Crime & Federalism

Michael Connelly's blog on sentencing and corrections issues is always a good read. Corrections Sentencing But I was more than a little surprised yesterday to read that my post on whether innocence matters was an inadvertent demonstration of what's wrong with the criminal justice system. I was also startled to read the accusation that my attitude leant succor to injustices by the Government. I tried to leave a note on that page, but couldn't. Herewith a response.

I do not believe in the inquistorial system, in which advocates and judge share the task of arriving at justice. When all the "professionals" in the criminal justice share the same goal, I believe there is a real and present danger that the client gets left behind, or is marginalized. The prosecutor and I in trial are not colleagues seeking to jointly determine what is true. The taks of determining what is true belongs to strangers in the form of jurors. My role is to challenge the reliability of the state's proof.

Thus, a client's claim of actual innocence is of value only insofar as it yields admissible evidence I can use at trial. Otherwise, it is an existential howl signifying next to nothing.

Does this attitude make me somehow complicit in a prosecutor's use of "injustice," whatever that may be? On the contrary. In our system, only the prosecutor is restrained by a duty to do justice. Defense counsel has no such burden. Our role is bounded simply by duties of zealous advocacy and candor toward the tribunal. I've never been accused of being a government lackey in trial.

Whether my client is factually innocent or factually guilty, themselves slippery concepts, is irrelevant to me. All clients deserve vigorous defense. I never tolerate government misconduct. Indeed, I suspect misconduct is more easily tolerated in an inquisitorial system where the counsel and court have the goals of arriving at justice and truth together. Does a defense lawyer who thinks his client is guilty drop his guard in such a regime? Probably.

I think Connelly is dead wrong about the impact of agnosticism on the criminal justice system. Far from undermining its credibility, it enhances it by proclaiming proudly that everyone is entitled to the same high standard of defense, regradless of what they have done. Such a system avoids the danger of the defense's being coopted by the prosecutor as both jointly pursue similar ends.

Truth and justice are easy words to toss around, but they are hard concepts to define. Connelly seems seduced by a too easy assumption that everyone can know, and will agree, on what these concepts mean. In the criminal justice system, the defense and the process are well-served by healthy agnosticism. We let juries decide the larger issues because we think the job of doing so is too important to entrust to entrenched and self-interested elites.

Lewis Libby's conviction has taught the Bush Administration an important lesson - lie, but do not do so under oath:

Senate Judiciary Committee Chairman Patrick Leahy said Tuesday he does not accept the White House's offer to allow top political adviser Karl Rove and former White House counsel Harriet Miers to be interviewed by congressional committees with the caveat that the interviews not be under oath.

Can there be any doubt that the current Administration is morally bankrupt?

Size, some folks say, doesn't matter. But how about a client's innocence? Does that matter to a criminal defense lawyer?  It shouldn't, I say. Indeed, I will go further: A client insisting that he is innocent is one of the most difficult of all clients to represent.

I almost never ask a client whether he committed the crime charged. The simple truth is that it doesn't matter one iota to me. What matters is whether the state can prove its case, and whether I can undermine that proof to show that the client did not commit the acts charged with the mental state required to convict.

Criminal law is not moral philosophy or theology, and lawyers aren't ethical casuists or priests. Our job is merely to hold the state to its burden of proof. In any given case, prosecutors bring charges. To win a conviction, the charges must be proven beyond a reasonable doubt. There are legal and factual defenses that can be raised to most charges. A lawyer selects the defense, and then tries the case or pleads it out, as the client chooses.

It really is that simple. A client's factual innocence or guilt is immaterial. If the state cannot prove its case, the client walks; if the state can prove its case, the client is convicted. In the vast great area between acquittal and conviction clients assess risk. Factually innocent defendants sometimes plea; the state sometimes drops charges against factually guilty defendants.

No one is redeemed at trial. Nothing is made right in a criminal case. The murdered victim remains dead; the violated child still shrieks in shame and rage. Criminal law is not about healing. It is all a simple matter of proof.

