Tag Archives: evidence

The impatient jury


Juries are mercurial, we know. Juries are like a black box, we are told. Juries usually convict on Fridays, is another belief. But juries are also comprised of people and people are impatient. People, who are on juries, have plans with their lives and jury duty presents a significant obstruction. Just take a look at this google search for “jury pressure”.

Earlier today, I was leafing through a transcript of a trial in which evidence had lasted for almost twice as long as was originally promised the jurors. Jurors had been told, during selection, that evidence would last for a few days and they would have the case “in a week, or slightly later at the most”. Now it was going on 2 and a half weeks. Jurors had plans.

They sent notes. On Thursday, right before closing arguments: “We’re worried because if our deliberation goes into next week, a lot of us are going to have problems.” and “We want to know how long this will take because we didn’t expect it to take this long and some of us have commitments.”

The judge in this particular case didn’t seem to think there was much of a problem and told them: “It will take as long as it will take. You were selected to see this through to the end. Please adjust. Thank you.”

The judge did admonish the jury that their scheduling conflicts were not to influence their decision. But is that possible? Will juror #4, who has a vacation to Bora-Bora planned for Wednesday, willingly deliberate for days and reach a legal verdict? Will juror #1, whose wife has to go back to work on Monday and has no one to watch his kids, be a thoughtful and active participant in the process?

What of the defendant? Will the defendant get a fair trial? Will the process be wholesome? Will he get shortchanged?

What can one do? Ask for a mistrial? How would you handle this situation?

Image license info here.

Cover your ass-ery continues


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?

Jena Six: Burden of proof and racial disparities in charging

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.

CT SC Excises Portion of Statute to Comply With Apprendi

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.

Rewind: Is the “broken window” theory itself broken?

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:


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.

Rewind: Deal or No Deal?

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):

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.

Rewind: Did you have a public defender or a lawyer?

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?


SEN. NEWTON: Did you have a public defender?


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.