The problem with administrative law

Is that it doesn’t matter what the rest of this sentence is. As someone who knows next to nothing about administrative law, I wouldn’t even hazard a guess, lest someone with intimate knowledge of that field or someone with Googling skills or someone with intellectual honesty and a blog would point out how and why I was wrong.

But this guy doesn’t seem to care. In an op-ed laden with original ideas, he writes:

The National Center for State Courts maintains a database of Case Processing Time Standards, which lay down guidelines for how much time should elapse between indictment and disposition of a case. Like many states, Connecticut’s voluntary guidelines for Class A felonies call for 100 percent of cases to move from arrest to disposition within 180 days.

Hayes faces 17 felony charges ranging from murder to burglary, including 14 Class A felonies, two Class B felonies, and one Class D felony. Alleged accomplice Joshua Komisarjevsky is accused of 14 Class A felonies, 5 Class B felonies, and two Class C felonies.

According to a June 2000 research brief by the National Institute for Justice, the American Bar Association sets a goal of resolving all felony cases within one year from the date of arrest.

Using either of these measures, justice in the Cheshire case is more than two years overdue.

Either he doesn’t understand the fatal flaw in his argument or he does and ignores it. I don’t know which is worse. But I’m sure you, dear reader, have already seen the problem with using that “statistic” to support the argument that the Hayes trial has taken too long: that none of those “guidelines” or “goals” apply to death penalty cases. [He also (erroneously?) misquotes the "voluntary guidelines" statistic. The voluntary guidelines for Class A felonies call for 18 months between arrest and disposition, not 180 days. These were also adopted in 19-frickin'-94.]

He quotes William Gladstone saying that “justice delayed is justice denied”. Quoth Justice Thurgood Marshall:

This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.

Ford v. Wainwright. So how long do capital cases take, on average, from offense to the start of trial? Here’s a report from the Office of Legislative Research, dated March 3, 2009. There’s more:

The same study, in which criminal courts in nine different states were studied to assess case processing speed, found that 68 percent of felony cases were resolved within 180 days. Interestingly, it also found that the pace of proceedings often depended as much on the local legal culture as it did on the particulars of the cases involved.

This evidence suggests that the process can be sped up without significant additional investment of resources and without sacrificing the fairness and quality of the trials.  Given the magnitude of the horror in the Cheshire case and the slow process that has carried its suspects to trial, cultural changes seem like a small price to pay for much-needed improvement.

I’m not sure that the assumption that a quicker resolution of criminal cases implies the operation of the system in a favorable manner is correct: to me, it implies the opposite: that defense attorneys are less likely to vigorously advocate for their clients, to investigate defenses and to fulfill their constitutional duty to represent the interests of the defendant. If anything, it suggests to me that there is a greater need for resources and for training.

There also isn’t – and shouldn’t be – an inverse correlation between the “magnitude of horror” in a criminal case and the length of time it takes for resolution of the case. If anything, it should be the opposite. The criminal justice system cannot be held hostage to the emotions of victims.

Yet despite all this, it has taken more than three years to deal with Hayes while Komisarjevsky’s trial has not even started. And, if the trials conclude as most everyone expects that they will, with guilty verdicts and death penalty sentences, justice is almost certain to stretch out even further. Michael Ross, the last man put to death by the state of Connecticut, spent 17 years on death row before his execution on May 13, 2005.

Complaining that Komisarjevsky (the co-defendant) has yet to be brought to trial is yet another glaring example of the holes in the logic of this “op-ed” piece: that a joint capital trial for two men accused of committing terrible crimes, who will inevitably have inconsistent defenses, is an almost certain recipe for disaster and reversal should be obvious to anyone with even a passing ability to think critically.

You don’t need me to point out that the chorus of calls for the “reform” of our criminal justice system are tied directly to the concert-like atmosphere surrounding this one specific case. But isn’t these very cases that test our mettle as a society and that push our system of justice to the limit, to see if we are weak enough to let it break under the pressure of sensationalism and blind anger?

Can anyone tell me how many other capital prosecutions are currently ongoing in Connecticut and how long they’ve taken from offense date to trial?

