He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.

That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.

The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.

The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.

And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.

There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.

But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:

After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.

Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:

“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”  “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”

I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?

Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.

A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective Fife Charley.

And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.

Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.

It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.

How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?

So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?

—

Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.

Now imagine that the worst thing you did – if it was legal – was deemed inappropriate by society. Inappropriate to the tune of 20 years in jail or 30 years or 40 or 60. Or just remember that time you bullied someone or you stole a lipstick or you made fun of a teacher or you took your dad’s car and went for a joyride or you made up stories about that girl because she wouldn’t make out with you.

Now, thinking about yourself, do you cringe? Have you spent time over the years wondering who that kid was and being glad that you’re not that anymore? Have you spent any time thinking “boy, I was a douche back then, but I’ve grown and changed?”

We all have. The only difference is that some of us are stuck in jail for extremely long sentences for things we did when we were barely out of middle school. CT mandates that all children above the age of fourteen, charged with serious felonies, are automatically treated as adults and exposed to adult sentences, ranging from maximums of 20 years to 60 years. And there are about 170 people who are currently serving such sentences for things they did between 14-17.

A new bill would change that and it just passed the State House of Representatives and heads to the Senate.

Basically, the bill does this: it makes all people sentenced when they were between 14 and 17 eligible for parole consideration after they’ve served 60% of their sentence, but only if the sentence is 20 years or greater. Almost all of these crimes are currently not eligible for parole or eligible for parole at 85% of their sentences.

So why this different, lower requirement for children? Because they’re children. Because they’d have served longer in prison than their adult counterparts and because their brains aren’t as developed when they’re 14-17, making them less culpable. As the United States Supreme Court said in Miller v. Alabama:

Because juveniles have diminished culpability and greater prospects for reform, we explained, “they are less deserving of the most severe punishments.” Graham, 560 U.S., at ___, 130 S.Ct., at 2026. Those cases relied on three significant gaps between juveniles and adults. First, children have a “`lack of maturity and an underdeveloped sense of responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S.Ct. 1183. Second, children “are more vulnerable … to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570, 125 S.Ct. 1183.

…

And this lengthiest possible incarceration is an “especially harsh punishment for a juvenile,” because he will almost inevitably serve “more years and a greater percentage of his life in prison than an adult offender.” Graham, 560 U.S., at ___, 130 S.Ct., at 2028. The penalty when imposed on a teenager, as compared with an older person, is therefore “the same … in name only.” Id., at ___, 130 S.Ct., at 2028.

So when that 14 year old child is sitting in a jail cell, 30 years later at the age of 44, someone can bring him out and say: are we punishing the same person? Have you changed? Can we let you out now? Can we treat our children at least somewhat like the children they are when they commit crimes?

Or are we that intellectually bereft of nuance that the minute we say the word criminal, we lose sight of all context and character and instead stick blindly to our fear and desire for homogeneity in understanding the other?

“Many members are concerned about appearing to be soft on crime,” [State Senator Eric Coleman] said.

Don’t you think we oughta check in on them just once, after we’ve left our kids locked up and warehoused for over a decade or two, to see and say ‘hey, have you learned your lesson yet’?

Or do you leave your kids in permanent time-out?

You guessed it: the identification was Chandler blinking his eyes in a hospital bed. Chandler then died and wasn’t available at trial, so the prosecution sought to enter the video of his interview at the  trial. The video is here, courtesy the Kentucky Post:

If you watched the video then you know that he’s heavily medicated, intubated and frightfully inconsistent with his blinking. If you didn’t watch it, then well, I just summarized it for you. Here’s another account of the video:

In the video, police had to repeat some questions when Chandler failed to respond or when the number of times he blinked appeared unclear. But Chandler blinked his eyes hard three times when police asked him if the photo of Woods was the photo of his shooter. He again blinked three times when they asked him if he was sure.  The defense argued that Chandler’s condition and drugs used to treat him could have affected his ability to understand and respond during the police interview.

Given the problems with misidentification in recent years, lots of states have adopted the best practices model, wherein they don’t do photo arrays anymore and they show witnesses a sequences of photos, to minimize comparison between the pictures and choosing “the closest one”.  Courts have also repeatedly held that a one-on-one identification is per se suggestive, because, well, it suggests to the witness that the only person he/she is being asked about is indeed the perpetrator.

Apparently that memo hasn’t reached Ohio yet:

Woods’ lawyer also argued that showing Chandler only one photo — that of Woods — instead of presenting a lineup of photos was ‘‘suggestive.’’ Jackson said the case against Woods was about misidentification and ‘‘a misguided investigation.’’

