When is a defense lawyer not a defense lawyer?

A disturbing drama has been playing out, largely behind the scenes, in connection with the prisoners still held at Guantanamo Bay, Cuba. I will not take the time to set out the whole history of the placement of U.S. prisoners at the U.S. military base in Cuba. A brief summary can be found here. History

The short version of this story is that the lawyers for a man whom the United States Government seeks to execute have resigned because they discovered that the prosecution has been eavesdropping on interactions between defense counsel and their client, and has been seizing confidential documents. So, when is a defense lawyer not a defense lawyer? When he or she represents a client before a military commission.

Since 2002, the United States has been holding prisoners from the middle east conflict at the U.S. Naval Station in Guantanomo Bay. The peak population was 684 in June of 2003. Today, there are 41 detainees there. Seven of them have been charged with offenses in the military commission system. One of them is Adb al-Rahim al-Nashiri, who has been charged in the 2000 bombing of the USS Cole. The bombing killed 17 US sailors and injured 39 others.

The government is seeking the death penalty against Mr. al-Nashiri. In October, General John Baker, the supervising attorney for Mr. al-Nashiri’s counsel, agreed to a request from his civilian defense team to resign from the case. The lawyers who resigned included Indiana lawyer Rick Kammen, who had been under contract with the Marine Corps as “learned counsel.” That term refers to a lawyer experienced in federal death penalty proceedings. The other lawyers who resigned are civilian employees of the Justice Department. The law requires “learned counsel” in any federal death penalty case. (18 U.S.C. §3005.) But Mr. al-Nashiri is not being prosecuted in a federal court. Instead, he is being tried before a military commission. This tribunal was authorized by Congress after the prisoners were placed at Guantanamo Bay. The military commission process is much less rigorous than a federal trial. It includes more relaxed restrictions on hearsay evidence, and less availability to the defense of evidence to be used by the government.

The issue which prompted the resignation of Mr. Kammen and the two civilian defense department lawyers was their discovery that the government had been eavesdropping on their conversations with Mr. al-Nashiri. This was not the first time this problem had emerged in the military commission process. In March of 2017, during pretrial hearings for defendants alleged to have planned the September 11, 2001 attacks, lawyers for those defendants asked for information about the surveillance of defense work by government intelligence agencies. They described surveillance devices in rooms where attorneys met with their clients, the placement of an FBI informant within one defense team, and the discovery that an individual unrelated to the defense had access to documents supposedly served on secure servers.

After the al-Nashiri lawyers resigned, the presiding military commission judge ordered Gen. Baker to rescind the resignations and require the civilian attorneys to appear before the commission. Gen. Baker refused to do so, and the judge found him in contempt and sentenced him to 21 days’ confinement. The sentence has since been suspended, but the conviction remains. The civilian lawyers have not reappeared. The only military lawyer (Lt. Alaric Piette) in the case has appeared, but he is not qualified to act as learned counsel and has resisted participating in hearings.

In January, the hearings reconvened. The judge directed Lt. Piette to engage in “self-help” to prepare for trial. He also instructed the prosecutors to continue their efforts to obtain the presence of the two civilian DOJ lawyers. The defense argued that the learned counsel requirement applies to the military commission process. But the judge ruled that learned counsel was not required if it was not “practicable” to obtain one. Prelimary witnesses were presented, but Lt. Piette declined to cross-examine them. More information about this most recent session can be found here: Lawfare

The United States system of justice is threatened in two ways by this scenario. First, the right of defense counsel to confidentiality is central to the adversary system. The government, of course, contends that Mr. al-Nashiri is so dangerous that even his communications with his defense lawyers could harm national security. But if he is to have a fair trial, his right to confidential communications with his lawyers must be preserved. The issue of recordings of confined defendants’ communications with their counsel has been discussed here previously, and continues to be a live issue in the mainland U.S. as well as in Cuba. In fact, the U.S. Tenth Circuit is now considering a government motion to quash subpoenas of the Kansas U.S. Attorneys’ employees in a case involving prosecution monitoring of jail conversations. KCUR

Second, the right of counsel to insist on their client’s interest is also inviolable. Counsel cannot be forced to violate their ethical responsibilities to their client. Gen. Baker and Lt. Piette are to be commended for their devotion to their client and to the rule of law. We can only hope that their actions will expose the second-class military commission system for the travesty of justice that it is.

