In death, there are no winners

A jury of 12 has announced its verdict: Steven Hayes is to be sentenced to death. To many, this is a just outcome. To others, it is not. I won’t go into it again, because the reality is that I won’t change your mind and you won’t change mine. Three women lost their lives needlessly in 2007 and today, a man has been scheduled to lose his. In this game, there is only death. And with death, no one wins.

My only hope is that one day, we as a State can look back upon this and other sentences of death with a certain sadness coupled with the knowledge that those days are past us – that we no longer ask our citizens to stake their mental well being on the anguishing task of deciding the fate of another man’s life – that we are no longer in the business of adjudicating worthiness to breathe.

Until then, I mourn. For this morning, Steven Hayes was the only one with blood on his hands. Now it’s on all of ours.

[Update: Gamso has the eloquent words that I couldn't bring myself to write. Norm has the harsh ones. Scott points out, soberingly, that we've long had blood on our hands.]

Whatever it takes to execute a man

Death penalty trials are long, torturous, gut-wrenching affairs. On one side, there is the loss of lives – often several – and the demand for vengeance, often cloaked in the garb of “justice”. On the other, there is the begging for life, the pleas for humanity, often in the garb of psychological mitigation.

Through it all, though, it’s just an ugly dance. Is there nothing redeeming about this particular individual that we, as society, should deign to let him live the rest of his life in complete isolation, to deal with the horrors of what he has done.

In most death penalty cases, guilt is a foregone conclusion. What matters is the penalty phase of proceedings: the battle to show that there is yet reason to show mercy. These battles often pit the most gruesome details of the crime in question and moral indignation against the inner workings of a severely compromised human brain. It is an odd juxtaposition of emotion and science. Emotion, of course, is unchallengeable and entirely personal. Science, on the other hand, has limits and is bound by the dictates of what exists and doesn’t. Either someone is suffering from a psychological disorder and was unable to conform his actions to society’s rules, or wasn’t.

So if you’re the prosecutor, what’s the simplest way to ensure that the penalty phase contest isn’t a contest at all and merely a walkover? Convince a judge to deny the defense funds to hire a psychologist, that’s how. In a death penalty case, this actually happened. Yes, in America.

Vanderburgh County Prosecutor Stan Levco has filed the paperwork to seek the death penalty if Weisheit is convicted. At a hearing before Clark Circuit Court Judge Daniel Moore on Thursday, Levco objected to the defense’s request for a psychologist on several grounds.

“What they asked for would essentially give them a blank check,” he said. “I also objected because the defense still hasn’t decided whether or not to file an insanity defense.”

However, Moore did stipulate that Weisheit’s defense could hire a psychologist to work on the case through Nov. 30, Levco said. He also set a Dec. 10 date for the defense to file an insanity plea if they decide to do so.

Nevermind Ake:

This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.

Nevermind Wiggins:

Yes, America, we’re embarrassed too

It's 9pm. Do you know what's in your mystery bag?

It is now 8:28pm on Thursday evening, a full 48 hours after polls closed in every single damn State in the country. While the dust has settled everywhere and prognostications for the future of the country have reached their peak and then subsided, we here in Connecticut are glued to our internets and our moving pictures boxes, because the bureaucracy of the state is entangled in an epic battle against that most formidable of nemeses: simple arithmetic.

The full extent of the buffoonery that has occurred over the last two days isn’t apparent until we create a timeline:

Tuesday November 2nd:

  • 2pm: Bridgeport runs out of ballots
  • Bridgeport is told to photocopy ballots
  • 4-6pm?: Bridgeport gets new ballots
  • 7-8pm: SOTS gets a court order permitting Bridgeport polling stations to stay open till 10pm
  • 8pm: polls close statewide except Bridgeport
  • 10pm: polls close in Bridgeport
  • 8-11pm: Returns trickle in from most towns, Foley takes sizeable lead. Still nothing from B’port, New Haven, Hartford, Stamford
  • 11:30pm: Gideon goes to bed depressed

Wednesday, November 3rd:

  • 6:30am: Gideon wakes up, after dreams of having to say Governor Foley.
  • 7:00am: Twitter announces that Bridgeport numbers should be in shortly and that Malloy has cut Foley’s lead down to 12,000 votes
  • Everyone sits on their hands all day as magic stuff goes on in Bridgeport (i.e. people add up numbers)
  • Post noon, Susan Bysiewicz (yeah, her. She’s still SOTS) makes an “unofficial” announcement that Dan Malloy has won by 3,103 – an awfully specific number if you ask me.
  • 1:30pm: Tom Foley calls into a radio show on which Bysiewicz is a guest and gets into a pissing match with her and maintains that his numbers have him winning. Obviously.
  • 2-4pm: More handwringing, political posturing and all-around cluelessness. Bridgeport is apparently still counting. Or something.
  • 4:00pm: Dan Malloy exhibits staggering hubris and holds a press conference at the State Capitol announcing his “transition team”.
  • 4:05pm: The rest of the state experiences an awkward pause.
  • 4pm-7pm (I don’t know the exact time, I was drinking): The venerable Associated Press “withdraws” its call that Malloy is the winner.
  • 4pm-7pm: The press goes apoplectic. People run around like confused chickens. The world teeters on the edge of ending.
  • 4pm-overnight: One or two sane people keep trying to point out that the AP has neglected to update its New Haven tallies, which result in a net gain of 10K or so votes for Malloy. No one notices, because “AP WITHDRAWS CALL” is a better headline than “AP CAN’T DO MATH”. Bridgeport still counting.
  • 6pm: The statutory deadline for certifying vote tallies by town Registrars passes. Bridgeport still counting. Or sleeping. Or smoking joints. Who the fuck knows at this point.
  • All day: Math eludes us all. Connecticut still does not have a Governor-elect.

Thursday, November 4th:

  • 10-11am: The AP, having obtained eyeglasses and a calculator, realizes what anyone with half a brain already knew: its New Haven numbers are wrong and now redeclares Malloy the winner.
  • 10-11am: Tom Foley shakes his head like the Aflac duck.
  • 10-11am: SOTS Bysiewicz (yes, still her) announces a noon press conference to give us the “final official” results.
  • All day: Bridgeport has disappeared into a black hole.
  • Noon: SOTS pushes back the presser to 3pm.
  • 3pm: SOTS gives an “unofficial” press conference at which she says, Bridgeport just started counting at 2pm.
  • 2pm: Bridgeport is not counting.
  • 3pm: Bridgeport starts counting – officially. Or something.
  • 3:05pm: Bridgeport gets tired of counting and takes a break.
  • 3-6pm: Bridgeport manages to count votes from 6 out of 24 polling places. Their excuse is their pencils broke.
  • 6pm: A MYSTERY BAG OF UNCOUNTED BALLOTS IS FOUND. It may contain FAIL or Vince’s WWE Swag or our collective dignity. No one looks inside to check.
  • 6pm: The world almost ends. Again.
  • 6pm: Foley wants the cops to take control of the bag. Because apparently the bag contains the 20,000 Republican votes cast in heavily Democratic Bridgeport.
  • 6pm: The cops are like “whaa?”
  • 6pm: No one bothers to ask how many ballots are in the bag.
  • 6pm: Bridgeport is no longer counting, because they have to go home and do more important things.
  • 6:30pm: SOTS says Bridgeport went home and so counting will resume tomorrow. Estimates votes will be counted in time for real end of the world in 2012.
  • 7pm: Someone looks inside the MYSTERY BAG and finds a whopping 360 ballots.
  • 7pm: Someone looks inside the MYSTERY BAG and finds a whopping 360 ballots.
  • 7pm: All Republicans in the State cry “ELECTION FRAUD”.
  • 7pm-9pm: The rest of us kill ourselves out of embarrassment.
  • [Bonus flashback timeline: Tuesday 11pm: worker in charge of bag of 360 ballots says "Fuck it, I got shit to do" and leaves, leaving the bag uncounted".]

So yes, America. We’re damn embarrassed too. Wouldn’t you be?

[For a less profane, more coherent post recapping the above, which has sentences strung together into paragraphs and not the lazy shit I did above, see this tremendous piece by the good folks at New Haven Independent and CT News Junkie.]

And lastly, for the enterprising among you, via Colin Samuels:

  1. Create “I sent my candidate to Bridgeport and all I got was this lousy bag-o-fail-and-swag” tote bag.
  2. ?????
  3. PROFIT!!!

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Extraordinary misconduct leads to extraordinary relief

Absolutely stunning news today from the state Supreme Court: only one day after hearing oral arguments in State v. Patrick Lenarz, the highest court in Connecticut issued a summary order directing his immediate release from custody. It will issue a decision on his appellate claims later on.

Folks, I cannot stress how absolutely incredible this is. This, if you will allow me the superlative, is unprecedented. Typically, defendants appeal to the Supreme Court and raise all sorts of issues. Depending on who writes the majority opinion, it takes months or years for the court to rule on the claims. Here, the very next day, the court ordered this man’s release from prison.

So what were his claims on appeal? That the prosecutor engaged in extraordinary misconduct (I refuse to employ the current “impropriety”) by reading documents seized from Lenarz’s computer, which the prosecutor agreed were confidential and protected by the attorney-client privilege:

[Lenarz's attorney] Ferry argued that Lenarz was denied his Sixth Amendment right to counsel because the prosecutor in the case, Christopher Parakilas, read five documents that Lenarz had prepared to help his attorney in defending him. Those documents were on Lenarz’s computer, which police had seized.

