a public defender

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For a while now, we have heard about exonerations obtained due to DNA testing. The current number from the Innocence Project stands at, I believe, 208. One of the more common refrains you hear from champions of innocence is that there are thousands more in jail that are innocent and have no way of proving it. In some cases, there is no DNA evidence and in some, it is lost.

The Denver Post did a terrific series last month on lost evidence, which they called “Trashing the Truth“. (I apologize if its been covered in the blogosphere before - I just stumbled across it.) The Post engaged in a detailed investigation of evidence rooms across the country and profiled several cases where DNA evidence has been lost or destroyed - willfully or otherwise - and innocence bids are foreclosed.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York - sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries in the way they track valuable crime-scene items.

Facing real-world training and space challenges, even the best-intentioned clerks commonly toss DNA samples, especially from old cases, in what one expert calls the “sledge-o-matic approach to clearing out evidence rooms.”

“You can’t keep everything,” said Arthur Morrell, Orleans Parish clerk of Criminal Court.

The Denver Post examined purges in 10 states and found that authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade, rendering them virtually unsolvable. Over the past three decades, the loss or destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence, The Post has found.

In this age of high profile DNA cases, it is incumbent upon states to reorganize their storage procedures and provide high-tech facilities. If the criminal justice system is indeed a pursuit of the truth and of justice, then it cannot simultaneously aid injustice by destroying evidence.

There are just far too many instances and far too many inmates profiled by the Post. I strongly recommend that you take this Sunday afternoon to read through some of them, available at the link above. One of the higher profile innocence bids is that of Tim Masters, who was convicted with virtually no evidence, but primarily on some sketches that he had done (he was 15) and an FBI profile that was never created.

Edit: Another one to look at is this piece on Clarence Moses-El, who was first suspected of raping a woman because his name came to her in a dream. (I kid you not.) The three people she initially named (right after the incident) were never interviewed by police. Finally, years after his conviction, a judge ordered DNA testing. One month later, the evidence was destroyed by the police department.

Some of the comments in these stories by law enforcement officials and prosecutors are just disgusting. The arguments they put forth in opposing motions for DNA testing are very very disturbing and make you wonder if they really are seeking justice.

As the dust on the 208th DNA exoneree had barely begun to settle, Broward County public defender Howard Finkelstein sent a letter to law enforcement officials suggesting a change in identification procedures.

Bostic’s [the exoneree] accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

“These procedures will impact the human cost of misidentification,” he said. “This isn’t about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don’t get ensnared in our system.”

Currently, Florida uses the non-blind, non-sequential method of identification. Finkelstein called for them to use the double-blind, sequential method. Law enforcement’s response was curious, if not typical:

“If we had concerns about the procedure, we would have changed the procedure,” said Elliot Cohen, spokesman for the Broward Sheriff’s Office. “But new ideas and new proposals are always worth looking at, and we’ll take it in that spirit.”

At least eyeid reform seems to be gaining some momentum. 16 states have considered some legislation in this regard during the past year. Connecticut, although one of those sixteen, couldn’t get past simply funding a pilot program. I’m not even sure that the pilot program has gone into effect.

For those of you interested, the search warrants in the Cheshire case have been made public. The Bristol Press (of all things) has made them available on their website here.

There’s really nothing remarkable in any of them (and certainly not anything new), except for one bit that I found a little laughable.

The police sought permission to examine Komisarjevsky’s family laptop because it is their experience that

the world wide web contains web sites that include information that provide detailed directions on how to restrain people, how to conceal, destruct and alter evidence as well as detailed accounts of criminal activities such as burglary, kidnapping, robbery and arson.

It certainly is curious that they didn’t include murder or even felony murder.

Remember the series of posts last month about the Hartford pastor that rejected plea deals despite DNA evidence proving (to the tune of 99% certainty) that he was the father of a now 15-yr old girl’s baby? Remember his attorney’s comments to the court and the press that spawned approximately 50 comments here? I sure do. They’re at it again.

Modesto Reyes pled guilty a few days ago to sexual assault. It seems like it was an open plea. He also pled guilty under the Alford doctrine (which is quite common here as discussed before). That’s fine. He can and the court can accept that plea. His attorney wasn’t done, however.

Defense attorney William Gerace told the court Wednesday that he had urged his client to enter a straight guilty plea instead of the Alford plea.

Gerace said that Reyes’ sentence could be lengthened as a result of taking an Alford plea.

“I have explained it to him ad nauseam,” Gerace told the court. “It’s my job to tell him what I think and that’s what I think.”

