a public defender

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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?

In reporting Phil Russell’s guilty plea last week, I touched on what this means for all of us and Scott at SJ explored it a bit further, but I don’t think anyone has any real answers yet.

So I’m going to give it another shot. What are the implications of this guilty plea, if any? This is a tricky intersection of attorney-client confidentiality and the fear of prosecution.

Attorney Russell was charged with obstruction of justice for destroying a computer that contained evidence for a future prosecution. He pled to failing to report a felony.

Some have noted the distinction between failing to report a felony committed by your client and by someone else. In Russell’s case, his client was the church, not the employee whose computer was in question.

So does this mean that the attorney-client privilege would be a defense (or would it be a bar) to prosecution for failing to report a crime/obstructing justice, where the crime has been committed by your client? Is that what this hinges on? Whether you represent the individual whose felony you failed to report?

I don’t think this is as instructive as it might seem. Consider this scenario: Your client tells you that his cellmate has committed crimes other than the one he is arrested for. Do you then have to report that cellmate and that crime? Do you have to advise your client that he has to report the crime?

Obviously this teaches us things we cannot do: We cannot personally destroy evidence/contraband and we cannot tell our clients to do that either. Where does that leave the attorney?

I guess I still don’t have an answer, but I am a little surprised at the lack of discussion in the blogosphere on this topic, which certainly impacts us all.

One of the things I consistently see in stories about the Jena Six is this quote:

After being represented by a public defender who did not call witnesses in Bell’s defense, an all-white jury convicted him

Over time, details of the incidents have emerged, but none of the trial itself. The most fleshed out paragraph about the trial and representation by counsel is this:

Despite this, when Mychal Bell, the first youth to go to trial, refused to take a deal in exchange for testifying against his friends, he was quickly convicted by an all-white jury. Bell’s public defender Blane Williams, visibly angry at Bell and his parents because the youth did not take the deal, called no witnesses and gave no meaningful defense.

So we know that the jury was all white and the defense called no witnesses. What is only now being revealed is that the jury pool was all white. Which included a friend of the victim’s father.

But let us turn to the matter of this attorney. I find it extremely difficult to believe that his attorney would not call any witnesses because he was angry. For one, if there were witnesses whom the defense could have called independently and the attorney made it clear that he wasn’t going to call them, my experience tells me that the defendant would have said something (maybe not, but so little is known at this point…). Surely there’s a transcript out there somewhere.

But a defendant doesn’t always have to call witnesses. The State bears the burden of proof and the defendant can choose to leave the State to its burden. This is a frequent jury instruction and almost always a question during voir dire in a criminal case.

It is counter-intuitive, for sure. You have been accused of doing something, you tell your side of the story. If you have a defense, an alibi, you will present it. Prospective jurors, upon question, usually state that they understand why the defendant can choose not to present a defense. But do they believe it? I think the Jena Six coverage has a hint of that. He didn’t call any witnesses!?! is the incredulous tone.

Now, it’s possible that Bell’s attorney should have called witnesses - I don’t know what the evidence presented was - but it disturbs me a little that people automatically look at it unfavorably. It is a dilution of the burden of proof and we must believe that.

The second thing I wanted to say (I guess as a response to this question by Prof. Berman) is that we should study this case for the racial disparity in the charging process, keeping in mind that this is not a one-off thing. Racial disparities in charging and sentencing are wide spread and are being documented more and more. As this CSM piece points out:

Nationally, black youths are significantly more likely to be tried as adults than are white youths, according to a January report from the National Council on Crime and Delinquency. The same report states that while black youths make up 16 percent of the general adolescent population, they make up 38 percent of the approximately 100,000 youths being held in local and state detention facilities.

The irony, some say, is that mass outpouring of support in cases like the Jena 6 may, in fact, obscure the real issues, where many criminal-defense lawyers can point to examples of prosecutorial zeal when dealing with black defendants.

“The public at large basically thinks that these cases are aberrations, and that’s one reason why so much attention is paid to them,” says Professor Nunn. “It’s the idea that it’s the redneck sheriff doing this and not the way we sort of stack the odds against black criminal defendants. We can point to a few bad apples, say, ‘See, it’s them,’ and the rest of us feel great because we’re demonstrating how we disagree with racism.”

Wow. This post has reached Greenfield-esque proportions, so I’ll stop now.

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.

Brr. It sure is freezing in Vladivostok! The vodka’s great, though However, seeing some ramshackle buildings here brought to mind this old post from March 2006:

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The Boston Globe had a fascinating article a few weeks ago, that I just ran across (so my apologies if this has scorched its away across the blogosphere and I’ve missed it). Is the “broken window” theory a legitimate theory?

The broken windows theory first came to prominence in 1982, when criminologists George Kelling and James Q. Wilson published a lengthy article on the subject in The Atlantic Monthly. The theory, as they explained it, holds that people are more likely to commit crimes in neighborhoods that appear unwatched and uncared for by residents and local authorities.

