Some time ago I was asked to consider publishing a guest-written piece. I am sure doing so breaks someone's idea of proper blogging. I have no idea about such norms and even less of an inclination to care about the blobocracy. Besides, this piece is about television. We own two. But all I watch is college football. I've not seen the shows featured here, although they sound interesting.
So, without further adieu, welcome to Kat Sanders:
I don’t have the time to watch too much television, but there are a few shows that I hate to miss, and most of them center around crime and criminology. I guess it’s the fascination with the way the cops and other law enforcement officers go about solving crime and managing their personal lives; or maybe it’s just the fact that I like to see criminals and cops matching wits with each other. Whatever the reason, here are five crime shows that I make sure I watch:
· Bones: My all-time favorite, this one scores because of the chemistry between Bones and Booth, the anthropologist forensic expert and the FBI Special Agent. The show centers around the Jeffersonian Museum and the team that helps solve crimes where the remains comprise bones for the major part. The relationships between members of the team are also enjoyable, and you find yourself rooting for them as they each do their part in the lab.
· Numb3rs: If you enjoy mathematics and the theory of probability, then this one should be right up your alley. The show is based on crimes that described using mathematics, so you can expect some really brainy criminals and even brainier sleuths, in this case, a family of two sons and a father who aid law enforcement officers in their efforts to solve the crime.
· CSI: There are many versions, but my favorite is the one with Gary Sinise, aka CSI New York. Even though this one was the last spin off, after CSI Crime Series Investigation and CSI Miami, I still prefer this police procedural drama because of Gary Sinise. The show revolves around the solving of a baffling or unusual crime, with the help of a forensics team.
· Criminal Minds: This show is a little different in that it features a special team set up to focus on the criminal rather than on the crime. The FBI’s Behavioral Analysis Unit profiles the criminal and tries to catch him or her before they get their next victim.
· Shark: This one is more a legal courtroom thriller with the protagonist being an attorney for the prosecution and helped by a rookie, and albeit able, team of young and enthusiastic lawyers. The show revolves around Sebastian Stark and his courtroom cases that are always filled with drama, and his relationship with his teenage daughter who lives with him.
Kat Sanders regularly blogs on the topic of forensic science technicians colleges at her blog Forensic Scientist Blog. She welcomes your comments and questions at her email address: katsanders25@gmail.com.
Sunday, June 21, 2009
Thursday, June 18, 2009
Jaws In A Robe
I read an interesting essay on judging the other day. The author noted that the image of a federal trial judge sitting dispassionately at trial calling balls and strikes should be supplanted by a new image: the manager, sitting by his or her computer checking out case reports and researching case law on pending motions.
That is not a reassuring image.
Many reasons are given for the vanishing trial. Filings in the District Court have increased, but the number of cases going to trial has decreased. There have been no new rules of procedure that would account for the decline in trial. The increase in filings suggest we are more litigious than ever.
So what hidden causes account for the vanishing trial?
I am aware of at least two: First, the self-conscious managerial ethos of the District Court and second the pernicious growth of legal doctrines designed to keep cases from trial.
The managerial ethos is not evil per se. It springs from a well-meaning, if someone literalistic, commitment to the prompt, speedy and inexpensive resolution of disputes. But the law of unintended consequences kicks in here. When a trial court decides it needs more reports on the status of a case, costs increase. Lawyers meet and confer, report to the Court, draft pleadings, contact clients and engage in hours of collateral chatter that often have the look and feel of litigation but, in fact, contribute but little to a case.
Nothing focuses the mind like the prospect of trial. Talking months, or sometimes years, in advance of trial about what a dispute will look like sometimes has the look and feel of talking about sex: Glasses get all fogged and steamy, hearts throb, commitments get made. But after all the small talk judicial management often produces little more than billable hours.
The burden of this additional time falls hardest on small plaintiff’s firms, the sort of shops in which lawyers struggle to meet payroll, client demands and the requirements of professional norms governing the practice of law. Most plaintiffs can’t afford to pay hourly rates. Add a few hours small talk and the foreplay associated with judicious interruptus to the litigation of a federal case, and that is simply work for which most plaintiff’s lawyers go uncompensated. Not so on the defense side of the ledger, where the hourly billing machine ticks, ticks, ticks into infinity.
Multiply the need for judicial pillow talk times ten or so files in a small firm and a week’s time disappears into territory even Einstein could only imagine.
But the real bugbear responsible for the vanishing trial, at least in the context of official misconduct claims, is the doctrine of qualified immunity. This judicial get out of jail card is a recent phenomenon. Mentioned nowhere is the Constitution, this judicial doctrine gives the Court power to dismiss a case in all but the most egregious claims of misconduct. Defendants now file motions for summary judgment routinely. It is almost malpractice not to file them when the changes for success are so high.
Once again, defense counsel sets her clock a-ticking and churns out reams of paper. Thousands of dollars later, a motion is filed in the court. The plaintiff’s counsel, the same soul working most likely on a contingency fee or working off a small retainer, must respond. If the plaintiff survives, the case advances to trial. Many cases die at the summary judgment phase with a plaintiff never having seen the inside of a courtroom or the whites of a judge’s or juror’s eye.