I guess it’s possible, but I’ve never seen a sentence increased because the plea is an Alford plea, because you’re still admitting that the State had enough evidence to find you guilty.

Does the court (or the press) need to know the details of the attorney’s opinion and his strong advice to client? Would it not suffice to say that the client has been advised of all the consequences of a guilty plea, even under the Alford plea, and that he has decided to proceed in that manner?

Or is this okay? Is this something you would put on the record?

The most interesting story is this one about lawmakers considering a proposal to limit probation to a 2-year term, down from the current 5-years.

The goal is to focus supervision on offenders during their first two years of probation, when most violations occur, said William Carbone, executive director of the state Court Support Services Division.

Nearly 90 percent of probation violations in the state occurred during the first two years, according to statistics presented yesterday during a hearing in Hartford.

The option would give offenders an incentive to turn their lives around and would reduce the number of people who go back to prison, Carbone said.

Now this is sensible legislation, which comes from the sentencing task force, which has studies these issues over time.

Judge Patrick Clifford, chief administrative judge for criminal matters, said judges should have the right to order probation terms longer than two years.

Longer terms might be warranted in cases in which larceny offenders need time to repay victims, Clifford said. But he agreed most people on probation don’t need more than three years.

“If the person hasn’t violated within two or three years, it’s kind of just waiting for them to make a mistake,” Clifford said.

Okay, enough of the good stuff. On to the depressing stuff.

More stories this morning on Gov. Rell’s parole ban, but this time with more substance. First up is the prison population shift. As noted yesterday, more than 1,200 non-violent inmates are being fast-tracked for parole to make room for the violent offenders who have been denied parole.

The next one says simply: Parole Review Affects Hundreds.

Nearly 40 percent of all parolees were serving sentences for drug offenses, which are not classified as violent, according to state records. But there are also hundreds of parolees completing sentences for killings, rapes, robberies and kidnapping. Murderers are no longer eligible for parole, but 60 inmates who committed murders before a 1981 change in the law are on parole.

In recent years, the number of parole violators back in prison at any one time has hovered between 400 and 500, state records show. But that may rise considerably with Rell’s crackdown.

“If we identify anyone in this review who has failed to follow the terms of their release - or if anyone currently on parole fails to do so in the future - we will revoke their parole and return them to prison to serve the balance of their sentence,” Rell said last weeek.

On September 11, 2007, the Connecticut Supreme Court will release an opinion in which it remands for a new sentencing hearing where the trial court, not the jury, made one of the findings necessary for a penalty enhancement pursuant to 53a-40 (h). In State v. Bell, the Court holds that Apprendi and its progeny require a jury finding as to all factors which, if found, mandate a greater penalty.

We conclude that the determination by the trial court, rather than the jury, that imposing extended incarceration would best serve the public interest clearly violated the defendant’s constitutional rights as explicated in Apprendi and its progeny. We further conclude that, because the jury must make that determination before the enhanced sentence under § 53a-40 (h) can be imposed, the case must be remanded for a new sentencing proceeding.

The Court explains Apprendi v. New Jersey and outlines the progression of the rule since that case. The Court then engages in statutory interpretation of the statute at issue, ultimately finding that subsection (h), while couched in language of what the trial court must do, creates a second finding of fact that must be made prior to imposition of the enhanced penalty, thereby necessitating a jury finding on that fact to survive a constitutional challenge.

Subsection (a) of § 53a-40 provides in relevant part: ‘‘A persistent dangerous felony offender is a person who: (1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes . . . .’’ The defendant does not challenge his status as a persistent offender in light of the jury’s verdict in the present case of guilty on the count of assault in the first degree and his previous conviction of robbery in the first degree. Subsection (h) of § 53a-40 provides in relevant part:‘‘When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a . . . shall sentence such person to a term of imprisonment of not more than forty years . . . .’’ (Emphasis added.) The dispositive question under Apprendi is: ‘‘[D]oes the [statute prescribe a] required finding [that] expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’’ Apprendi v. New Jersey, supra,
530 U.S. 494.

****

In examining the text of the statute, we note at the outset that, by its use of the conjunctive ‘‘and,’’ the statute appears to impose two preconditions for an enhanced sentence to be imposed in lieu of the lesser sentence prescribed for the offense for which the defendant stands convicted: (1) the jury’s determination that the defendant is a persistent offender; and (2) the court’s determination that the defendant’s history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest.

****

The Supreme Court’s decisions subsequent to Apprendi, however, are instructive when considering the effect of discretionary authority. The mere fact that the statute may permit the court to exercise discretion in deciding on what particular facts it will rely in making its public interest determination would not insulate the statute from constitutional infirmity if it permits the trial court’s ultimate finding to subject the defendant to a higher sentence than that authorized by the jury’s verdict.

The Court rejected the State’s contention that the error was harmless, noting that although there was sufficient evidence on the record to support the trial court’s conclusion that extended incarceration will best serve public interest, the jury did not hear any of that evidence, as it was presented at a hearing only before the trial court. The Court was therefore unable to conclude that the jury would have been compelled to make such a finding as a matter of law.

Finally and perhaps most interestingly, the Court addresses the constitutionality of the statute itself, which indicates that the public interest finding is to be made by the trial court. Believing that the legislature would enact the statute as necessary to pass constitutional muster, the Court itself excises the language giving rise to the violation, i.e., “the court is of the opinion that” in order to require and ensure a jury finding of whether extended incarceration will best serve the public interest.

While the blog is vacationing in Bora-Bora, this is as good a time as any to remind my readership that if you wonder whether public defenders are lawyers, you are not alone. Here’s a post from March 2005:

—————————————————————————————————————————–
So says State Senator Newton, during a public hearing held on January 31, 2005 on the Anti-Death Penalty Bill. The question was posed to Lawrence Adams, a man from Massachusetts, who spent 32 years in prison (roughly 9 of them on death row) before he was exonerated and released. He came to CT to testify against the death penalty. The transcript reads as follows:

SEN. NEWTON: Thank you. I want to thank you for coming to Connecticut to give your testimony. When was it that they found the DNA, after how many years?

LAWRENCE ADAMS: It wasn’t DNA. It was exculpatory evidence. It took 31 years.

SEN. NEWTON: Thirty-one years?

LAWRENCE ADAMS: Yes.

SEN. NEWTON: Did you have a public defender?

LAWRENCE ADAMS: Excuse me?

SEN. NEWTON: Did you have a public defender or a lawyer?

LAWRENCE ADAMS: In the beginning, I had a public defender.

[CHAIRMAN OF THE JUD. COMMITTEE] SEN. MCDONALD: All right. Senator, I really don’t even know how to address that.

SEN. NEWTON: The point I’m trying to get at, and you all laugh, but this is very serious, is that in some cases, it’s been proven that those who can afford attorneys have a better chance. I’m not saying anything bad about public defenders, but in some incidents, you know, cases have been proven.

If you have a high-price lawyer, you stay out of jail. You know, that is the point I was trying to get to, not to disparage anything about our public defenders throughout this country. When you have your own lawyer, it seems that he might be able to collect that evidence, as you said. You know, that was the only point that I was making.

LAWRENCE ADAMS: It has been my experience, right, that I would say that I was unique in the fact that my lawyer, Mr. John Battarac, did work that I don’t think anybody else could have done. I was fortunate to that extent.

SEN. MCDONALD: Thank you very much. I should just note for the record that actually the Chief Public Defender’s Office has probably the greatest breadth of information in history on the defense of capital cases than any other group of attorneys in the state. Are there other questions? Senator Handley followed by Senator Cappiello.

Then the hearing continues.

Amazing, just amazing. Not like we don’t get crap from our clients anyway, now we have a state Senator who doesn’t acknowledge that public defenders are lawyers. Not once did the Senator make the distinction in terms of public defenders as opposed to private attorneys. He kept referring to private attorneys simply as “attorneys”.

In any event, if you have time time, read as much of the transcript as you can - it’s pretty powerful, moving stuff.

Another important criminal justice bill [text of bill - Ctrl+F and search for "DNA"] signed into law by Governor Rell is this one that eliminates the statute of limitations for certain sexual assault crimes. There are two provisions however:

1. The crime must have been reported within 5 years of its occurrence
2. DNA must identify the perpetrator.

These are two very important restrictions. It is imperative when, years later, an individual is accused of a crime that the State be certain to a high degree that the individual is indeed the one who committed the crime. Imagine the severe hurdles if the SOL for all sex crimes was eliminated. It would be impossible to defend against.

Legislators are proposing “The Petit Home Invasion Protection Act” and one of the options they will consider is increasing the penalty for Burglary to 25 to life.

Connecticut has only one other felony with that kind of punishment: Murder.

This stiffer punishment being proposed can be easily accomplished by using some of the other statues already on the books and I’m not talking about persistent offender statutes.

Let’s take a look at burglary:

(click on image for full size view)

It’s going to be a busy week, so here’s some stuff to get you in the mood:

• CDW’s weekly roundup is back and also has good news on two death row inmates: Greg Wright and Troy Davis.
• Grits is doing his usual terrific work, including this post about how one county is making it extremely difficult for low-income defendants to get appointed lawyers.
• Scott at Simple Justice takes last week’s jumpstart post about sex offender status on drivers’ licenses in Florida and expands it into a discussion of shaming as a punishment.
• Blonde Justice uses two examples of kids who die after being left in cars and the ensuing prosecutions to discuss sentencing disparities.
• SexCrimes has a roundup and analysis (via other sources) of “the pedophile blogger” and whether legal action is available.
• Anne Reed writes about the old days, when peremptory strikes ruled the Earth.
• Stephen Gustitis at The Defense Perspective is writing a great series of posts on building the persuasive case. These are the two most recent posts.

Enjoy! If you find anything else that I missed, leave a link in the comments!

Image license info here.

See, I told you there was so much I had missed in just one day.

EyeID points to this article about two upcoming studies on wrongful convictions:

The first, “Judging Innocence”, is soon-to-be-published in the Columbia Law Review, conducted by University of Virginia Professor Brandon Garrett. Professor Garrett’s study systematically examined all of the DNA exonerations and concluded that “the leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.” Other leading causes of wrongful convictions were faulty forensic evidence, unreliable snitch testimony and false confessions.

You must read the study [pdf] to get the full sense of the various problems found. Here’s a sample:

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

Here’s the zinger:

Garrett’s study strongly suggests, then, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them.

The second is by Professors Samuel Gross at Michigan Law School and Barbara O’Brien of Michigan State. It, too, reached similar conclusions. Specifically:

“The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered,” the Michigan study said. “In addition, a couple of strong demographic patterns appear to be reliable:

Black men accused of raping white women face a greater risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects.”

CapDefWeekly has more. Grits has a lot on snitching. Scott Greenfield feels vindicated. I will have more on this later.

Update2: Here [pdf] is a copy of the order of the Board of Pardons and Paroles and here is their press release. [HT: SL & P]

Update: Abolish! has a copy of the statement given by U.S. Rep. John Lewis to the Board of Pardons and Paroles during the hearing. Here is an excerpt:

“We sometimes hear that a guilty person has gone free because of some legal technicality, and we understandably feel frustrated when that happens. Now we have the opposite situation. A man who may well be innocent may die tomorrow — all because of those technicalities. This is much more than frustrating; it is tragic. It is unjust. And at a time when we are trying to convince the whole world that our way is best, it does not speak well of us. I will say only a little about the facts of the case, because you have other witnesses that know them better than I.

“But here is what I understand to be true. I understand that there is no physical evidence. No murder weapon. No fingerprints. No DNA.

“Just the testimony of a few frightened and confused people who were taken completely by surprise when a tragedy suddenly erupted — without warning — for just a few seconds — in the middle of the night. And now, the case against Mr. Davis, that rested on that testimony, is a shambles. I understand that there were nine key witnesses, seven of whom have recanted their testimony. The eighth witness has left the state and refuses to talk about the case. And the ninth cannot recant without confessing that he committed the murder. Indeed, some of the other recanting witnesses have now implicated him.

Original post: Breaking news is that Troy Davis has been granted a 90-day stay of execution [eerily, the link is to a news website whose URL is 11alive.com].

The state Board of Pardons and Paroles has granted a 90-day stay of execution for Troy Davis, who was to be executed Tuesday in the killing of a Savannah police officer in 1989.

Lawyers for Davis spent more than five hours Monday pleading with the board to grant a reprieve, arguing that Davis is innocent of the murder of Officer Mark MacPhail.

Prosecutors were given a chance during the closed-door hearing to rebut the request for clemency for Davis, who was to be executed Tuesday at 7 p.m.

The board’s options included granting a stay of his execution while it considers the issues.

Also Monday, Davis’ lawyers filed an appeal before the state Supreme Court of an earlier decision by a Chatham County judge to deny a stay of Davis’ execution.

Among the people who argued for clemency for Davis during the parole board hearing were friends, family and U.S. Representative John Lewis, an Atlanta Democrat and civil rights icon. Five witnesses who testified at trial spoke to the board on Davis’ behalf, Ewart said.

Check in with CDW and EyeID for all the latest news.

Yesterday, a Hartford jury convicted Lazale Ashby of the murder of Elizabeth Garcia.

The jury found Ashby guilty of murder, felony murder, capital felony, sexual assault, burglary and three counts of kidnapping in Garcia’s death. Authorities charged that he beat, stabbed and strangled her sometime between 7:30 p.m. on Dec. 1 and 7 a.m. Dec. 2, 2002.

The State is seeking the death penalty and jurors will return in September to commence the penalty phase of the trial.

Drugs played a prominent role in Ashby’s life, authorities say.Sources close to the investigation said Ashby grew up in Hartford’s Asylum Hill neighborhood, mostly on Huntington Street. His mother was a drug addict, and his father was not around to raise him. He was cared for by his grandmother, his only close relative until she died after his trial started.

Part of what sank him was this note [pdf] he passed to another inmate, which was introduced into evidence.

Just sad all around.

Technorati Tags: death penalty, connecticut, lazale ashby

So, as promised, here is the post on what happened to all those criminal law related bills that were voted out of committee.

The ones that became law:

• HB 7313 An Act Concerning Domestic Violence.
• SB 1458 An Act Concerning Jessica’s Law.
• SB 0170 An Act Concerning Pardons.

The ones that died, only to fight another day:

• HB 5503 An Act Concerning Residency Restrictions for Registered Sexual Offenders
• HB 6285 An Act Concerning The Age of a Child with Respect to Juvenile Court Jurisdiction
• HB 7085 An Act Concerning the SOL for Prosecution of Certain Sexual Assault Offenses Using DNA Evidence.
• HB 7234 An Act Concerning Victim Services.
• HB 7335 An Act Concerning Persistent Offenders.
• HB 7365 An Act Concerning the Procedure in a Capital Felony Trial.
• HB 7391 An Act Concerning Preventive Detention.
• HB 7406 An Act Concerning Youthful Offenders…
• HB 7408 An Act Concerning the Risk Assessment Board…
• SB 0708 An Act Creating a Violent Offender Registry.
• SB 0838 An Act Requiring the DNA Testing of Certain Arrested Persons.
• SB 1269 An Act Concerning the Quality of Legal Representation of Children and Youth in Juvenile Matters.
• SB 1322 Student Loan Repayment Assistance Bill for Public Defenders and Prosecutors.
• SB 1479 An Act Concerning Judicial Branch Openness.

Note that some of the proposals in these bills may have been merged with others (although I’m not aware of any). The Judicial Branch’s Law Library is keeping a running tally of all the bills that have become law. I’ll keep checking and updating this list as necessary. (HT: CT Practice Blog)

The Stamford Advocate has this story today, chronicling the problem with minimum-mandatory sentences in drug cases and the growing calls for a change in the legislation.

The problem with mandatory-minimums has become apparent over the past few years and many states have or are considering abolishing them. However, they still exist in Connecticut and defense attorneys and judges have the same complaint:

Few people are convicted of mandatory minimum charges in drug cases. Instead, prosecutors use the threat of a mandatory minimum conviction as leverage to entice guilty pleas to lesser charges.

A variety of attorneys, judges and experts statewide want mandatory minimum laws scrapped or adjusted. About two dozen states have adjusted mandatory minimum rules in the last decade as critics complain they result in severe sentences and prison overcrowding.

Connecticut has a task force whose job is to review sentencing schemes and recommend changes

“I think we should just get rid of them,” said Thomas Ullmann, a public defender in New Haven and a member of the task force. “Prosecutors bully people all the time with mandatory minimums.”

Prosecutors admit they use mandatory minimum charges as a negotiating tool. But they point out that police choose the charges in most Connecticut jurisdictions, including Stamford and Norwalk. The bargaining, prosecutors say, saves defendants prison time by giving them the chance to plead guilty to lesser charges instead of risking a trial and a minimum prison term.

“The legislature put us in a straitjacket,” said David Cohen, state’s attorney for the Stamford-Norwalk judicial district, “but if we don’t feel a mandatory minimum is appropriate, we can lower the charges.”

Well, either the state is bound by these mandatory-minimums or can offer a plea on lesser charges. What usually happens, however, is that the threat of min-man sentences are used to pressure the defendant into pleading to something and not seeking acceptance into a program.

The statistics are overwhelming:

There are about 26,000 cases each year statewide involving mandatory minimum charges, according to a 2005 state study. In about 21,000 of those cases, the main charge is selling drugs or driving under the influence of alcohol.

The rest involve violent crimes such as rape, murder and kidnapping.

Six different drug charges require mandatory minimum sentences ranging from two to 10 years.

Police often charge drug defendants with several of those charges in the same case; about 70 percent of mandatory minimum charges are drug-related, the 2005 study found.

Judges have some discretion, but not enough. This is the knock on rigid sentencing schemes, including guidelines like those in Federal court. Sentencing should be case-specific, based on the individual facts and circumstances of each prosecution. Mandatory-minimum sentences take away that discretion and there is no ability to shape the sentence to best suit the facts of a particular case.