Of course, there is a very easy way to solve the immediate problem of the “lengthy delay” in the prosecution of Hayes, one that would have resolved this case almost three years ago: take the death penalty off the table. But some want to have their cake and eat it too.

KISS your jury (updated)

Update: I mean, you could end up looking like this guy

Earlier this week, Scott and I engaged in a mini-discussion of sorts about the tweaking of the format of a trial to better help jurors understand the issues and reach their decisions. The most popular analogy for the decision making process is the black box. You know what goes in, you know what comes out, but you have no clue what the hell goes on inside. In order to alleviate that a bit, I ran with the Windypundit’s idea that jurors be permitted to ask questions of lawyers during closing argument. In that post, I also wrote:

The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.

What I was referring to then, and what I hope to summarize now, is one change that I fully intend to make in my style. Juxtaposed with this latest study from the UK that 66.67% of jurors don’t understand a damn thing told to them by judges, the idea becomes clear that we’ve got to keep it simple, stupid. (and you thought I was advocating flirting with jurors. Sheesh.)

The two-year study, led by Professor Cheryl Thomas of University College London, analysed 68,000 verdicts across Crown courts in England and Wales, and also staged simulated trials.

In relation to judge’s directions – where a judge gives crucial guidance to jurors about what they have heard – the research team asked jurors at Winchester Crown Court to recall two key questions that the judge gave in a case where a defendant was charged with violence.

Only 31% of jurors accurately identified both questions, it was found.

A further 48% correctly identified one of the two questions, and a fifth did not correctly identify either question.

Researchers found a written summary of the judge’s directions on the law for jurors improved their comprehension of the law.

And by simple, I don’t mean simply picking one issue in the case to pound home (which some lawyers have made a successful career out of), but changing the way we approach cases, the way we structure every word we say when we are in front of that jury.

The legal universe is a complex and intricate one. Experienced lawyers often don’t have straightforward answers to questions. We write voluminous briefs on questions of law; we argue over the syntax of jury instructions. If we don’t get it and can’t agree on definitions and explanations and instructions, how the hell can we expect lay jurors to?

As lawyers, we become invested in our clients’ cases: we live them, we breathe them, we become them. In the heat of the trial battle, we are the client. We know (or should know) the case and the facts like they happened to us. While that’s great for preparing for trial, it’s also our biggest handicap in dealing with jurors. They don’t have that background, that intimate knowledge with every nuance and every event. They don’t know the law, they haven’t argued the motions we have and most importantly, they don’t know our strategy.

It is often said that it is clear if a 5 year old can understand it. While you run the risk of alienating a juror or two, I think there’s a lot to be gained by taking that approach with the jury. Put yourself in their position; pretend that you don’t know anything about the case and commence your examination in that fashion. Ask basic questions, dole out morsels of information at a time. Juries tune out when they see two people – you and the witness – engaged in some protracted battle over semantics and nuances. I should know. I’ve done it and failed miserably.

Wouldn’t it be better if you led them down the path you want to go, but in the manner that they would walk? The law is a complex thing and the application of the law to the facts of a case an even more daunting task. If we want juries to find that reasonable doubt, we must lay it out for them in as simple terms as possible. Forget the drama, forget the yelling, forget the feigned outrage. Keep it simple.

I’m going to try it next time I’m on trial. I’ll let you know how it goes.

An undignified farce (now with video)

Update: video below

Astute, long time readers will have noticed two things: 1) the death penalty trial of Steven Hayes, defendant in the brutal murders of 3 people in idyllic Cheshire, CT has wrapped up its first week; and 2) that I haven’t blogged about it yet.

I’ve resisted adding to the 5-ring circus, but what I’ve seen and read over the last week in the press have driven me to the point of breaking my silence.

A trial of a man implicated in the most horrendous of crimes in recent memory, the most inhuman acts, if one believes in such things, has also robbed all of us of our humanity and sense of dignity.

