convicted of possessing less than a half ounce of marijuana do complete one of the several programs that wipe their record clean upon completion.

But the conviction being on a permanent record is not the only problem, he said.

“In this day and age, the minute you get arrested that’s public record and remains a public record… That’s there forever,” he said. “When employers Google your name that will pop up.”

“Those are records they have to explain the rest of their lives” when applying for jobs, financial aid for college and when attempting to join the military, [Judiciary Committee co-chair] Fox said. “This [bill] would change that.”

Also: it’s pot. But of course, the Repubs brought out the “gateway drug” argument3. So, after typing this post I’m going to raid my mom’s medicine cabinet, pop some percocet and then head down to the corner to score some meth1. Brb.

And now here’s a picture, shamelessly stolen from the Hartford Advocate, followed by a video. Suggest your own theme song for this awesome event in the comments. Man.

wait, what...?


1No, don’t be stupid. I’m writing this post drunk, as usual. I’ve never partaken of illegal drugs.2
2Not within any active statute of limitations, anyway.
3No, seriously. Smoke responsibly. Don’t smoke and drive. Don’t smoke and tweet.

You can’t prepare for Forrest Gump

we the..uh..deciders..decide that..uh..what are my choices again?

One of the first things I learned as a trial lawyer was to never overestimate a jury. Jury duty is a very odd and strange thing for people to do and no one’s a professional at it, even those who are trained in the law, or who’ve served more than once. The smartest people, when they get on juries, are prone to do the stupidest things. This is a philosophy, which if you think about it, can serve you well as an attorney. If you pretend that the jurors are a bunch of barely-functional 5 year olds, then you’re forced to lay out all the facts and themes in small, simple, easy to remember pieces. It really makes the job of writing cross-examinations and closing arguments easier.

Of course, the jury is a black box. A black box of chocolates; you never know what you’re going to get. And most often you don’t. Until one of them goes and blabs to the press, that is:

Members of the jury that acquitted two NYPD officers of raping a woman in her East Village apartment told DNAinfo that despite the verdict, they believed the cops were guilty.

But they felt a lack of DNA evidence meant they had to acquit — a decision which is causing anguish for some.

“In my heart of hearts, I believe her that the officers did it,” said juror Melinda Hernandez.

Another female juror, who asked not to be named, said of former NYPD officer Kenneth Moreno: “He raped her. There is no doubt in my mind.”

Read that again. “I believe the officers did it”. “No doubt in my mind”. To those of us sitting at home, “no doubt” means “lack of doubt” which also means “beyond a reasonable doubt”. In fact, during jury selection and closing arguments, prosecutors hammer home to the jurors that they are not required to prove the elements beyond all doubt. That the standard isn’t no doubt about the defendant’s guilt, because that would be impossible.

Here, it seems, they achieved the impossible. But the impossible doesn’t account for the CSI effect and befuddled jurors.

All joking aside, this only serves to make the victim feel even worse: having to suffer through a not guilty verdict compounded by the fact that that verdict was brought about only because of a misunderstanding of the law by the jurors has to be a terrible feeling. Of course, our jurisprudence doesn’t permit retrial after acquittal, so that door’s closed on this chapter forever. For the lawyer observing this trainwreck and for tomorrow’s jurors and casual critics or champions of the criminal justice system, however, there are valuable lessons to be learned.

Just as there are cases like this, where a misunderstanding of the law results in an unwarranted acquittal, so are there cases where the same misunderstanding would lead a jury to convict an innocent man and send him to prison.

The CSI effect also seems to be well and alive, and we would be well served to remember that it can cut both ways. Sure we know that these two female jurors believed the complaining witness but “had” to acquit because of the lack of DNA evidence. What of the other 10 (or how many ever NY has on their juries)? What if they didn’t believe the woman, but might have been convinced to vote for guilt simply because DNA evidence existed?

DNA is not omniscient: it cannot tell you when it was deposited or under what circumstances. Jurors need to understand that and it’s our job as lawyers to make sure that they do.

