Thank goodness she was awake

So, I was watching legal show the other day and in it, a defendant was charged with breaking into the home of a woman and violently assaulting her. An anonymous caller informed police that this was occurring, but when the police arrived, he hid with her in the bathroom and kept her silent. When the police left, he resumed his beating until she somehow managed to call relatives who called 911.

The man was on trial – a jury was summarily selected in an afternoon and opening statements were delivered the next day. During the defense attorney’s opening statement – as these things go – a juror unexpectedly blurted out that she couldn’t sit on this case because – wait for it -  she was the anonymous caller!

Dun dun dun.

Oh wait, this wasn’t a TV show, this actually happened. In real life.

“She said, ‘I was the (anonymous) person who made the 911 call,’” the assistant prosecutor said.

“She said, ‘It woke me up out of my bed and I saw him beating on her. I thought she must be dead.’”

Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, [Judge] Ruehlman declared a mistrial.

The new trial begins Wednesday – and [juror-turned-witness] Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.

The article tries to explain away this amazing turn of events by stating that during jury selection, prospective jurors aren’t given the detailed facts of the case. That may be true, but in every damn case I’ve ever tried (and by now that number is well over a thousand), the judge not only reads the charging document which lists the date, time and location of the offense, but every single juror is asked whether they have any familiarity with the location or the people involved. Another question that’s typically asked is whether the prospective juror knows anyone who’s been a victim of a crime. If nothing else, that question should have triggered her memory.

So what happened here? Did they forget to ask? Did they ask and she wasn’t paying attention? Or did they ask and she lied? Or was it a case of group voir dire not providing an adequate opportunity to properly examine potential jurors? (Yeah, you knew I was going there.)

Whatever the cause, the lesson is clear: people are mercurial and what may seem to be a straightforward question to you and me, may be vague and obscure to another. One can’t rely on a script to weed out the undesirable jurors. You have to assess the juror, analyze him or her and then tailor your questions to fit that juror’s personality.

Of course, it would be a lot easier if you had 20 minutes one-on-one with the juror…

An incovenient system

I’ve been watching the torturous trial of Steven Hayes from afar, overcome by shame, sadness and disgust. This trial has showcased not only the worst acts that man is capable of, but also the worst emotions that we allow ourselves to succumb to and has shone a spotlight on the primal, base urges for bloodsport that we have.

It’s also disturbing for another reason: that so many – victims, witnesses, bystanders and observers – are perfectly willing to subjugate the very system that is intended to protect us all to the raw, consuming rage that overcomes us when we are faced with terrible acts. And that is a massive problem for me, for you, for all of us.

I rarely quote the doctor here on this blog, or even mention his name in passing. It’s a decision I made a long time ago – to not comment on his comments. The man has suffered tremendous loss and I’m not going to involve him in my rants against the death penalty or the “abuse of tragedy” legislature. But I will quote him today, if only to demonstrate the problem that this trial is creating for the criminal justice system as a whole. After today’s shock-inducing testimony, this snippet of a quote was repeated on Twitter, in newspaper reports and I’m certain it will be broadcast on the nightly news:

the system re-victimizes victims at an alarming rate

This, from the victim of a crime, the trial for which is currently underway. Sneak into the comments section of any online newspaper report on this case in Connecticut and behold the vitriol for yourself, if you have the constitution to stomach it (I’ve written about these comment sections before and why these venerable institutions continue to permit such “dialogue” is beyond me). Those comments, from ostensibly the general public, echo those made today. The most common refrain involves questioning the need for a trial, the certainty of the defendant’s guilt and a desire to save everyone the pain of having to sit and listen to testimony. For example:

After reading about half of the first page all the voices in my head were screaming “Give this d0uche nozzle* the injection now!


What do the writings of this lunatic have to do with the penalty phase of this trial?  What do they have to do with anything???  This is another disgusting example of how the victim IS victimized all over again in the name of protecting the murderer’s rights.

He should have no rights.  He is GUILTY, GUILTY, GUILTY beyond a shadow of a doubt, and he should be erased from the face of the earth NOW!

This is a refrain that is picking up steam: particularly because of this case.

This is very, very dangerous. These are the jurors of tomorrow. These are the people who vote. These are people who will one day decide whether another man is guilty or innocent. That there is such a fundamental lack of understand – or perhaps disdain – for the underpinnings of a criminal justice system that starts out with the most needed of principles: that every man is innocent in the eyes of the law, unless proven guilty and found to be so by a jury of his peers, should make us all worried.