I’m assuming you all know the basics, so I won’t rehash them here. This is the stuff that millions are made out of; enough fodder to keep the presses printing and the airwaves buzzing for months and months to come. Judging by the coverage of this trial on Twitter and the press, you’d be forgiven for thinking that the entire State had come to a standstill. It’s a good thing nothing else newsworthy is happening anywhere in Connecticut presently.

As the tweets start every morning at 6am and continue with alarming regularity well past 5pm, I cannot escape the mental image of a horde of vultures circling a sad, deteriorating carcass, pecking away at it, tearing off pieces of flesh, bit by bit and then those vultures morphing into hyenas, cackling wildly.

Sure, the crime is offensive. Sure the crime is heinous. I’ll accept whatever adjective you choose to throw at me. But there is an unmistakable stench of race and class politics emanating from that courthouse in New Haven. Out of curiosity, I called a source who is familiar with the goings on in that courthouse. “Are there any other trials going on currently?”, I asked. Sure enough, there is one other, just a floor below the Cheshire spectacle: State v. Brandon Bellamy.

By the information provided at that link, Mr. Bellamy is accused of two murders. That’s two victims, two families devastated, multiple lives ruined. Mr. Bellamy is also black. Perhaps his alleged victims are too, I don’t know. “How many reporters there?”, I followed up.


Not a single one. While the Cheshire trial needs a horde of media vans lining the streets and every able-bodied reporter in the State to cover it, just 20 feet below is a possible capital felony trial that no one gives a shit about.

The Cheshire case is often called “the Petit case”, after the last name of the victims. Can anyone here tell me the first or last names of the victims in the Bellamy case? Had you even heard of Bellamy? I sure hadn’t.

A Google News search for Brandon Bellamy turns up abso-fucking-lutely nothing. Why? Because no one gives a damn. Black man accused of two murders? Pshh. Inner-city business as usual. Three white women murdered? Every news outlet must abide.

The Cheshire case is every white person’s nightmare. The Bellamy case is every city-dwelling black person’s reality.

The blame, of course, lies with the reporters and the news media. “Hayes leans over to lawyer and talks”. “Petit looks at screen”, “Hayes scratches his nose”. Okay, I made that last one up. But these are the tweets being sent out at a furious pace to thousands of followers (myself included).

As trials go, the Hayes trial is a boring one. It is a tedious one. He admitted guilt during the opening statement of his lawyer. There’s really no question that he had a hand in this brutal massacre. The question – the only question – in this trial is whether he’ll get life without the possibility of release or will he be murdered by the State.

I blame the reporters for something else: I blame them for turning our justice system into American Idol, for turning the murder of 3 women and the anticipated murder of another man into a spectator sport, for not having any sense of journalistic integrity to put things in context and for not taking their responsibility to inform the public seriously. Anyone can be a reporter – all you have to do is report the facts. It takes more skill to actually convey some meaning and emotion and context by using the facts.

I avoid the websites of the leading newspapers in Connecticut like the plague. The Hartford Courant, the New Haven Register and others of their ilk have become the cesspools of the angry and ignorant. And the authors of the articles in whose comment sections unmitigated rage is spewed and spread don’t seem to care. Take a look, if you can, at the comments to today’s story in the various papers. The big news of the day wasn’t the fact that firefighters testified about the evidence of arson in the home or the pictures of the home burning, but rather it was that the defendant had suffered a seizure last night (or “seizure-like symptoms”) and despite sitting through the morning’s proceedings, apparently deteriorated during the lunch hour to the point that his health became a concern and the rest of the day’s proceedings were suspended. Here’s a sampling of the reaction:

” So the freak had a “seizure” and wee-wee’d on himself? Tough s**t. Why does he get this kind of consideration? A pox on him and the s**mbag [New Haven's chief public defender] Ullman who stands up for the freak’s “rights.” “

I wonder what Randall Beach, the author of the piece to which those comments are posted, thinks about that. Is that the level of discussion he hopes to foster when he writes? Is that who he’s writing for? Here’s one from the Courant:

notsocurrent you are absolutely right!! This sorry excuse for a human being was man enough to rape and pillage, but not man enough to face the music? Did anyone actualey see this seizure? I’ll bet not.

