On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.
Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.
After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.
In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.
In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.
Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.
Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.
On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.
The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.
The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.
The case was remanded for a new trial.
But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.
It is sometimes a very fine ledge we walk across.
Showing posts with label crime and punishment. Show all posts
Showing posts with label crime and punishment. Show all posts
Friday, November 16, 2018
Tuesday, October 23, 2018
Marsy's Law will undermine due process
At some point I keep hoping folks will realize that the purpose of the 4th, 5th and 6th Amendments is to protect individuals accused of breaking the law from the long, strong arm of the government. Without these protections, the state would be able to run roughshod over a defendant and beat him into submission.
The purpose of the criminal (in)justice system is to create a forum in which a judge or jury can weigh evidence and determine whether or not the prosecutor proved her case beyond a reasonable doubt. The purpose of the criminal (in)justice system has never been to seek justice (whatever that is) for the victims of a crime. The system isn't equipped to handle such matters.
Other than retribution and possible restitution, if you want relief, you have to go to the civil courthouse and file a tort action.
Marsy's Law is the latest proposed measure promoting so-called "victim's rights" to be put before the public. Voters in Nevada will have the opportunity to vote on it this year.
But, regardless of how nice the proposal might sound to folks who have no connection to the criminal (in)justice system, Marsy's Law is yet another solution to a problem that doesn't exist.
The criminal courtroom has never been about seeking the truth. It has never been about filling the void in a victim's life. It is our means of trying to seek a resolution to a case. The resolution is rarely perfect. The people deciding the case didn't see what happened. They must rely on two attorneys who are telling them two very different stories.
Victim advocacy groups get upset whenever a defendant is freed on what they refer to as a technicality. Of course that "technicality" is a defendant's constitutional right and if that's the reason a person is being freed, then it's the police who fucked up.
The people behind proposals such as Marsy's Law are people who are seeking to undermine the presumption of innocence. They are people who either don't understand exactly what the presumption of innocence or beyond a reasonable doubt are; or they are seeking to reduce the state's burden of proof.
The people behind the movement also don't seem to understand that they aren't a party to the case. They are but witnesses. The prosecutors may very well consult with them and keep them in the loop as to what is happening in the case, but that's the prosecutor's prerogative. As I have mentioned here many times in the past, prosecutors will listen to what a victim wants when it aligns with the prosecutor's goals and they will ignore victims when it doesn't.
Marsy's Law, and other crime victims' bills, seek to attack the very concept of due process in favor of a process that is much more user friendly for them. Of course advocates claim that Marsy's Law will give crime victims "due process" and the right to a speedy trial. In California, crime victims cannot be compelled to talk with the defendant's attorney about the facts of the case.
In reality, Marsy's Law will accomplish none of that. Due process in a criminal case is, by its very nature, a right reserved exclusively for the accused. The state doesn't have a right to confront witnesses, the state doesn't have the right to remain silent, the state doesn't have any protections under the 4th Amendment. The defendant has the right to a jury trial and the defendant has the right to go to either the judge or jury for punishment.
My colleague Scott Greenfield has long stated that whenever someone proposes a law named after someone (particularly a child), the consequences to the accused and the constitution are never good.
The purpose of the criminal (in)justice system is to create a forum in which a judge or jury can weigh evidence and determine whether or not the prosecutor proved her case beyond a reasonable doubt. The purpose of the criminal (in)justice system has never been to seek justice (whatever that is) for the victims of a crime. The system isn't equipped to handle such matters.
Other than retribution and possible restitution, if you want relief, you have to go to the civil courthouse and file a tort action.
Marsy's Law is the latest proposed measure promoting so-called "victim's rights" to be put before the public. Voters in Nevada will have the opportunity to vote on it this year.
But, regardless of how nice the proposal might sound to folks who have no connection to the criminal (in)justice system, Marsy's Law is yet another solution to a problem that doesn't exist.
The criminal courtroom has never been about seeking the truth. It has never been about filling the void in a victim's life. It is our means of trying to seek a resolution to a case. The resolution is rarely perfect. The people deciding the case didn't see what happened. They must rely on two attorneys who are telling them two very different stories.
Victim advocacy groups get upset whenever a defendant is freed on what they refer to as a technicality. Of course that "technicality" is a defendant's constitutional right and if that's the reason a person is being freed, then it's the police who fucked up.
The people behind proposals such as Marsy's Law are people who are seeking to undermine the presumption of innocence. They are people who either don't understand exactly what the presumption of innocence or beyond a reasonable doubt are; or they are seeking to reduce the state's burden of proof.
The people behind the movement also don't seem to understand that they aren't a party to the case. They are but witnesses. The prosecutors may very well consult with them and keep them in the loop as to what is happening in the case, but that's the prosecutor's prerogative. As I have mentioned here many times in the past, prosecutors will listen to what a victim wants when it aligns with the prosecutor's goals and they will ignore victims when it doesn't.
Marsy's Law, and other crime victims' bills, seek to attack the very concept of due process in favor of a process that is much more user friendly for them. Of course advocates claim that Marsy's Law will give crime victims "due process" and the right to a speedy trial. In California, crime victims cannot be compelled to talk with the defendant's attorney about the facts of the case.
In reality, Marsy's Law will accomplish none of that. Due process in a criminal case is, by its very nature, a right reserved exclusively for the accused. The state doesn't have a right to confront witnesses, the state doesn't have the right to remain silent, the state doesn't have any protections under the 4th Amendment. The defendant has the right to a jury trial and the defendant has the right to go to either the judge or jury for punishment.
My colleague Scott Greenfield has long stated that whenever someone proposes a law named after someone (particularly a child), the consequences to the accused and the constitution are never good.
Friday, October 12, 2018
Washington Supreme Court strikes down the death penalty
Allen Eugene Gregory was not a very good person. In 1996 he robbed, raped and murdered a woman. Two years later he was investigated for another rape. During that investigation police discovered evidence that tied Mr. Gregory to the robbery, rape and murder.
Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.
He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.
On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.
In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.
In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.
In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."
Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.
Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.
The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.
The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.
Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.
In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.
Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.
And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.
In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.
Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black and 6.9% were Latino.
For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.
It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.
Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.
The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.
Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.
He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.
On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.
In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.
In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.
***
In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."
Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.
Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.
The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.
The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.
***
Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.
In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.
Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.
And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.
***
In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.
Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black and 6.9% were Latino.
For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.
It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.
Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.
The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.
Tuesday, September 11, 2018
Just spitballing here
Had a very interesting conversation with a relatively new prosecutor yesterday. We were discussing a case on the trial docket and he was suggesting my client consider a pretrial intervention. I told him I had some questions about the legitimacy of the stop that ended in my client's arrest. He told me he thought the stop was okay and that, should my client be convicted, that she would get a longer sentence than the 12 months she'd be in the pretrial diversion program.
Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.
What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.
Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.
But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?
Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?
I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.
There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.
These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.
Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.
What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.
Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.
But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?
Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?
I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.
There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.
These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.
Friday, September 7, 2018
Judge finds that City destroyed evidence in jail litigation
Quick. What is the worst thing you can do when you are the defendant in a multi-million dollar lawsuit alleging you held people in jail for longer than 48 hours before letting them see a magistrate?
If you answered "destroy evidence of your violations," you are correct!
US District Judge Kenneth M. Hoyt entered a finding last week that the City of Houston destroyed evidence. The city is fighting a lawsuit that alleges people were subjected to warrantless arrests and held in the city jail for more than 48 hours before being taken before a magistrate to determine whether there was probable cause to hold them.
The evidence in question was wiped from the computer hard drives of top HPD officials.
City officials blame the problem on the bottleneck in the county jail that prevented detainees in the city jail from being transported to the county facility. But, nonetheless, the order from the court told officials that people arrested without a warrant were to be taken before a magistrate within 48 hours or they were to be released.
In issuing his order, Judge Hoyt isn't accusing the city of deliberating destroying evidence in order to gain an advantage at trial, but the order does mean that a jury will receive an instruction that they are to infer that the city deliberately destroyed evidence, that the city knowingly held people for more than 48 hours without seeing a magistrate and that the city acted with deliberate indifference to the fact they were violating people's constitutional rights.
That, my friends, is a killer instruction in a civil case. It's a way of a judge telling the defendant that it might be time to work out a settlement because the verdict could be messy.
There are two things that stick out about this ruling. The first is that it was made in the first place. Anyone who has practiced law knows that evidence gets destroyed, lost or misplaced - and not necessarily by design. The hard part is trying to prove it happened. If you never had the evidence in your hands or you never saw the evidence beforehand, it can be damn near impossible to prove it ever existed.
Generally one finds out about the loss of evidence because someone involved in, or with knowledge of the destruction, comes forward. Sometimes you find out that evidence in your case has been destroyed or lost because of testimony in an unrelated case in which evidence was lost or destroyed.
In this case I would speculate that either someone inside the police department came forward and told someone involved in the lawsuit about wiping the hard drives or someone on the plaintiff's side already had copies of documents that were later destroyed and put two and two together when the city didn't produce the documents during discovery. But, again, I'm just guessing.
The second thing that sticks out about the ruling is just how rare it is for a court to issue such a ruling. If the evidence was destroyed for innocent reasons or if the evidence was just lost, a court will not issue the instruction. In order to issue the instruction the court must find that the party that lost or destroyed the evidence had a legal duty to preserve it, whether the loss or destruction of the evidence breached that duty and whether the breach harmed the other party.
Now it looks like taxpayers are going to be the ones paying for the actions of the police department.
Someone has an awful lot of 'splaining to do about this one.
If you answered "destroy evidence of your violations," you are correct!
US District Judge Kenneth M. Hoyt entered a finding last week that the City of Houston destroyed evidence. The city is fighting a lawsuit that alleges people were subjected to warrantless arrests and held in the city jail for more than 48 hours before being taken before a magistrate to determine whether there was probable cause to hold them.
The evidence in question was wiped from the computer hard drives of top HPD officials.
City officials blame the problem on the bottleneck in the county jail that prevented detainees in the city jail from being transported to the county facility. But, nonetheless, the order from the court told officials that people arrested without a warrant were to be taken before a magistrate within 48 hours or they were to be released.
In issuing his order, Judge Hoyt isn't accusing the city of deliberating destroying evidence in order to gain an advantage at trial, but the order does mean that a jury will receive an instruction that they are to infer that the city deliberately destroyed evidence, that the city knowingly held people for more than 48 hours without seeing a magistrate and that the city acted with deliberate indifference to the fact they were violating people's constitutional rights.
That, my friends, is a killer instruction in a civil case. It's a way of a judge telling the defendant that it might be time to work out a settlement because the verdict could be messy.
There are two things that stick out about this ruling. The first is that it was made in the first place. Anyone who has practiced law knows that evidence gets destroyed, lost or misplaced - and not necessarily by design. The hard part is trying to prove it happened. If you never had the evidence in your hands or you never saw the evidence beforehand, it can be damn near impossible to prove it ever existed.
Generally one finds out about the loss of evidence because someone involved in, or with knowledge of the destruction, comes forward. Sometimes you find out that evidence in your case has been destroyed or lost because of testimony in an unrelated case in which evidence was lost or destroyed.
In this case I would speculate that either someone inside the police department came forward and told someone involved in the lawsuit about wiping the hard drives or someone on the plaintiff's side already had copies of documents that were later destroyed and put two and two together when the city didn't produce the documents during discovery. But, again, I'm just guessing.
The second thing that sticks out about the ruling is just how rare it is for a court to issue such a ruling. If the evidence was destroyed for innocent reasons or if the evidence was just lost, a court will not issue the instruction. In order to issue the instruction the court must find that the party that lost or destroyed the evidence had a legal duty to preserve it, whether the loss or destruction of the evidence breached that duty and whether the breach harmed the other party.
Now it looks like taxpayers are going to be the ones paying for the actions of the police department.
Someone has an awful lot of 'splaining to do about this one.
Thursday, September 6, 2018
Money to burn
The inmate suit pointed out that 23 inmates had died of heat stroke since 1998 including 10 who died during a heat wave in 2011.
Currently about 75% of prison housing units in Texas lack air conditioning.
The state wasn't having any of it. An expert hired by the Texas Department of Criminal Justice estimated that it would cost $20 million to install a/c at the prison. After a federal judge told Texas that the conditions were unconstitutional, the cost to install the a/c suddenly fell to a mere $11 million.
Under pressure to settle the case, lest the damages spiral out of control, TDCJ revised its estimate to install a/c down to $4 million. The estimate had come in so low that TDCJ has asked the legislature for more money to install a/c at a unit housing developmentally challenged inmates.
So, to recap, the geniuses running this state spent around $7 million dollars to defend a lawsuit when it only would have cost about $4 million to install the air conditioning system. Why was the state fighting the suit in the first place? Why would you spend almost three times as much to defend a lawsuit as it would cost to do what was asked of you?
This is fiscal responsibility for conservatives in Texas. We would rather spend a shitload of money so we don't set a precedent by doing the right thing. Then, when a loss is damn near guaranteed, we'll concede that we lied from the get go about the cost and we'll do the work.
So, Greg Abbott, what have you to say for yourself? What other uses were there for $11 million?
So, Dan Patrick, what have you to say for yourself? You're the one who's supposed to be the fiscal conservative, yet you set $11 million on fire to prove a point. You were a blowhard when you were the sports anchor at KHOU (and how I wish I could find footage of the time you painted yourself blue for an Oilers playoff game) and you're still a fucking blowhard today.
So, Ken Paxton, what have you to say for yourself? I understand it can be difficult to do your job when you're constantly fending off indictments and ethics charges, but surely a wingnut like yourself can't condone the waste of $11 million.
And, more importantly, why do we have prisons units in this state not equipped with air conditioning? What purpose does that serve? The men and women in these units are still human. They may have done things we find repugnant, but they still deserve to be treated better than animals. Making life as hard as possible for inmates does nothing for them when they are released back into society. But, hey, the inmates don't have a powerful lobby so we'll just make life hell for them until they file a lawsuit against us.
You think we'd know better by now.
Friday, August 24, 2018
Death, prayers and hypocrisy
After every school shooting the Republicans, the wingnuts and gun freaks yell from the tops of the tallest buildings that now is not the time for politics. They tell us that we should wait until the grieving parents have buried their children before we begin any policy discussions. They will argue about the definition of an assault rifle. They will ask what specific new law do you propose. They will argue that we don't need new laws, we just need to enforce the laws that are already on the books.
Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.
Then something else hits the news cycle and everyone moves on to the next crisis.
After every mass shooting the Republicans, the wingnuts and the gun freaks yell from the tops of the tallest buildings that now is not the time for politics. They tell us we should wait until the grieving families have buried their loved ones before we can begin any policy discussions. They will argue about the definition of an assault rifle. They will ask what specific new law do you propose. They will argue that we don't need new laws, we just need to enforce the laws that are already on the books.
Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.
And nothing ever happens because we, as a nation, have said that we're okay with mass shootings and that the deaths of school children are no big deal because we really, really, really want to be able to play with our guns.
But after a white middle-class girl from Iowa is found dead and a person here without our government's possession confesses to the murder, now is the time for the Republicans, the wingnuts and racists of all stripes to use this girl's murder to score political points in efforts to restrict immigration from non-white non-Europeans.
Now is the time to wave the bloody flag of a white girl killed by a dark-skinned man to incite hatred and fear in support of a president's racist policies.
Let's forget that the vast majority of murders and other violent crimes are committed by people who were born in this country. Let's forget about the fact that the government long turned a blind eye on illegal immigration because industries needed a cheap work force that would do jobs that citizens didn't want.
I find it utterly repulsive that the same folks who put off talking about gun issues while the bodies are still warm have no problem using the death of Mollie Tibbetts for political purposes. By now, however, hypocrisy on the right shouldn't be a surprise to anyone.
Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.
Then something else hits the news cycle and everyone moves on to the next crisis.
After every mass shooting the Republicans, the wingnuts and the gun freaks yell from the tops of the tallest buildings that now is not the time for politics. They tell us we should wait until the grieving families have buried their loved ones before we can begin any policy discussions. They will argue about the definition of an assault rifle. They will ask what specific new law do you propose. They will argue that we don't need new laws, we just need to enforce the laws that are already on the books.
Then the politicians offer their worthless thoughts and prayers before cashing the latest check they received from the NRA.
And nothing ever happens because we, as a nation, have said that we're okay with mass shootings and that the deaths of school children are no big deal because we really, really, really want to be able to play with our guns.
But after a white middle-class girl from Iowa is found dead and a person here without our government's possession confesses to the murder, now is the time for the Republicans, the wingnuts and racists of all stripes to use this girl's murder to score political points in efforts to restrict immigration from non-white non-Europeans.
Now is the time to wave the bloody flag of a white girl killed by a dark-skinned man to incite hatred and fear in support of a president's racist policies.
Let's forget that the vast majority of murders and other violent crimes are committed by people who were born in this country. Let's forget about the fact that the government long turned a blind eye on illegal immigration because industries needed a cheap work force that would do jobs that citizens didn't want.
I find it utterly repulsive that the same folks who put off talking about gun issues while the bodies are still warm have no problem using the death of Mollie Tibbetts for political purposes. By now, however, hypocrisy on the right shouldn't be a surprise to anyone.
Thursday, June 7, 2018
Update: Mob rule
The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.
There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.
In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.
Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?
The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.
One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.
There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.
In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.
Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?
The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.
One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.
Tuesday, June 5, 2018
Who wants an independent judiciary anyway?
Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.
The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.
She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.
Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.
Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.
But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.
The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.
Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.
Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.
The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.
Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.
Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.
The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.
She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.
Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.
In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.
Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.
Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.
But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.
The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.
Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.
The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.
“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”
We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.
Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.
The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.
Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.
Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.
Wednesday, April 4, 2018
A misconception of justice
One of the most common misconceptions of our criminal (in)justice system is that it's designed to mete out justice to both the citizen accused and the alleged victim.
Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.
And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.
If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.
The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.
MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.
Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).
It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.
I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.
Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.
When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.
That's not justice. It's retaliation.
Every time a police officer kills an unarmed black man we see signs demanding "justice" for the dead man. We hear crowds chanting "No justice, no peace!" We see interviews with grieving friends and family members calling out for justice for their loved one.
And while I am sympathetic to the pleas and to the tone of the requests, they are wholly misguided.
If you're seeking justice for a wrong committed by another person or institution, your proper remedy is found in the courthouse -- but on the civil side. That's what our civil courts are designed to do - to determine who's at fault for someone's injury to and award a cash judgment.
The criminal (in)justice system is designed to see that the accused receives a fair trial and that the defendant's rights under the Bill of Rights are protected while the state attempts to take his liberty away from him. At the end of the day the only thing a judge or jury can do is determine whether the state has proven its case beyond a reasonable doubt. The only remedy the criminal court can offer is to restrict the defendant's liberty.
MADD is upset that Ethan Couch, the so-called victim of "affluenza" is being released from the Tarrant County Jail after cooling his heels for the past two years. Colleen Sheehy-Church, the president of MADD, claims the release of Mr. Couch is a "grave injustice" for his victims.
Sorry, ma'am, none of what goes on in a criminal court has anything to do with what you refer to as justice for the victim. Oh sure, the prosecutor will bring up the wishes of the victims (so long as they are in line with the DA's wishes), and the judge will bring it up during sentencing, but a criminal court is not capable of handing out justice to anyone other than the accused (if even that).
It is an ugly reality money can't compensate for the most of the harms we face. But that is all we have in our court system. Civil courts do have the power to order a person or company to do certain things - or to refrain from them - but that doesn't always make up for the harm one suffered.
I'm sorry for the loss the families of the victims suffered. There will forever be a hole in their lives - a hole that can never be refilled. But locking someone up behind bars for longer than the sentence requires isn't justice. There is also the fact that Mr. Couch was a teen when he got drunk and caused an accident that killed four people. That's not an excuse - but it is a mitigating factor.
Unfortunately state legislatures are only too eager to court those who think the criminal courts ignore the victims of crime so we have bad law upon bad law that create so-called victim's bill of rights and place draconian bond conditions on those merely accused of committing a crime.
When victim's advocates stomp and scream about justice what they are really saying is that the accused should receive a harsh sentence with no consideration of mitigating factors or the need for treatment or counseling. Their solution is always to lock more people up for longer periods of time.
That's not justice. It's retaliation.
Monday, April 2, 2018
Play ball!
In 1994, Antwinica Bridgeman disappeared after attending a party for her 20th birthday. Her body was found two weeks later by Nevest Colemen in the abandoned basement of the where he lived with his family. His mother called the police.
The police focused in on Mr. Coleman, a groundkeeper for the Chicago White Sox, and Darryl Fulton. There was no physical evidence linking either to the crime.
Both men eventually confessed after being questioned by police detectives with a history of allegations of misconduct and coerced confessions. Both men later recanted.
Despite the lack of physical evidence, the men were convicted in 1997 of raping and killing Ms. Bridgeman and were both sentenced to life in prison. Prosecutors sought the death penalty for Mr. Coleman, despite him having no criminal record. After a parade of character witnesses, including some from the White Sox, the jury declined to recommend execution.
On Monday, Mr. Coleman returned to his job as a groundskeeper at what is now called Guaranteed Rate Field on Chicago's South Side. He and Mr. Fulton were exonerated last November after DNA testing revealed the semen from a serial rapist on Ms. Bridgeman's underwear.