This was driven home with a vengeance yesterday. I spent the day doing prison visits. A long day was topped off with a frantic call from another prisoner. Murder, manslaughter, drugs, possession of illegal weapons, child abuse. It was quite a day. My ability to help each of these men is inversely proportional to their ability to understand that a trial is not about innocence; it is about whether the state can prove their guilt of the offense charged.

Clients who desperately assert their innocence over and over and over again can't focus on what needs doing. They can't assess risk. They can't distinguish the material from the immaterial. A howl in the night merely produces an echo, and repeating "I am innocent" one thousand times yields nothing of value.

The simple fact is that no lawyer ever knows whether a client is factually guilty or innocent. If the lawyer has personal knowledge, he ought not to be trying the case, he should be on the witness stand testifying. 

"You believe me, don't you?" clients sometimes ask when they assert their innocence. I try never to answer that question. I'm not retained to pass judgment, but to defend. A client seeking something akin to validation from his lawyer blurs the boundary between advocacy and friendship. A good advocate is not a friend. Lawyers who say they love their clients are fools, or they kid themselves.

Fear and anger are normal reactions to facing criminal charges. So is remorse, sorrow and shame. These powerful emotions cloud judgment. Lawyers need to avoid being sucked into these vortices.

I worry that clients think a lawyer's devotion to his case depends on whether the lawyer believes the client is innocent. I wish clients understood that a defense lawyer's job is not to pass judgment. We defend people against accusations. Whether the factual allegations are true or not does not matter. All that matters is whether the state can prove them.

God, conscience, judgment day, all the tropes that we use to tally our individual moral accounts aren't my concern. I would as easily defend a sinner as I would a saint. In fact, I can't tell saints from sinners. That's not my call.

I have a question about a quoted fee - $7,500 for a DUI case with no complex legal issues.  Is that the going rate for DUI defense in New Hampshire?  Second, I'd like to ask if the guy quoting this fee is even remotely worth it.  (Yes, it's for a friend.  Really.  I've never even flown over New Hampshire, let alone driven on her roads!)

I was scheduled to fly from Los Angeles to Hartford (via Philadelphia) on U.S. Airways, on Saturday at 10:00.  This was the day the blizzards hit.  When I checked my flight status online, I was told two things: Due to bad weather, flights may be canceled or delayed.  And that they would waive any re-issuing fees for people who reschedule their flight.  I tried calling the number they gave (800-428-4322) at least once or twice an hour - starting at 10 a.m.  The phone system had literally crashed.

When I checked the online flight status of the flight from Los Angeles to Philadelphia, no information was given.  When I check the online flight status of the Philadelphia-Hartford flight, I saw that the flight had been canceled.  I tried calling to re-schedule my flight.  After finally getting through (at 10 p.m. on Saturday), I was on hold for literally 1:29:56.  I finally fell asleep.

Today I was able to get a hold of a representative.  I was told the following: First, I must pay a $100 re-scheduling fee.After fighting with the customer service representative, she agreed to waive this fee. That she tried charging me this fee when the U.S. Airways website clearly states that "US Airways will waive the standard change fee, advance reservation and ticketing requirements for customers with travel to, from or through these markets on the dates above" foreshadowed what was to come...

She then told me my flight from Philadelphia to Hartford was never canceled.  (If that had been true, I would have been on that flight!).  Since the flight was never canceled, she told me, I could not obtain a refund.

Irritated by undeterred, I said, "Okay, let's re-book the flight then.  I want the same flight I had booked - just have me fly out this Saturday."  She told me such a flight would cost $963.

Why, I asked, couldn't they give me the same price I initially paid for the flight?  Because, she said, I'm booking the trip on such short notice.  Ugh.

U.S. Airways thus seems to have these policies in place:

* Put online that a flight has been canceled;
* Do not answer your phones;
* When you finally answer your phone, tell the person that the flight was never canceled;
* Punish the person trying to re-schedule his flight by charging him nearly twice as much as he initially agreed to pay.

