“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”

It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.

But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.

Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.

In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.

There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.¹

Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.

Justice Douglas, quoting Baron Alderson in 1844:

Baron Alderson said in Regina v. Robins, 1 Cox’s C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality:

“It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the 329*329 charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.”

What would he have thought of a 44 year delay, I wonder.

Yet, the Louisiana Court of Appeals (not even their Supreme Court, mind you, who declined to review the case) squarely placed the burden on the defendant to prove that he suffered actual prejudice; that the 44 year delay did, in fact, somehow prejudice him. The treatment of this important issue by the Louisiana Court of Appeals is very telling: the actual discussion of the issue is limited to two pages at best and is as summarily dispensed with as one can without being called trite.

We find that P.B. did not have problems recalling the inappropriate acts committed by Defendant. However, she did not recall the dates on which these acts occurred. We further find that Defendant cannot prove he was prejudiced by the delay in this case.

This, in polite circles, is called getting f*cked over. The defendant cannot prove the very thing that would help him, because of the very thing that made him unable to prove it. Also known as legal fiction or “how to convict a sex offender in 2 easy steps”.

And some, like me, would argue that the there really needn’t even be a showing that the defendant was prejudiced. Rather, the burden should shift squarely to the State. If they wish to prosecute someone after as gargantuan a delay as in this case, let them prove good reason for waiting so long. Let them prove the reliability of the witnesses and the testimony. Let them prove that this is not some recently concocted scheme by an upset individual.

How easily does the court dispense with that argument? I’ll show you:

Defendant also asks this court to assume prejudice because of the forty-year delay. This has never been the law. and we decline to adopt such a rule. See  U.S. v. Beszborn, 21 F.3d 62 (5th Cir. 1994), cert. denied sub nom. Westmoreland v. U.S., 513 U.S. 934, 115 S.Ct. 330 (1994). Defendant further asks this court  to issue a bright-line rule that prohibits prosecutions for “offenses such as these” without both corroboration and contemporaneous report to the  authorities. We also decline to adopt such a bright-line rule based on the provisions of La.Code Crim.P. arts. 571 and 571.1.

No explanation, no rationale, nothing. A man, charged after a 44 year delay, about to spend the rest of his life in jail, deserves more than that. Our justice system deserves more than a dismissive, impatient wave of the hand.

I’m obviously not passing judgment on whether she was telling the truth or not. She may well be and he may well have done it. That’s not the point. The point is due process. And could this have happened to anyone but a “sex offender”?

That, really, is the rub here. He’s a sex offender. She must be believed and we, the courts, must do everything in our power to ensure that this man doesn’t get set free. Law and justice be damned. The witches shall burn and we shall light the fires.

GRH has filed a petition for writ of certiorari with the Supreme Court. The state did not deign to file a response.

————————————————-

1. The court had to jump through other hoops to even get to this point. It reasoned that even though at the time of offenses, the death penalty was no longer applicable, it remained a capital offense and thus there is no applicable statute of limitations for rape. The court then also uses recently enacted statutes to justify its decision to not apply the due process clause. Judicial bullshit activism at its best.

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.

From the WSJ:

The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.

Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?

For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.

The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”

Exactly.

What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.

So, ponders Sullum:

What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.

[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]

Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.

But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.

2. This:

Did I say fuck yet? Fuck.

all your DNA are belong to us

The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.

But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).

Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.

Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database:

Under the law, [an arrestee] must wait at least three years from the time of her arrest before seeking to remove her genetic information from the database, a request that either a judge or a prosecutor can veto.

Putting aside the capacity for intrusion into one’s privacy – law enforcement having access to you and your history, your health risk, who you’re related to (and again the issue isn’t that they would, but that they could) – and the racial implications, the possession of such power by the state is repugnant to many of us for the simple reason that it seems to stand at such odds with that basic of principles: the presumption of innocence. If you are to be presumed innocent up until the time of a conviction, then why must the State get to intrude upon your person in such a permanent manner? What is the need to collect your genetic markers, so you may be tagged forever as a potential criminal, when up to that point, you’re guilty of nothing?

Asked by Judge William Fletcher why the state keeps the DNA of people who were not convicted, Powell said those who know their samples are in the database are “less likely to commit future crimes.”

Indeed. Criminals – hard and soft – are kept awake at night by the idea that their DNA might be left behind at the scene, and thus are frightened into living the straight life. It might happen on CSI, but not in real life. In real life, DNA testing takes months due to backlogs; in a lot of cases the DNA isn’t even tested before a case is resolved.

The use of the deterrent argument to justify the preservation of the DNA of innocent people is simply a shield to hide behind. I’m surprised they didn’t tie it in to 9/11 and terrorism somehow. Is it too late to invoke Godwin’s Law? But sadly, these days, anything goes in the name of “safety”.

And it’s quite ironic that the State in this case is all for the preservation of DNA and testing and matching of that DNA to find the suspect that they are otherwise unable to do so, when they routinely stonewall and object to requests to test DNA by convicted inmates seeking to prove their innocence.

Courts have long held that convicted felons have fewer rights than the rest of us, that the fact of conviction necessarily means that they’ve given up some rights. The right to privacy and the right not to be suspected for the rest of their lives are two of them. So it’s easier to justify the taking of the DNA of a felon: once a criminal, always a criminal, so let’s keep tabs on him.

Taking the DNA of people merely arrested seems to extend that terrible generalization to all who are unlucky enough to be arrested, thus furthering the presumption of guilt.

In the end, the equation always seems to include two mutually exclusive concepts: more freedom or more safety?

The stereotype of the over-worked, under-paid public defender exists for a reason. Even though I’ve personally fought against the stereotype here on the blog and in real life, I must necessarily admit that in a lot of States, the caricature is not a caricature at all, but an accurate representation of the state of indigent defense. Often, the public defender is only as good as the resources and time available to her. The best lawyer may seem incompetent if overburdened and underfunded.

I noted a while ago that a battle was brewing on the state of indigent defense and two recent news items seem to validate that observation. First, via CrimProf, a troubling decision out of Florida, where the intermediate appellate court reversed a trial court’s ruling granting a public defender’s motion to withdraw from one particular case because he could not adequately represent the defendant due to his high caseload. Then, on July 7, the Third District Court of Appeal reversed the trial court, holding that the mere word of a public defender that he was unable to provide constitutionally adequate representation was not enough to establish that the defendant would suffer prejudice:

Our analysis of the record in this case, however, leads us to conclude that there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights. If the trial court’s order stands, all that the PD11 must do to show prejudice is  swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights. This “prejudice” is not the type of prejudice that this Court referred to in State v. Public Defender. Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated. And this is the critical fact — the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.

This conclusion is on the back of Florida statute that explicitly prohibits public defenders from withdrawing from cases because of excessive caseloads or inadequate funding:

(d)  In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.

Here’s a statute that so blatantly conflicts with the professional and ethical responsibility of a lawyer to withdraw from the representation of a client if he feels he is unable to provide adequate and competent representation. Court, making the determination of whether to permit counsel to withdraw, do so on a case-by-case basis, but to exclude a very real and prevalent reason for that inability to provide adequate representation seems to be problematic on many levels, not the least of which a violation of the separation of powers.

The problem with the standard articulated by the appeals court is further highlighted when viewed against the backdrop of the facts as found by the trial court:

Mr. Kolsky had between 105 and 164 pending felony cases during 2009.  In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.

In essence, the appeals court is saying that we cannot say whether the defendant’s rights have been prejudiced because he hasn’t gone to trial yet and the sub-text is: “who knows, he may be really guilty and the lawyer can’t do anything about it even if he spent all year working on the case”. That the prejudice required for arguments such as these is the fact of conviction, it is a duplicitous and misleading argument, as I’ve argued before. From the appeals court’s perspective, there is nothing constitutionally deficient or problematic about a defendant going to trial for a case which could result in a life sentence, assisted by a lawyer who’s met him once over 2 yeas and that too for 30 minutes at arraignment.

The idea that a lawyer’s crippling workload renders him unable to spend any time focusing on a particular defendant and that this in turn renders his representation per se ineffective (because, well, he hasn’t done anything!) and prejudices the defendant, is not a difficult one to grasp at all and shouldn’t be outside the reach of the august minds on appellate courts.

But that they choose to ignore this reflects a dangerous attitude that underscores how deep the “guilty until proven innocent” culture runs in the justice system. There may be some hope, though. The appeals court did certify the question of whether the statute is unconstitutional to the Supreme Court of Florida, which accepted that question. It’s up to the court of last resort in Florida to restore a semblance of dignity to the Constitution and the criminal justice system.

[Here's a collection of excessive workload litigation links and filings from the Miami PD.]

The second story comes from the Constitutionally Confused State of Georgia, whose Supreme Court has remanded a case to the trial court to determine whether there has been a systemic breakdown of the public defender system. In Phan v. State, the GA Supreme Court remanded a capital case to the trial court to determine whether a systematic breakdown exists and if that breakdown deprived Mr. Phan, now on his 6th year of incarceration awaiting trial, of his constitutional right to a speedy trial. The deprivation of Phan’s rights here is caused primarily by the lack of adequate funding:

The defense attorneys had wanted funding to go to Vietnam and search for mitigating factors, the lawyers said in court documents. The sole witness identifying Phan as the shooter, Hoangoah Thai, the wife and mother of the victims, returned to her village there after awakening from a seven-week coma caused by her injuries in the shooting, they said. Also, all of defendant Phan’s family remains there.