The exonerations are just two out of more than 160 from Cook County alone - a number that dwarfs most states.
Why wasn't the DNA tested back in 1997? Was it a decision by the defense not to have it tested or was it the prosecutor's decision? I don't know. If the defense chose not to have it tested, that would have been a justifiable decision attempting to maintain reasonable doubt. If the choice not to test was the state's, then there is little or no justification for it.
Whichever the case may be, once the DNA was tested two more names were added to the long list of men and women who have served decades behind bars for crimes they didn't commit.
We are kidding ourselves if we think our jury system is the best method to determine the truth of what really happened. The courtroom isn't so much the crucible for determining the truth as it is a theater of the absurd. Countless times juries have found people guilty on little or no evidence because they thought the prosecution had proven its case beyond a reasonable doubt only to find out that they were wrong. Regardless of how many times a prospective juror tells you they can presume your client innocent unless proven otherwise, their real attitude is that your client wouldn't be sitting next to you if he hadn't done something wrong. Add that to the courts and prosecutors telling jurors what beyond a reasonable doubt isn't (which serves to lower the state's burden of proof) and you have a recipe for false convictions.
And then there's the death penalty. Prosecutors sought it against Mr. Coleman. In an era in which the scab has been pulled off the criminal (in)justice system, it never ceases to amaze me how many folks still argue in favor of capital punishment. Ironically enough, a great many of those folks also fall into the camp of never believing what the government tells them.
Innocent people have been executed and innocent people have lost decades of their lives in prison because twelve people sitting in a box either failed to do their legal duty or just got it wrong. Mr. Coleman lost both of his parents while he was locked up for a crime he didn't commit and he missed watching his own children grow up. Nothing can ever make up for his losses.
h/t Dan Wetzel
The police focused in on Mr. Coleman, a groundkeeper for the Chicago White Sox, and Darryl Fulton. There was no physical evidence linking either to the crime.
Both men eventually confessed after being questioned by police detectives with a history of allegations of misconduct and coerced confessions. Both men later recanted.
Despite the lack of physical evidence, the men were convicted in 1997 of raping and killing Ms. Bridgeman and were both sentenced to life in prison. Prosecutors sought the death penalty for Mr. Coleman, despite him having no criminal record. After a parade of character witnesses, including some from the White Sox, the jury declined to recommend execution.
On Monday, Mr. Coleman returned to his job as a groundskeeper at what is now called Guaranteed Rate Field on Chicago's South Side. He and Mr. Fulton were exonerated last November after DNA testing revealed the semen from a serial rapist on Ms. Bridgeman's underwear.
The exonerations are just two out of more than 160 from Cook County alone - a number that dwarfs most states.
Why wasn't the DNA tested back in 1997? Was it a decision by the defense not to have it tested or was it the prosecutor's decision? I don't know. If the defense chose not to have it tested, that would have been a justifiable decision attempting to maintain reasonable doubt. If the choice not to test was the state's, then there is little or no justification for it.
Whichever the case may be, once the DNA was tested two more names were added to the long list of men and women who have served decades behind bars for crimes they didn't commit.
We are kidding ourselves if we think our jury system is the best method to determine the truth of what really happened. The courtroom isn't so much the crucible for determining the truth as it is a theater of the absurd. Countless times juries have found people guilty on little or no evidence because they thought the prosecution had proven its case beyond a reasonable doubt only to find out that they were wrong. Regardless of how many times a prospective juror tells you they can presume your client innocent unless proven otherwise, their real attitude is that your client wouldn't be sitting next to you if he hadn't done something wrong. Add that to the courts and prosecutors telling jurors what beyond a reasonable doubt isn't (which serves to lower the state's burden of proof) and you have a recipe for false convictions.
And then there's the death penalty. Prosecutors sought it against Mr. Coleman. In an era in which the scab has been pulled off the criminal (in)justice system, it never ceases to amaze me how many folks still argue in favor of capital punishment. Ironically enough, a great many of those folks also fall into the camp of never believing what the government tells them.
Innocent people have been executed and innocent people have lost decades of their lives in prison because twelve people sitting in a box either failed to do their legal duty or just got it wrong. Mr. Coleman lost both of his parents while he was locked up for a crime he didn't commit and he missed watching his own children grow up. Nothing can ever make up for his losses.
h/t Dan Wetzel
Friday, February 9, 2018
Tennessee sheriff gets off on killing
Ordinarily, if you tell someone to shoot someone else - and they do - you're going to find yourself in hot water. But Sheriff Oddie Shoupe of White County (you can't make up this stuff), Tennessee is no ordinary person.
You see, Sheriff Shoupe was recorded telling officers to shoot a motorist rather than risk damaging police vehicles to run him off the road. The motorist, Michael Dial, was shot and killed by a deputy after his car ran into a ditch following a chase that rarely topped speeds of 50 mph.
Now Sheriff Shoupe is on the wrong end of a federal lawsuit alleging that his department violated Mr. Dial's civil rights and that Mr. Dial was the victim of excessive force.
The most shocking thing about this episode isn't that the sheriff said what he said, but that he was dumb enough to say it when his voice was being recorded. And just so there is no misunderstanding, Mr. Dial was pulled over for a traffic violation - that's it. He was executed for committing a traffic violation.
Now whether you want to argue that Mr. Dial brought this upon himself by driving away from the scene is up to you. The point remains that he was gunned down for a traffic violation because the sheriff didn't want to scratch the paint on a patrol car. You may be a law and order type who doesn't think the Blue Lives Matter movement isn't a polite cover for racism, but there is nothing that Mr. Dial did that deserved the death penalty.
Now the files of every police shooting under Sheriff Shoupe need to be opened up and examined to determine if there is a pattern of this type of behavior in White County. Every officer involved shooting should now be suspect.
You see, Sheriff Shoupe was recorded telling officers to shoot a motorist rather than risk damaging police vehicles to run him off the road. The motorist, Michael Dial, was shot and killed by a deputy after his car ran into a ditch following a chase that rarely topped speeds of 50 mph.
“I love this shit,” Shoupe said, apparently unaware that his comments were being picked up by another deputy’s body-worn camera. “God, I tell you what, I thrive on it.
“If they don’t think I’ll give the damn order to kill that motherfucker they’re full of shit,” he added, laughing. “Take him out. I’m here on the damn wrong end of the county,” he said.
Now Sheriff Shoupe is on the wrong end of a federal lawsuit alleging that his department violated Mr. Dial's civil rights and that Mr. Dial was the victim of excessive force.
The most shocking thing about this episode isn't that the sheriff said what he said, but that he was dumb enough to say it when his voice was being recorded. And just so there is no misunderstanding, Mr. Dial was pulled over for a traffic violation - that's it. He was executed for committing a traffic violation.
Now whether you want to argue that Mr. Dial brought this upon himself by driving away from the scene is up to you. The point remains that he was gunned down for a traffic violation because the sheriff didn't want to scratch the paint on a patrol car. You may be a law and order type who doesn't think the Blue Lives Matter movement isn't a polite cover for racism, but there is nothing that Mr. Dial did that deserved the death penalty.
Now the files of every police shooting under Sheriff Shoupe need to be opened up and examined to determine if there is a pattern of this type of behavior in White County. Every officer involved shooting should now be suspect.