I won’t go so far as to say that summary judgment violates the Seventh Amendment, although law review articles advancing that claim make for good reading. But it is clear that the new managerial court enervates our commitment to trial by jury.
One reason the founders cut there ties from England was that King George had reduced the colonists’ right to trial by jury. No distant king does so today. Instead a judiciary empowered by doctrine and an agenda that values efficiency above participation churns along like a great white shark, eyes rolled back and a thin smile on bloody lips: "Trial? Trial?" belches the beast, as it slaps its tail on troubled waters and vanishes from public view.
Reprinted courtesy of the Connecticut Law Tribune.
That is not a reassuring image.
Many reasons are given for the vanishing trial. Filings in the District Court have increased, but the number of cases going to trial has decreased. There have been no new rules of procedure that would account for the decline in trial. The increase in filings suggest we are more litigious than ever.
So what hidden causes account for the vanishing trial?
I am aware of at least two: First, the self-conscious managerial ethos of the District Court and second the pernicious growth of legal doctrines designed to keep cases from trial.
The managerial ethos is not evil per se. It springs from a well-meaning, if someone literalistic, commitment to the prompt, speedy and inexpensive resolution of disputes. But the law of unintended consequences kicks in here. When a trial court decides it needs more reports on the status of a case, costs increase. Lawyers meet and confer, report to the Court, draft pleadings, contact clients and engage in hours of collateral chatter that often have the look and feel of litigation but, in fact, contribute but little to a case.
Nothing focuses the mind like the prospect of trial. Talking months, or sometimes years, in advance of trial about what a dispute will look like sometimes has the look and feel of talking about sex: Glasses get all fogged and steamy, hearts throb, commitments get made. But after all the small talk judicial management often produces little more than billable hours.
The burden of this additional time falls hardest on small plaintiff’s firms, the sort of shops in which lawyers struggle to meet payroll, client demands and the requirements of professional norms governing the practice of law. Most plaintiffs can’t afford to pay hourly rates. Add a few hours small talk and the foreplay associated with judicious interruptus to the litigation of a federal case, and that is simply work for which most plaintiff’s lawyers go uncompensated. Not so on the defense side of the ledger, where the hourly billing machine ticks, ticks, ticks into infinity.
Multiply the need for judicial pillow talk times ten or so files in a small firm and a week’s time disappears into territory even Einstein could only imagine.
But the real bugbear responsible for the vanishing trial, at least in the context of official misconduct claims, is the doctrine of qualified immunity. This judicial get out of jail card is a recent phenomenon. Mentioned nowhere is the Constitution, this judicial doctrine gives the Court power to dismiss a case in all but the most egregious claims of misconduct. Defendants now file motions for summary judgment routinely. It is almost malpractice not to file them when the changes for success are so high.
Once again, defense counsel sets her clock a-ticking and churns out reams of paper. Thousands of dollars later, a motion is filed in the court. The plaintiff’s counsel, the same soul working most likely on a contingency fee or working off a small retainer, must respond. If the plaintiff survives, the case advances to trial. Many cases die at the summary judgment phase with a plaintiff never having seen the inside of a courtroom or the whites of a judge’s or juror’s eye.
I won’t go so far as to say that summary judgment violates the Seventh Amendment, although law review articles advancing that claim make for good reading. But it is clear that the new managerial court enervates our commitment to trial by jury.
One reason the founders cut there ties from England was that King George had reduced the colonists’ right to trial by jury. No distant king does so today. Instead a judiciary empowered by doctrine and an agenda that values efficiency above participation churns along like a great white shark, eyes rolled back and a thin smile on bloody lips: "Trial? Trial?" belches the beast, as it slaps its tail on troubled waters and vanishes from public view.
Reprinted courtesy of the Connecticut Law Tribune.
Sunday, June 14, 2009
A Temporary Victory For Padilla And The Nation, But ...
Expect an interlocutory appeal from United States District Judge Jeffrey White's denial of John Yoo's motion to dismiss. And should the Ninth Circuit reject that appeal, expect a petition for certiorari to the United States Supreme Court. Then buckle your seat belt and await a ruling on the contours of litigation arising under 42 U.S.C. Section 1983 that has the potential to be as far reaching as Monroe v. Pape, decided in 1961.
Judge White ruled that John Yoo's decision to provide legal cover for the Government actors' shocking treatment of Jose Padilla may well be a violation of federal law. Mr. Padilla was taken into a custody at a Chicago airport and held for years without counsel, arguable denied access to a court, arguably subjected to unconstitutional conditions of confinement and interrogation, arguably denied freedom of religion, arguably subjected to an unreasonable seizure and arguably denied due process of law.
I say arguably in each instance because the no Court has yet ruled on whether these violations took place. Yoo's lawyers filed a motion to dismiss the complaint contending, for a variety of reasons, that Yoo enjoyed immunity, including, significantly, qualified immunity from suit. As a result of filing this motion, the District Court was obligend to take all of Padilla's allegations as true. Indeed, from the public record in this case, there seems to be no doubt that the Government treated this citizen as a man without a country and subjected him to treatment in an American Gulag.
Judge White's 42-page ruling is short on rhetoric and long on bed-rock law. The rights Padilla claims to have lost are fundamental. Yoo's role in the Bush administration clearly amounted to a condonation of policies that proximately caused great harm. Padilla has stated a claim under the Bivens v. Six Unknown Agents of Federal Bureau of Narcotics. (Novices in federal civil rights law take note: The Ku Klux Klan Act, 42 U.S.C. Section 1983, permits a claim for damages against state actors acting under color of law, a remedy famously upheld against members of the Chicago police department in Monroe v. Pape. Because the act is silent as to federal officials, the authority for bringing claims against federal agents, although rooted in the same concerns about abuse of power, is, in fact, authorized under Bivens.)
White is undoubtedly right that the manner in which Padilla was allegedly treated violated the Constitution. But I have my doubts about whether the Supreme Court will permit the suit to advance. Indeed, I suspect this suit will die on the shoals of authoritarian indifference.
That's not because discovery in this case would require penetration of the state-secrets privilege. The case against Yoo will be made largely by reliance on public documents, including a book Yoo himself wrote. What concerns me is a seeming hostility on the part of the federal courts to claims arising under 42 U.S. Section 1983.
In the past two decades, qualified immunity has been used as a chain saw to saw the legs out from beneath many federal civil rights claims. Dicta supporting the doctrine contends that it is intended to protect all but the plainly incompetent from the risks and rigors of trial. Thus, a cop has to go pretty far these days face trial for misconduct. Courts bend over backwards to shield officers from trial. Most civil rights cases never see a jury, but are disposed of by way of summary judgment.
In Yoo's case a reviewing Court will most likely succumb to the temptation to dismiss Padilla's claim on a new and novel reading of Harlow v. Fitzgerald, the lead qualified immunity decision.
Under a traditional qualified immunity analysis, a defenant gets relief if his conduct was either not against clearly established law, or if reasonable people similarly situated to the defendant could disgree about whether his conduct was unlawful. The doctrine gives the benefit of the doubt to Government officials in close cases.
Judge White is right that the conduct endured by Padilla is not a close case. The outrages Padilla endured are a mockery of the very values this nation presumably fights to protect in the so-called war on terror. Qualified immunity should be denied under existing law.
But, I am afraid, the Court will not stop here.
We have never, as a nation, come fully to terms with the Japanese internment cases in World War II, in which our Supreme Court opined that the power to wage war is the power to wage war successfully. Sure, we have repented as a nation for locking up Americans in concentration camps merely on the basis of their ethnicity and offered token reparations. But, as a matter of law, I fear the Court will still defer to the imperatives of the Government's war-making powers.
Watch the Padilla case closely. My forecast is an expansion of the qualified immunity doctrine. Yoo will be held immune not because the conduct he condoned is acceptable in general cases, but because the conduct was condoned at a time and under circumstances in which the Government believed national security and safety was at risk. This new third prong of the qualified immunity doctrine will lope gracefully off the pages of an as yet written opinion: I can hear the snarling of the wolf it will unleash even now.
Judge White ruled that John Yoo's decision to provide legal cover for the Government actors' shocking treatment of Jose Padilla may well be a violation of federal law. Mr. Padilla was taken into a custody at a Chicago airport and held for years without counsel, arguable denied access to a court, arguably subjected to unconstitutional conditions of confinement and interrogation, arguably denied freedom of religion, arguably subjected to an unreasonable seizure and arguably denied due process of law.
I say arguably in each instance because the no Court has yet ruled on whether these violations took place. Yoo's lawyers filed a motion to dismiss the complaint contending, for a variety of reasons, that Yoo enjoyed immunity, including, significantly, qualified immunity from suit. As a result of filing this motion, the District Court was obligend to take all of Padilla's allegations as true. Indeed, from the public record in this case, there seems to be no doubt that the Government treated this citizen as a man without a country and subjected him to treatment in an American Gulag.
Judge White's 42-page ruling is short on rhetoric and long on bed-rock law. The rights Padilla claims to have lost are fundamental. Yoo's role in the Bush administration clearly amounted to a condonation of policies that proximately caused great harm. Padilla has stated a claim under the Bivens v. Six Unknown Agents of Federal Bureau of Narcotics. (Novices in federal civil rights law take note: The Ku Klux Klan Act, 42 U.S.C. Section 1983, permits a claim for damages against state actors acting under color of law, a remedy famously upheld against members of the Chicago police department in Monroe v. Pape. Because the act is silent as to federal officials, the authority for bringing claims against federal agents, although rooted in the same concerns about abuse of power, is, in fact, authorized under Bivens.)
White is undoubtedly right that the manner in which Padilla was allegedly treated violated the Constitution. But I have my doubts about whether the Supreme Court will permit the suit to advance. Indeed, I suspect this suit will die on the shoals of authoritarian indifference.
That's not because discovery in this case would require penetration of the state-secrets privilege. The case against Yoo will be made largely by reliance on public documents, including a book Yoo himself wrote. What concerns me is a seeming hostility on the part of the federal courts to claims arising under 42 U.S. Section 1983.
In the past two decades, qualified immunity has been used as a chain saw to saw the legs out from beneath many federal civil rights claims. Dicta supporting the doctrine contends that it is intended to protect all but the plainly incompetent from the risks and rigors of trial. Thus, a cop has to go pretty far these days face trial for misconduct. Courts bend over backwards to shield officers from trial. Most civil rights cases never see a jury, but are disposed of by way of summary judgment.
In Yoo's case a reviewing Court will most likely succumb to the temptation to dismiss Padilla's claim on a new and novel reading of Harlow v. Fitzgerald, the lead qualified immunity decision.
Under a traditional qualified immunity analysis, a defenant gets relief if his conduct was either not against clearly established law, or if reasonable people similarly situated to the defendant could disgree about whether his conduct was unlawful. The doctrine gives the benefit of the doubt to Government officials in close cases.
Judge White is right that the conduct endured by Padilla is not a close case. The outrages Padilla endured are a mockery of the very values this nation presumably fights to protect in the so-called war on terror. Qualified immunity should be denied under existing law.
But, I am afraid, the Court will not stop here.
We have never, as a nation, come fully to terms with the Japanese internment cases in World War II, in which our Supreme Court opined that the power to wage war is the power to wage war successfully. Sure, we have repented as a nation for locking up Americans in concentration camps merely on the basis of their ethnicity and offered token reparations. But, as a matter of law, I fear the Court will still defer to the imperatives of the Government's war-making powers.
Watch the Padilla case closely. My forecast is an expansion of the qualified immunity doctrine. Yoo will be held immune not because the conduct he condoned is acceptable in general cases, but because the conduct was condoned at a time and under circumstances in which the Government believed national security and safety was at risk. This new third prong of the qualified immunity doctrine will lope gracefully off the pages of an as yet written opinion: I can hear the snarling of the wolf it will unleash even now.
Thursday, June 11, 2009
When Is A Cigar Just A Cigar?
Were Sigmund Freud alive and well, he’d despair over the state of criminal justice in Connecticut. We’ve criminalized desire to such an extent that many of us are now criminals at some point or another. And rather than put the brakes on a system run amok, lawmakers are finding more and more ways to lock people up. Is the only business booming amid the recession the prison-industrial complex?
A story in last week’s Hartford Courant reported that a couple of dozen folks were arrested as part of a dawn sweep of convicted sex offenders. Many of those arrested were charged with the felony of failing to provide a correct address to the good folks managing the sex offender registry. Others, no doubt, were arrested for being too close to children; perhaps even for living with their own offspring.
When Freud started analyzing patients, he noticed that many young hysterics reported childhood sexual molestation. He was stunned. Was sexual abuse ubiquitous? In time, Freud realized that many, if not most, of the claims of childhood abuse were fantasies. Human sexuality is dynamite. We learn to chart our libidinal courses with difficulty. We err, most often hurting ourselves, sometimes hurting others.
Connecticut’s newfound Victorian attitude toward sexuality seems firmly rooted in a sort of pre-critical sensibility. Suddenly, we see sex everywhere. A child makes a complaint, and there is a presumption that the complaint is true. The alleged victim is whisked off to a so-called forensic interview where he or she is encouraged to "disclose" all the gory details. Children incompetent as a matter of law to form a contract are suddenly, and too often, coddled into becoming the star witnesses in criminal cases in which the sole evidence against a defendant is the child’s uncorroborated testimony.
Question: If I cannot buy a used car from a child why is he or she permitted to offer testimony that will send my client to prison for decades?
Don’t get me wrong. I am not running for president of the Republic of Pedophilia. I simply note the irony, and I am troubled what seems to be a surge in these sorts of prosecutions. Surely, the Nutmeg State did not awaken to the new millennium inspired by little more than sexual deviance. Are we akin to the early Freud, so fascinated by the reports of perversion that we are inclined to believe each report?
Assume for the moment there is some social utility in prosecuting each uncorroborated complaint of unlawful touching. I suspect each year innocent men are sent to prison due to the fantasy of a child who has displaced all of the frustration and anxiety of growing up in a chaotic home into, literally, the lap of an unwitting bystander. The risk of convicting an innocent person might in some minds be balanced by the need to protect innocent and vulnerable members of our society.
But let’s be candid about this risk and not resort to the sort of mass hysteria that yielded the Salem witchcraft trials or the overwrought imagings of Freud and his early patients.
We have now criminalized adolescent curiosity. Statutory rape law permit the prosecution of young men engaged in consensual sexual activity with girls old enough to be given in marriage in earlier eras. Mere possession of images of child pornography is a crime. Both offenses require prison sentences. And then the offender must register on a public list, and his liberty is hemmed about with requirements that make it all but impossible to live.
This post-conviction libidinal plantation is supervised by probation officers armed with the moral sensibilities, and assessment skills, of Carrie Nation and her band of prohibitionists. The result is a criminal justice system clogged with cases at great expense and little social utility.
Judges, prosecutors and defense counsel all talk about how the system is broken as regards sexual offenses. But no one acts. That’s because to act risks scorn. Who speaks on behalf of errant desire?