The crux of Wilson and Kelling’s argument was that perceptions affect reality-that the appearance of disorder begets actual disorder-and that any visual cues that a neighborhood lacks social control can make a neighborhood a breeding ground for serious crime. As Kelling and Wilson put it in The Atlantic, ”one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”

The remedy for this, as proposed by Wilson and Kelling, was to get tough on the small crime. Small crime begets big crime, the theory posits. So if we nip crime in the bud, as it were, neighborhoods will be safer and more peaceful.

Recently, however, new critics have emerged and old ones have been emboldened by the rising crime rates in Boston and elsewhere. One widely read challenge comes from ”Freakonomics,” the best-selling book by University of Chicago economist Steven D. Levitt and journalist Stephen J. Dubner, which presents a controversial theory claiming that the legalization of abortion in the 1970s was the biggest factor in the crime drop of the 1990s. According to this hypothesis, the decline in the birth of unwanted, often poor and fatherless children in the ’70s, led to a decline in the number of juvenile delinquents in the ’80s and hardened criminals in the ’90s. As for broken windows, Levitt and Dubner write, ”There is frighteningly little evidence that [Bratton's] strategy was the crime panacea that he and the media deemed it.”

I could quote the whole article, but that would be wrong, so please take 5 minutes out of your day to read (if you haven’t already) and then come back to give me your thoughts (if you’d like).

Personally, I don’t think the broken window theory, by itself, is the cure for crime. It strikes me as rather simplistic and ignorant of the underlying rationale for crime: social and economic environment. Maybe this is the defense attorney in me speaking, but I believe (perhaps foolishly), that most tendencies to commit crime can be traced to a disadvantageous socio-economic background.

Bonjour from Lyons! It’s the middle of the week and Gideon is lazily sitting on the Riviera sipping some shom-pan-ya. While doing so, it occurred to him to pose this question, from February 2007, again (ps: For those might be confused, these posts have been written in advance and scheduled to post in the future):

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Mike at C&F lamented yesterday that plea bargaining

has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system. It has turned lawyers into actuaries . “Is going to trial worth the risk?” is what lawyers ask clients. Innocence has little to do with the decision to take a deal.

Cases that highlight this dilemma abound. Julie Amero, for one. The border agents case is another. So what can be done? The logical suggestion is to leave the state to its burden of proof in each case and take everything to trial.

Windypundit jumps in with some radical ideas for criminal justice of his own. His suggestions:

Reverse Truth-In-Sentencing - if you don’t serve felony time - a full year - it doesn’t count as a felony.Performance Pay for Indigent Defense - pay indigent defense lawyers for their performance.

Punishment in Lieu of Exclusion - If a judge rules that a piece of evidence was obtained illegally, allow the prosecutor to immediately indict the responsible police officers for “improper evidence obtainment,” a newly-created crime with a mandatory minimum sentence of, say, 60 days in jail. If the officers are convicted and sentenced before the main criminal case goes to trial - easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediately - the illegally obtained evidence is allowed back in.

Limited Incarceration Without Trial - This would allow the worst of the worst to be imprisoned even if the cases against them have technical flaws.

No Miranda Warning

While I have not yet given full thought to his suggestions, one not so radical idea did seem to me a way to streamline the process. As several jurisdictions have done, all interrogations should be videotaped. This, in many instances, will eliminate the problem of the forced confession and lead to less Motions to Suppress.

This idea is gaining steam in some sectors, but I’d like to see it implemented nationwide.

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:

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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.

A groundbreaking study was released today, examining the impact of AEDPA on Federal Habeas Corpus petitions. The executive summary is here and the full report is here [both are .pdf files]. From the press release:

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.

The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.

Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.

Today’s Courant has this powerful piece by Richard Rapaport about the zero tolerance and three-strike frenzy whipping through Connecticut.

Welcome to ZT Connecticut. “ZT,” if you don’t know, stands for zero tolerance. It is a philosophy and mindset invoked to justify actions ranging from the expulsion of students for bringing alcohol-based mouthwash to school, to campaigns to pass “three strikes” laws in response to last month’s heinous murders in Cheshire.

Culled from the engineering lexicon, the slogan “zero tolerance” was trotted out in 1973 as Watergate’s noose tightened and Nixon Justice Department officials needed a tough-sounding anti-crime slogan. In the ’80s, the Navy adopted ZT to add rhetorical muscle to a purge of seagoing potheads.

From there, ZT entered civilian drug enforcement and then locked its tentacles around the justice system in the guise of “zero tolerance for crime.”

This same ZT sub-species has been roused from slumber this summer in Connecticut to induce normally even-keeled citizens to jump on the “three strikes” bandwagon, and to create a platform for those who see no shame in advancing their own social agenda in the face of the tragedy in Cheshire.

So I did a simple search for three strikes laws on Google and found the following:

Update: Heather Collins of the Journal Inquirer has a more detailed article.

[Prosecutors] Melchiorre and O’Connor presented evidence of a statutorily-mandated “aggravating factor,” showing that Campbell created a “grave risk of death” to Carolyn Privette when he shot her.