Integrity

As I have said before, it’s easy for lawyers to cheat. And very tempting. This is a consequence of the great power lawyers have. And it is an issue we must address, both for the sake of the justice system and for the welfare of our souls. Recent events provide another instance of how cheating by prosecutors distorts the justice system.

On December 20, 2017, the United States District Judge for the district of Nevada declared a mistrial in the then-pending case against Cliven Bundy and three others. The charges the men faced were conspiracy and assault, arising out of an armed confrontation with federal agents over control of public lands, which Mr. Bundy and his cohorts reject. The government indicated it wanted to retry Mr. Bundy and his co-defendants. But on January 8, 2018, the district judge granted the defense motion to dismiss the case with prejudice, meaning that it cannot be retried. Mr. Bundy, who had been in custody, was released.

"The court finds that the universal sense of justice has been violated," Judge Gloria Navarro said. The violation was the failure of the government to fulfill its obligation to provide information in its possession that was relevant to the defense. The government admitted it had omitted information; the prosecutor said that he “culled the database with witness protection in mind” because he thought leaks of information might lead to threats against witnesses. The trial judge called this a “reckless disregard for Constitutional obligations.”

The misconduct came to light when Larry Wooten, an investigator for the U.S. Bureau of Land Management who had been assigned to investigate the events surrounding the confrontation between the Bundys and the federal agents. Mr. Wooten says that he was removed from the investigation after he complained to the U.S. Attorney about government misconduct. You can read his memo here. Wooten memo.If you don’t want to go through the whole 18 pages, a good summary is here. Oregon Live Among other things, he says, “As the investigation went on, it became clear to me that my supervisor wasn’t keeping the U.S. Attorney’s Office up to date on substantive and exculpatory case findings and unacceptable bias indications.” Of course, one of the responsibilities of a prosecutor is to disclose to the defense any exculpatory evidence in his or her possession. And the prosecutor is held accountable for any such information in the possession of anyone on the prosecution team, whether the prosecutor is aware of the information or not.

To their credit, the prosecutors disclosed Mr. Wooten’s memo to the defense. The motion to dismiss followed. The government has 60 days from the date of dismissal to appeal; it has taken no action as of the posting of this article.

But the damage to the justice system has been done. Here’s the way the National Review sees it:

In April 2014, America was transfixed by an armed standoff in the Nevada desert. On one side was a collection of dangerous, out-of-control armed men who were deliberately provocative, prone to saying unhinged things in a single-minded quest to destroy their enemies, and who lied time and again to cover their misdeeds. On the other side was Cliven Bundy.

National Reviewl

Mr. Wooten points out that he is no fan of the Bundys. Nor is the National Review: “He broke the law. He defied the government without any legal justification, and his own conduct helped precipitate a crisis that could have led to a horrible tragedy. Bundy was wrong.”

Why does this happen? As a former prosecutor, I can attest that prosecutors do not all have horns and pitchforks; they are not, simply, evil. Two causes come to mind. The first is ego. The prosecutor wants to win his or her case, and if skirting the rules can safely be done to make it easier, then the prosecutor will do it. In a case I read recently that was reversed for a Missouri discovery violation, the prosecutor explained his failure to disclose jailhouse statements by the defendant until just before trial by saying, “If we disclose [the jailhouse recordings] to the defense, they’ll tell their client. And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up. So we don’t disclose them until towards the end.”[1]

The second reason arises from the desire to fulfill the prosecutor’s obligation to enforce the law, to protect the public from the likes of the Bundys. The prosecutor in the Bundy said that he wanted to protect witnesses, and therefore limited his disclosures. Protection of witnesses is certainly a legitimate concern, but it cannot be used to justify flaunting rules intended to insure that the defendant receives a fair trial. The government is held to a higher standard. When the justice system itself cheats, it loses its status as a protector of justice.

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[1] State v. Johnson, 513 S.W.3d 360, 365 (Mo. App. 2016).

RUSHING THROUGH EXECUTIONS

Beginning on the day after Easter, the State of Arkansas planned to execute eight people in ten days. Arkansas Plan. As of Wednesday, April 19, four of the inmates have received stays of execution. No one was executed Monday night, when Bruce Ward and Don Davis were scheduled to be executed. Both were granted stays by the Arkansas Supreme Court. The execution of Stacey Johnson, scheduled for April 20, was also stayed by the Arkansas Supreme Court. The execution of Jason McGehee, scheduled for April 27, was stayed by a federal court after the Arkansas Parole Board recommended clemency for him. The other four executions are now subject to a stay based on a lawsuit by the provider of one of the execution drugs, who says the drugs were improperly sold to the state for executions:  “The company said it would suffer harm financially and to its reputation if the executions were carried out.” McKesson Lawsuit

 Meanwhile, a recent article sheds light on an aspect of the execution ordeal which is not often examined. Dr. Allen Ault, a former commissioner of the Georgia, Mississippi and Colorado Departments of Corrections, has written a piece in Time Magazine explaining the effect of executions on the people who must carry them out. This is an aspect of the death penalty that doesn’t get enough attention, and Dr. Ault’s views are worth considering. Dr. Ault presided over five executions. He was the man who instructed the executioners to go forward. After five executions, he resigned. The stress was too much. Interviewed in The Guardian, Dr. Ault expressed concern for the mental health of the men and women who would have to kill so many people so quickly. ““As the old saying goes,” he said, “you dig two graves: one for the condemned, one for the avenger. That’s what will happen to this execution team – many of them will figuratively have to dig their own grave too.” The Guardian

Dr. Ault explained how he felt when he conducted executions: “For me, unlike the ‘kill or be killed’ mindset of war or other forms of self-defense, carrying out executions felt very much like participating in premeditated and rehearsed murder. . . . It exacts severe mental trauma—even when done under the auspices of state law. As I have written before; I don’t remember their names, but I still see their faces in my nightmares.” Allen Ault, “Former Warden: Arkansas Execution Rush is Dangerous and Risky,” Time Magazine, March 28, 2017.

Dr. Ault is not alone. Two former execution workers in South Carolina, Craig Baxley and Terry Bracey, sued the state for pressuring them to assist in executions with little training or counseling. The suit was dismissed; the trauma remains. As Mr. Bracey put it, “Taking that plunger and pushing it in set me on a course I wasn’t prepared for.” Frank Thompson, the former superintendent of the Oregon State Penitentiary, told The Guardian, “There is absolutely no way to conduct a well-run execution without causing at least one person to lose a little bit of their humanity, or to start at least one person on the cumulative path to post-traumatic stress.” This is just another example of how the death penalty creates more victims.

WHAT DO LAWYERS DO ON FRIDAY NIGHT?

On Friday, January 29, 2017, at 4:42 p.m. Eastern Time, President Donald Trump issued his executive order concerning immigration. I found the timing interesting. I’m aware of anecdotal evidence that law enforcement officers like to execute arrest warrants on Friday afternoons because doing so often means that that the person arrested will be unable to post bond until Monday. That gives law enforcement time to elicit confessions before the person arrested has a chance to talk to a lawyer. I suspect that the timing of Mr. Trump’s order was not coincidental. I suspect that he and his staff hoped that implementing the order on Friday afternoon would mean that nothing would happen to stop it until Monday.

Preventing legal action against questionable executive acts is not a new idea. In fact, Shakespeare memorialized it in Henry VI, Part II, Act IV, Scene II, when his character Dick the Butcher suggested that when the rebels overthrew the lawful government and came to power, “The first thing we do, let’s kill all the lawyers.” If lawyers can be kept from performing their responsibility to uphold the law, then the rule of law can be defeated.

But that is not what happened on January 29. Instead, as the Washington Post noted, “Hundreds of attorneys descended on U.S. airports all over the country this weekend to offer free legal help to the travelers and family members of loved ones detained under President Trump’s executive order.” And by Saturday night, many of the most oppressive aspects of the order were on hold, and refugees held at US airports and elsewhere were able to continue their journeys. I was really proud to be a lawyer that weekend. 

In addition to the willingness of lawyers to mobilize to use their skills to help people who had virtually no resources to help themselves, other aspects of modern law practice made this possible. The first is ease of communication. Various networks of lawyers communicated quickly and efficiently on Twitter, e-mail lists, and other social media. Getting the word out got the bodies there. Here are some of them at JFK airport:

Photo: Washington Post, January 29, 2017

The next reason this worked is the availability of online research and writing tools. When I began practicing law, most lawyers had a library full of books in their offices. The books mainly contained printed legal opinions in court cases, the backbone of the common law system. But there were also books called “digests,” which allowed the lawyer to look up a topic (“executive order”) and see what cases had been decided on that topic. The digest would give a sentence or two about the case and a citation which allowed the lawyer to find the right book and page to read the whole opinion. If the lawyer didn’t have the book with the right case, she would go to a local law library to read it. Maybe the library had good hours on Saturday night. Maybe it didn’t. And the process took a while.

Photo: New York Times, January 29, 2017

The others are probably sharing drafts of pleadings. Word processing means that documents, legal and otherwise, can be produced much more quickly and efficiently than in the typewriter era, or the handwritten era that preceded that. So those petitions that were filed in courts around the country could be written and edited very quickly.

Finally, electronic filing was indispensable. The cases could be filed in court from the airport. (There were likely people on the phone with the clerk’s office to make sure someone was watching the online filings.) But the availability of that technology meant that instead of having to wait until Monday morning to descend on the courthouse, the filing process could proceed with relative ease.

Lawyers tend to get a bad rap these days. Maybe that’s because they are perceived as having a lot of power and misusing it. But the weekend of January 29 demonstrated that when the government is out to get you, a lawyer with the right tools to act fast is the person you need.

PROTECTING THE GUILTY: DYLANN ROOF

On January 10, 2017, a jury in Charleston, South Carolina sentenced twenty-two year old Dylann Storm Roof to death for shooting nine people in an African-American church. At his sentencing hearing, Mr. Roof represented himself, rejecting the efforts of lawyers appointed for him to present mitigating evidence on his behalf. In his closing argument, Mr. Roof said that it would not do any good for him to ask the jurors to give him a life sentence.

Mr. Roof was undeniably guilty, and quickly confessed. During the guilt phase of his trial (a trial involving the death penalty has separate phases concerning guilt and punishment), his lawyers referred to him as “abnormal,” “delusional,” and “suicidal.” Evidence was presented that his crime was motivated by hostility and fear of African-Americans.

Mr. Roof’s victims had varying opinions about what should happen to him. Some of them said they forgave him and asked that he be spared. Others thought the death sentence was appropriate, since Mr. Roof had killed others without justification. The Rev. Sharon Risher, daughter of one of the victims, expressed a poignant ambivalence. She was quoted in the New York Times: “I don’t believe in the death penalty, but I’m my mother’s child and with everything that’s happened sometimes I want him to die. . . . It’s like, you know what, this fool continues to just be evil. I’m just glad that they didn’t leave that decision to me.”

At the end of the guilt phase of his trial, Mr. Roof fired his lawyers and elected to proceed as his own counsel. The U.S. Supreme Court has held that the right to counsel enshrined in the Sixth Amendment to the Constitution includes the right to waive counsel, provided that the defendant is found competent to proceed and is informed of the disadvantages of representing himself. Mr. Roof’s lawyers argued that he was not competent, but the judge found otherwise and allowed the waiver of counsel. Mr. Roof then elected not to present evidence at the sentencing hearing.

Police officers sometimes speak of “suicide by cop,” a description of a situation where a person places himself in a position where officers will be forced to kill him. Mr. Roof’s actions could be described as “suicide by jury.” Since it is not possible, under our laws, for a defendant to agree to a death sentence without the action of a jury, Mr. Roof tried to make it easy for the jury to give him what he apparently wants—to be executed.

But by placing jurors in the position of having to carry out Mr. Roof’s will, we do them injury. The policeman who kill suspects who are committing “suicide by cop” do not emerge unscathed. As one expert puts it, “Officers involved in SBC incidents often feel a sense of powerlessness and manipulation, and this is typically reported to be an especially stressful and demoralizing form of shooting trauma.” Not surprisingly, jurors in capital trials also suffer emotionally, and those who impose death sentences suffer greater PTSD symptoms than those who impose life sentences.

If Mr. Roof doesn’t want to live, why should we care if he is executed? The answer, in my view, is that the justice system is the conscience of the community. Just as the victims, while entitled to express their opinion, cannot determine the sentence, so the defendant should not do so either. Both of them are too close to the issue to be appropriately objective and appropriately merciful. And if we are a nation of laws, we must make certain that even in horrible cases, we do not disregard our most fundamental principles, including the principal that human life is valuable.

PROTECTING THE GUILTY

Most people who enter the criminal justice system are guilty. And that is how it should be; our law enforcement system would not be worth much if it only arrested guilty people half the time, and the remainder of arrestees were innocent. When I was in law school, one of my professors opined that only half of the people who enter the criminal justice system were guilty of anything. I thought that was a low estimate of the number of innocent people in the justice system then, and still do. It is true that the advent of DNA testing revealed that there are more innocent people convicted than was previously thought. Conviction of the innocent is a serious problem. But so is oppression of the guilty. The question is, who are those guilty people, and how should we treat them?

I’ve learned a lot about who they are from dealing with them for almost 40 years of legal practice. The main thing I’ve learned is that most of the time, there but for the grace of God go I. They are just people. It is easy to think that someone who has killed another person, or robbed a bank, or burglarized a home, or sold drugs, or snatched a purse, must be a different species from me. But she is not. She is just someone who made a wrong choice or a mistake. He likes hot chocolate in the winter and swimming in the summer. He looks out the window of his cell and enjoys watching the farmer let out his cows. My clients worry about their families, their loved ones, even about me. “Drive safe!” they say as I leave the prison—and they mean it!

Prisons these days do little to rehabilitate those who inhabit them. But the one gift they can give is unstructured time, which can allow those who are so inclined to rehabilitate themselves through prayer, study, and consideration of those they have hurt. Given the lack of foundation many of them experienced in early life, that happens more often than I, at least, would expect.


So, why should we protect the guilty? Here are some important reasons.

1. If we want to enforce moral and legal imperatives, we should abide by them.

2. We are all guilty and all members of the human family.

3. If we take shortcuts to convict the guilty, we run the risk of convicting the innocent.

4. If the guilty feel they have been treated with fairness and compassion, they are more likely to be rehabilitated.

In future posts, I will examine each of these principles individually. But for the present, it is sufficient to say that the criminal justice system exists, and should function, to protect the guilty as well as the innocent.

VICTIMS OF CAPITAL PUNISHMENT

Who are the victims of capital punishment? Not just the person executed. Not just his or her family and friends. Read on.

“Three minutes before Wellons was declared dead a nurse standing to his left was seen asking one of the corrections officers if he was ok, just before the officer fainted.” 

By all accounts, Marcus Wellons’s execution was routine, as those things go. He went to sleep and stopped breathing. But it was apparently not routine for the officer who fainted. The list of former prison wardens who, after retirement, talk about how painful it was to preside over executions, grows ever longer. For example, Don Cabana, who presided over executions in several states, eventually left prison work for academic life. “’There is a part of the warden that dies with his prisoner,” he often said.’” 

Asked to comment about the “botched” execution of Clayton Lockett, who died of a heart attack after prison personnel failed to insert an IV into his femoral vein, the retired prosecuting attorney said, “Did he get what he deserved? I don’t know, As I’ve gotten older, I’m a devout Christian, and I just have more and more trouble, honestly, of the question of ‘get what I deserve.’” 

Some of those involved in executions, then, admit their pain. For others, the execution seems to bring out the worst parts of their nature.

Recently, a Missouri prison employee told the lawyer for a prisoner facing execution that their client was in the top 1% of prisoners, and that he always obeyed rules and assisted new or weak prisoners to stay out of trouble. He would like to support clemency for him, but the prison administration discouraged him and started an investigation for “over-familiarity.” As a result, the employee withdrew his support.

Another troubling aspect of capital punishment is the response of victim families. A family member of the victims killed by John Ruthell Henry, recently executed in Florida, commented after watching the execution, “I actually feel good. I don’t feel sorry for him. . . . I wish it could've been different. I wish he could’ve died the way he killed them.” 

Or, as a victim family member who witnessed an Oklahoma execution where the prisoner, Scott Carpenter, “convulsed, clenched his jaw, made noises and his legs lifted,” put it, “Who knows whether he felt pain or not, but if he did endure a little pain again, so what? It’s in no way in comparison to what his victim felt.” 

These are a perfectly understandable responses, but, I submit, not particularly healthy ones. Does the fact that a loved one suffered pain really justify the desire to inflict pain on others?

Many victims long for answers from the person who killed their loved one; few get them. A man said that he watched the execution of his father’s killer, Scott Carpenter, “in hopes that he would make some comments or make some explanation. He robbed me of that as well. He was just quiet.”

Why do we persist in imposing a punishment that wounds us, troubles us, and brings out the worst in us?

DO YOU WANT TO BE FREE OR DO YOU WANT TO BE SAFE?

Reginald Clemons, a Missouri death row inmate, awaits a hearing on whether there is new evidence of his innocence. A recent news story, which can read at the link below, reveals that the Missouri Attorney General recently told the court handling Mr. Clemons’s appeal that physical evidence, some of which may contain DNA, has been discovered in law enforcement files. This evidence may not have been available to Mr. Clemons’s trial attorneys. Like most online news stories, this one drew many comments, some welcoming the inquiry into Mr. Clemons’s evidence, and some condemning it. One comment (not on the website listed below) was, “Why is this murderer breathing my air?”