Wise lawmakers would commission a study of sex offenses and the consequences of conviction. Let’s take a look at the mayhem we call justice. Perhaps once the analysis is complete we will, like Freud, conclude that sometimes a cigar is just a cigar.
Reprinted courtesy of the Connecticut Law Tribune.
A story in last week’s Hartford Courant reported that a couple of dozen folks were arrested as part of a dawn sweep of convicted sex offenders. Many of those arrested were charged with the felony of failing to provide a correct address to the good folks managing the sex offender registry. Others, no doubt, were arrested for being too close to children; perhaps even for living with their own offspring.
When Freud started analyzing patients, he noticed that many young hysterics reported childhood sexual molestation. He was stunned. Was sexual abuse ubiquitous? In time, Freud realized that many, if not most, of the claims of childhood abuse were fantasies. Human sexuality is dynamite. We learn to chart our libidinal courses with difficulty. We err, most often hurting ourselves, sometimes hurting others.
Connecticut’s newfound Victorian attitude toward sexuality seems firmly rooted in a sort of pre-critical sensibility. Suddenly, we see sex everywhere. A child makes a complaint, and there is a presumption that the complaint is true. The alleged victim is whisked off to a so-called forensic interview where he or she is encouraged to "disclose" all the gory details. Children incompetent as a matter of law to form a contract are suddenly, and too often, coddled into becoming the star witnesses in criminal cases in which the sole evidence against a defendant is the child’s uncorroborated testimony.
Question: If I cannot buy a used car from a child why is he or she permitted to offer testimony that will send my client to prison for decades?
Don’t get me wrong. I am not running for president of the Republic of Pedophilia. I simply note the irony, and I am troubled what seems to be a surge in these sorts of prosecutions. Surely, the Nutmeg State did not awaken to the new millennium inspired by little more than sexual deviance. Are we akin to the early Freud, so fascinated by the reports of perversion that we are inclined to believe each report?
Assume for the moment there is some social utility in prosecuting each uncorroborated complaint of unlawful touching. I suspect each year innocent men are sent to prison due to the fantasy of a child who has displaced all of the frustration and anxiety of growing up in a chaotic home into, literally, the lap of an unwitting bystander. The risk of convicting an innocent person might in some minds be balanced by the need to protect innocent and vulnerable members of our society.
But let’s be candid about this risk and not resort to the sort of mass hysteria that yielded the Salem witchcraft trials or the overwrought imagings of Freud and his early patients.
We have now criminalized adolescent curiosity. Statutory rape law permit the prosecution of young men engaged in consensual sexual activity with girls old enough to be given in marriage in earlier eras. Mere possession of images of child pornography is a crime. Both offenses require prison sentences. And then the offender must register on a public list, and his liberty is hemmed about with requirements that make it all but impossible to live.
This post-conviction libidinal plantation is supervised by probation officers armed with the moral sensibilities, and assessment skills, of Carrie Nation and her band of prohibitionists. The result is a criminal justice system clogged with cases at great expense and little social utility.
Judges, prosecutors and defense counsel all talk about how the system is broken as regards sexual offenses. But no one acts. That’s because to act risks scorn. Who speaks on behalf of errant desire?
Wise lawmakers would commission a study of sex offenses and the consequences of conviction. Let’s take a look at the mayhem we call justice. Perhaps once the analysis is complete we will, like Freud, conclude that sometimes a cigar is just a cigar.
Reprinted courtesy of the Connecticut Law Tribune.
Monday, June 8, 2009
Gov. Rell Wants Death Penalty. Why?
No person can be a judge in their own case. That is a venerable maxim at law. But we turn the law on its head when it comes to crime. We empower victims to speak for the state. The result is often the anriest, the most distraught, the most undone person in the room gets to call the shots. That's simply wrong.
Consider Connecticut's recent attempt to abandon the death penalty. Both houses of the General Assembly passed a measure abolishing the death penalty. The measure narrowly passed by a margin of 19-17 in the Senate; there was a more comfortable margin in the House, where the bill passed by a vote of 90-56.
Gov. N. Jodi Rell promised a veto. Late last week, she delivered on her promise. The state cannot tolerate those who commit the most vicious crimes, she said.
Her reasoning is specious. A life sentence without the possibility of parole hardly sounds like toleration. Prison is hard. I've represented people who know there is no hope of release. The walls close in. In time, desperation sets in. Some prisoners become spiritual giants under confinement. Most waste away.
What Rell wants is vengeance. She wants an eye for an eye and a tooth for a tooth. She wants what Dr. William Petit wants.
Connecticut residents were shocked two summers ago to learn that two felons had burst into Dr. Petit's home in the early morning hours of a summer morning. They men are alleged to have raped and murdered Dr. Petit's wife and daughters. The men then set the house aflame, leaving Dr. Petit for dead. I cannot imagine a worse crime.
Dr. Petit lived to talk about the crime and its aftermath. He wants the killers killed. He calls it justice. Apparently, a public relations person is helping him make his case for blood lust. When lawmakers voted for abolition, Dr. Petit called them soft on crime. This poor man, whose suffering rivals that of Job, certainly enjoys the pity of all. But from his great wealth of pain and sorrow sounds no vision of justice or good public policy. He has literally been undone by his sorrows.