[Public Defenders] Gold and Smith countered with evidence of 10 “mitigating factors,” including Campbell’s chaotic upbringing, his drug-addicted father, his relatively low IQ, and his age and immaturity at the time of the killings.

And in a move that shocked some longtime court observers, Campbell himself took the stand - something he didn’t do in either the guilt phase or the first penalty hearing.

“I can’t take it back,” Campbell testified under sharp questioning from Melchiorre as she asked him what he had done.

Jurors also heard Campbell - whose mother once testified that she prayed to God to have a child and conceived after she levitated in a prayer session - say that he has already been forgiven by a higher power.

“My past sins are forgiven. God has forgiven me. No one has helped me reach this point but God,” Campbell told jurors.

This strikes me as a case in which there is significant mitigating evidence. The Supreme Court will automatically hear the appeal.

Original post: Earlier, Judge Mullarkey in Hartford rejected Jesse Campbell’s challenge to the Constitutionality of the death penalty and sentenced him to death. More details as they emerge.

Here is a list of the others on CT’s death row. Campbell brings the total back to eight. Ivo Colon is still awaiting a new penalty hearing, I think and Lazale Ashby’s penalty phase starts at the end of this month.

Campbell has an IQ of 78.

All previous coverage of this can be found here:

• DP arguments end; ruling awaited
• Death penalty hearing concludes
• Two more prosecutors testify
• DP Constitutionality hearings continue
• Prosecutorial discretion and the dp
• DP Constitutionality hearing under way

Update 2: For those who don’t want to read the comments (shame on you!), here’s my follow up post.

Is the only thing that can explain the following comment to the press by a lawyer about his client:

Reyes’ attorney, William Gerace, said that the private company’s results were also a match. Gerace said that Reyes’ decision to not accept a plea deal of 15 years is a bad one.

“He’s being very foolish in my view. He was given a plea bargain that’s not a lenient plea bargain, but under the circumstance, if he goes to trial, he will get a lot more,” Gerace said.

Gerace said the evidence against his client is too strong and that if there is a trial, Reyes could go to prison for more than 20 years.

Update: The news story linked to above leads one to believe that these statements were said to the press, but it is not explicit in that regard. However, the video that accompanies the story has a clip of Attorney Gerace speaking to the media and this Courant story also clarifies that these comments were indeed to the press.

Miranda, in the comments below, raises an interesting question: Is it useful, or shall we say not despicable, for an attorney to make a limited statement on the record reflecting that after being advised by counsel, the client has decided to reject the offer?

Looking at this from a future habeas perspective, Attorney Gerace will certainly be safe from claims that he did not adequately convey the state’s offer to him, but what of a general ineffectiveness claim? Do these comments hurt his client? Would they not support a claim that he was pressured into taking a plea agreement or that his attorney failed to adequately represent him and conduct an investigation into his defense, supported by his comments to the press acknowledging his client’s guilt and his desire to have him plead guilty?

Scott weighs in on this topic as well

Oh boy. I’m never going to hear the end of this from clients

But seriously, the Hartford PD is being tight-lipped about an internal affairs investigation into two incidents of mishandling evidence.

[A]ccording to sources inside the department, detectives in the major crimes division got a search warrant to look for a gun at a home on Wadsworth Street. Inside the home, police found drugs and money, according to the source. When officers returned to headquarters, some of the money was missing, the source said.

Sources told Eyewitness News that the following day, one detective was told not to come to work. Two days later, the source said, he was reassigned within major crimes.

Chief Daryl K. Roberts said that another unrelated case of alleged evidence mishandling is under investigation within the booking department.

An attorney for the police union told Eyewitness News that the missing money was never recovered and that the union has not been officially contacted about either investigation.

I’m not sure Hartford needs this. What with the mysterious death of Carlos Alvarado and the scrutiny given the New Haven Police Department after the Billy White arrest, people aren’t very confident in the abilities of the police forces in cities.

EyeID does a terrific job (as always) with this post about the Telfaire instruction and the problems associated with it. The post then goes on to suggest what an appropriate instruction should contain:

These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.

But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 (”Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.”).

Make sure you read the entire post.

The Windypundit (sorry Mark, but I like calling you that!) writes here about what he considers to be evil suspicious reasons for legislation.

Another example of a free punishment is suspending someone’s driver’s license. To the person who loses their driving privileges, it’s a disruptive life change, but to the government that does it to them, it’s just a database entry and a form letter. So any time politicians want to “get tough” on drunk drivers or parking ticket scofflaws they just tack on a license suspension or increase one that’s already there, because they pay no cost for doing so.

It’s not that there aren’t good reasons for taking away the licenses of drunk drivers and keeping violent felons from owning guns. However, as long as doing so doesn’t cost anything, there’s going to be a temptation to punish too much, just because we can.

It’s a good time to remind my CT readers about the awful DUI bill the legislature passed this past session. Miranda gave us the highlights: