Friday, July 15, 2016

Strickland Prejudice, Part 2

If you read what I wrote yesterday (The Wrong Question? The Wrong Answer? It Depends), and if you didn't, follow that link and go there now, I'll wait, then you've gotten the basic test for when trial counsel fucks up so badly that someone can get relief on appeal.

Here's a quick recap and summary in case you didn't follow the directions in the last paragraph (not a crime in violation of the Consumer Fraud and Abuse Act, since I didn't formally notify you personally that it was a requirement if you were to continue reading this, but if I had . . . ).

The Sixth Amendment guarantees not just the right to counsel but the right to the effective assistance of counsel.  That means, if you're one of those literalists who believes in the words, that a person accused of crime is entitle not just to a lawyer but to a lawyer who's effective, who does her job well.  Except, of course, that's not really what it means.  The Supreme Court laid out the basic test in 1984 in a case called Strickland v. Washington.  To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his lawyer's performance was objectively deficient (whatever that means) and (2) that it was prejudicial.

Yesterday, I was bitching about Judy Lanzinger's question to Nathan Ray and about his answer during oral argument in State v. Cepec.  She asked Ray about the second prong, the prejudice part.

What about the outcome determinative part of that test, though? Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?
Ray's answer?
Yes.
The right answer? 
The test isn't "outcome determinative," your Honor.  It's not even "more likely than not."  It's just a "reasonable probability."
That's not just me. It's what the Court said in Strickland.

They worked to get there.  They rejected "outcome determinative."  They rejected "some conceivable effect on the outcome."  They rejected Washington's suggested "impaired the presentation of the defense" and rejected "more likely than not."

They rejected the weakest of those measures because either they 
provide[d] no workable principle . . . no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.
They rejected the stricter ones because they 
presuppose[] that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. . . . An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower.
Think about that.  If you start with the presumption that trials are basically fair so that the results should be honored, it follows that it should take a lot of prejudice to call for a do over. As one Ohio court explained,
There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant when applying a harmless error analysis. Relatively minor trial errors are harmless so long as there is overwhelming evidence of guilt from other sources.
But if the trial lawyer was objectively deficient, if he fucked up badly enough, then there's little reason to think the original outcome was right, so there's no reason to be deferential to it.

The analysis makes so much sense that it's hard to believe the Supremes actually came up with it. And its understandable that judges in Ohio (and much of the rest of the country, I imagine*) simply don't believe that's how it works.

So we have to educate them.  Over and over and over and over and over and . . . .
The prejudice prong of Strickland is easy to satisfy. 
Repeat as if it's a mantra.
The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy.
The prejudice prong of Strickland is easy to satisfy. 
Of course, there's a catch.  It's easy to satisfy the second prong of Strickland precisely because it's hard to satisfy the first.  Hell, it seems close to impossible sometimes.  As I described the test yesterday, 
If you held a mirror up to the lawyer's nose what would have happened? If it would have gotten foggy, the lawyer was good enough.
That's not how courts describe what they do. But it's too often the reality. Still, once in a while they concede the point. The fuck up was in fact beyond the pale. And no marginally sentient being could have thought it rational strategy. So we get to the second prong of the test.

Which we should almost always win.

Except, of course, that judges get the test wrong. And attorney's don't correct them.

----------------------
*Note that the judges of the Texas Court of Criminal Appeals and 5 judges of the 5th Circuit Court of Appeals didn't find that Calvin Burdine showed enough prejudice even though his lawyer, Joe Frank Canon, slept through "significant portions" of his capital trial.  (Nine judges on the 5th Circuit thought there was enough prejudice, but the sheer number who disagreed tells you how high judges tend to view that low bar.) 

Thursday, July 14, 2016

The Wrong Question? The Wrong Answer? It Depends

The correct answer to every legal question, I regularly say, is "It depends."  
  • I have a lawsuit, don't I?  It depends.
  • The drugs will be suppressed, won't they?  It depends.
  • That means there's reasonable doubt, doesn't it?  It depends.
  • My lawyer fucked up, so I get a new trial, right?  It depends.
Clients hate it.  Reporters looking for quotes hate it.  You're uncle who's been arguing with his neighbor about the tree that drops sap on his car when it's in the driveway hates it.  But dammit, it does depend.

It depends on all the facts and circumstances.  It depends on whether the burrito the judge had for lunch gave him gas.  It depends on whether the lawyer or the judge won the last round of golf and whether the jury thinks your lawyer's tie is ugly or her skirt's too short.

So yeah, the correct answer to every legal question is, "It depends."

Except, of course, when it isn't.

Over at Fault Lines, Andrew Fleischman examined the oral argument before the Georgia Supreme Court in West v. The State to draw lessons from When Oral Argument Goes Wrong.  It's a useful tutorial and the lessons are general sound.

  • Know the law.
  • Policy arguments are nice but focus on the law.
  • Take the other side seriously and respond to what they're arguing.
  • Sometimes it's better to shut up and let the other side screw themselves.
  • Courts really try to focus on the law, not the lawyer, even when they fail.*

Sure.  Good advice and good things to know.  

But sometimes --

The Supreme Court of Ohio as it's properly called.  Oral argument in State v. Cepec, a capital appeal.  Nathan Ray, representing Mr. Cepec, was just getting rolling.  Cepec's trial counsel, Ray was arguing, screwed the pooch provided ineffective assistance in violation of his client's rights under the Sixth Amendment.  

It's standard stuff.  There's a two part test, first set out in 1984 by the Supreme Court (the big one, in DC) in Strickland v. Washington.  

First part:  Was the lawyer's representation was objectively deficient? If you held a mirror up to the lawyer's nose what would have happened?  If it would have gotten foggy, the lawyer was good enough.  If not, it's on to the second part of the test.

Roll the tape:  Justice Judy Lanzinger's asking questions.  She's just gotten Ray to assure her that he is, indeed, making a Strickland argument.  Minute 5:50:
What about the outcome determinative part of that test, though?  Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?
To which Nathan Ray gave exactly the wrong answer.  
Yes.
He said.  And then he began to explain why.  

All of which seems reasonable and satisfied Lanzinger.  Not on the merits, I suspect, but on the substance.  She got her answer simply and directly.
Yes.
Which is one of the things they teach in law school - answer the judge's question (a lesson Andrew didn't draw from West v. The State, but he was writing a post, not a book addressing every issue).  

So, cool.  Except, as I said, it was exactly the wrong answer.  Because the second part of the Strickland test is not whether the lawyer's incompetence was outcome determinative.  It's not whether if the lawyers didn't make those mistakes "the outcome would have been different."  Hell, it's not even whether the outcome would probably have been different.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Strickland at page 693.

That's worth repeating, this time adding some boldface.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Oh, there's some bar.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.
(citation omitted).

There's even an actual standard.
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
And no, I don't really know what that means, either.  Except that it's more than a mere theoretical possibility ("some conceivable effect").  And it's less than probably.  One more time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Which means, to return to Judy Lanzinger's question and Nathan Ray's answer, that she asked the wrong question and he gave the wrong answer.

Because the right answer wasn't 
Yes, the errors were outcome determinative.
The right answer was
That's the wrong question, your Honor.  Strickland  specifically says that the second part of the test isn't even whether competent lawyering would probably have made a difference. 
Of course, it's not just Judy Lanzinger.  Our judges and justices routinely demand showings of harm far greater than the law requires.

And we let them get away with it.  Unchallenged.  

They're supposed to know the law.  We can't make them learn it, and we sure as hell can't make them follow it if they don't want to.  But we can damn well insist on telling them that they're fucking our clients because they insist that we have to prove more than we do.

No, it doesn't depend.  And it's damn well not outcome determinative.

One last time.
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.
Judy? Nathan?

Bueller?


-----------------
*These are my summaries of Andrew's captions.

Tuesday, July 5, 2016

From the Ashes of War

In Central Park the other day, Connor Golden 


stepped on something that blew up.  He was 18.


He was taken to the hospital where his leg was amputated below the knee.

Police are still investigating to determine who put the explosive there, how, and why.  But they don't think it was terrorism or an effort to kill.  Just one of those things that happens when someone leaves an explosive on the ground.

Not so along the Myanmar/Thailand border.  We know the how and why of what's there.



There are land mines.  There are dozens, hundreds, maybe thousands left over from clashes between ethnic-minority rebels and the Myanmar army.  Intended to maim and kill.

Which, I suppose, makes what happened to Mosha just one of those things, too.  But planned, even if the victim wasn't.

Mosha stepped on a land mine.  Like Connor, she lost a leg.


She was taken to The Friends of the Asian Elephant Hospital in Lampang, Thailand.

Where Doctor Therdchai Jivacate, 


realized that "the way she walked was unbalanced and her spine was going to bend."  Something had to be done for her or "she would have died."

Dr. Jivacate is an orthopedic surgeon.  He fashioned a prosthetic leg.









Elephants grow quickly.  Mosha weighed about 600 kg when she got her first leg.

The first year, Mosha went through three legs.  


It's been six years now./  Mosha weighs over 2000 kg, and she's on her ninth prosthesis.

Motola, too, stepped on a mine.  Dr. Jivacate treated her, too.


Though she's struggled with her leg.

“I think she knows that I make her prosthetic legs," Dr. Jivacate said of Mosha, "as each time I come to the elephant hospital she makes a little salute by raising her trunk in the air.”



Which isn't really surprising.  After all, we know about elephants.

 
Mosha, I suspect, would send her best wishes to Connor Golden.


Monday, July 4, 2016

Independence Day

Ah, the Fourth of July.

Fireworks and hot dogs and American flags.  And, lest we forget.
When in the Course of human events, it becomes necessary
This is, of course, an election year.  It's not the sort of election the Consitution's framer's envisioned with the presumed wise men of the states choosing electors who would chose a President whose excellence would be evident.  They disdained faction. They feared it, as they feared too much democracy.  Ours was to be a republic, a representative democracy, not the pure thing which would, they imagined, tend to devolve into either chaos or autocracy by demagog.

"Democracy," said one of my Junior High School history teachers, "is where you get to pick your dictator."

So they began with George Washington.  And then . . . .

But that was the Constitution.  Adopted in 1787, 13 years after the Declaration.  6 years after Yorktown.  The rules for holding together rather than the explanation for tearing asunder.   Prose rather than poetry (to channel Mario Cuomo).
it becomes necessary for one people to dissolve the political bands which have connected them with another
And the things "self-evident."
  • all men are created equal
  • with certain unalienable Rights
  • Life
  • Liberty
  • [P]ursuit of Happiness.
Therefore government
To secure these rights.
And what necessarily follows
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.
Which is the bottom line, after all.  The absolute right, sometimes (as then) necessity, of revolution.

And if you think about it, the founding document says that we may have to keep doing it.

Yet we haven't.  And that's surely something.

Here's the whole thing.

IN CONGRESS, JULY 4, 1776

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Monday, June 27, 2016

A Helluva Town

Maybe it's different in New York.  

I don't know.  I haven't lived in The City (that's Manhattan to you folks not from there, but then I never lived in any other part of New York City -or New York State, for that matter) since - well, I'm old and I was young then and left before I went to college which is decades before I went to law school.  So it's been a long time and what do I know?  As I said, maybe it's different there.

I get it that the buildings are taller and closer together and the streets are more crowded and it's the City That Never Sleeps and Wall Street and the (new) World Trade Center and still the Empire State Building and that gorgeous bit of Art Deco, the Chrysler Building, complete with gargoyles.


And Broadway and "Live from New York, It's Saturday Night."

I mean, sure, it's different that way.

But do they really have Law (note the uppercase) that works the way they teach it in law school? That Rule of Law thing?

Scott Greenfield, who practices there (though he lives out on The Island - which is Long Island beyond Queens, outside New York City), seems to think so. 

I'm talking about the Honorable Henry Coke Morgan, Jr.'s Opinion and Order in United States v. Matish.  No, wait, I'm talking about Greenfield's response to Morgan's opinion. No, that's not exactly right, either.  It's Greenfield's response to the responses of folks, like the Electronic Freedom Foundation's Mark Rumold, to Morgan's opinion.

Skip the complexities.  Morgan's dealing with whether to grant a suppression motion after a search based on a warrant.  He says no.  Then, as lawyers put it, he goes on a frolic, explaining that there's really no need ever for the government to get a warrant to search a computer because everyone knows that sooner or later all computers will be hacked.  And that means that nobody ever has a "reasonable expectation of privacy" in the stuff on the computer.

Which led to apoplexy.  Because 
OH MY FUCKING GOD
Which is what Greenfield responds to.  Pointing out that Morgan's frolic is what lawyers call (in Latin to make it sound significant) a dictum -- something said but not technically precedential because not essential to the reasoning of the decision.  And it's not even a dictum, it's an obiter dictum, something even more removed, just an expression of the judge's opinion.  And he's a mere U.S. District Judge so his opinions, even the technically relevant parts, aren't really precedential.  And the By God U.S. Supreme Court says otherwise.  

So take that Rumold.  And you too, Judge Morgan, Jr.

All of that is what they teach in law school.  And maybe in the greener pastures where Greenfield lives (though New York, where he mostly practices, is more concrete than green, but I digress).

So yeah, maybe it's different in New York.

But I don't believe it.  Because Morgan's dumbass reveries (that's English for obiter dictum) will be quoted.  And the FBI and the DEA and the DOJ and Homeland Security and your local constabulary will believe.  And we'll argue about dictum and the obiter dictum and the precedent or lack thereof. Which is what we're trained to do and what we have to do.  And the judges, or at least many of them, will say, 
FUCKIN' A! We got us a good search.
And maybe the appellate courts will reverse after your computer is invaded and you maybe spend a few years in prison.  

Or maybe not.  

Because obiter dicta (that's the plural) or dicta (plural again) or technical precedential value be damned.  This is real world.  And it's the Law of Rule every bit as often as the Rule of Law. 

Except maybe in New York.




Wednesday, June 1, 2016

Let He Who Is Without Sin Sell the First Window

They used to call them penitentiaries because they were to be places where folks did penance.  The judicial system's version of purgatory.  

  • Do time.
  • Study on the error of your ways.
  • Come out rehabilitated.

Fuck that shit.  We call them prisons now.  

A few years ago, Nancy Gertner (one time criminal defense lawyer, later a federal judge, now on the faculty at Harvard Law School) wrote
Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.
But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in.
And weigh in everyone did.  Demanding more and more time.  Punish the fuckers.  Make 'em pay. Life for everyone.  Plus more time.  Or maybe plus cancer.  And don't forget to smite their firstborn.

It's no surprise, then, that we lead the world, by far, in the percentage of our population in prison. And in the length of time we lock up those lucky many.  But all is not lost.  There is a generalized awareness that maybe we're locking up too many people and for too long.  Criminal justice reform remains at least a theoretical possibility in Congress.   If it passes, we could begin the move from being the most incarcerating nation by a very long shot to being the most incarcerating nation by an almost-very long shot.  Yippee!

And in the states, too.  Here in Ohio, for instance, we adopted sentencing reform a couple of years ago with the goal of reducing our prison population.  And the latest estimates indicate that this summer it will finally be . . . (wait for it) . . . larger than ever before.  Boy are we good.

Still, there's hope.  Hey, Jake Strotman won't be getting locked up.  Huh? What?  Jake who?  Chris Graves at Cincinnati.com has the story.  

It was January 23, dollar-beer night at the game at U.S. Bank Arena.  The Cyclones won.
Strotman, a Downtown resident, had imbibed with his buddies at the hockey game and was in fine form when he approached a band of Baptist street preachers who were, as he puts it, condemning him. A curious and naturally jovial guy, Strotman said he "gave them my two-cents worth.
"They were telling me I was going to hell,'' Strotman said Thursday. "I was asking them: 'Why do you think you can condemn people?' I didn't understand why they thought they could judge me."
Apparently, that was just enough for some other knucklehead to approach the church folks. This man, Strotman said, "started going off like a ball of fire." There was screaming and words and threats before that guy broke a camera church members brought out in case of violence or altercations. The church folks threatened to make a citizen's arrest.
There was a push and a shove. And the fray was on.
Strotman somehow ended up at the bottom of a pile and "was eating asphalt." He pushed himself up with one hand and planted another hand square on the face near the bespectacled eye of Joshua Johnson, who had just been preaching the word of God.
Johnson's face was apparently cut by his glasses.
Which is maybe just one of those things.  But this one got Jake charged with misdemeanor assault. And that led to the courtroom of the Honorable William Mallory.

Now Mallory, it seems, is one of those judges who views his job as, well, an opportunity.  He could just lash out, or he could try to help - to turn lives around.  And hell, he might as well have some fun while he's at it.  As Graves tells us, he 
enjoys handing out creative sentences from his bench.
Now creative sentences, they often feel good.  Seem like they might teach a lesson without burdening the prison system.  But, well, there can be problems, too.  Not always, but it's a risk.  However good they feel.  There's that chance of small things like not being authorized by law. Or being flat-out unconstitutional.

Of course, Judge Mallory, he's got his own sense of what's right.  Judges need that if they're going to craft wise sentences.  

So the judge pondered.  He told Jake he was looking at 90 days in the hoosegow, which Jake didn't much like.  But he had some sympathy.  After all, Jake didn't ask to be told off by those Baptist street preachers.  So the judge turned to Johnson, he of the good book and the scratched nose.
"I'm trying to get to something reasonable here. And I'll be honest with you guys, sometimes in certain places people don't want to be preached to. You agree with that right?"
Yes, he said, he did.
The right answer.  Hell, the judge was on both sides of that issue.
"I admire the fact that you want to spread the word of God because I'm a religious man, too,'' Mallory said. "Also the thing about religion, I think it is kind of personal and for me I don't try to impose my religious views on other people except for sometimes in this room."
Which is, frankly, and not to put to fine a point on it, unconstitutional.  Not the admiration.  Not that the judge is "a religious man" or that he understands religion to personal.  That's all fine.

It's the part about imposing his religious views on other people in the fucking courtroom.  Where the First Amendment says no.

But Jake, an enterprising lad (he's a self-employed window, siding, and door salesman), knows a customer who's maybe ready to buy and just how to sell.
"Your honor, if I may, I would be more than happy to serve a church of your choosing."
Mallory: "Time out. We may have an answer here."
He addressed his thoughts to Johnson.
"So for his penance, what if I make him go to your church a number of Sunday services?"
Which he did.  Go 12 times.  90 minutes per.  Go forth and be proselytized.

Which is, of course, unconstitutional.

But for Jake?  Opportunity.
"Then, maybe I'll try to sell them some windows."
Amen.


Friday, May 27, 2016

Loretta Lynch v. Connecticut

This week the Attorney General finally made up her mind.
Following the department’s rigorous review process to thoroughly consider all relevant factual and legal issues, I have determined that the Justice Department will seek the death penalty,
That's Dylan Roof, the kid who's charged with killing 9 people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina last year.

Roof, who's already facing capital charges in South Carolina courts - trial currently set to begin in January - now risks the possibility of another death sentence.  From the feds.  Because he didn't just kill 9 people.  He did it for bad reasons.  Teach that rotten kid a lesson.

It took a year of dithering rigorous review to determine that this was an appropriate use of federal resources.  So that we can get him killed twice. Or maybe it's because the AG doesn't trust those racist hicks in South Carolina to kill a white guy who killed black folk for kicks.  So the AG needs to arrange for a back-up.  You know, just in case.

Sigh.

Meanwhile, in Connecticut.  
  • Where the legislature abolished the death penalty going forward but left it in place so that Joshua Komisarjevsky and Steven Hayes (and incidentally the 9 other folks on death row there) could still be killed.  
  • Until State v. Santiago the Connecticut Supreme Court said that the death penalty violated the state's constitution and said that the 11 guys on death row couldn't be executed, either.
  • And then, after the personnel on the court changed, put Santiago on hold while reconsidering the matter in the case of Russell Peeler, which was not a good sign if you thought they had it right the first time.
Yesterday, the court spoke.  There are concurrences and dissents, but in its brief and unsigned opinion (footnotes omitted), the court said it would follow its precedent.
A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J.,rendered judgment imposing two death sentences. This appeal of the defendant’s death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, §§ 8 and 9, of the Connecticut constitution. See, e.g., Conway v. Wilton, 238 Conn. 653, 658–62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant’s death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant’s other appellate claims. The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects. 
Connecticut is known, among other things, as The Constitution State.

The Attorney General is named Lynch.

You can't make this shit up.