WOW.

Fortunately, I booked my ticket using an American Express.  (I put any non-trivial purchase on my AmEx, since no one is better than AmEx at tackling this sort of corporate shenanigans.)  If AmEx is unable to resolve this, I will sue U.S. Airways.

This is, I realize, probably boring to most of you.  Like so much in life, one man's fury is another man's fodder.

I take no position on whether Chase T. Rogers should be the next chief justice of the Connecticut Supreme Court. I simply take it as a given that there should be a chief justice, and that it is time to restore strong leadership to the state's court system. Herewith, my agenda for the next chief justice.

Connecticut's judiciary has lost considerable independence in the past few years.

The next chief must make as her primary mission bold and vigorous assertion of the judiciary's independence. Being a judge is not a popularity contest. Judging is a solitary commitment to principle and integrity. Make it safe and secure for judges to judge, Madam Chief, and we will all be thankful.

As a practical matter, let the legislature's Judiciary Committee understand that the judiciary is an equal and coordinate branch of government. In the past year or so, state Rep. Michael Lawlor and state Sen. Andrew McDonald have staged a coup of sorts, blustering and prattling about what the judiciary needs. We have former Chief Justice William Sullivan to thank for that. He opened a wound by manipulating the court's docket, and then bled out in public view. Tacogate is over. Period. Move on.

I cannot fathom why members of the Supreme Court appeared voluntarily to testify before lawmakers about court operations. Imagine the furor were the Judiciary Committee's co-chairs subpoenaed to come to the Supreme Court to testify about the logrolling that goes on in the legislature. Assert the judiciary's independent standing under the separation of powers doctrine.

Second and almost as important, replace the chief court administrator.We don't need a public personality pontificating about what the court needs like some geriatric rock star. The current chief's playacting as Don Corleone is unseemly. Judge William Lavery's recent trip to Norwalk with a delegation of lawyers to discuss perceptions of two Superior Court judges was simply silly. Count paper clips, chief. But please don't start harping to the politically correct groupies aching to make names for themselves.

Third, push for pension vesting during a judge's first term. This is not a call for pay increase. Folks becoming judges know full well what they are getting into. The pay may not be great, but you can't beat the hours. Imagine the beauty of legal doctrine without the anger and disappoint of clients and victims!

Judicial terms are eight years, but it takes 10 years to vest in the state's pension system. Why should judges sit for eight years fearing that some interest group or another may torpedo them at the next confirmation hearing?

When I walk into a courtroom, I do not want a judge cowering for fear of what a legislator might think. I want to confront a strong and independent mind fully focused on my client's case and nothing else. I may not always agree with such a judge. Indeed, often I do not. But I respect the litigation process.

Chase Rogers's principal asset may be her independence. She's not part of the same old brass knuckle crowd. If confirmed, I hope she'll clean house and let judges once again simply be judges. She can do that without fanfare by simply restoring dignity to the judiciary.

Reprinted with permission of the Connecticut Law Tribune.

Pop quiz: You are a United States District Judge. A jury in your courtroom awards millions of dollars in punitive damages against a municipal defendant. How long does it take you to toss that award citing Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)? And how long to issue a show cause order against the lawyers in the case for Rule 11 sanctions: What minimally competent practitioner in 1983 litigation stands by while a judge commits such a colossal error as submitting punitive damages against a municipality to a jury? What about candor toward the tribunal?

In Connecticut, the parties have waited almost four years for such a ruling. Now a newspaper has editorialized about the glacial pace of post-trial motions in that case. Here's what the New Haven Register had to say a week ago.

I pass it along as Connecticut's federal courts recently received bad grades for the speed at which it moves its docket. I wonder how the district would have faired had the outlier in its midst been not been considered?