A recent story on NPR concerned released prison inmate Felix Aponte, who donated his kidney to save the life of another man he met in prison. That link is below, too. Mr. Aponte explained, “I wanted to do something good in my life for the first time. All I've done is like, mischief.” This story generated a vigorous dialogue, with some people concluding that since the “hero” of the story was a convicted felon, his good deed should be discounted.
These news items and comments reminded me of a story in one of my favorite children’s books, Wayside School is Falling Down, by Louis Sachar. Myron, a student at Wayside School, feels trapped by school rules. After lunch, instead of going back to his classroom, he goes down to the dark, mysterious school basement. There, he meets a man who asks him, “Do you want to be free, or do you want to be safe?” He explains that if Myron wants to be safe, he’ll have to follow all the rules, go to school, brush his teeth. . . Or he can be free. “I want to be free,” says Myron. He signs a paper “written in some kind of foreign language.” Thereafter, Myron doesn’t have to do anything the teacher says, and there is nothing she can do about it.



Deciding to be free requires us to realize that the world actually does not revolve around us. The air we breathe doesn’t belong to me, or to Reggie Clemons, or to the man who commented on the story. Being free also requires us to realize that the world is uncertain, sometimes apparently written in a foreign language. It is easy to say, “Well, the jury convicted Reggie Clemons, or Felix Aponte, and the appeals court affirmed, so they must be guilty, and we can forget about them.” That is the safe way. But it is not the free way. Freedom requires us to let go of our prejudices and admit the possibility of uncertainty. Of course, even before Myron signed the paper, he didn’t have to sit in his seat and brush his teeth. He just had to accept the consequences if he didn’t. In the same way, if we let go of the notion that everyone convicted by a court is guilty and can never change, we will be faced with uncertainty. Sometimes the results will be good. Sometimes they will be bad. But that’s what freedom entails.

There are advantages to being safe. Life is predictable, not upsetting. Risks are avoided. And there are advantages to being free. Freedom brings adventure, expanded possibilities, new experiences. So, do you want to be free, or do you want to be safe?

KICKING THE IMPRISONMENT HABIT

Over two years ago, I wrote a piece for this blog called “Addiction to imprisonment.” Now, with the economy in distress, some government and judicial leaders are looking at kicking the habit. Consider the statements of Judge William Ray Price, Jr., the chief justice of the Supreme Court of Missouri, at his recent “State of the Judiciary” speech:

“For years we have waged a “war on drugs,” enacted “three strikes and you’re out” sentencing laws, and “thrown away the key” to be tough on crime. What we did not do was check to see how much it costs, or whether we were winning or losing. In fact, it has cost us billions of dollars and we have just as much crime now as we did when we started. We have created a bottleneck by arresting far more people than we can handle down through the rest of the system. . . . It does no good to commit resources to law enforcement and to arrest criminals if you don’t know what you are going to do with them, or you cannot afford to do what you should with them, after they have been arrested. It does no good.”

Judge Price went on to address the crisis in the Missouri Public Defender System and the inequities in the prosecution of offenses in Missouri, both topics that deserve posts of their own. Then he went on,

“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders. It is costing us billions of dollars and it is not making a dent in crime. Listen to these numbers. In 1994, shortly after I came to the Court, the number of nonviolent offenders in Missouri prisons was 7,461. Today it’s 14,204. That’s almost double. . . . In 1994, appropriations to the Department of Corrections totaled $216,753,472. Today, it’s $670,079,452. The amount has tripled. And the recidivism rate for these individuals, who are returned to prison within just two years, is 41.6 percent. . . . [T]he simple fact is, we are spending unbelievable sums of money to incarcerate nonviolent offenders, and our prison population of new offenders is going up, not down -- with a recidivism rate that guarantees this cycle will continue to worsen at a faster and faster pace, eating tens of millions of dollars in the process. Missouri cannot afford to spend this much money without getting results. The problem is that we are following a broken strategy of cramming inmates into prisons and not providing the type of drug treatment and job training that is necessary to break their cycle of crime. Any normal business would have abandoned this failed practice years ago, and it is costing us our shirts.”

And, Judge Price proposed a solution: “We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results—sentencing that assesses each offender’s risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs.”

No one who follows the Supreme Court of Missouri would describe Judge Price as soft on crime. So when he shows signs of having awakened to the imprisonment addiction problem—aptly described as “anger-based sentencing—it gives me real hope that change is possible.

