— Judge Alex Kozinski, discussing the misconduct of law enforcement officials in Milke v. Ryan, decided last March of this year. The Court was so shocked by the scope of the misconduct in this case that it sent a copy of its opinion to the local United States Attorney’s Office to investigate the Phoenix Police Dept. and the Maricopa County Attorney’s Office for systemic civil rights violations.
Chief Judge Kozinski of the 9th Circuit published a dissent today that castigates federal and state prosecutors across the country for failing to adhere to their professional and legal obligations. After discussing the facts of the case before the court, Kozinski writes:
I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.”
From the article:
David Carroll, executive director of the Sixth Amendment Foundation, describes the scope of the problem this way. “The most prevalent form of right to counsel services in America is for an attorney to handle an unlimited number of cases for a single flat fee under contract to a judge or county manager. This model produces a financial conflict of interest in which the less amount of resources or effort the attorney puts into the case, the more he puts in his own pocket. And, judges often appoint only those attorneys who contribute to their political reelection campaigns. Over 64% of counties (1,900 of 3,033) in the U.S. operate under this model.”
Institutional defenders are much better at handling these cases because they do it 24/7. And they’re usually salaried, so they do it cheaper. Institutional defenders also typically have training programs for new hires tailored specifically towards indigent criminal defense. Private firms, not so much.
Zen for Public Defenders.
Source: David Feige, Indefensible (2006).
Andrew Cohen waxes philosophical about the question every criminal defense attorney has to answer at least once:
It surely is a sign of some great cosmic conspiracy that Jacques Verges, one of the most famous defense attorneys of all time, a man who unapologetically defended the Khmer Rouge, Carlos the Jackal, and countless other international villains and rogues, woulddiethe very same week that Abbe Smith and Monroe H. Freedman would publish a collection of poignant essays from notable defense attorneys titled “How Can You Represent Those People?”
“The Question,” as the editors title it, is probably asked in sorrow, anger, and curiosity, a thousand times a day. “What is really being asked is ‘How can you represent people you know to be guilty?’” write Smith and Freedman. “Not guilty shoplifters, marijuana possessors, drunk drivers, or political protesters—these could be us, our children, our parents. Not the wrongly accused or convicted either—even the harshest critics understand defending the innocent. The Question refers instead to the representation of guilty criminals who have committed acts of violence or depravity.”
“There are no right answers” to the Question, the editors hasten to add; it all depends upon the lawyer. As someone who has never been a criminal defense attorney, here’s how I would answer: Anyone—everyone— is entitled to a defense, and to a lawyer, because our rule of law is based upon the premise that the State must prove its case against a person beyond a reasonable doubt and because the history of the world, and of America, teaches us that the State is quite often wrong, or worse, when it accuses someone of crime. The principle of that—like the presumption of innocence or the right to confront a witness against you—is more important than is the result of any single case.
The motto of the National Association of Criminal Defense Lawyers is “Liberty’s Last Champion.” When the government tars your reputation with scandalous charges, the media speculates about your guilt, the public has already judged you guilty, and your family and friends have forsaken you, a defense attorney will still be there to protect your best interests.
It is right and good that the Sixth Amendment guarantees a right to counsel in criminal cases, however imperfectly enforced these days. When nobody else cares what happens to you, a defense attorney will be a living paraphrase of Buckley’s infamous alarum, standing between you and the government, screaming “stop!” at the machine-work of criminal justice, at a time when no one is inclined to do so, or to have much patience with those who so urge it.
The alternative to guaranteeing a lawyer to everyone accused of a crime is nothing short of tyranny over plain men & women by a class of civil servants with superior knowledge of the law. It is hardly advantageous to have a Sovereign who can arbitrarily decide who deserves the right to a lawyer and who doesn’t. Experience shows that when you make exceptions for the worst of us, those exceptions inevitably creep to include the rest of us as well.
— Justice Jackson, The Federal Prosecutor (1940)
The Supreme Court could have ruled that everybody has a Constitutional right to marry, regardless of where you lived, regardless of gender. That was the dream. But … it was very likely.
Instead, the court ruled that because the appellants lacked standing to bring the appeal, the appeal should be dismissed. “Lacked standing,” is a legal term that means something like, ” GTFO. It’s none of your damned business.”
The Supreme Court punted, which means it didn’t actually get to the point everybody wanted it to get to. Then again, the Court ruled that gay people getting married in California isn’t going to hurt the petitioners, so it’s none of their damned business. That’s another way of getting the point.
So yes. It’s a punt. A punt strait to the ass for intolerance.
LTMC: As I said to a friend earlier, prudential standing is what happens when SCOTUS doesn’t know what to do with a case. Basically, one of the justices just says, “shit, we have no clue what to do with this one. Tell the clerk to cite Warth v. Seldin and remand it.”
The Orlando Sentinel has snippets of the opening statements in the Trayvon Martin trial, from Defense Attorney Don West, and Assistant State Attorney John Guy. Both are available at the link above. You can see a live feed here.
I think Jacob Sullum has the right take so far. Zimmerman’s attorney used a knock-knock joke in his opening statement. I would never, in a million years, lead an opening statement with a knock-knock joke. I would hesitate even to lead with any joke in a trial of this nature. Humor certainly has its place in a trial setting, and there’s nothing wrong with taking risks. But this was a bad miscalculation on West’s part.
Aside from a terrible joke, however, West’s opening statement was otherwise well done. He outlined his theory of the case, and told the jury how he was going to prove it. As Sullum says above, West doesn’t need to prove that his theory of the case is what actually happened. He only has to make it seem plausible enough to introduce reasonable doubt into the prosecution’s case-in-chief. And purely as a legal matter, there is more than enough evidence in Zimmerman’s favor to create reasonable doubt.
I mentioned awhile back that I thought it was a mistake to charge Zimmerman with murder. One of the biggest hurdles for the prosecution will be to prove Zimmerman’s mental state during the attack. Murder in Florida requires that the prosecution prove that Zimmerman acted with "ill will, hatred, spite, or an evil intent." That’s why if you listen to the prosecutor’s opening statement, you’ll hear him hammering Zimmerman’s recorded words from the 9/11 call: "These fucking punks. These assholes, they always get away." The prosecutor is hoping that the jury will infer from these recorded statements that Zimmerman had the requisite mental state to be charged with murder. But the key is that he had to’ve occupied this mental state at the time he shot Trayvon Martin. That’s where the Defense will have ample opportunity to inject reasonable doubt into the prosecution’s case, based, inter alia, on the testimony of a neighbor who claims that he saw a “ground pound” occurring with Martin on top of Zimmerman.
This is an excellent case for trial. It will be interesting to see how it unfolds. Keep in mind that Zimmerman waived his pre-trial self-defense hearing, so Florida’s “Stand Your Ground” law is no longer an issue. I personally think that once all the cards are down, Zimmerman will be found not guilty. The prosecution overcharged the case, and there’s too many inconsistent witness statements to prove him guilty beyond a reasonable doubt of murder, as it is defined by Florida’s criminal code. But the final decision on that front rests with the jury.
An Assistant DA in Texas was recently fired after she flashed her badge during a traffic stop while she was sitting in the passenger’s seat of her friend’s car. Apparently, it wasn’t her attempt to “pull rank” that got her fired, though—rather, it was the sound legal advice she gave to her friend:
A Bexar County assistant district attorney has been fired following an incident in which she was mentioned in a friend’s driving while intoxicated arrest report for advising him not to submit to a breath test.
Tara D. Richardson, who had worked as a misdemeanor family justice unit prosecutor for less than a year, also “flashed her badge” during the May 25 encounter, according to the San Antonio Police Department document.
In some states, this would be bad legal advice. In New York State, for example, there is an draconian "implied consent" law which states that refusing a breathalyzer test is grounds for an automatic license suspension for one year, plus a $500 fine. The police officer does not even have to inform you of this consequence, and the suspension applies “whether or not the person is found guilty of the charge for which such person is arrested or detained.” So assuming you don’t have a large record, one should submit to a breathalyzer test in New York.
The law is presumably different in Texas. I’m not familiar with the Texas criminal code, but the prosecutor clearly knew something her friend didn’t. And apparently, someone upstairs didn’t like the fact that this prosecutor was giving away the game. As Mark Bennett said, “imagine what would happen if people learned that even prosecutors advised their friends not to blow.”
It’s always interesting to see how prosecutors behave when they’re on the other side of the law. Prosecution work has a tendency to corrupt you, in the sense that staring into the abyss of criminal justice from on high makes you a bit self-righteous. I’ve heard enough career prosecutors speak passionately about putting crooks in jail to know what their priorities are when it comes to defining “justice.” It’s not that fair-minded prosecutors don’t exist—they do. But they exist in spite of their institutional incentives, not on account of them. Working as a prosecutor tends to make you a bit more retributive-minded than you otherwise would be. For some, all it takes is a few horror shows to permanently change your opinion of humanity. For others, they get caught up in the thrill of “the hunt.” Crime fighting becomes a competition, a game where convictions are lighting up the scoreboard.
But all that changes when all of a sudden, it’s your friends getting questioned by the cops. All of that changes when you are in the passenger’s seat, and you’re sitting next to a scared friend who’s just been pulled over, and they’ve got just a touch too much alcohol in their system.
Tara Richardson may have crossed the line when she flashed her prosecutor’s badge. If she was fired for doing so, it’s understandable. But if she was fired for advising her friend “not to blow,” it’s a shame. All she was doing was advising her friend of his legal rights—something prosecutors are supposed to respectful of anyways. Now, she’ll probably never work in a prosecutor’s office again, although she probably has a promising career as a criminal defense attorney, now that she’s experienced what it’s like to be on the other side first-hand.
- “No one should lose voting rights because they spent time in prison.”
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