Don’t rely on the judge’s instructions to the jury; write your own. Remember that no matter what jurors say during voir dire, they come to the courtroom with their own preconceived notions and those notions are hard to get rid of. Help them, or you’ll end up like Picard below:



Best. Quote. Ever.

Look, you folks know it’s no secret that I’m disillusioned with the people that pretend to govern us, especially when it comes to their views on justice and crime. This disenchantment has been solidified in the current legislative session, starting with EdithGate and today’s news that the abominable DNA upon arrest bill staying alive. This bill, you will recall, permits the state to take DNA samples of any arrested of a crime. The DNA profile would then remain in the State’s database until you were acquitted and then you jumped through bureaucratic hoops to get it removed.

Explains State Rep Hewitt, a proponent of the bill:

“If I walked out of this door right now and I was arrested for rape with an eyewitness and there was DNA found on the scene of that rape — God help me I wish they would take my DNA.

I’d wish the same too. And you know what? They do. It’s usually titled ‘Motion for Non-Testimonial Evidence’ and is always granted, because there’s no basis to object. Then the police take a buccal swab of the defendant, do some science-y magic and decide if you’re the guy. It. Happens. All. The. Time.

Said another:

Rep. Don Clemons, D-Bridgeport, said it was the rape and murder of his son’s mother more than 30 years ago in Bridgeport that makes him inclined to support the bill. He said from 1978 to 1982 there were eight women abducted from Bridgeport and later found strangled and raped. To this day, those cases remain unsolved, he said.

“When I saw this piece of legislation Rep. Hewett produced, it brings back haunting memories,” he said, but he added that the measure could provide resolution for the families affected by those crimes.

And so you’d think there was no hope for individual freedoms and liberties in the Constitution State. But there is. And his name is Peter Tercyak, D-New Britain. Which brings us to the greatest quote ever:

Personally I’ve long argued that we won’t be robbed of our liberties at gun point. We will freely give them up one at a time to solve one problem at a time with our hearts being tugged by one truly horrible story at a time,” he said. “That’s why we’ve coded our liberties as we have.

Take a minute and read it again. Isn’t it beautiful?

Law firm IPO?

because life is no fun without stereotypes. or 90ft of gold coins.

No, this has nothing to do with the earth-shattering news that LinkedIn is seeking public investment through an IPO. What? You hadn’t heard about that? You don’t care? That’s why I didn’t blog about it.

No, this is about a lawsuit that was filed [PDF] just a day or so ago by the venerable law firm of Jacoby & Meyers, suing – essentially – the legal profession in the Tri-States: New York, New Jersey and Connecticut. The basis of the suit [surprisingly in-depth Courant article] is to force these states to alter their rules of professional conduct to permit non-lawyers to invest in law firms.

The legal profession is very tightly – albeit poorly – regulated and it’s very insular. Law firms are closely held businesses and there are rules that govern who can and can’t own a firm. In CT, the Rule is 5.6, which states:

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time  during administration;

(2) A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.

The commentary explains the basis for this:

COMMENTARY: The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment.  Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to  the client. As stated in subsection (c), such arrangements should not interfere with the lawyer’s professional judgment. This Rule also expresses traditional limitations on  permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8 (f) (lawyer may accept compensation  from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).

So, in layman’s terms, the point is to prevent financial interests being put ahead of that of the client. No one said the profession didn’t pretend to appear noble.

So what’s this suit all about? Jacoby and Meyers say – basically – it’s a scare tactic. Nothing happens if you let non-lawyers invest in law firms. UK and Australia do it and they have oodles of money, which make them better able to serve clients. So they sued the Judges of the Superior Court, who make up these court rules here in CT, alleging that this prohibition has no rational basis.

Okay, that’s about all I can type on this topic without getting completely bored. I’m sure some of my private practice lawyer friends will have more to say about this, but I’m done.

H/T Ryan for the copy of the complaint.