There’s a dying man, medicated, who can’t speak, who sometimes blinks and sometimes doesn’t, who is shown one photo of the defendant while surrounded by police officers in a hospital bed. Can it get any worse? Yes, yes it can:

A jailhouse informant testified that Woods told him he shot at Chandler because he caught him buying drugs from someone else while still owing Woods money for drugs.  The defense argued that the informant, who faced armed robbery charges, was trying to use testimony against Woods to get a lighter sentence for himself. The defense also said Chandler had stolen drugs from dealers, was considered a police ‘‘snitch’’ and had many enemies.

A jailhouse snitch. That paragon of virtue and honesty. The classic “good samaritan”.

I’m rather curious as to how the judge and the prosecution got around Crawford v. Washington, which states that testimonial statements aren’t admissible unless there’s an opportunity to cross-examine. A testimonial statement – as best as I can understand it, is a statement made to law enforcement for the purposes of future prosecution or identification of a perpetrator and not for some other reason, like medical or to dissipate an immediate emergency.

There is the forfeiture by wrongdoing doctrine, but that cannot apply to an identification in a murder where the defendant is on trial for that murder. Perhaps they reasoned that it was not a “statement” but that seems hardly plausible. It’s clear that he’s identifying the defendant and the defendant has no opportunity to challenge that identification.

But I suppose that’s what passes for justice these days. In the blink of an eye.

HT: The Trial Warrior

—

I’d rather just listen to my favorite Doctor and never blink at all:

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

It didn’t. It waited all weekend to rule late Monday. In what the Palm Beach Post calls “a deeply divided” ruling, the Court said – 4-3 naturally – that the execution would remain on track, although the deadlines for various filings were extended by a day here or there. The majority wrote a two page opinion stating:

“We deny the request for a stay of Mr. Van Poyck’s execution,” Justices Ricky Polston, R. Fred Lewis, Charles Canady and Jorge Labarga wrote in a terse two-page ruling. “Noticeably absent from these recent (court) filings is any substantive reason for granting a stay.”

I’ll give you a substantive reason: the Fifth and Sixth Amendments. But in their bloodlust and desire for finality, due process and the right to counsel are mere obstacles on what must be an ever shortening path.

This obsession with finality and speedy finality has always troubled me. Especially in cases where the sentence is irreversible, like death. It is often said by those with the taste of blood in their mouth that delay is a tactic used by the defense and every day the client spends alive is a victory. I found that argument most curious: for one, I’d rather be on the side that regards the extension of another individual’s life for even a day as a good thing and second, I’d rather be on the side that ensures that we proceed cautiously, carefully and certainly.

In an apparent effort to accommodate the three attorneys, the high court extended the deadlines of when they must file various appeals.

Instead of this Wednesday, Burton has until May 29 to rule on whatever motions are filed. Possible oral arguments before the Florida Supreme Court are scheduled for June 6 instead of June 5. That would leave a week to launch appeals in federal court in hopes of stopping what would be the first execution for a Palm Beach County murder in 21 years.

The justices, however, said they didn’t want to hear from any outsiders. They rejected requests from the 1,700-member Florida Association of Criminal Defense Lawyers and Sandy D’Alemberte to weigh in. On Friday, both the association and D’Alemberte, a former state lawmaker and past president and law school dean of Florida State University, said they wanted to explain problems with the death penalty process that has led to confusion in Van Poyck’s case.

What does it say when an institution (or perhaps institutions if you add Congress) that is designed to serve the people - all people – acts with such hubris and disdain for the voices of those very people? Have our laws become the playground of the present whims of 5 or 7 or 9?

What’s even more puzzling is that the defense attorneys, two of whom have never handled a death penalty appeal before and one who doesn’t know this client from a hole in the wall, asked for merely a 30 day extension. 30 days to ensure that Constitutional representation was provided. And apparently that’s too much. I guess once you have a taste for killing, it’s hard to let go. Isn’t that what they say about defendants? The only difference is that one murder is state sponsored and the other isn’t.

I’m not as think as you stoned I am

Judge Kenneth Post of Michigan will start a 30-day suspension this Wednesday, having been reprimanded for

a terse exchange with Montcalm County attorney Scott Millard over whether Millard’s client needed to answer questions about recent drug use. Post was asking the questions to make sure Millard’s client would not test “dirty” the next time he gave a drug-testing sample.

Millard interjected and wouldn’t permit his client to respond to these questions on the grounds that the answers would incriminate him and thus violate his Fifth Amendment privilege. Post wasn’t having any of it. He was downright rude to Millard as this transcript shows:

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

[...]

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.

MILLARD: And I -

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment -

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

And on and on. Finally, perhaps sick of hearing Millard say Fifth Amendment, Post held him in contempt and ordered him remanded to custody. The Michigan Supreme Court affirmed [PDF] the grievance finding of 30 days’ suspension for violating judicial ethics. Which is fine, I suppose. I don’t have an opinion on this either way, except that intolerance of the law and disrespect in the courtroom cannot and should not be tolerated no matter the source.