The Connecticut Trial Lawyer's Association now has a blog page. It is called, grandiosely enough, Connecticut Voices for Civil Justice. Somehow, the bloggers are anonymous or use pseudeonyms. Perhaps that is to avoid shame. Some of that contignency fee income should raise eyebrows. It's A Start But, alas, I feed from the self-same trough. Soooo-eee, I say, and I'll say it over and over again until tort reform's axe falls where it should: On the wallets of profiteers seeking fortune from the misfortune of others.

Justice, justice, they proclaim;

They take your money all the same.

It's not upfront, or on the hour;

What they take is far more dour.

A hefty helping of all your pain;

Chalk it up to pecuniary gain.

Justice, justice, they proclaim;

They take your money all the same.

Two of Connecticut's sleaziest political operatives are toe-to-toe in New Haven: Mayor John DeStefano Jr. has accused Scot X. Esdaile, president of the state and New Haven chapters of the NAACP, of using threats to try to cajole a contract worth hundreds of thousands of dollars out of the city. Esdaile, in turn, says the mayor turned a blind eye to police corruption in the Elm City.

When either of these men call fire, one is well advised to sit tight. Odds are it's a bluff.

DeStafano claims that Esdaile came calling this week. Esdaile wanted the City to outright award the NAACP a community outreach program worth $400,000. No need for a demonstration of qualifications. Just how me the money. When DeStafano balked, Esdaile reportedly said that word on the street was that the mayor had previously intervened to save the job of a police detective who just this week was arrested by the FBI for corruption. DeStefano sensed a shakedown and the meeting ended.

Timing is everything. Esdaile visited immediately after the FBI shut down police headquarters as it arrested the city's top narcotics cop and seized records. After the meeting between Esdaile and DeStefano, word spread of a public meeting on March 27 at which Esdaile will be a panelist. The topic? Why, the mayor's role in covering up corruption. Serendipity? I don't think so.

DeStefano is capable of just about anything. Not long ago, New Haven's former chief of police, Melvin Wearing, who is black, was tagged with a $5 million verdict for retaliating against a police officer who had arrested one of the mayor's cronies. DeStefano testified at trial and was reviled by jurors. The city's response to the chief in the wake of the judgment? You are on your own. The city intends to walk away from the punitive damages component of the award. Trouble is, Wearing was never consulted about potential settlements and was not informed prior to trial that he might get stuck with the award. DeStefano looks sleazy. (Full disclosure note: I am helping the plaintiff's lawyer attempt to secure the award. Bad faith claims, anyone?)

Esdaile denies any shakedown, of course. "That man has a serious character and integrity issue. He should be ashamed of himself. He hasn’t done right in dealing with violence in the community. He hasn’t done right in dealing with the corruption in the Police Department," Esdaile said.

But Esdaile brings the moral sensibility of a retired pimp to his role as state leader of the NAACP. I cannot fathom why an organization with such a long and proud history had to resort to a hustler as chairman. Esdaile sees race in every issue, whether it is present or not. He is not a black professional seeking to advance the interests of people of color; he is a professional black man spending moral capital invested by others. He is fully capable of the shakedown described by DeStefano.

A federal grand jury is rumored to be impaneled to take a long, hard look at the New Haven police department. The chief predicts there will be more arrests. Public confidence in the department is shaken.

It's no suprise that some seek to take advantage of this for political gain. But the NAACP deserves better leadership than it gets from Mr. Esdaile. Shakedowns demean an organization with a proud history.

DeStefano v. Esdaile? Not much of a showdown. Call it the undercard in a foolish slugfest.

I am supposed to be on a plane to Hartford (via Philadelphia) at 10 p.m. tonight.  Travel to both airports is non-existent.  Since 11 a.m., I've been trying two or three times an hour to re-schedule my flight.  It's not the hold times that bother me: The phone system is literally crashed, so I haven't even had the luck of being placed on hold.  When I click the appropriate prompts, I hear a busy signal and then the line goes blank.  You would think a major U.S. airline could hire a few dozen temporary workers to handle cancellations.  I guess that's why most are bankrupt: no forward thinking or ability to prepare for the unexpected (though bad weather in March certainly doesn't qualify as unforeseen.)