I do not doubt that Gov. Rell was moved by Dr. Petit's plea. As the state's top elected official, she no doubt has the right to claim to speak for all of the people. But after 182 lawmakers deliberated long and well on the issue, it is a little hollow for the Governor to stand in to say she better knows the people's will.
What Rell knows is the polls. The economy is a mess. We have no budget for the fiscal year set to begin at month's end. People are losing homes, jobs and a sense of hope for themselves and their family. Gov. Rell took the easy way out. She fed the rage of those undone by fear and looking for a cheap and easy sense of efficacy.
But the fact remains that the ten men on Connecticut's death row aren't going anywhere anytime soon. Several of the cases have lingered for more than a decade. Post-conviction proceedings will take years more to perfect and decide. All at great expense; indeed, at far greater expense than merely locking the defendants up and throwing away the key. Gov. Rell's veto is merely a costly baubble.
Consider Connecticut's recent attempt to abandon the death penalty. Both houses of the General Assembly passed a measure abolishing the death penalty. The measure narrowly passed by a margin of 19-17 in the Senate; there was a more comfortable margin in the House, where the bill passed by a vote of 90-56.
Gov. N. Jodi Rell promised a veto. Late last week, she delivered on her promise. The state cannot tolerate those who commit the most vicious crimes, she said.
Her reasoning is specious. A life sentence without the possibility of parole hardly sounds like toleration. Prison is hard. I've represented people who know there is no hope of release. The walls close in. In time, desperation sets in. Some prisoners become spiritual giants under confinement. Most waste away.
What Rell wants is vengeance. She wants an eye for an eye and a tooth for a tooth. She wants what Dr. William Petit wants.
Connecticut residents were shocked two summers ago to learn that two felons had burst into Dr. Petit's home in the early morning hours of a summer morning. They men are alleged to have raped and murdered Dr. Petit's wife and daughters. The men then set the house aflame, leaving Dr. Petit for dead. I cannot imagine a worse crime.
Dr. Petit lived to talk about the crime and its aftermath. He wants the killers killed. He calls it justice. Apparently, a public relations person is helping him make his case for blood lust. When lawmakers voted for abolition, Dr. Petit called them soft on crime. This poor man, whose suffering rivals that of Job, certainly enjoys the pity of all. But from his great wealth of pain and sorrow sounds no vision of justice or good public policy. He has literally been undone by his sorrows.
I do not doubt that Gov. Rell was moved by Dr. Petit's plea. As the state's top elected official, she no doubt has the right to claim to speak for all of the people. But after 182 lawmakers deliberated long and well on the issue, it is a little hollow for the Governor to stand in to say she better knows the people's will.
What Rell knows is the polls. The economy is a mess. We have no budget for the fiscal year set to begin at month's end. People are losing homes, jobs and a sense of hope for themselves and their family. Gov. Rell took the easy way out. She fed the rage of those undone by fear and looking for a cheap and easy sense of efficacy.
But the fact remains that the ten men on Connecticut's death row aren't going anywhere anytime soon. Several of the cases have lingered for more than a decade. Post-conviction proceedings will take years more to perfect and decide. All at great expense; indeed, at far greater expense than merely locking the defendants up and throwing away the key. Gov. Rell's veto is merely a costly baubble.
Thursday, June 4, 2009
Pleading Blind In Connecticut
This is a tale of two court systems, both committed to preserving the same set of rights, and both dedicated to the pursuit of justice. While I am no monist, and believe that many roads can all lead to the same destination, I know that were I accused of a crime, I would much prefer the procedure in the federal courts. At least there I would know what I was doing and why as I considered whether to enter a plea of guilty.
A client is accused, whether by grand jury, warrant or on site arrest, and becomes a defendant. The first test for defense counsel is to determine whether the evidence against the client was lawfully obtained. If evidence was unlawfully seized and can be suppressed, it is possible there may be insufficient evidence to prove a crime.
Testing whether evidence should be suppressed or not is subject to motion practice. Typically hearings are held, and briefs written. A judge finds facts and applies the law to those facts. All this is done outside the presence of the jury and in large measure determines what a jury can and cannot see.
If there are no suppression issues, a defendant can still challenge whether the evidence is sufficient to make out a crime. And other issues, too, may be raised: a defendant can claim selective prosecution, or that a statute has been misapplied in some manner than offends constitutional norms. As in the case of suppression issues, these claims are decided by a judge, well before a jury is summoned. Decisions on these issues also limit what a jury can and cannot see.
Clearly, any defendant facing a criminal charge is entitled to know the charges against him, and the evidence that the prosecution intends to use. How else can a defendant make an intelligent decision about whether to run the risk or trial or enter a plea? And if a plea is to be entered, doesn’t the extent of the sanction depend at least in part on the nature and extent of the evidence against a defendant?
Court watchers speak of the vanishing trial. On the civil side, cases increasingly resolved by way of motions or settlement. Few litigants face the risk of trial. They are given a chance to test the evidence both for and against them in motions practice. Once they know what the future holds, they can bargain in the shadow of both law and facts. Parties make calculated decisions to avoid trial based on assessments of risk.
In the criminal context, most cases are resolved by way of a plea bargain. But only the federal system permits the parties to make intelligent decisions. In the state system, a defendant is almost always forced to wait until the time of trial to have his motions heard. What’s worse, plea negotiations in the state system operate on the unwritten presumption that offers to plea become more draconian the closer one gets to trial. Hence the following dismal reality: Criminal defendants in the state system are almost always asked to enter pleas before they have an opportunity to challenge the state’s evidence. State defendants plea with blindfolds firmly in place.
The federal system does not require blind pleas. In the federal courts, motions are heard early, and rulings on those motions are made well before the time of trial. That is as it should be.
On the civil side, courts don’t require settlement conferences before the parties have had a chance to test one another’s case. A party sitting on what they believe to be a knock out punch is given a chance to deliver the blow before serious discussions take place about resolution of the case. There is no hidden imperative to settle or die on the civil side.
Why do we permit pressure to be brought to bear on criminal defendants in the state system before they even have a chance to have potentially dispositive motions heard? It is unfair and suggests that our commitment to the presumption of innocence is at best lukewarm.
Reform of Connecticut criminal procedure is necessary. No plea bargaining should be permitted until after a party has had the chance to file motions and have those motions heard. The current state of the law transforms the criminal process into a game of chance. We would not tolerate that when the money of an insurance company is on the line. We should not tolerate it when the liberty of a person presumed innocent is at risk.
Reprinted courtesy of the Connecticut Law Tribune.
A client is accused, whether by grand jury, warrant or on site arrest, and becomes a defendant. The first test for defense counsel is to determine whether the evidence against the client was lawfully obtained. If evidence was unlawfully seized and can be suppressed, it is possible there may be insufficient evidence to prove a crime.
Testing whether evidence should be suppressed or not is subject to motion practice. Typically hearings are held, and briefs written. A judge finds facts and applies the law to those facts. All this is done outside the presence of the jury and in large measure determines what a jury can and cannot see.
If there are no suppression issues, a defendant can still challenge whether the evidence is sufficient to make out a crime. And other issues, too, may be raised: a defendant can claim selective prosecution, or that a statute has been misapplied in some manner than offends constitutional norms. As in the case of suppression issues, these claims are decided by a judge, well before a jury is summoned. Decisions on these issues also limit what a jury can and cannot see.
Clearly, any defendant facing a criminal charge is entitled to know the charges against him, and the evidence that the prosecution intends to use. How else can a defendant make an intelligent decision about whether to run the risk or trial or enter a plea? And if a plea is to be entered, doesn’t the extent of the sanction depend at least in part on the nature and extent of the evidence against a defendant?
Court watchers speak of the vanishing trial. On the civil side, cases increasingly resolved by way of motions or settlement. Few litigants face the risk of trial. They are given a chance to test the evidence both for and against them in motions practice. Once they know what the future holds, they can bargain in the shadow of both law and facts. Parties make calculated decisions to avoid trial based on assessments of risk.
In the criminal context, most cases are resolved by way of a plea bargain. But only the federal system permits the parties to make intelligent decisions. In the state system, a defendant is almost always forced to wait until the time of trial to have his motions heard. What’s worse, plea negotiations in the state system operate on the unwritten presumption that offers to plea become more draconian the closer one gets to trial. Hence the following dismal reality: Criminal defendants in the state system are almost always asked to enter pleas before they have an opportunity to challenge the state’s evidence. State defendants plea with blindfolds firmly in place.
The federal system does not require blind pleas. In the federal courts, motions are heard early, and rulings on those motions are made well before the time of trial. That is as it should be.
On the civil side, courts don’t require settlement conferences before the parties have had a chance to test one another’s case. A party sitting on what they believe to be a knock out punch is given a chance to deliver the blow before serious discussions take place about resolution of the case. There is no hidden imperative to settle or die on the civil side.
Why do we permit pressure to be brought to bear on criminal defendants in the state system before they even have a chance to have potentially dispositive motions heard? It is unfair and suggests that our commitment to the presumption of innocence is at best lukewarm.
Reform of Connecticut criminal procedure is necessary. No plea bargaining should be permitted until after a party has had the chance to file motions and have those motions heard. The current state of the law transforms the criminal process into a game of chance. We would not tolerate that when the money of an insurance company is on the line. We should not tolerate it when the liberty of a person presumed innocent is at risk.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, June 3, 2009
The World's First Prosecutor
HAY-ON-WYE – Luis Moreno-Ocampo is a man of quiet and unassuming dignity. He is now mid-way through the first term in a job new to the world. He is the prosecutor for the International Criminal Court in the Hague. He spoke to several hundred folks at the Hay-on-Wye Festival in Wales last month. I was a rapt member of the audience.
Moreno-Ocampo was not looking for work as the world’s first prosecutor when his phone rang. He was practicing law in Argentina and preparing to serve as a visiting professor at the Harvard Law School. Among his early triumphs as a lawyer? Prosecution of generals in Argentina after power was restored to civilian control. He is a rule of law man, plain and simple.