Judge Price’s proposals, although they suggest a major change in direction, are not radical enough. He seems to think that whatever we do to persons convicted of violent offenses is still all right. (“Violent offenders need to be separated from us so they cannot hurt innocent men, women or children, regardless of the cost.”) Actually, there have been recent advances in the treatment of violent offenders that show significant promise. In an Australian study of the effects of restorative justice programs, which allow crime victims to interact with the offenders, “In the first two years after arrest, violent offenders who participated in conferences had about 50 percent less reoffending than those who went to court.” (The study also noted positive effects for victims. For example, “Almost half of the court-assigned victims said they would harm their offenders if they had the chance, compared to only 9 percent of conference participants.”) Interestingly, restorative justice techniques seem to reduce recidivism more among violent offenders than non-violent offenders. That’s not an argument for locking up more non-violent offenders; it just means that other techniques may be needed for rehabilitation for them.

But the major good news here is the suggestion of a shift in focus back to rehabilitation from “anger-based sentencing.” That will have several salutary effects, if it occurs. It will bring marginalized persons back into the work force and into full participation in their communities. It will save money. And it will fulfill the admonition of Jesus that: “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.” Matt. 25:40, NIV.

KEEPING THE COURTS' EYES ON THE PRIZE

First, an update to an earlier post, “The Statute of Limitations is Not a Technicality.” At the time that post was written, a panel of the United States Court of Appeals for the Fifth Circuit had overturned the conviction of James Ford Seale for violating the civil rights of Charles Moore and Henry Dee, who were kidnapped and murdered by the Ku Klux Klan in Mississippi in 1964. The reversal was based on a ruling that the statute of limitations for the offense charged had expired before the charge was filed. However, the en banc Fifth Circuit (a group made up of all of the judges of the Fifth Circuit in active service), voted to grant rehearing. After argument, the vote of the en banc judges on whether the conviction should be affirmed or reversed was evenly divided. Under court rules, this had the effect of reinstating the judgment of conviction, although the decision to do so is not precedent for further decisions on the issue.

One way to look at this development would be to say, “Well, I guess the statute of limitations is a technicality after all!” Another way to respond would be to say, “Hard cases make bad law.” A quick Google search of this old saying shows that it may have originated, at least in print, in W. S. Holdsworth’s History of English Law, published in 1926. (Other references suggest it was first said by Oliver Wendell Holmes.) What this saying means is that when a case presents facts which seem to call for one resolution, while the law is on the other side, the facts generally win. I am reminded of a drug case I lost several years ago despite what appeared to be a meritorious search and seizure violation. I asked the lawyer for my client’s co-defendant why he thought this had happened. “Oh,” he said, “It’s the too much dope rule.” That is, the judges decided there was too much dope in the case for the defendants to win. In Mr. Seale’s case, apparently half of the judges on the Fifth Circuit Court of Appeals were unwilling to allow him to go free, despite the fact that the law would seem to require that result.

There is a certain satisfaction in seeing a case come out the way the facts seem to dictate. I’m sure NPR Commentator Juan Williams, whose criticism of the earlier Seale opinion spurred me to write the earlier post, was gratified when Mr. Seale’s conviction was ultimately upheld. But there is a danger in allowing this satisfaction to go too far. Recently, I was reading a Texas case in which a conviction for murder was reversed because of grand jury error. The prosecutor in that case admitted that, in violation of long-standing and clearly stated Texas statutes, he routinely allowed police officers to enter the grand jury room and cross-examine witnesses. The court reversed the conviction, finding that absent this violation, it was unlikely that the defendant would have been indicted. The court then took the opportunity to explain the decision of public officers to follow the letter of the law was aptly described as follows:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives."

United States v. Lee, 106 U.S. 196, 220. . . (1882). . . .

We are mindful that a finding of harmful error here may mean this case will be tried again. Regretfully, witnesses will be inconvenienced and the finality of justice sought by those who were touched by this child’s death will be disturbed. Any benefit that society will derive from rendering the just result in this appeal cannot, and will not, assuage the suffering that a second trial may cause those close to the victim. Nevertheless, we are duty bound to uphold the law and follow the old adage that “two wrongs do not make a right.” If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury. The statutory protections, adopted by the Legislature to level the field for an accused, will be substantially eroded and we will be at risk of losing the benefit of statutory procedures intended to protect our constitutional right to indictment if these violations are simply swept aside.

Regarding the cost of a second trial, if one follows, unfortunately this cost would be borne by taxpayers who had no hand in the State’s error. This is particularly unfortunate because the State’s error, as well as this possible cost, could have been avoided if the State had simply obeyed the law. Something the State requires of its citizens on a daily basis.