Those allegations, the state Supreme Court majority wrote, “are based on the notion that budgetary shortfalls and the lack of funding have caused a systemic breakdown of the public defender system.”

Nor have Harvey and Adams been paid for their work. Adams said he last was paid in August 2008, and is owed about $45,000. Harvey, who the court record indicates has not been paid for his four years on the case, was in court and could not be reached for comment. Adams, noting that the state’s public defender system has a $22 million funding shortfall, said he thought his co-counsel was owed about the same amount.

Adams, who is co-chairman of the death penalty committee for the National Association of Criminal Defense Lawyers, said nationwide data from his group shows capital cases are about 10 times as expensive as non-capital cases. He said the average cost of a Georgia death penalty defense is about $360,000, not factoring in prosecution and court costs, and that the Phan case likely would cost more because of factors such as the sole witness being in Vietnam.

In July 2009, Adams and Harvey filed two motions to dismiss the charges against Phan, who has remained in jail since his arrest more than five years ago. They said that the state failed to fund Phan’s defense against the death penalty, and alleged that his speedy trial rights were violated.

Gwinnett Superior Court Judge Ronnie K. Batchelor denied those motions, agreeing that there was a “systemic failure” and noting that the district attorney had agreed as well.

The dissent argues that the evidentiary hearing before the trial court already determined that there was a systemic breakdown, so let’s get on to Barker already. And then there’s the concurrence, which cuts right to the heart of it:

The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation … and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case.

Of course, when a prosecutor gets called out in an appellate opinion, said prosecutor has to respond:

When the portion of Nahmias’ concurrence noting the DA’s authority to dismiss the death penalty notice was read to him, [District Attorney] Porter said, “It’s been suggested at several points along the way, and … I’ve considered it but I have not agreed to it … because I’ve always had more or less the feeling that at that point, it’s a capitulation which I’m not prepared to make. If that’s the solution, then why not just do away with the death penalty? The public defenders at that point have managed to win the war of attrition.

I guess it’s easier to stick your fingers in your ears when faced with an increasingly defeaning chorus that the obstinate desire to stick with a barbaric and expensive mode of punishment is contributing to current and future economic ruin of the State and the wholesale trampling of core Constitutional rights. You’re right, Mr. Porter. Just do away with the damn thing already.

The third story is just an update of sorts on the rotten Georgia peach. Jamie Ryan Weis, whom the Georgia Supreme Court told to “fcuk off, coz it’s all ur fault, u crim1nal” (exact quotes, btw) back in March, is seeking cert. from the Supreme Court.

So recognized the Ninth Circuit in a recent decision in United States v. Johnson. The defendants were tried on a bunch of boring fraud type stuff and they represented themselves, putting for a defense that was gibberish. No, that’s not my characterization, it’s the Ninth Circuit’s:

Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate  debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform  Commercial Code gibberish.

It always tickles me to read words like “gibberish” in appellate opinions.

The district court found that the defendants were competent to represent themselves and that such was their constitutional right. Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their  self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to stand trial but not to represent themselves. The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and go down in flames if they wished, a right the district court was required to  respect.

It is a pity that the court does not recite the various nonsensical pleadings and antics undertaken by the defendants. The case does make an interesting read for several reasons, though. It highlights the difference between Faretta and Edwards and also Illinois v. Allen, ultimately holding that the defendants did nothing to disrupt the trial, were not incompetent and were merely foolish.

But here’s what intrigues me: during the course of the Faretta hearings conducted by the district court and in reaching its conclusion that the defendants were competent to represent themselves, the court relied on the expert testimony of a psychiatrist who evaluated both defendants:

Because the defendants were considering representing themselves and because they had made some strange comments in court, the district judge ordered that the defendants undergo mental examinations. James R. Missett, M.D., Ph.D., evaluated the defendants separately at the Federal Corrections Institute in  Dublin, California. Both defendants were less than cooperative during their evaluations, but Dr. Missett engaged them for approximately one hour each and  filed written reports in which he opined that neither defendant was suffering from any mental disorder. The court held a competency hearing at which Dr.  Missett testified in person. The court found the defendants competent to represent themselves based on Dr. Missett’s reports and testimony and based on  the court’s own observations.

I wasn’t there. I’m not in the defendant’s head (but I may be a figment of your imagination) and they very well may believe in this “absurd legal theory”, but spending an hour with uncooperative subjects doesn’t seem enough to reach a conclusion about the absence of any psychiatric disability. But what do I know, I’m just a lawyer. On the other hand, one might argue that if you’re a lawyer, you can’t be entirely sane.

No matter the relative levels of sanity, the fact remains that a trial is damn hard work and there a thousand small things that need to be paid attention to before you even get to the testimony itself. Lawyers are trained in this; laypersons are not.

So to those of you non-lawyers reading this, or who might be searching for the phrase “should I hire a lawyer or should I represent myself?”, take heed. You may be sane, you may be competent, but in the end, you’ll probably get convicted without counsel and then appeal and lose and regret it and then end up in a blog post here.

HT

We were fooled. Years later, with years of practice and actual experience under my belt, I’ve come to the conclusion that while the system may still be the “best” in the world, it is only so by comparison to the others that are currently in existence (and even that I doubt, but since I’m no comparative law scholar, what do I know?). That makes me sad, both for the systems of other countries and our own.

There are two indelible truths about the system here in the US: it is the criminal conviction system and finality is king (an idea that deserves a fuller post; upcoming).

And when you combine those two inescapable conclusions, you get Lee v. Lampert (pdf). Lee, you see, got stuck in that quagmire that is AEDPA. Lee, you may also see, has proven that he is actually innocent of the crimes of which he stands convicted. And yet, because he missed the statutory, non-jurisdictional, arbitrary deadline for filing a federal habeas corpus petition, he will get no justice.

The case is troubling for several reasons, but mostly it serves as an example of the ridiculous and arbitrary nature of filing deadlines. Lee, who filed his first Federal habeas petition, will not get the benefit of the “innocence exception” to the statute of limitations.

On the other hand, if Lee had filed a successive or second Federal petition and could show that he was actually innocent, the missed deadline would be forgiven. If Lee had procedurally defaulted in State court, he could avail himself of the actual innocence exception and receive review and relief.

But since Lee timely filed a State petition and this was only his first Federal petition, his actual innocence means nothing to the judges on the Ninth Circuit.

AEDPA is poor legislation at its finest. When courts can rely on flimsy statutes of limitations and even flimsier rationales to look an innocent man straight in the eye and say “sorry, you didn’t make your innocence argument before end of business today, so you’re SOL”, something’s gone horribly wrong.

A distaste for those caught elastic arms of the law, a false reliance on notions of “finality” and a “conviction at all costs” culture has brought us to this nauseating point.

the actual innocence exception arises from the judiciary’s equitable discretion, not the Constitution. Murray v. Carrier, 477 U.S. 478, 496 (1986) (“Accordingly,  we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”) (emphasis added); Schlup, 513 U.S. at  314-17 (not mentioning constitutional concerns while formulating exception); id. 324-27 (not mentioning constitutional concerns in holding that Sawyer standard was too strict for actual innocence inquiry); House, 547 U.S. at 536-38 (not mentioning constitutional concerns while formulating exception). We   decline to rule otherwise and instead follow Ferguson: AEDPA’s statute of limitations without an actual innocence exception does not violate the Suspension  Clause. Consequently, we conclude that there is no Schlup actual innocence exception to override AEDPA’s statute of limitations. Lee’s habeas petition is thus  time-barred and must be dismissed.

Since there now seems to be a Circuit split, one can only hope that SCOTUS has the courage to look an innocent man in the eye and say “finality be damned, justice shall be served”.

Via C&F, Gamso too.

A Fairfield man was arrested Thursday morning after buying a high powered rifle to stop an alien invasion, police said.

Fairfield Police Sgt. James Perez said Dane Eisenman, 57, responded to a classified advertisement for a .30-06 rifle about a month ago. While filing out the paper for the rifle, police said, he mentioned to the seller what he would be using the weapon for.

“He said he was going to use the weapon to kill aliens,” Perez said.

Like the seller of the gun, I, too, was unsure upon reading the headline whether Eisenman was referring to little green men from Mars or real humans from another country, trying to illegally enter these United States. The answer is neither:

Sgt. Perez said Eisenman told the seller of the rifle every 36,000 years, aliens who live under the sun come to Earth to kill humans, and he needed to be prepared because “They’re going to be coming soon.”

Ah. The feared race of Suntarans.

What I want to know is, why did the seller sell this guy the gun and then call the cops?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

4th

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

5th

These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.

What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.

Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.

Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.

I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.

Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.

The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.

“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.

Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.

That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.

Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.

The law is dead and slowly, it’s killing us all too.

Abra, incidentally, is now a Connecticut public defender.