I had hoped to see the International Criminal Court in action a week or so before I saw Moreno-Ocampo speak. I flew from New York to Amsterdam and planned a day’s layover so that I could get a close look at the doings of a court I consider to be the most exciting of any in the world.
Mornings are quiet in Amsterdam. At 10 a.m., I am almost alone walking along the streets of the Hague. The place has the feel of Wall Street on Sunday morning. Signs on the shops relay that business does not typically begin until later.
It takes some time to find the Palace of Justice. The trains were easy enough to navigate, but the map of the city is virtually useless. The streets interweave in patterns intelligible only to Medusa. At last it comes into view.
To the right of the Palace flickers a small flame. It is the World Peace Flame, and it is surrounded by stones sent from each of the nations of the world. This tiny monument seems almost an embarrassment when contrasted to the sumptuousness of the court’s home. Perhaps that is fitting: This tiny flame stands against a world of violence and chaos. How like the flame that alit in Jerusalem millennia ago is this flame?
There is no activity at the court. I am surprised. I cannot say that I expected to see ar criminals arraigned, but I am used to courthouses that whir with chaos. The International Criminal Court makes our federal courthouses look like hothouses of justice.
I try to imagine Moreno-Ocampo in the ornate courtroom of the Palace, bank of robed judges facing him. His easy grace makes this act of imagination simple. He is a rule of law man. His office is mandated to prosecute war crimes and crimes against humanity. Not all nations are signatories to the treaty creating the court, so jurisdiction is always an issue. And he must first satisfy himself that a signatory cannot, or will not, act before he launches a prosecution.
An audience member at his lecture asks him whether he will ever prosecute former President Bush for war crimes. The question is met with murmuring approbation from the audience. He sighs. His job is not to make political judgments, he explains. No one has referred Mr. Bush for prosecution. But even if someone had, a steady realism animates the world’s first prosecutors: His resources are limited, and he must rank issues and select what needs most doing. Just now, he is preoccupied with Darfur, the Sudan and the fate of millions who will die as a result of calculated acts of indifference.
The audience hears this, and wants more dramatic action. But Moreno-Ocampo patiently explains that the creation of international institutions and the development of institutions capable of giving the giving the law teeth takes time. I watch him struggle with these issues and I am overcome with admiration for the man and his courage. It is a marvel, it seems to me, that there is an International Criminal Court at all. The next challenge is to learn to use it.
Moreno-Ocampo was not looking for work as the world’s first prosecutor when his phone rang. He was practicing law in Argentina and preparing to serve as a visiting professor at the Harvard Law School. Among his early triumphs as a lawyer? Prosecution of generals in Argentina after power was restored to civilian control. He is a rule of law man, plain and simple.
I had hoped to see the International Criminal Court in action a week or so before I saw Moreno-Ocampo speak. I flew from New York to Amsterdam and planned a day’s layover so that I could get a close look at the doings of a court I consider to be the most exciting of any in the world.
Mornings are quiet in Amsterdam. At 10 a.m., I am almost alone walking along the streets of the Hague. The place has the feel of Wall Street on Sunday morning. Signs on the shops relay that business does not typically begin until later.
It takes some time to find the Palace of Justice. The trains were easy enough to navigate, but the map of the city is virtually useless. The streets interweave in patterns intelligible only to Medusa. At last it comes into view.
To the right of the Palace flickers a small flame. It is the World Peace Flame, and it is surrounded by stones sent from each of the nations of the world. This tiny monument seems almost an embarrassment when contrasted to the sumptuousness of the court’s home. Perhaps that is fitting: This tiny flame stands against a world of violence and chaos. How like the flame that alit in Jerusalem millennia ago is this flame?
There is no activity at the court. I am surprised. I cannot say that I expected to see ar criminals arraigned, but I am used to courthouses that whir with chaos. The International Criminal Court makes our federal courthouses look like hothouses of justice.
I try to imagine Moreno-Ocampo in the ornate courtroom of the Palace, bank of robed judges facing him. His easy grace makes this act of imagination simple. He is a rule of law man. His office is mandated to prosecute war crimes and crimes against humanity. Not all nations are signatories to the treaty creating the court, so jurisdiction is always an issue. And he must first satisfy himself that a signatory cannot, or will not, act before he launches a prosecution.
An audience member at his lecture asks him whether he will ever prosecute former President Bush for war crimes. The question is met with murmuring approbation from the audience. He sighs. His job is not to make political judgments, he explains. No one has referred Mr. Bush for prosecution. But even if someone had, a steady realism animates the world’s first prosecutors: His resources are limited, and he must rank issues and select what needs most doing. Just now, he is preoccupied with Darfur, the Sudan and the fate of millions who will die as a result of calculated acts of indifference.
The audience hears this, and wants more dramatic action. But Moreno-Ocampo patiently explains that the creation of international institutions and the development of institutions capable of giving the giving the law teeth takes time. I watch him struggle with these issues and I am overcome with admiration for the man and his courage. It is a marvel, it seems to me, that there is an International Criminal Court at all. The next challenge is to learn to use it.
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