That it is seen as an inconvenience – a travesty even – that a victim has to attend the trial of the accused, perhaps even provide testimony is not something we should dismiss lightly. As I’ve quoted before and will reproduce below, it simply cannot suffice to accuse. The system cannot make concessions in the rules of the game based on the perceived guilt in the eyes of the public. One cannot simply declare oneself the victim of a crime and then protest indignantly that it should be enough that one has declared oneself so. There must be a public trial – graphic, painful, heartwrenching if the facts are such – because there is no other way. Of course, this is a large part of why the vast majority of cases never go to trial. People are aware that they have to relive the most horrible moments of their lives. They have to sit and listen to gory events in excruciating detail. Some choose not to endure that and others decide differently.

Now for that quote:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. There isn’t one system for those “obviously” guilty and another for those “likely” guilty and those who “may or may not be guilty”. There is one system – tried and true – for everyone. And that’s the way it must be, to ensure conformity, consistency and to avoid appearances of bias. The sweeping tide of indignation, the emperor complex, must be halted. Because tomorrow, you will be on trial and a mass of others will have pre-judged you.

Why am I writing about this here? Clearly, a newspaper report about the day’s proceedings is not the right place to question the sentiment. Many others seem content to join the chorus. I know that I am firmly in the minority. But it disturbs me to see others, who are possessed of a greater intelligence than mine, accept as gospel the deafening din that emanates from the roused, amorphous, homogeneous mass. Let the doctor have his say, for sure. Allow him his anger, his sorrow, his vengeance. But realize that tomorrow there will be another trial, with another man and another victim and the system must do right by them too. A system that is so malleable, so subservient to the needs of one or another is no system at all. It would then be called a farce.

Besides, I haven’t written a post in 6 days and I have to do something keep those two last readers coming back.

[Obviously, once again, this is my personal view only and is not endorsed by the public defender's office. Read the disclaimer if you have any questions.]

*remember kids, we strongly discourage the use of this kind of language.

Latest poll: CT still split on death penalty vs. LWPOR

As lawyers know, it’s all about how you ask the question. If you ask “Do you favor or oppose the death penalty for persons convicted of murder?”, you get one answer and if you ask “Which punishment do you prefer for people convicted of murder, the death penalty or life in prison with no chance of parole?” you get quite another.

The latest Quinnipiac University poll released today, asks both of those questions of a sample of 1700+ voters in Connecticut, with a margin of error of 2.4%, and the results lead to headlines like this one and this one. The question, of course, starts with a faulty premise. Not all murders are death penalty eligible. A vast majority of murders aren’t death penalty eligible. But that’s just a quibble.

Let’s look at the numbers:

65% favor the “death penalty for all murders”, while 23% oppose it.

Now, my memory isn’t great, but something about that doesn’t seem very odd at all. In fact, it seems starkly reminiscent of the last poll, conducted in 2007, right after the Cheshire home invasion murders:

In 2007, 63% were in favor of the death penalty, with 27% opposed.

A 2% increase in support for the death penalty, and this after the penalty phase trial of Steven Hayes where every gory and heartbreaking detail you can imagine was splashed across the front page of every newspaper and every computer screen in the entire State. 2%, which might as well be within the damn margin of error. So essentially, there is little to no change in the support for the death penalty from 3 years ago.

So the headlines today are somewhat accurate and somewhat misleading. If the options were death penalty or nothing, then I’d probably choose the death penalty too. So what happens when people are given a viable second alternative?

If the two choices were the death penalty or life without the possibility of release (which is another way of saying the defendant will die in prison), then the numbers become much narrower.

46% still favor the death penalty, but a full 41% would choose LWPOR.

So when given a second alternative, support for the death penalty drops by 19% among CT residents. That is a significant fact, which has thus far been overlooked in the reporting.

So they choose the headline “65% back death penalty”, I choose “state split between death penalty and LWPOR”. Which one is more accurate?

[Interestingly, only 6% of voters would let the death penalty issue decide which gubernatorial candidate they'd vote for. Seems like the voters of CT have other things on their minds.]