“Undesirable jurors” as euphemism

The State of Georgia is such a frustrating contradiction: they have no money and the worst public defender system in the country and then they go and rebuild it and make it extremely effective and then it crumbles under the weight of a few capital appeals and returns to the race to the bottom, turning into a model of what not to do. And then they pass legislation like The Jury Reform Act of 2011 which:

allows court officials to compile a statewide database from a variety of sources – not just from voter registration rolls – to ensure defendants are more likely to be judged by their peers.

The fact that juries are never made up of defendants’ “peers” is a long running sad joke in the criminal justice system. I once naively asked a co-worker why we didn’t see more urban youth in our panels. Because they don’t register to vote, obviously. Voter registration records are where jury pools are typically drawn from, which limits, in a sense, the pool to only those who bother to register to vote. But that eliminates an percentage of the citizenry who do and should have the right to participate in the civic process. And one way to get more people engaged in this civic process is just by getting them to show up.

There will always be people who want to serve and those who don’t. This is true for people who register to vote and those who don’t. No one registers to vote just so they can get on juries, so there may be a number of potential jurors who just don’t give a damn about politics but can feel some sense of responsibility to contribute to their community in this way. The GA bill seeks to do just that – expand the potential jury pool, thereby providing a greater and more accurate cross-section of society from which to choose a representative panel.

“Our legal system is based in large part on the idea that our citizens should be judged by a jury of our peers,” Swingle said. “Whatever steps the law can take, through technology or legislation, to make our juries more accurately reflect the demographic makeup of our communities are important improvements to our courts.”

Citizens can be more confident in the outcome of cases that are decided by juries that more accurately reflect their community’s makeup, Swingle said.

So you’d think that all would in agreement that expanding the pool is a good thing. If you have half a brain cell, you’d already know what’s coming next:

When courts summon everyone who meets the minimum requirements for sitting on a jury – that they are county residents at least 18 years old and not convicted felons – there’s a potential of “diluting” jury pools, said Athens attorney Harry Gordon, who served as district attorney for Clarke and Oconee counties for nearly three decades.

Ready for the next quote? Don’t say I didn’t warn you:

“There’s a possibility (the new law) could open up jury service to every Tom, Dick and Harry, and that could diminish the validity of the jury system,” Gordon said. “If it liberalizes people that get on juries, it’s possible you could find more undesirable jurors, but it’s going to have to be tried because it’s the law, and we’ll just have to wait and see if it works more efficiently or not.”

Every Tom, Dick and Harry, aka law-abiding citizens who have every right to participate in the legal system. Or, to prosecutors, real peers of the defendant who have experienced the same bullshit tactics that police employ, who live in the neighborhoods and communities where crimes are committed, who may be better at holding the State to its high standard and who aren’t as predisposed to convict.

It’s well known that if we had a truly representative cross-section of the community sitting on juries, there’d be fewer convictions, not because “every Tom, Dick & Harry” is more likely to ignore the law, but because they’d be more likely to understand that not everything is black and white:

Athens resident Maureen McLaughlin, a political scientist who has worked as a jury consultant for more than 20 years, is excited about the new law.

“For everything we get in this country, only two things are required from us – pay taxes and serve on juries,” McLaughlin said. “By expanding the list that they use to select the jury pool, you’re going to have a more demographically diverse base from which to select and have a more accurate reflection of the types of people you have in your community.”

“You want to have at least someone on the panel who can understand the defendant’s life history, life experiences and those types of things,” she said. “When certain portions of the population are underrepresented, that does a real disservice to the community.”

Here‘s a breakdown of voter registration demographics in GA. Slightly over 60% of registered voters statewide list ‘white’ as their ethnicity. Blacks make up just under 30%, Hispanics barely 1.5%. Blacks, however, represent 61% of all inmates, Whites 33%. And yes, I know this isn’t a totally accurate statistical comparison, but I’m using the figures merely as illustration.

Good luck, Georgia. May the peach no longer be rotten.

H/T: Juries