Those documents, Ferry argued to the court, were protected by attorney-client privilege. Ferry argued at the trial that the case against Lenarz should have been dismissed because the prosecutor read the documents, even after discovering that they were covered by attorney-client privilege. The trial judge, Judge Leslie I. Olear, agreed that the documents were privileged but declined to dismiss the charges.

After hearing the arguments Thursday, the state Supreme Court — in a highly unusual move — ordered Lenarz’s immediate release on a promise to appear in court.

“That order by the Supreme Court directing Mr. Lenarz be released loudly suggests that it believes Mr. Lenarz was a victim of a serious Sixth Amendment violation by the office of the state’s attorney,” Ferry said. The documents “outlined our entire trial strategy, how we were going to attack the credibility of the accusers,” Ferry said.

The documents gave the prosecution an advantage of “knowing our every move at trial,” he said.

This is astounding hubris on the part of the prosecutor and misconduct (yeah, fuck “impropriety”) of the most intolerable kind. To knowingly read something so sacrosanct as communications between the defendant and his lawyer, made in preparation for trial suggest callous disregard for the Constitution and the very basic principles that ensure fair play in our system of justice.

If a defendant is unable to write candidly and share his thoughts and opinions with the one person who is preparing to defend him, then it puts the very system at risk:

On numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the “long-standing, strong public policy of protecting attorney-client communications.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 48; see also Shew v. Freedom of Information Commission, 245 Conn. 149, 157 (1998) (discussing “well established legal principles governing 157*157 communications between attorney and client”). “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 52. The privilege fosters “`full and frank communications between attorneys and their clients and thereby promote [s] the broader public interests in the observation of law and [the] administration of justice.'” Id., 52, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145, 156-7 (2000). I cannot even begin to fathom what lead the prosecutor to read these documents, knowing they were privileged communications. I’m glad the Connecticut Supreme Court sees it the same way.

If you didn’t resist, you must have wanted it

The meaning and parameters of consent in sexual assault has evolved over the yeas, from the common law requirement of resistance “to the utmost” to prove lack of consent, to a shift in focus to the individual will of the victim. Consent, as a legal concept, is not limited to sexual assault law. It rears its ugly head in another critically important area: Fourth Amendment jurisprudence.

While consent in rape law has evolved to adopt a more subjective view, consent in 4th amendment law has devolved, going backward to a more objective view. A new paper (pdf) (SSRN) examines this phenomenon and argues that courts should look to sexual assault consent in determining whether an individual “consented” in the 4th amendment context:

As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched.

It is a fascinating subject and something that I hadn’t given much thought to prior to reading this paper. Consider that in almost all 4th amendment cases, whether a defendant consented is usually decided in light of the force used by the police in conducting the search: if a squad of police cars surrounds the defendant, with guns drawn and then asks him for “consent”, a court is more likely to conclude that a reasonable person did not feel free to decline consent. Whereas if it is a single officer, who pulls over a car and then orders the defendant out and then asks for “consent”, a court is more likely to conclude that a reasonable person would have felt free to decline the search. 4th Amendment law turns a blind eye to the reality that is acknowledged in the sex assault area that the will to refuse is often overborne by a subtle show of force or authority.

Thursday Tourette’s

I was initially going to go with “Thursday is ‘I give you links so I don’t have to blog’ day”, but that was too long.

So here are some interesting stories that you might have missed or will miss or have already showed up in your feedreader:

And that’s it. Now get back to work.

G-hic G-hic G-hic G-uilty?

[I don't want to hear anything about the title of this post. Deal with it.]

Remember hiccup girl? Even if you don’t, you can guess that she’s a girl who hiccups. She made national news two years ago as the girl who couldn’t stop hiccuping (video at the end of the post). She’s now in the news again, being charged with the murder of Shannon Griffin, a 22 year old male she met a week ago. According to police:

Griffin met [hiccup girl] Mee online just a week before his death, police said. They arranged to meet Saturday night at 511 Seventh St. N.

It was a trap. The three plotted to lure Griffin to the empty home and rob him, police said.

Griffin pulled up about 10 p.m. Mee led him to the back, where police said Newton and Raiford tried to rob him.

Mee kept on walking, but seconds later gunshots rang out. Griffin struggled with the men, police said, and was shot three times in the chest and once in the shoulder with a .38-caliber revolver.

No one reported the gunshots. Police found Griffin when a caller reported a sleeping transient about 11 p.m. Saturday.

Police found the gun and shoes left behind by a suspect.

Griffin had less than $60 on him when he was killed.

All three have been charged with first degree murder. Sentencing maven and lawprof Doug Berman exhorts:

I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens reaconcerning causing another’s death and may not be an effective was to deter underlying felonies).  But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains.

As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder.  I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge.  I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges.  But would this be truly a just outcome?  Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out br be facing first-degree murder for which the only available punishments are death and life without parole?

What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things: