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February 2007
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April 2007

Slamming the Courthouse Doors Shut

Often we hear that the goal of tort reformers is to slam the doors to the courtroom shut for people injured by corporations.  Yet often it's judges and lawyers who fight hardest to keep poor people from litigating.

What is a client with, say, a small legal matter to do?  It's not usually worth it to hire a lawyer to litigate a $5,000 issue.  Yet $5,000 is a non-trivial amount of money to many people.  So what is an aggrieved person to do?

Some lawyers will tell the person: "Pay me $500 and I'll give you some some advice, and maybe even edit some pleadings for you.  But I'm not your lawyer; consider me a consultant."  This is something to be encouraged, right?  Shouldn't we want to prevent poor people from slipping through the cracks? 

According to at least one federal magistrate judge, the answer is, "No." 

The judge's opinion is indeed a sad thing for poor people.  While rabid pro se litigants seeking millions of dollars are a huge problem (if no lawyer would take the "million dollar case," maybe that's because it's no such case?), many Americans have legitimate beefs involving a lot of money to them, but not enough money that hiring a lawyer would be wise.  Such litigants should be helped, not hindered.

Judicial Impotence?

People v. Zurinaga (here) is a great case illustrating what is wrong with judges today.  In Zurinaga, a prosecutor committed gross prosecutorial misconduct.  The panel even concludes that the prosecutor committed the misconduct.  What does the panel do?

First, it goes on for several pages about how bad prosecutorial misconduct is; and how bad the prosecutor in Zurinaga behaved.  Then it affirms the conviction.  (The rule that even when a prosecutor engages in misconduct, a conviction will be affirmed if evidence of guilt is substantial is not one I agree with; but it's reasonable enough that I see why others disagree.)  Next, the panel refuses to name the miscreant prosecutor.  Finally, the panel does not refer to the prosecutor to the state bar.

In essence, the panel of judges pounds the sand.  "Oh, if only were weren't so helpless, we'd do something about prosecutorial misconduct!"  Yet the judges were not helpless.  They could have referred the case to the California State Bar.  Or, at the least, they could have subjected the errant prosecutor to the disinfectant of light. Instead, the panel of porn stars claim impotence. 

Prosecutorial misconduct is so widespread precisely because judges do nothing about it.

Convicted on a Technicality

We often hear that criminals should not be released because the police violated a "technical" constitutional edict.  The rules are too complicated, we hear, and brining people to justice should not turn on the splitting of hairs.  We never hear this argument applied to criminal defendants, though. 

No one ever says, "Sure, the guy technically violated the law, but to apply the law in these circumstances would be silly and unjust."  Rather, we are told that rules are rules - the law is the law.  Excusing even trial violations of the law can cause Rome to fall.  Etc. 

This principle is illustrated nicely in a case from Pennsylvania.  A man was convicted of statutory rape for having consensual sex with someone who, in just a few hours, was legally able to consent to sex.  Convicted on a technicality.

I certainly support statutory rape laws.  Children should not have their youths misspent by adults.   But convicting someone for conduct that, in just a few hours would be legal, is silly and unjust.  Yet the court nonetheless affirms the conviction.

Strangely, I don't anticipate an outcry from conservative bloggers about convicting people on a technicality. I wonder why?  Why is the Constitution subservient to positive law?  When police conduct an illegal search, they are violating the Constitution itself.  The man in this case (just barely) violated statutory law.  Yet somehow we view violations of the latter as worse than of the former.

Reason sleeps.  And Rome burns.

Add to Obama's Resume: Color Blindness

The Duke lacrosse case, sadly, has been about one issue: race.  Remarkably, while flawed eyewitness identification and false accusations have been issues facing the African American community, there has been no outrage from the black community.  Indeed, the North Carolina NAACP has supported the bogus rape case.  A professor of African American Studies said that "White innocence means black guilt."  A law professor from BlackProf noted: "In the Duke case, many Blacks see privileged White frat boys/athletes getting special treatment []."

Fortunately not all African Americans are unable to look beyond race.  In a recent letter to a constituent, presidential candidate Barack Obama called for a federal investigation into Mike Nifong's handling of the Duke lacrosse case.  Injustice is color blind.

What is more striking about Obama's call for an investigation is the silence coming from an North Carolina native.  John Edwards, a former trial lawyer who loudly proclaims his commitment to justice, remains silent.  Then again, what can we expect from someone who never took a pro bono case in his entire legal career?  (Maybe he'll comment if someone offers him 33% of a few million dollars?)

I know whom I'll be voting for in November.

UPDATE: Some will note that it's never been proven the Edwards took no pro bono cases.   Of course, it's impossible to prove a negative.  But I do rest confident knowing that someone pimping his cancer-stricken wife would have already come forward with his numerous pro bono clients - if they existed.

DNA and Death

The Chicago Tribune, in a recent editorial, makes a familiar argument:

[I]n light of evidence in recent years of scores of cases in which government has wrongfully convicted defendants and sentenced them to death ... it is necessary to curb the government's power.  It is time to abolish the death penalty.

The problem with the argument that innocent men (proven innocent by DNA) have been convicted, therefore the death penalty should be abolished is that DNA testing is widely available.  Juries also expect to see DNA evidence in cases where the death penalty is on the table.  The CSI Effect.

Most (if not all) of the wrongfully convicted were cleared due to DNA evidence exonerating them.  DNA testing was not widely available at the time of their convictions.  In light of the availability of DNA testing, is this a persuasive rationale for abolishing the death penalty when DNA supports guilt?

Would death-penalty opponents change their minds if it the death penalty was availably only when DNA evidence supported guilt?  In the Jessica Lunsford case, for example, there was substantial DNA evidence establishing guilt.  Was John Couey therefore properly sentenced to death?

302 Blues: Government Confesses FBI Fallibility

It's a rare day that the federal Government concedes the incompetence of the FBI. But it has happened here in Connecticut. A federal prosecutor who shall go unnamed has filed a motion effectively admitting that FBI 302s aren't worth the paper they're printed on.

Well, he almost made that concession.

The Government has moved in limine to preclude the defense from using a 302 to impeach witnesses. Why? The 302s are mere reports. They are not statements of the witness, and they have not been adopted by the witness. The Government is right, in a niggling, irrelevant sort of way.

What the Government signals in this case is fear that the 302 might be used to undermine the credibility of a key witness. "Sir, you testified here today that the cow jumped over the moon, isn't that right?" The witness answers yes. The defense counsel now moves in for the kill. "But isn't it true, sir, that you previously told the FBI that the cow jumped under the moon?" The witness had said as much to the FBI agent, who dutifully recorded it in the 302.

The Government wants to prevent this latter question from being asked. In making such a motion, it relies on the requirement that a written statement be adopted by the witness. There would be no similar issue if the declarant's words were captured on tape. 

But isn't the motion itself an admission by a party opponent that the FBI agent's observations are themselves not reliable? I wish it were that simple.

302s are the bane of the criminal defense bar's existence. They are detailed notes of interviews written on preprinted forms by FBI agents. Sit and talk to the FBI, and a 302 is generated. But what, as a matter of evidence, is a 302?

It's not really a business record. Sure the agent prepares them routinely as part of his job, and the notes are contemporaneous. But the content of the report often contains utter hearsay. When an agent reports that Joe Blow said Hoffa was buried in his basement, that's just not admissible, unless Joe Blow has been charged and this is the admission of a party opponent.

I've long suspected that the Bureau uses 302s because they are not admissible in and of themselves. Show up to a FBI proffer session or interview with a tape recorder, and all Hell breaks loose. The feds want to control the record, and the record will be whatever the agent choses to write down. 302s are a convenient hermetic seal. 

However, a 302 is not simply notes casually kept by an untrained observer. The agents taking them have been schooled in report writing and in the importance of accuracy. Typically, a witness talking to the FBI has been warned about the consequences of making a false utterance. If it is a proffer agreement in which a target has been told his words will not be used against him, there is a written agreement that the proffer fails if the witness lies. In other words, what is recorded in a 302 comes very close to being a statement. It bears indicia of reliability.

The trial court should deny the Government's motion. While the statements recorded in a 302 are not so reliable as to be admissible for substantive purposes, that is to prove what is asserted, the context in which a 302 is made is reliable enough to show that a witness previously gave a contradictory statement. Such impeachment evidence cannot be used for substantive purposes, but it is useful enough to show that a witness bobs and weaves on when contronted with the truth.

If the court grants the Government's motion, fairness requires a cautionary instruction to jurors to take anything an FBI agent says he observed with a grain of salt.

Hey, Judge Lavery, Pass The Fiddle!

Last week, a secret meeting took place attended by several judges, private members of the bar and lawmakers. The topic was the quality of justice being rendered in Connecticut's Norwalk Superior Court. The meeting was called because of allegations that race mattered in the courthouse. Several judges were accused of being racist. The accusations were scurrilous and irresponsible.

At the meeting, pointed allegations arose that the state's attorney's office is out of control, and has been for years. I wrote about it on these pages, and have received calls from lawyers from throughout the state thanking me for saying what needed saying.

Here's the pablum being served up by Chief Court Administrator William Lavery in response to last week's meeting.

A public information desk will be set up in the courthouse lobby to help lawyers and clients understand diversionary programs. Free copies of court forms will be provided. (Translation: You can wear a shower cap in the gas chamber.)

Judicial Department staff will attend periodic meetings to discuss treating people better. (Translation: We'll form an orchestra while Rome burns, the better to dance by.)

Judicial employees will even be offered courses on customer service and cultural sensitivity. (Translation: We don't have the balls to address what needs doing, so let's just hug alot and pass the time until retirement.)

Another judge will be sent to Norwalk a day or so a week to help with the backlog. (Translation: Move the deck chairs as the Titanic sinks and perhaps no one will notice the ship taking on water.)

This proposal is worse than doing nothing. It wastes time and resources and wilfully refuses to address problems in the prosecutor's office that have existed for many years.

Is it any wonder a rumor swirls that the nameplate on Judge Lavery's door reads "Judge Potemkin"?