Contempt in Maricopa

Adam Stoddard, bow your head in shame. Pay a fine. Take some classes. But skip the apology.

That's the guts of what the court of appeals said.

Let's review.

Adam Stoddard is, of course, the detention officer who felt it his duty to read and then copy confidential communication between a criminal defendant and his lawyer. In open court. While the defendant's lawyer was giving her sentencing speech to the judge. Ignored by judge and prosecutors.



There was, you recall, a hearing where Stoddard was found in indirect civil contempt and ordered to apologize to Joanne Cuccia (the lawyer whose files he invaded) or go to jail. Encouraged by his boss, Sheriff Joe, Stoddard refused to apologize. Instead, he went off to jail

Part of my job in providing security to the court is to inspect documents brought into the courtroom. On October 19th, I saw a document that I had not yet screened, and that raised security concerns. I retrieved that document in plain sight and had court personnel copy it to preserve it as evidence in case it was a security breach.

It was a split second decision and I do not regret my actions.

And then he went to the court of appeals.

Yesterday (actually, today, April 6, but it'll be yesterday by the time I get this posted), the court of appeals issued its ruling in an opinion by Judge Maurice Portley, for a unanimous three-judge panel. Nick Martin at Heat City, Paul Rubin at New Times, and Michael Kiefer at the Arizona Republic all tell the same story: Contempt upheld, sanction vacated.

Of course, it's more complicated than that.

Judge Donahoe (who, as Nick Martin points out, retired last week) found Stoddard in indirect civil contempt. Stoddard argued that Donahoe had no right to do that. He should, Stoddard apparently said, have found Stoddard in criminal contempt because his contemptuous behavior directly interfered with the actions of the court. Portley agreed that Stoddard was criminally contemptible (OK, contemptuous, I was just funnin'). But he was also civilly contemptuous, a distinction achieved in Arizona simply by means of the imposed punishment. And that was just fine. Contempt, it seems, is contempt.

Stoddard also argued that Donahoe denied him a right to present a full defense. Nonsense, said Portley. He got to say what he wanted. For instance, he said that there was nothing problematic that he saw in the letter which he had photocopied because it was necessary to preserve it as evidence of wrongdoing. Cool. You go Adam.

Finally, he argued that the punishment - that apology to Cuccia - violated his First Amendment rights. The court declined to answer that question on the principle that constitutional issues should not be examined if it isn't necessary. Since the sanction was inappropriate (Cuccia suffered no harm, Portley said, even if she thinks she did), it should be vacated. So instead of an apology, Stoddard should be maybe fined. Or forced to take a class in courtroom behavior and attorney-client privilege. Or to announce that what he did was wrong and he wouldn't do it again.

That last option is particularly interesting. Here's what Portley wrote:

Additionally, the court could consider having Stoddard tell the sentencing judge in open court what he admitted under examination by his lawyer: If he could do things over, he would either ask to approach the bench and apprise the court of his concerns or he would call his superiors about obtaining a warrant before independently deciding to invade Cuccia’s file.

Courts are confined to the record before them in making decisions. Stoddard said what he said during the hearing. But afterwards, after the contempt hearing, after the sentence was imposed, he said something rather different.

It was a split second decision and I do not regret my actions.

So, basically, he'd do it again.

Lesson decisively not learned.

But then, why would it be? Adam Stoddard, after all, works for Sheriff Joe.

The Nays of Ohio

In its continuing effort to be Texas, the Supreme Court of Ohio issued two decisions Monday.

Let's go back. Down in Texas, Hank Skinner sits on death row. He wants DNA tested because it should prove him innocent. Texas (which doesn't have to try to be like Texas) refuses because it should prove him innocent. OK, they don't say that's why. Actually, they don't offer any reason why. They just refuse. If Texas had its way, Hank would have been killed two weeks ago. Hank's alive because the buttinsky's at the U.S. Supreme Court said Texas couldn't kill him until we (they? SCOTUS) decided whether to hear his case about whether he should be allowed to pursue a lawsuit that would, if successful, require the DNA to be tested. There's a ton of stuff in the blawgs about the case. Bennett even made the mechanics understandable.

Here in Ohio, Darryl Durr sits on death row. He wants DNA tested in the hope that it will prove him innocent - or at least provide some support for that claim. (The tests that have been conducted provide no support for innocence or guilt.) Ohio refuses because, well, Texas would have said no.

OK, that's not really why. The judge held a hearing and decided that Durr didn't meet the statutory standards for forcing the DNA to be tested. He appealed. Except, see, what he really did was ask to appeal.

A prisoner facing death in Ohio has no right to appeal denial of DNA testing. He may ask the Ohio Supreme Court to hear an appeal, but they don't have to let him proceed. A prisoner with any other sentence, by contrast, has a right to appeal. You get that, right. We offer less legal review of a request for DNA testing by a person facing execution than for the same request by any other inmate. If that strikes you as deeply offensive, join the club.

So here's Darryl Durr. On death row. Due to be murdered in two weeks. He asked the Ohio Supremes to grant him a stay. He asked them to hear the appeal from the denial of DNA testing. Monday the court spoke.

Nope.

And nope.

On to Washington, I suppose.

Darryl Durr. On death row. Due to be executed in two weeks. April 20. 10:00 a.m.

There's something left to test. And it just might be exculpatory.

WWTD: What would Texas Do?

Because Innocence Isn't Enough

I've got to assume that it's coincidence that I read Gideon's eloquent and agonized take on the presumption of guilt from yesterday pretty much back to back with this morning's article by Jennifer Feehan in the Toledo Blade on Danny Brown.

First, the short version of Gideon's post. (You should read the whole thing.)

The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. . . .

It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. . . .

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

Every criminal defense lawyer knows he's right. Although most won't admit it publicly, everyone in the system knows he's right.

Once a person's charged (really, once the person is a serious suspect), the person is presumed guilty. You need to start with that to understand. But then you need another piece. Because even when we win, the person is presumed guilty.* The taint remains.

It doesn't matter how we win (or it it's "we" or what's generally thought of as a win). The presumption of guilt remains.

• Charges never brought.
• Charges dismissed by the prosecutor.
• Found not guilty at trial.
• Conviction vacated.
• Exonerated by DNA.
• Something else.

Doesn't matter. In the words of Marvelous Mark Slackmeyer, speaking of Nixon's Attorney General John Mitchell, "GUILTY, GUILTY, GUILTY!!"

One could jump in pretty much anywhere for an example.

• The parents of JonBenet Ramsey?
• Kobe Bryant?
• OJ?
• Ken Lay?
• The latest not guilty in your local paper or on Fox News?

Does Nancy Grace let it go?

None of them is ever fully cleared of the taint of guilt - from the mere presumption. Where there's smoke . . . . Besides, they had slick lawyers or a technicality or lousy prosecutors or witnesses who lied for them or they paid someone off or the jury fucked up. (Who ever reads the retractions in the newspaper, after all?)

And there's Danny Brown.

Back in 1981, Bobbie Russell was brutally raped and murdered. It was a horrible crime, the details of which don't much matter here. Bobbie's son, Jeffery, then 6, saw some of what happened. He testified at trial, believed then, and believes now, that Danny Brown killed his mother. He's wrong. He was wrong then, and he's wrong now.

In 2000, we had the DNA tested. It wasn't Danny's. We asked the judge to grant Danny a new trial. The state wasn't convinced. Anyone can fake DNA, or something. They wanted a polygraph. Danny passed. The state conceded that our motion was meritorious and that Danny's conviction should be vacated. After 19 years in prison, Danny was released, and it was a great day. Then the state dismissed the charges. Why try him again just to get an acquittal. They knew that no jury would convict Danny in the face of two crucial facts: The DNA wasn't his. The DNA was Sherman Preston's.

Did I mention Sherman Preston? Around the time Bobbie Russell was killed back in 1981, there were a lot of brutal killings in Toledo. Sherman Preston was convicted of one of them, a murder similar in many respects to the murder of Bobbie Russell. He's now serving a life sentence. Ironically, although there was other evidence, charges weren't brought against Preston for years - until DNA evidence was tested and made successful prosecution possible.

Once again, the DNA from the Bobbie Russell murder confirms that the killer was Sherman Preston. It wasn't Danny Brown.

But the state won't concede the point. Danny killed her, they say. All day, every day, rain or shine, Danny walks around the county courthouse with a sign proclaiming his innocence, talking to people, arguing the injustice of the system, asking the state to concede the point. But it won't. Jennifer Feehan sets it out.

The sign Brown carries states the facts of his case as he sees them: "13 witnesses. No physical evidence. Lie detector test. DNA. What does it take??"

Mrs. Bates said it certainly takes more. She said she cannot discard the "crucial" testimony provided by the lone witness to the murder - the victim's then-6-year-old son, Jeffrey. The youngster said then and continues to maintain it was Danny Brown who killed his mother. "[Investigator] Tom Ross went out to see him in the last year," Mrs. Bates said. "He's a grown-up now. He has a memory he's never going to forget." Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes. "I do," she said. "I don't think little kids lie." Still, Mrs. Bates said, she cannot put her belief before a jury without evidence and testimony that would prove it beyond a reasonable doubt. Much of the evidence linking Brown to the crime is circumstantial - he'd had a casual relationship with Ms. Russell, he'd been to her Birmingham Terrace apartment on several occasions, he could have known where she kept the key.

Got that? Here's the evidence against Danny.

• He knew Russell.
• He'd been to her apartment.
• He might have known where she kept a key.

Any idea how many people might qualify as suspects based on that? I just had a plumber at my home this morning. He knows me. He's been to my home. He might know where there's a key. For his sake, nothing bad better ever happen to me.

But, of course, there's also Jeffery. Back in 1982, during the trial, he testified to things he could not, physically, have seen. But he could, probably did, at least briefly, see the killer. He said it was Danny. Apparently he still thinks so. And Julie believes him because, once again,

I don't think little kids lie.

We can start with that. Kids lie all the time. The mythic story about George Washington and the cherry tree ("I cannot tell a lie") is taught to children both as evidence of how Washington was better than everyone else and to make his honestly exemplum on which children ought to model themselves. The story would be nonsense if kids didn't lie. What she really means is that she doesn't believe kids lie when they say that someone else did something bad.

All accusations from children, therefore, are true. Anyone not convicted is simply evidence that the system doesn't work. It's nonsense. Dangerous nonsense. Again, kids lie. But more, like adults, but even more so they're mistaken.

There's a presumption in Ohio evidence law that anyone over the age of 10 is competent to testify. Children under 1o? Nope. When the question of competence is raised, they may only testify if the court determines that the child knows the difference between lying and telling the truth, understands the obligation to tell the truth, and is capable of accurately receiving impressions so as to be able to know what's true from what's false.

Frankly, satisfying that test to the satisfaction of a judge (and then maybe an appellate court) in Ohio is frighteningly simple. And hearsay from kids doesn't even require that the test be satisfied. But this is about Jeffery, and I'm not claiming he lied. I'm not saying he wasn't capable of telling true from false or even that he wasn't capable of relating what he saw.

Not incompetent, not dishonest, not lying, not depraved. He was just wrong. He made a mistake. It happens to everyone. (See that person on the street you think is your old high school classmate? Ooops. Gee, I'm sorry. I thought you were someone else.)

Don't believe me? Ask Jennifer Thompson-Cannino and Ronald Cotton. They've been there, done that. The difference is that Thompson-Cannino acknowledged - first to herself, then to the world, then to Cotton - that she was wrong. Jeffery hasn't taken that first step. Maybe someday. Maybe not. It's a hell of a tough thing to admit, even to yourself, that you made a mistake about who you saw kill your mother. It's tough to admit that you sent an innocent man to prison for 19 years.

And the mistake, the false impression? It burns into your mind. We all believe, all of us, things about our pasts that are not so. Some half formed memory becomes something else and becomes that of which we are certain.

Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.

Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.

Anyhow, here's the thing. Danny Brown is innocent. The DNA says it wasn't him, it was Sherman Preston. The polygraph says it wasn't him. The eyewitness made a mistake. It's that simple.

But Danny lives with this cloud over his head because he was charged with a murder. The media's covered the case and explained his innocence. The prosecutor dismissed the charges. But the prosecutor believes he's guilty. The prosecutor won't say that they won't bring charges against him again. In fact, they want to. And it's not a small number of the public who believe the prosecutor. Kids don't lie. If he weren't guilty, he wouldn't be a suspect. Innocence isn't enough.

And so there's that cloud over his head. And he can't just get on with his life. And it's, well, we toss about words like "tragedy" a bit too readily. But it's a really awful thing.

There's unfortunately not all that much about Danny's case that's unusual.

Brown has stacks of newspaper clippings about defendants who were wrongfully convicted. He doesn't think people realize the extent of the problem.
"This is a crazy one, 'DNA clears inmate who dies of cancer.' He died in jail for a crime he didn't commit," Brown said, shaking his head. "This is another one. This is what I'm saying, 'DNA collars one man, frees another after 20 years,' and that's my situation, but it's not freeing me."
He frequently brings up the case of the Duke University lacrosse players who were falsely accused of sexually assaulting a stripper in 2006. Not only were the charges dropped against the young men, but the prosecutor was disbarred for misconduct in the case.
When the charges were dropped, one of the accused players, Reade Seligmann, said the experience had opened his eyes "to a world of injustice I never knew existed. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can't imagine what they'd do to people who do not have the resources to defend themselves."
Brown said that's the category into which he falls.

That's not exactly right. Danny wasn't really railroaded. But there he is. Day after day.

Because you know, innocence, even when it's proved, doesn't overcome the taint of the presumption, the continuing presumption, of guilt.

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*I'm not even beginning to address, here, the cases of those where the evidence dissolves but convictions remain in place. Cameron Todd Willingham is the obvious recent example.

The Last Best Hope

They want him off the case.

That's Kevin Fine, Judge of the 177th District Court in Harris County, Texas, presiding over the capital murder trial State of Texas v. John Edward Green, Jr. The one who said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27.

Bennett is first out of the box with the news that on Thursday, Pat Lykos, the District Attorney for Harris County, filed a motion to recuse. She said the judge can't be fair because he believes innocent people have been executed and wants to hold a hearing on whether that's so. She said the judge can't be fair because he expresses dismay at the thought of executing someone who might be innocent but that the possibility, even the likelihood, is irrelevant as to whether the death penalty is constitutional. She said the judge can't be fair because higher courts have denied similar motions without hearings. She said the judge can't be fair because he's lying when he says that he believes the death penalty is constitutional. She said the judge can't be fair because he thinks Green is innocent or is presumed innocent or something. She said the judge can't be fair because he said he's the only judge in the state with the guts to actually declare the statute unconstitutional if he decides it is. And she said the judge can't be fair because some of his off-the-top-of-his-head statements misstate facts.

Mostly, she said that the judge can't be fair because that's the only way she can stop Judge Fine from holding a hearing on whether Texas has executed innocent people. And we know that Texas can't hold a hearing like that. Just ask Rick Perry.

The technical legal question is whether any of this, or all of it, is enough to lead a reasonable person to believe the judge is biased. The answer to that, pretty clearly, is no. But a clear answer to the technical legal question may not be of much moment in so contentious and politically charged an issue.

A couple of years ago, a trial judge in Ohio was planning to hold pre-trial hearings in a couple of death penalty cases regarding the constitutionality of Ohio's system of lethal injection. He appointed me to litigate the question. He ordered the state to turn over materials describing how it went about murdering people. The state filed a complaint with the Ohio Supreme Court arguing that the judge

1. Had no right to order discovery regarding Ohio's approach to lethal injection;
2. Had no right to appoint me to litigate the constitutionality of Ohio's approach to lethal injection;
3. Had no right to hold a hearing on the constitutionality of Ohio's approach to lethal injection; and
4. Had no right to issue a ruling on the constitutionality of Ohio's approach to lethal injection.

The judge fought the state and the court denied the state's request (without written opinion, so we don't actually know why). The hearing was quite a show. And the judge concluded, ultimately, that Ohio's approach to lethal injection was unconstitutional (a ruling the state promptly determined to ignore).

The thing is, you never know.

What you do know is that the hearing needs to occur. And that means a judge with the guts to do it.

Half-Empty Glass

Some people focus on the silver lining.

Justice Stevens' opinion (sorry, Bennett, I prefer the visual aesthetic of omitting that final "s") in Padilla v. Kentucky is really a wonderful thing. Regardless of whether he announces his retirement this month - as many, perhaps most, expect - Padilla should justly be viewed as a highlight.

The very short version: Lawyers have an obligation to tell non-citizen clients about the immigration consequences of a plea if those consequences can be readily determined. When they can't be, a more general warning, something on the line of "There may be adverse consequences; you should check with someone if that matters to you," is required. Mark Bennett's summary is even simpler than mine.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client.

He adds, rightly,

It’s about damn time.

In fact, Padilla is a terrific opinion for more than just the formal holding.

There's the reminder that although the lower courts have routinely said that the right to effective assistance of counsel doesn't include the right to effective assistance in regard to collateral consequences of pleas or convictions, the Supremes have never said that. (Russ Bensing's post this morning spins out, with focus on Ohio, some of the collateral consequences to which criminal defense lawyers ought to be paying more attention.)

There's the recognition that ABA standards for defense counsel

may be valuable measures of the prevailing professional norms of effective representation.

That's particularly notable in light of the almost cavalier dismissal of the significance of those standards just a few months ago in Bobby v. Van Hook.

There's the recognition that "deportation is intimately related to the criminal process," which has led at least one person to suggest that the case lends itself to challenging Miranda-free interrogations by ICE with the statements then being admitted at criminal trials.

All this and more. It is, as I say, a great opinion.

But if some people focus on the silver lining, I can't help paying lots of attention to the cloud.

The other day it was Clarence Thomas suggesting that in the right case he'd be happy to reconsider the claim that it's unconstitutional to insist that juries must actually represent a "fair cross section of the community." Why not go back to the framer's idea? White, male, property owners from nearby.

Today it's Scalia (joined by Thomas) hinting that the Constitution does not mandate counsel for anyone and certainly doesn't mandate that counsel be competent.*

The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28–29(1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

The boldface is mine.

Forget that appointed counsel stuff. Oh, sure, states (and even the feds) can provide counsel if they want. There's nothing inherently unconstitutional about public defenders. (At least, they haven't yet suggested that.) But required? Don't be silly. The Sixth Amendment just says counsel's allowed. Defendants who manage to get themselves lawyers can have the lawyers defend them. But it's the defendant's burden to find (and pay) willing counsel.
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

And, by god, the defendant who manages to arrange counsel certainly has no right to have the counsel be even marginally competent.

Today only Scalia and Thomas are going there. And there's a fair chance that only Thomas would actually vote to overturn Gideon or Strickland. But time has an ugly way of catching up to the worst possibility.

Yet more need for the PD Revolution.

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*Bennett noted their wariness in his post on Padilla, but didn't focus on it.