Trumpeting the statistic that 65% support the death penalty is useless in any event. If the popular opinion for support of the death penalty were a  viable measure, we’d have a big problem on our hands, because the discretion to seek the death penalty lies only with the prosecutor: if 65% of people want the death penalty for murder, then prosecutors have, for a long time, been ignoring the wishes of the public. Only a miniscule percentage of murderers are death eligible and an even smaller percentage have death sought against them. The alternative, of course, is:

Speaking of polls and the death penalty, cue Gov. Rell’s press release in 3…2…1…

The sword: fall on it

Pride is a troublesome thing. It makes us lie, it makes us obfuscate and it makes us, ultimately, injure others. Lawyers’ pride is even worse, if that’s possible. We often forget that that our only goal should be to help the client, in whatever way possible, within the ethical boundaries of our profession. Yet the best of trial lawyers often become the worst witnesses in post-conviction proceedings, where the love of the client and the law and the desire to set wrongs right turn into sharply focused self-preservation.

The most irksome and often repeated testimony during post-conviction proceedings starts “I don’t recall the specifics of this case, but my general practice is…” followed by a lengthy statement of how the lawyer never does what it is alleged that he did.

And most post-conviction proceedings are nothing more than credibility battles between the trial attorney and the defendant. We all know who loses in that scenario. No longer protected by the cloak of innocence, every allegation made by a sentenced prisoner – a convict, a felon – is viewed with the most extreme skepticism and that distrust of his claims is further deepened when a seasoned trial attorney takes the stand with only goal in mind: saving his own pride hide.

Which is why it is heartwarming (in addition to being a great learning experience) to read opinions like this recent one from the 6th Circuit, where the court finds ineffective assistance of counsel for affirmative misadvice given to the client during the plea negotiation process:

First, petitioner’s attorney provided deficient performance. Counsel advised petitioner that he could not be convicted of assault with intent to commit  murder because the bullets entered the victim’s body below the waist. “The elements of assault with intent to commit murder are: (1) an assault, (2) with an  actual intent to kill, (3) which, if successful, would make the killing murder.” People v. Brown, 267 Mich. App. 141, 147, 703 N.W.2d 230, 236 (2005)  (quotations and footnote omitted). Thus, “in order to find a defendant guilty of this crime, it is necessary to find that there was an actual intent to kill.”  People v. Taylor, 422 Mich. 554, 567, 375 N.W.2d 1, 7 (1985) (citations omitted). Petitioner’s counsel advised him that because the victim was injured below  the waist, the prosecution could not establish the element of intent. Counsel was wrong. The nature of the victim’s wounds are not a dispositive  consideration in determining whether the accused possessed an intent to kill.

The court recounts this advice from counsel to the petitioner as if it were accepted. The Michigan Court of Appeals decision does not describe the testimony presented, but whether it was by way of an affidavit signed by trial counsel or live testimony from him, it is clear that no court would simply have accepted petitioner’s word that this is what his lawyer advised him. The 6th circuit goes on to find that this was deficient performance and then, relying on Padilla v. Kentucky, finds that this did indeed prejudice the petitioner because it caused him to reject a great offer from the State:

The Strickland framework for evaluating counsel ineffectiveness applies to advice regarding whether to plead guilty. Padilla v. Kentucky, — S. Ct. —-, 2010  WL 1222274 (2010); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The deficiency portion of the test remains unchanged. Instead of focusing on the fairness of  the trial, the prejudice component “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id. at  59. If petitioner pleaded guilty, then petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded  guilty and would have insisted on going to trial.” Id. If petitioner chooses to reject a plea offer, on the other hand, he must show a “reasonable probability  that, but for his counsel’s erroneous advice . . . he would have accepted the state’s plea offer.” Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001).

Clearly, a defendant who is erroneously advised by his lawyer that he should reject the offer because the State cannot prove the elements of the crime against him is prejudiced when in fact they can and do. The petitioner’s conviction is vacated and the matter remanded to the trial court with directions that he be given the opportunity to accept the offer anew – basic contract principles and Santobello v. New York reasoning.

But the lesson here is that this Constitutional violation would not have been remedied were it not for trial counsel stepping up to the plate and admitting his mistake (yes, technically I’m assuming this occurred, but realistically I see no other way for it to have happened). In the end, that should always be our goal: to assist our clients in any way possible and to remedy any constitutional violation that occurs due to our mishandling of a case.

After all, we don’t spend the decades in prison. Our clients do. They deserve our honesty.

Whose Governor is she anyway?

There is no love lost between this blog and thankfully-not-for-much-longer-Governor-Rell. This blog has expended precious bandwith to excoriate the obvious preferential treatment given by the Governor to her precious white suburban constituents, especially in the criminal justice arena.

This is a prime example of why:

“The murders of the Petit family horrified and disgusted us all, almost beyond the ability of words to convey. Today’s verdicts are a measure of justice – but they can never begin to restore the promise lost on that terrible day in July. That grief may ebb over time but it can never be fully expunged.

“I commend Dr. Petit and his extended family for the remarkable strength and dignity they have displayed throughout this agonizing ordeal – which, of course, will continue through the penalty phase, the trial of another suspect and the legal proceedings that are certain to follow. I know that the people of Connecticut will continue to keep the Petit and Hawke families in their thoughts and prayers in the months to come.”

Whether the facts of this case are that much more gruesome than any other case in the State of Connecticut, past and present, can be debated by us until we’re both blue in the face. What is unmistakable, however, is that the chief executive of an entire State has now, on two separate occasions, singled out one particular victim, one particular case to make a political point. I won’t even attempt to joke that if you go to the Governor’s website, you can read all the other press releases she’s issued in individual cases over the years. Because you know there aren’t any.

Does anyone believe that this was the only rape in Connecticut in the last 6 years? Does anyone believe that this was the only murder in Connecticut in the last 6 years? Does anyone believe that this was the only rape and murder in Connecticut in the last 6 years? Does anyone believe that this was the only capital case in Connecticut in the last 6 years? And yet, this is the only case that she’s chosen to insert herself into. (Well, this and the other fiasco in that equally white suburban town where she decided that the rule of law didn’t apply.) Where is the press release decrying the delay in the Bellamy case, in which a mistrial was declared before evidence began, thus ensuring that by the time the case goes to trial, 34 jurors will have been picked?

Whether or not race is an issue in the treatment of this case by the media, whether or not this case is that much different that any other, whether or not this victim is more deserving of praise and admiration and support than the hundreds and thousands others was always debatable. What Governor Rell’s insistence on singling this case out has done is confirm that there is something special about this one case, above all others, that this victim is more victimized than others.

It is disturbing enough that the nameless, faceless, abstract state makes value judgments about the worth of people’s lives through the imposition of the death penalty, but for the temporary face of that State to vocally confirm it, time and again is something that should make us all stop and think.

Ugh. I can’t even be bothered to snark properly. Is it November 2nd already?

The rotten peach? It’s in Washington now

Maybe there’s nothing more than coincidence at work here and maybe I have my understanding of the philosophies of Supreme Court justices all wrong, but I find it noteworthy that on the first day in 35 (!!!) years that SCOTUS opened a term without a justice named Stevens sitting in one of the 9 chairs, and on the eve of the release of the biography of Justice Brennan, they also denied cert to Jamie Ryan Weis, that most unfortunate of Georgia defendants. Weis, of course, is the poster boy for the failed public defender system in Georgia, which was once heralded, but then crippled by, among other things, the unsuccessful capital prosecution of Brian Nichols.

Georgia’s Supreme Court, by a 4-3 vote, did not find any problem with Georgia’s public defender system or the lack of funding or the fact that his lawyers withdrew and a new set of lawyers asked not to be appointed or….sigh.

And now a system that provides little to no adequate representation to those charged with and convicted of the most serious crimes with the most serious attendant penalty receives no Federal review. SCOTUS just denied cert. No explanation, no dissents, nothing.The stench has spread to Washington.

For a while now I’ve argued that these individual claims in State courts in individual cases will do little to bring the issue of systemic failure into the spotlight. That the only way to adequately challenge the failure to provide counsel is through lawsuits against the State (and maybe this latest legislation will help do just that). With this latest rejection by SCOTUS, it seems that Jamie Weis (and others) may have run out of all other options.

We haven’t yet seen what Justice Kagan will do for the everyman and I’ve been told by many, including His Presidency that she’ll be just fine. Maybe. But maybe, just maybe, if Justice Stevens were still on the bench, we’d have had someone take an honest and critical view of the mess that is Georgia:

The U.S. Supreme Court in recent years has taken a close look at Georgia’s capital punishment procedures. Now-retired Justice John Paul Stevens in 2008 slammed the state’s high court for an “utterly perfunctory” review of a death penalty case.

But we’ll never know. Sorry, Jamie Weis. It seems that when it comes to capital murder, close enough for government work is better than you deserve.