What I want to know is this: did the defendant have a 5th Amendment privilege in that circumstance? Or would any prosecution be barred by corpus delicti?

Another example: if I were to go to Officer Friendly patrolling my street as soon as I’m done writing this post and say “Hello Officer Friendly, I just wanted you to know that last week I snorted coke off a hooker’s belly”, could he arrest me? What if I said I’d driven drunk a month ago? I’ve clearly admitted to a violation of a criminal statute, but can I be arrested and prosecuted?

Is there a difference between incriminating myself and not being able to be charged with a crime? Have I incriminated myself (in the legal sense) while avoiding prosecution?

The principle of corpus delicti means that I cannot be prosecuted based solely on my confession; there must be independent evidence that a crime has occurred. Assuming that was the case in the excerpt above, did Millard’s client have a Fifth Amendment privilege?

This law school final counts for half of your grade. Govern yourself accordingly.

It seems that, rather than sign the bill, Gov. Scott signed some sped up death warrants for 3 inmates, one of whom is Poyck.(who has a blog). At the time, Van Poyck was represented by an attorney named Gerald Bettman who runs a two-lawyer office in FL, never having represented a death row client. If you’ve been paying attention, you know that the closer the execution gets, the more intense and hurried the work gets. Bettman was totally out of his league, recognized that and then asked the Court to let him out and appoint someone who was experienced in this area. Nope, said the lower court and nope said the Florida Supreme Court. So Van Poyck, facing the last month of his life was saddled with an inexperienced defense attorney who had no clue how to navigate the maze of Florida death penalty appeals work, who didn’t want to do it.

But that was last week. That’s when things started to get really fucking strange. After that ruling, the Florida Supreme Court reversed itself last Friday, stating that Bettman didn’t have to represent Van Poyck, but instead that every lawyer who ever had his name associated with Van Poyck was eligible to be appointed.

In a surprise move, the Florida Supreme Court reversed itself and said Jacksonville attorney Gerald Bettman should not have to represent Van Poyck alone in the high-pressure, high-stakes appeals that lead up to any execution. Possibly, he won’t have to represent him at all.

The high court ordered Palm Beach County Circuit Judge Charles Burton to review the qualifications of more than a dozen lawyers who have filed appeals on Van Poyck’s behalf since he was convicted of killing Glades Correctional Institution guard Fred Griffis in a failed attempt to free a buddy from prison.

The attorneys Burton ordered to attend a hearing on Monday include two of the top death penalty lawyers in the state. It includes out-of-state civil litigators who took on Van Poyck’s cause to win pro bono points and could now find themselves saddled with handling the complex, time-consuming and expensive appeals.

The problem is that half these attorneys don’t know shit about the case; some don’t even practice in Florida. Now these lawyers are on the hook for a mad, choatic, intense and intensely specialized death penalty process? Would you want to be in that position?

But that was last Friday. On Monday, Judge Burton had his hearing and appointed three lawyers to navigate this complex maze. They weren’t happy and had the same thing to say:

In a two-hour long hearing Monday that most involved described as bizarre, Palm Beach County Circuit Judge Charles Burton appointed the three lawyers even though all said they have neither the time, resources nor expertise to represent Van Poyck as the clock ticks toward his scheduled June 12 execution.

…

[Jeffrey Davis, who practices civil appellate law in Milwaukee] and Jacksonville attorney Gerald Bettman were tapped because they have represented Van Poyck, 58, in appeals he has launched since his conviction for the 1987 murder of Glades Correctional Institution prison guard Fred Griffis outside a West Palm Beach doctor’s office.Therefore, Burton said, they have the most knowledge about the case. He appointed Tallahassee attorney Mark Olive to help them navigate the complex appeals that occur after a death warrant is signed.

As one of Florida’s top death-penalty defense attorney, Olive said he has the legal chops but knows nothing about Van Poyck’s case. “It’s just a farce, frankly,” he said.

A Friday deadline, three attorneys who either don’t have the time or the experience or the knowledge required to file appeals. A man who sits on death row. A system that weeps silently.

But. But then came Thursday. On Thursday all three filed separate motions with the Florida Supreme Court stating that they wanted off.

“With a mere four days to prepare Van Poyck’s final pleading, any attempt to mount a viable challenge on behalf of Van Poyck would be a farce,” attorney Jeffrey Davis, a civil litigator from Milwaukee, Wisc., wrote in his motion.  He suggested that the high court delay Van Poyck’s execution for 60 days to give him and other attorneys time to prepare. He asked the court to appoint an attorney who is skilled in death warrant appeals to assist him.