Lets skip the trial and get right to the penalty phase!

I’m sure that’s exactly the reaction that Alaine Griffin, who penned the Courant piece, wanted to provoke. In my years of reading these articles and the comments that follow, I’ve seen maybe 5 sensible comments that show any humanity or even a basic understanding of the criminal process. I’ve long complained that reporters and journalists themselves don’t understand the process, the rights and the importance of the application of those rights in even the most extreme cases, so how can one expect them to convey that to their readers. But that’s just a damn cop out. They know exactly what brings eyeballs to the website and that’s sensationalism.

One of Hayes’ attorneys, Thomas J. Ullmann, said at the start of today’s session that Hayes had a seizure last night and urinated all over himself. However, he said at the time that he thought Hayes was well enough to be in court.

But after the lunch break, he said he did not think Hayes could continue because of his medical condition.

Judge Jon C. Blue agreed to halt proceedings until Monday. Friday had already been scheduled as a day off.

Would it have been so difficult to include that the State didn’t object to the continuance? The high irony of this is that the one entity that wants to – and can – kill Mr. Hayes is the only one that seems to want to proceed with dignity. The rest just want a show.

Is it that difficult to understand that we have become the very monster we are condemning when we forsake the basic human values of dignity and compassion? That we are undermining the foundations of our system of justice when we want to “skip the trial and hang ‘em already”? Have we devolved to the point that intelligent discourse is left to fly-by-the-seat-of-your-pants networks like Twitter? Oh wait.

Mr. Hayes will be found guilty of several crimes and then 12 people will have the task of deciding whether to let him rot in jail for as long as he lives or to spill blood on all our hands. Some are licking their lips at that prospect. I don’t see the difference between them and Hayes.

Maybe it hasn’t occurred to all who are riveted to the trial, but what they’re witnessing is the slow murder of one man. All the reporting, the jeering, the condemning is nothing but spectatorship of the slow build up to the execution of a human being. Talk about macabre.

Murder is a terrible thing. It is not to be relished, enjoyed or anticipated. Let us not make a mockery of justice and of the value and dignity of all human lives.

Rant over. I thought I’d feel better, but really, I still feel sick to my stomach.

[And, of course, I must reiterate that these are my personal views only.]

How apropos is this video from the Daily Show:

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Rally to Restore Sanity
Daily Show Full Episodes Political Humor Tea Party

Q&A in closing arguments

In a recent string of posts around the ‘sphere, the jury trial system has come under some scrutiny, mostly in the area of unanimous verdicts. I wrote this post, and then a few days later Volokh had these posts, which prompted Scott to write this.

That the jury trial system is imperfect has been known for ages and commentators have struggled with ways to improve it, if at all. For instance, take a look at this tantalizing teaser of an article written by the great Wigmore in 1929 (I’d love to get my hands on the rest). Here’s a more recent article on the ills plaguing the jury trial system and what can be done about it.

But as Wigmore said in that 1929 piece, the arguments against the jury trial system are either simple problems that can be remedied or are made in the absence of a better alternative. It seems, then, that we’re stuck with this system for the foreseeable future. And one can trumpet the “best legal system in the world” all we want, in some sort of mindless obeisance, but we’d all be better served if we thought of ways to improve the system, tweak it to better fulfill the goals it was established for.

Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible. Trials are cumbersome, which only add to the desire to not participate.

The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.

The point of this one, taken from this comment, is to tweak the system a bit to give jurors additional tools in reaching the correct decision. I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.

On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.

A 15-20 minute session of questions and answers and rebuttals may help to clarify the evidence that has been presented to the jury, to focus the closing argument on the issues that the jury is truly wrestling with and it partially lift the shroud of secrecy that surrounds the jury’s decision making process.

Not my town-itis

Connecticut, for some reason I have not yet uncovered, has thus far been immune to the sex offender hysteria that has gripped our nation for well over a decade now. Sure, we have mandatory minimums and calls to classify sex offenders on the same level as murderers, but the legislature, in an exemplary show of good sense, has resisted the urge to enact residency restrictions and has now twice rebuffed the implementation of the horrid Adam Walsh Act.