Monday, February 5, 2018
A little something to listen to
I stumbled across a new (at least to me) podcast the other day called Small Town Murder. Every episode focuses on a murder case in a small town somewhere in America. The hosts, James Pietragallo and Jimmie Whisman, are a couple of stand-up comics who pick one murder a week and then set about to mock everything and everyone involved.
The show is hysterical though it is definitely not safe for work or kids, provided you have the stomach for comedy based on tragedy.
Give it a listen. If listening to this podcast doesn't make you feel just a little bit better about your own life, nothing will.
The show is hysterical though it is definitely not safe for work or kids, provided you have the stomach for comedy based on tragedy.
Give it a listen. If listening to this podcast doesn't make you feel just a little bit better about your own life, nothing will.
Wednesday, December 13, 2017
What happens when a law prof ventures outside the ivory tower
Over a year ago I wrote about the hornets nest that opened around Judge Aaron Persky in Santa Clara, California. You may recall that he presided over the trial of a Stanford swimmer accused of sexually assaulting an unconscious woman behind a dumpster.
The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.
Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.
As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.
Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?
The answer is he never did.
Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.
As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.
It's that simple.
The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.
It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.
When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.
The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.
Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.
Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.
The swimmer, Brock Turner, was convicted. Judge Persky sentenced him to six months in jail and three years probation. In addition, Mr. Turner will have to register as a sex offender for the rest of his life.
Now Stanford law professor Michele Dauber is leading an effort to recall Judge Persky from office because she didn't like the sentence he meted out. Ms. Dauber also has a personal ax to grind as she is friends with the victim's family.
As I pointed out last year, the sentence that Judge Persky handed down was within the range of punishment set out by the California state legislature which makes it a perfectly legal sentence. Sixteen legislators, who are more influenced by publicity than intelligence, have called on the state to investigate Judge Persky for misconduct.
Just let that stew for a minute or two. A judge presides over a trial. After the jury convicts, the judge imposes a sentence within the parameters set out in the law. Some folks don't like it and get pissed off. Someone please tell me where the misconduct lies. Exactly when did Judge Persky do during the sentencing phase of the trial that violated one of the canons of judicial conduct?
The answer is he never did.
Ms. Dauber is leading a witch hunt. She didn't like the verdict. It went against her political beliefs and agenda. And so she decided to give her students a lesson in how not to behave. She's gone even further and has failed her students by making false assertions about how our criminal (in)justice system works. And what's worse - she isn't even close.
As I have stated many times before, the purpose of our criminal (in)justice system is to determine whether the government has provided sufficient evidence to prove an individual committed a criminal act beyond a reasonable doubt. If the government did, the defendant is convicted. If the government didn't, the defendant is acquitted. In the event the defendant is convicted, the judge, or jury, then determines the appropriate sentence within the parameters set out by the legislature.
It's that simple.
The purpose of the criminal (in)justice system is not to bring "justice" (whatever the hell that is) to an alleged victim. It's not to give an alleged victim their "day in court." It's not about vindicating an alleged victim's story.
It is to determine whether there is enough credible evidence to restrict a person's liberty for a period of time.
When a jury returns a not guilty verdict, they are not slapping the alleged victim in the face. When a jury returns a not guilty verdict, they are not calling an alleged victim a liar. When a jury returnes a not guilty verdict, they are not denying justice to an alleged victim. When a jury returns a not guilty verdict, they are, instead, telling the world that the government didn't meet its burden of proof. That's it.
The legislature determines the range of punishment for every criminal offense. This range gives judges, prosecutors and defense attorneys plenty of room to determine what's appropriate. These ranges exist because every case is unique and what may be appropriate in one case isn't appropriate for another one.
Maybe the sentence Judge Persky handed down was too lenient. Maybe it was just right. Whatever the case may be, he sentenced Mr. Turner within the range of punishment for that offense. That's not misconduct. That's called doing his job.
Perhaps Ms. Dauber should go back to doing her job -- and brushing up on her knowledge of criminal law while she's at it.
Thursday, September 22, 2016
Tallying up the cost of mass incarceration
Carimah Townes just wrote a very interesting short piece in Think Progress about the true cost of mass incarceration. While we spend $80 billion a year on mass incarceration at the federal, state and local levels, the true cost of mass incarceration is likely closer to $1 trillion.
A study conducted by Washington University looked at all of the hidden costs of mass incarceration. Reformers don't even begin to take into account lost wages and lost long-term earnings. They don't take into account the costs borne by the families of the incarcerated in travel expense, missed work and money sent for commissary accounts.
Then we have social welfare costs for the families left behind. Since modern prisons do a good job of teaching inmates how to commit crime when they get out we have the cost of former inmates getting back in trouble. Finally, a child who has a parent in prison is more likely to find himself following the same path.
“We find that for every dollar in corrections costs, incarceration generates an additional $10 in social costs. More than half of the costs are borne by families, children and community members who have committed no crime.” -- Carrie Pettus-Davis, researcher
We have used mass incarceration as a tool of social control. We have used it as a tool for removing black folks from society. It is time to do away with it.
Hillary Clinton was the head cheerleader when her husband pushed his crime bill that accelerated the process of mass incarceration. That is a legacy she cannot escape from. Donald Trump is a champion of mass incarceration as well.
It is high time we choose a different path. It is time that we decriminalize drug addiction. It is time we stop locking up folks for non-violent crimes. It is time to reform our bail system.
A study conducted by Washington University looked at all of the hidden costs of mass incarceration. Reformers don't even begin to take into account lost wages and lost long-term earnings. They don't take into account the costs borne by the families of the incarcerated in travel expense, missed work and money sent for commissary accounts.
Then we have social welfare costs for the families left behind. Since modern prisons do a good job of teaching inmates how to commit crime when they get out we have the cost of former inmates getting back in trouble. Finally, a child who has a parent in prison is more likely to find himself following the same path.
“We find that for every dollar in corrections costs, incarceration generates an additional $10 in social costs. More than half of the costs are borne by families, children and community members who have committed no crime.” -- Carrie Pettus-Davis, researcher
We have used mass incarceration as a tool of social control. We have used it as a tool for removing black folks from society. It is time to do away with it.
Hillary Clinton was the head cheerleader when her husband pushed his crime bill that accelerated the process of mass incarceration. That is a legacy she cannot escape from. Donald Trump is a champion of mass incarceration as well.
It is high time we choose a different path. It is time that we decriminalize drug addiction. It is time we stop locking up folks for non-violent crimes. It is time to reform our bail system.
Tuesday, September 13, 2016
Prison inmates sue Texas over conditions
I'm sure there are plenty of folks out there who don't give two damns whether or not the state provides air conditioning for its inmates in state prison.
But they should.
Our entire prison system was born of the idea that the best way to "cure" a person of criminal intent was to take them out of the environment that bred that intent and educate them in the honest ways of the world. So we built penitentiaries out in the middle of nowhere.
Then somewhere down the line the idea came about that prisons should be about punishment, not rehabilitation. So we made life harder for inmates and stripped them of their dignity all in the name of that Old Testament trope "an eye for an eye" or some bullshit like that.
Then we decided that society was best served when we just plain eliminated folks from society who had shown a penchant for misbehaving (I know I am painting a very broad stroke). We decided it was better to just lock 'em up and throw away the key since neither of the first two schools of thought seemed to be working.
Not coincidentally, this movement toward removing folks from society sprung up as the courts decided that the Constitution applied equally to black folks as well as white folk. Prisons took their place as one of our preferred modes of oppression. The move over the last two decades toward mass incarceration is nothing but a tool of social control. That is Bill Clinton's true legacy.
And that brings us back to Texas where a group of inmates has filed suit against the state alleging that the conditions in Texas prisons amount to cruel and unusual punishment. Specifically the lawsuit focuses on the lack of air conditioning in Texas prisons.
Now we could debate all day long on sentencing and parole and prison conditions, but I would hope that we could all agree that forcing folks to live in cramped quarters in the Texas heat without air conditioning is beyond cruel.
"All of the people that tend to die are the sickest and the most fragile among the inmates. What makes what's going on reprehensible is that the department knows this. We're asking the court to force the Texas Department of Criminal Justice to reduce the temperatures to a safe and livable amount." -- Jeff Edwards, lead counsel
Sure, there are people around Texas who don't have air conditioning - but that doesn't matter when it comes to how the state treats those entrusted to its care. Food, health care and sanitary conditions in prison are already deplorable around the state. Why don't we remove the potential deadly consequences of heat stroke from the sentences of those behind bars?
Let us not forget that those are people behind bars. They are men and women with families and friends. We can't continue to treat them as nothing but a number.
But they should.
Our entire prison system was born of the idea that the best way to "cure" a person of criminal intent was to take them out of the environment that bred that intent and educate them in the honest ways of the world. So we built penitentiaries out in the middle of nowhere.
Then somewhere down the line the idea came about that prisons should be about punishment, not rehabilitation. So we made life harder for inmates and stripped them of their dignity all in the name of that Old Testament trope "an eye for an eye" or some bullshit like that.
Then we decided that society was best served when we just plain eliminated folks from society who had shown a penchant for misbehaving (I know I am painting a very broad stroke). We decided it was better to just lock 'em up and throw away the key since neither of the first two schools of thought seemed to be working.
Not coincidentally, this movement toward removing folks from society sprung up as the courts decided that the Constitution applied equally to black folks as well as white folk. Prisons took their place as one of our preferred modes of oppression. The move over the last two decades toward mass incarceration is nothing but a tool of social control. That is Bill Clinton's true legacy.
And that brings us back to Texas where a group of inmates has filed suit against the state alleging that the conditions in Texas prisons amount to cruel and unusual punishment. Specifically the lawsuit focuses on the lack of air conditioning in Texas prisons.
Now we could debate all day long on sentencing and parole and prison conditions, but I would hope that we could all agree that forcing folks to live in cramped quarters in the Texas heat without air conditioning is beyond cruel.
"All of the people that tend to die are the sickest and the most fragile among the inmates. What makes what's going on reprehensible is that the department knows this. We're asking the court to force the Texas Department of Criminal Justice to reduce the temperatures to a safe and livable amount." -- Jeff Edwards, lead counsel
Sure, there are people around Texas who don't have air conditioning - but that doesn't matter when it comes to how the state treats those entrusted to its care. Food, health care and sanitary conditions in prison are already deplorable around the state. Why don't we remove the potential deadly consequences of heat stroke from the sentences of those behind bars?
Let us not forget that those are people behind bars. They are men and women with families and friends. We can't continue to treat them as nothing but a number.
Thursday, September 1, 2016
An attack on discretion
In theory, a judge should make his or her decisions on the bench without regard to politics. In theory, a judge should be shielded from politics in order to make the best decision in a given case - not the popular decision.
Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.
We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.
Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.
Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.
Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.
Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.
Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.
There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.
Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.
Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.
A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.
An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.
State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.
Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.
As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.
What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.
Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.
Federal judges are able to make their decisions without regard to any potential political consequences as they serve for life. State judges, on the other hand, either have to stand for re-election or for retention elections.
We currently live in an era of mass incarceration. Under President Bill Clinton (with the enthusiastic support of his wife), sentencing laws became draconian. The number of people in state and federal prisons is staggering. We have the highest rate of incarceration in the world - 698 per 100,000.
Once upon a time federal judges had great discretion in making sentencing decisions. That changed with the introduction of the Federal sentencing guidelines and criminal defense work became mostly a game of cross-checking charts for aggravating and mitigating factors.
Aaron Persky is a judge in Santa Clara County, California. Until very recently he presided over criminal matters.
Brock Turner was a swimmer at Stanford University. In January 2015 he was arrested for sexually assaulting an unconscious woman behind a dumpster. At trial he was convicted of three felony sexual assault charges. He was sentenced to six months in jail and three years probation. He is required to register as a sex offender for the rest of his life.
Judge Persky presided over the trial and pronounced sentence. In sentencing Mr. Turner, Judge Persky commented that a long prison term would likely ruin Mr. Turner's life. Mr. Turner had never been in trouble with the law before.
Women's organizations and advocacy groups went apoplectic at the sentence. They wanted Mr. Turner to spend years in prison for what he did. And nothing was going to change their opinion.
There was nothing unusual about what Judge Persky did. He took a variety of factors into account before handing down the sentence. Did Mr. Turner receive a comparatively light sentence? Yes, he did. But he was also a first offender.
Was the sentence a slap in the face of the victim of Mr. Turner's actions? No.
Here is where a whole lot of folks get our criminal (in)justice system wrong. The rules are designed so that a person accused of a crime gets a fair trial. The burden of proof is so high to try to prevent an innocent man from being locked away. In a criminal trial, the alleged victim of a crime is nothing more than another witness.
A criminal trial is not a means of an alleged victim obtaining justice. A criminal trial is a process by which a judge or jury determines whether or not the evidence put forward by the government proves beyond a reasonable doubt that the defendant did what he was accused of.
An acquittal is not an insult to an alleged victim. It is nothing more than an indicator that the evidence put forward by the government was insufficient to prove the defendant committed the act. A conviction is not "justice" for an alleged victim - or for society. It is but an indicator that the evidence put forward by the government was sufficient to prove the defendant did it.
State legislatures give judges a wide range of sentencing options should a defendant plead guilty or be proven guilty. Those options range from deferred adjudication (in Texas) to probation to prison.
Judge Persky insulted no one by sentencing Mr. Turner to jail time and probation. He was using the tools at his disposal. Those who are angry at Judge Persky for his decision are barking up the wrong tree. If you don't like the sentence, go talk to the legislature.
As a side note, the California legislature stuck its collective finger in the wind and passed new mandatory minimum sentencing laws for sexual assault of an unconscious or intoxicated person. Hey, but then we all know that bad facts make for bad laws.
What we are seeing is an attempt by advocates for victims of sexual assault to force judges to ignore the law and to not consider the entire range of punishment available. We dismiss folks from jury duty if they cannot consider the full range of punishment in a given case - judges who can't consider the full range of punishment do not deserve to sit on the bench, either.
Attempts to force judges to yield to popular political opinion will only harm those who need the most protection from the oppressive power of the state - those accused of criminal acts. This is not about sending out a message to society - it's about curtailing the independence of the judiciary.
Friday, March 7, 2014
Bending the law to satisfy the need for revenge
I would hope that we could all agree that the brain of a 13-year-old functions differently than the brain of a 28-year-old. I would hope that we could all agree that a 28-year-old has a better grasp on the consequences of actions than a 13-year-old has.
Fifteen years ago Robbie Middleton, who was eight years old, was tied to a tree, doused with gasoline and set on fire. He survived, horribly disfigured, but died in 2011 of cancer that a medical examiner said was caused by his burns. The case was refiled as a homicide.
Donald Collins, who was 13 at the time of the incident, was charged at the time but the case was later dismissed due to a lack of evidence. Shortly before his death, Robbie Middleton recorded a statement in which he claimed Mr. Collins sexually assaulted him a couple of weeks prior to the attack.
Prosecutors in Montgomery County moved to try Mr. Collins as an adult. The law at the time of the attack said that a defendant had to be at least 14 to be tried as an adult (which is in itself absurd). This week State District Judge Kathleen Hamilton ruled that Mr. Collins would be tried as an adult.
Of course we all know what the real argument was about. Forget about the law at the time regarding trying juveniles as adults. The problem was that if Mr. Collins were tried as a juvenile there would be little the court to do in the realm of punishment. The only way for the state to get its pound of flesh was to try Mr. Collins as an adult. So, despite the law, that's what happened.
The juvenile courts were set up with the understanding that kids are fundamentally different than adults and that we should be careful about the sanctions imposed on young people for their transgressions.The idea was to take the child away from the situation that got him into trouble and to rehabilitate him so that he didn't head back down that path as an adult.
Now let's just assume for a second that Mr. Collins is guilty of murder. The crime was heinous. The consequences for Robbie Middleton and his family were profound. But the fact remains that Mr. Collins was a teenager at the time of the attack. His brain wasn't fully developed. He didn't have a firm grasp on the consequences of his actions. Just think of yourself at 13 - did you do things back then that you wouldn't imagine doing today?
Trying Mr. Collins as a juvenile wouldn't satisfy the public's thirst for revenge. But that isn't the purpose of the criminal (in)justice system. At least it shouldn't be.
He may be an adult now, but he wasn't at the time of the attack. Trying him as a juvenile likely wouldn't lead to a very satisfying result, but it would lead to the right result. Sometimes the outcome can be right - even if we don't like it.
And sometimes we can jump through hoops to justify doing the wrong thing. That's just what Judge Hamilton did this week.
Fifteen years ago Robbie Middleton, who was eight years old, was tied to a tree, doused with gasoline and set on fire. He survived, horribly disfigured, but died in 2011 of cancer that a medical examiner said was caused by his burns. The case was refiled as a homicide.
Donald Collins, who was 13 at the time of the incident, was charged at the time but the case was later dismissed due to a lack of evidence. Shortly before his death, Robbie Middleton recorded a statement in which he claimed Mr. Collins sexually assaulted him a couple of weeks prior to the attack.
Prosecutors in Montgomery County moved to try Mr. Collins as an adult. The law at the time of the attack said that a defendant had to be at least 14 to be tried as an adult (which is in itself absurd). This week State District Judge Kathleen Hamilton ruled that Mr. Collins would be tried as an adult.
Of course we all know what the real argument was about. Forget about the law at the time regarding trying juveniles as adults. The problem was that if Mr. Collins were tried as a juvenile there would be little the court to do in the realm of punishment. The only way for the state to get its pound of flesh was to try Mr. Collins as an adult. So, despite the law, that's what happened.
The juvenile courts were set up with the understanding that kids are fundamentally different than adults and that we should be careful about the sanctions imposed on young people for their transgressions.The idea was to take the child away from the situation that got him into trouble and to rehabilitate him so that he didn't head back down that path as an adult.
Now let's just assume for a second that Mr. Collins is guilty of murder. The crime was heinous. The consequences for Robbie Middleton and his family were profound. But the fact remains that Mr. Collins was a teenager at the time of the attack. His brain wasn't fully developed. He didn't have a firm grasp on the consequences of his actions. Just think of yourself at 13 - did you do things back then that you wouldn't imagine doing today?
Trying Mr. Collins as a juvenile wouldn't satisfy the public's thirst for revenge. But that isn't the purpose of the criminal (in)justice system. At least it shouldn't be.
He may be an adult now, but he wasn't at the time of the attack. Trying him as a juvenile likely wouldn't lead to a very satisfying result, but it would lead to the right result. Sometimes the outcome can be right - even if we don't like it.
And sometimes we can jump through hoops to justify doing the wrong thing. That's just what Judge Hamilton did this week.
Tuesday, February 18, 2014
Living with perpetual punishment
I had an interesting conversation with a neighbor yesterday.
The day started off with my wife taking the keys to both cars with her to work this morning. No problem, I thought at first. Then I realized I had court with one of my truck driver clients this morning. Luckily I was able to get my brother to give me a lift to the courthouse where we knocked out the case pretty quickly (why they couldn't just dismiss it after I told them I was having transportation issues I will never know - but that's another story for another day).
After I got back to the house I started planting seeds for the garden in my starter "greenhouse." Then someone knocked at the front door. I heard my mother-in-law tell the girls not to open the door unless they knew who it was.
My little one recognized the man as someone she had sold Girl Scout cookies to so she opened the door. Now I try never to answer the door unless it's a friend or the little old lady around the corner who sells homemade tamales but now I was stuck.
He wanted to talk to me (actually he saw the car and thought my wife was home) about something that he didn't want to say in front of the kids.Oh, this should be good, I thought.
It turns out he's new to the neighborhood. He just moved in to a huge McMansion up the street that takes up just about the entire lot and was complaining to my wife about the amount of money he'd have to spend to make the place more to his liking. I already didn't like him. You see, for the most part, there's nothing too fancy about our neighborhood. The houses are quite affordable and what I would call fairly "normal" sized.
There's also quite the controversy stirring over a huge plot of land at a major intersection just down the street from our house. A developer bought the land years ago with the plan to build a bunch of patio-style homes or town homes or whatever the hell you call them these days. But he ran into problems with drainage issues and with the deed restrictions that spelled out just how small a lot could be. He's pushing folks to change the by-laws so he can build more of these houses with a wall around them (since we have open ditches I don't think there's a need to build a moat as well).
As far as I'm concerned, he bought the land knowing what the minimum lot size was so he just needs to live with his decision. Besides, he's a developer (and from out-of-state at that) who has acted like a jerk and has no concern about anybody's welfare but his own.
My neighbor with the McMansion and fancy SUV that's never been off a paved road in its existence, of course, had nothing but sympathy for the poor man and the profits he was losing by not being able to do whatever the hell he wanted to do with the land without concern for anyone around him. But he was more upset at the board because, while doing research on the developer issue (and anyone who spends 10 hours on a beautiful day like we had on Sunday sitting behind a computer and looking at appraisal district records is seriously disturbed), he discovered that someone was using part of the four-plex next to his house as a sort-of halfway house (more like a way station) for sex offenders who had been released from prison.
Oh, now we hit the intersection of being a parent and being a criminal defense lawyer. On the one hand I sympathize with his plight and his desperation. On the other hand, maybe he should have done some research into the area he was buying into before he wrote the check. I can guarantee y'all that he chose to buy the McMansion out her as opposed to the one in Spring Valley or Memorial because the prices are a whole lot cheaper out here where it's not all white.