Mark Olive, a Tallahassee attorney who was also appointed Monday, has such expertise. But, in his motion, he said it would be a violation of professional standards to take on Van Poyck’s case on such short notice. Not only would he be unable to mount a thorough investigation of possible appeals but he would have to do so at the expense of other clients. Olive said he would be willing to help Davis represent Van Poyck if he was given more time to prepare.

Another disturbing fact: there was no attorney to represent Van Poyck in his appeals because his first appellate attorney:

was arrested for possession of cocaine, claimed insanity as a defense, disappeared from the case and let his Florida Bar membership lapse.

And all this because we want to “speed up” the appeals process. The Florida Supreme Court apparently hasn’t ruled yet. Stay tuned. This could get worse.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about this – over and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.

“Would you tell me, please, which way I ought to go from here?’

`That depends a good deal on where you want to get to,’ said the Cat.

`I don’t much care where–’ said Alice.

`Then it doesn’t matter which way you go,’ said the Cat.

`–so long as I get somewhere,’ Alice added as an explanation.

`Oh, you’re sure to do that,’ said the Cat, `if you only walk long enough.”

It’s curious how quick we are to draw lines and take sides. People are either Alpha or Beta; victims or perpetrators; weak or bullies. This compartmentalization does more harm than good, because we are a little bit of everything, depending on the demand of the circumstances.

But stances we take, so perhaps it was a bit jarring for many this week when it came to light that the DOJ had subpoenaed two months worth of phone records of the Associated Press in an effort to determine the source of a leak. These subpoenas, obtained without judicial oversight [an effort thankfully rejected here in Connecticut], has caused a maelstrom of criticism for the Obama administration.

But, as Glenn Greenwald writes convincingly, this isn’t exactly Earth-shattering news to anyone who’d been paying attention; the problem is, of course, that very few people had. Because we all have staked out positions: we are either Democrats or Liberals or Republicans or Victims or Tough on Crime or Criminals or Those People. We are no longer people with opinions but rather opinions given corporeal form.

Yet there are more people troubled today than there were yesterday. This can only be a good thing. Would it trouble you more to know that what the DOJ did is likely legal? Are you comfortable with the government having that much unregulated authority over you?

Perhaps now, your outrage can be focused on other worthy things. Like the fact that the same DOJ also purports to have unfettered, warrantless access to your e-mails. Or that cops are making up the rules on phone surveillance of regular citizens like you and me.

You’re not a criminal yet, but are you starting to feel like one? Has your perspective changed?

And what sort of perspective do you need to want to rush to executions? Florida, which I wrote about last week, is poised to pass legislation speeding up executions. You have the victim’s perspective, now here’s the exoneree’s:

“If the bill would have been in effect at the time of me being sentenced, I wouldn’t be here talking to you today,” said Penalver, who five months ago was acquitted on charges related to a triple murder. New evidence was uncovered years after he exhausted his original appeals, winning Penalver his freedom after 18 years behind bars.

“There’s no ifs, ands or buts about it. You’re going to put innocent men to death,” warned Lindsey, who was exonerated after three years on death row.

You complain about endless appeals. Maybe you’ve heard it on TV, maybe your neighbor said it, maybe you are in the system and you actually believe it. Have you ever stopped to think about why there are appeals? Do you think that factual guilt is all that matters? If that’s the case, then why are you up in arms about the DOJ?

I mean, if the AP is guilty, well then, who cares how the evidence was obtained. I mean, if the AP hasn’t done anything, then they should have nothing to hide, right? Can I look through your e-mails now? I’m not even from the police.

We appeal because the law is on trial just as much as the facts are. The facts, however, are specific to one case. The law applies to us all. Do you want some criminal’s case deciding your rights?

Maybe, we thought, it would change after Aaron Swartz. Maybe we were wrong. Will it happen now, after AP-gate? Will there be just the slightest shift? Will you realize that when they come for your pet project, it’s already too late? Quoth Greenwald:

Leave to the side how morally grotesque it is to oppose rights assaults only when they affect you. The pragmatic point is that it is vital to oppose such assaults in the first instance no matter who is targeted because such assaults, when unopposed, become institutionalized. Once that happens, they are impossible to stop when – as inevitably occurs – they expand beyond the group originally targeted. We should have been seeing this type of media outrage over the last four years as the Obama administration targeted non-media groups with these kinds of abuses (to say nothing of the conduct of the Bush administration before that). It shouldn’t take an attack on media outlets for them to start caring this much.

Someone once said “we see world not as it is, but as we are”. If we see the world as the DOJ and Florida legislators see it, as the anonymous prosecutors who submit these “reactions” see it, what does it say about us?

When the law is mistreated and disrespected and ignored, we are all victims. The question that remains is: what will it take to get you to see it that way?