But, as I wrote back in December, the State hasn’t taken any positive steps either. There’s still nowhere for sex offenders who need treatment to get it. And if the residents of Montville, CT have their way, there won’t be anywhere for a while.

Montville, already home to two correctional facilities, was identified by the State as the prime location for a sex offender residential treatment facility, with an allocation of 24 beds. Frankly, 24 beds is nothing. Me and the 5 other attorneys in my office could come up with a list of 24 people before you finish reading this sentence, never mind the 100 other attorneys in the public defender system and their clients from just this year alone. But it’s a start and we have to start somewhere.

Yet, just like there are peas in a pod and two of a kind and how Garfunkel needed Simon, “sex offender treatment facility” seems incomplete without “not in my town”. And that’s exactly what the residents of Montville are arguing. Today, the town committee voted to seek an injunction to block the building of said treatment facility.

The state Department of Correction plans to create a 24-bed facility at the Corrigan-Radgowski Correctional Center for sex offenders about to be released from prison and those who have already been released. Creation of a residential sex offender program was part of a 2008 criminal justice reform law passed after the 2007 Cheshire home invasion.

Oh wait, this facility was to be created at the two jails that already exist in your little town? Perhaps they don’t realize these are the very jails that these sex offenders come from. It’s like moving them from one wing of the jail to another. But then again, it’s called hysteria for a reason…

In all the objections to constructing treatment facilities or the arguments in support of residency restrictions, I haven’t heard a single legitimate reason for excluding these from a particular locality or any justification that acknowledges the realities of banishing an entire group of people. Folks, “not in my town” isn’t a reason, it’s a position. You should explain, logically, why.

And as if that wasn’t enough, the town committee also voted to set a public hearing to consider an ordinance that would create a “sex offender free zone”. Montville isn’t the only town considering such an ordinance in CT. Greenwich, that bastion of purity and wholesome values and more BMWs than all the dealerships in the state combined, is also considering such an ordinance to ban its five (count ‘em – 5) sex offenders from places that are “frequented” by children.

Yet it is town officials in Greenwich who have been debating since February whether to approve an ordinance that would prohibit sex offenders from being near schools, parks, playgrounds and other places children congregate. The ordinance would not limit where sex offenders can live, as similar laws in other states do, but it would impose a $100 fine on a registered offender caught in the wrong place for a second time.

After unanimous approval by the Board of Selectmen, the measure moved on to the Representative Town Meeting, the city’s 230-member legislative body, where it failed twice, most recently on Sept. 21.

The quote speaks for itself. What needs addressing, however, is the mindless repetition of what should properly be considered pure fabrication by the Republican members of the state legislature:

“Look, there is obviously an extremely delicate balance between protecting the public and the constitutional rights and freedoms of individuals, whether they are convicted sexual predators or not,” [State Senator McKinney] said. “The difficulty comes with the fact that this type of crime has an extraordinarily high recidivism rate, which justifies us in government taking greater steps toward protecting the public than we would with other crimes.”

As is noted in the article linked to above, and as I’ve cried myself hoarse on this blog, that’s just not true. McKinney knows that too, because he’s been on the Judiciary Committee when these residency restrictions have been proposed and he’s been given the studies that show it’s not true. But of course, acknowledging the truth doesn’t further the fearmongering agenda and so here we are. Again.

Coincidentally, and that’s how these things usually go, today’s episode of the local NPR program “Where We Live” was devoted to sex offenders in Connecticut and these “loitering ordinances”.

Here’s my question, that I wish these proponents of the Scarlet Laws would answer: do you believe that we can completely eradicate sex crimes against children? If your answer is yes, then you’re either a liar or you don’t understand anything about how crimes are committed and why. If you answer no, then I have a follow up question: What is the most effective use of resources? Police loitering around parks and schools and enforcing these possibly unconstitutional ordinances or creating facilities for offenders to reintegrate into society, in a productive manner, so as to prevent future occurrences?

The answer is clear. The only question that remains is whether you want to be honest with yourselves or lie to everyone in order to win a vote.