But the larger issue has to do with when has one paid his debt to society. The people of whom he spoke were convicted of sexual offenses (I don't know their names and I haven't the slightest clue as to what they were convicted of and, yes, I know I can look that up and find out if I wanted to). Since they are staying at this "facility" they served time in prison for their crimes. I am assuming that they were paroled out of prison with a condition that they spend time in a halfway-type house before going back to live on their own. I also know that they are required to register as sex offenders for at least ten years after their release from prison.
They have done their time. They served enough time behind bars and they demonstrated enough "rehabilitation" that the folks on the board of pardons and parole saw fit to let them walk out of prison. They obviously still have some time to serve that they will do as members of society.
At what point do we say enough is enough? How many pounds of flesh will we insist on seizing before we concede that they have a right to return to their lives? Sex crimes are nasty, I know. But if we, as a society, are so scared of those who commit them, then sentence them to longer terms. At some point we have got to stop punishing folks for what they've done.
If the person has not shown evidence of rehabilitation don't release them on parole. If the person is still regarded as a threat, don't release them on parole. But once that sentence has been served, then let him go in peace to pick up the pieces that remain of his life.
The day started off with my wife taking the keys to both cars with her to work this morning. No problem, I thought at first. Then I realized I had court with one of my truck driver clients this morning. Luckily I was able to get my brother to give me a lift to the courthouse where we knocked out the case pretty quickly (why they couldn't just dismiss it after I told them I was having transportation issues I will never know - but that's another story for another day).
After I got back to the house I started planting seeds for the garden in my starter "greenhouse." Then someone knocked at the front door. I heard my mother-in-law tell the girls not to open the door unless they knew who it was.
My little one recognized the man as someone she had sold Girl Scout cookies to so she opened the door. Now I try never to answer the door unless it's a friend or the little old lady around the corner who sells homemade tamales but now I was stuck.
He wanted to talk to me (actually he saw the car and thought my wife was home) about something that he didn't want to say in front of the kids.Oh, this should be good, I thought.
It turns out he's new to the neighborhood. He just moved in to a huge McMansion up the street that takes up just about the entire lot and was complaining to my wife about the amount of money he'd have to spend to make the place more to his liking. I already didn't like him. You see, for the most part, there's nothing too fancy about our neighborhood. The houses are quite affordable and what I would call fairly "normal" sized.
There's also quite the controversy stirring over a huge plot of land at a major intersection just down the street from our house. A developer bought the land years ago with the plan to build a bunch of patio-style homes or town homes or whatever the hell you call them these days. But he ran into problems with drainage issues and with the deed restrictions that spelled out just how small a lot could be. He's pushing folks to change the by-laws so he can build more of these houses with a wall around them (since we have open ditches I don't think there's a need to build a moat as well).
As far as I'm concerned, he bought the land knowing what the minimum lot size was so he just needs to live with his decision. Besides, he's a developer (and from out-of-state at that) who has acted like a jerk and has no concern about anybody's welfare but his own.
My neighbor with the McMansion and fancy SUV that's never been off a paved road in its existence, of course, had nothing but sympathy for the poor man and the profits he was losing by not being able to do whatever the hell he wanted to do with the land without concern for anyone around him. But he was more upset at the board because, while doing research on the developer issue (and anyone who spends 10 hours on a beautiful day like we had on Sunday sitting behind a computer and looking at appraisal district records is seriously disturbed), he discovered that someone was using part of the four-plex next to his house as a sort-of halfway house (more like a way station) for sex offenders who had been released from prison.
Oh, now we hit the intersection of being a parent and being a criminal defense lawyer. On the one hand I sympathize with his plight and his desperation. On the other hand, maybe he should have done some research into the area he was buying into before he wrote the check. I can guarantee y'all that he chose to buy the McMansion out her as opposed to the one in Spring Valley or Memorial because the prices are a whole lot cheaper out here where it's not all white.
But the larger issue has to do with when has one paid his debt to society. The people of whom he spoke were convicted of sexual offenses (I don't know their names and I haven't the slightest clue as to what they were convicted of and, yes, I know I can look that up and find out if I wanted to). Since they are staying at this "facility" they served time in prison for their crimes. I am assuming that they were paroled out of prison with a condition that they spend time in a halfway-type house before going back to live on their own. I also know that they are required to register as sex offenders for at least ten years after their release from prison.
They have done their time. They served enough time behind bars and they demonstrated enough "rehabilitation" that the folks on the board of pardons and parole saw fit to let them walk out of prison. They obviously still have some time to serve that they will do as members of society.
At what point do we say enough is enough? How many pounds of flesh will we insist on seizing before we concede that they have a right to return to their lives? Sex crimes are nasty, I know. But if we, as a society, are so scared of those who commit them, then sentence them to longer terms. At some point we have got to stop punishing folks for what they've done.
If the person has not shown evidence of rehabilitation don't release them on parole. If the person is still regarded as a threat, don't release them on parole. But once that sentence has been served, then let him go in peace to pick up the pieces that remain of his life.
Friday, January 10, 2014
Reforming sentencing laws
It's fairly axiomatic that legislatures generally play catch-up to society. Once there appears to be something of a groundswell around an issue, those men and women in the state and national capitals stick their fingers in the air, figure out where the money's coming from and raise the flag of the issue of the day.
Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.
The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.
Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.
So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.
The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.
The federally-protected right to a trial became an illusion.
Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.
Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.
Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.
The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.
Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.
So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.
The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.
The federally-protected right to a trial became an illusion.
[L]egal scholars like Erik Luna, a Washington and Lee University law professor who has written and testified extensively about mandatory minimum sentencing, also assert that the sentencing rules shift power from judges to prosecutors — an infringement on separation of powers doctrine.
It's an argument George Will recently invoked: "The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the Constitutional right to a trial."But now the bills have come due. Jails and prisons are overcrowded with addicts and other non-violent offenders serving ridiculously long sentences because of a failed drug war. Simple misdemeanor thefts are enhanced to long-term felonies because of prior convictions. No one but the private prison industry (and those receiving kickbacks on construction projects) have benefited from this arrangement. And here comes Congress riding to the rescue.
But while advocates such as Stewart, libertarian thinkers at the CATO Institute and a growing number of conservatives like columnist George Will are pushing for change, some drug prosecutors have urged caution.
"The real power and efficacy of federal minimum mandatory sentences is our ability to hold them over certain peoples' heads in solving kingpin drug cases, or major murders," says Scott Burns, head of the National District Attorneys Association.
Burns was among the witnesses who testified about mandatory minimums last fall before the Senate Judiciary Committee. The sentencing rules have been "an important tool" in driving down serious crime, Burns says, which over the past three decades has plummeted.
He sees Congress' motivation as purely financial.
"They're doing this because they are simply refusing to fund more federal prisons, period," says Burns, a former deputy director of National Drug Control Policy during the George W. Bush administration.Of course the prosecutors are opposed to any changes in the way in which the federal courts operate. In their narrow world view, the only answer to a problem is to lock someone up for a long time and then toss him back on the street years later with little or no way to ever be a productive member of society. But what else would you expect - sentences are just numbers to a prosecutor. They have no meaning. No consequences.
Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.
Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.
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