We cannot countenance the State's purposeful violation of the law. The duty Mason v. State, 290 S.W.3d 498, 511 (Tex. App. – Amarillo 2009, pet. granted). It should be noted that this Court’s opinion will not be the last word on this case. The notation “pet. granted” in the citation means that the Texas Court of Criminal Appeals, that state’s highest court for criminal cases, has agreed to review the Amarillo court’s opinion. So, we may find, once again, that hard cases make bad law. In the meantime, though, we can thank the Texas Court of Appeals, Amarillo district, for reminding all of us, and all judges, that “[W]e are duty bound to uphold the law and follow the old adage that ‘two wrongs do not make a right.’”

GUILTY PLEAS, PLEASE

I’ve handled many cases, misdemeanor and felony, over the last thirty-plus years as both a prosecutor and defense lawyer. And most of them have ended in guilty pleas. Guilty pleas are a result of negotiations between the defense and the prosecution. As a prosecutor, I learned to carefully consider the evidence and the appropriate punishment before making an offer. I also learned to consider, but not to be bound by, the wishes of crime victims. They certainly have a right to input, but sometimes cannot see the case objectively as required for a fair prosecution. As a defense lawyer, I've learned that the way to get good guilty plea bargains is to prepare for trial. I remember once discovering through a careful study of the prior conviction papers the prosecution proposed to use to enhance my client’s punishment that the prior conviction was invalid. That led to a MUCH better plea bargain. The other thing I learned about plea bargaining was to take the time to make sure the client understood exactly what was going on. Otherwise, the plea can blow up, either in court or later.

Do people like to plead guilty? Not usually, of course. Some of them know they are getting a better deal than they perhaps deserve, and are content. Some of them are angry at the time, but then calm down. I remember a letter I received from such a client, apologizing for blowing up at me in court and thanking me for doing a good job for her. All of them, though, end up accepting that there is evidence that will convict them of a crime, and most of them accept responsibility for what they did. That, it seems to me, is what is supposed to happen in the criminal justice system. 

Do innocent people plead guilty? Until DNA exonerations began, I would have said that this was very rare. Now I am not so sure. It does appear that some accused persons are so frightened and discouraged about the prospects for being found “not guilty” that they will accept a known punishment for something they didn’t do. I hope that hasn’t been true of any of my clients. I hope that they knew that I would fight hard for them if they decided to go to trial. I can’t say that I’ve won many criminal trials, but I can say that I fought hard!

Are guilty pleas a good idea? Yes. Sometimes it is suggested that a person who pleads guilty “got off.” Rest assured that the person who pleads guilty and gets a twenty-year sentence goes to prison just like the person who goes to trial and gets a twenty-year sentence. Does the person who pleads guilty get a shorter sentence? Usually. But that’s fair. This is a person who has decided to accept the consequences of the charge and save everyone the time, expense and trouble of a trial. And that’s worth something. There is no clear formula that says, “This crime is worth x number of years, while that crime is worth y number of years. Sentences for the same crime vary from person to person, from state to state, from country to country. Rewarding those who make the system work smoothly makes sense, and doing so by shortening the sentence is a sensible way to do it.

LET'S GET REAL!

On February 26, 2009, the Eighth Circuit Court of Appeals reversed the dismissal of Larry Streu’s habeas corpus petition and remanded for a hearing. The question before the court was whether Mr. Streu had filed his petition on time. To decide this question, the court had to determine whether the time during which his motion to reopen his Missouri post-conviction action was pending in the Missouri courts counted against the time permitted by the federal habeas corpus statute for the filing of a habeas corpus petition. The court decided that the time did not count, that is, that the statute of limitations was “tolled” while the state court motion was pending in the Missouri courts. So far, so good. This result will likely allow Mr. Streu to have his constitutional arguments about why he was wrongfully convicted heard in federal court. But in the course of its opinion, the court suggested that Mr. Streu, who, until I was appointed to represent him in the Eighth Circuit, had been proceeding without a lawyer, might have filed the state court motion in order to give himself more time to file the federal petition. What’s wrong with this idea? Two things. First, Mr. Streu wants to get out of prison. He has no incentive to delay filing anything. The sooner he gets things filed, the better off he will be. Of course, since he is not a trained lawyer, and doesn’t have access to much in the way of legal research tools, filing court papers is a laborious process. But he certainly has no incentive to delay. Second, even if Mr. Streu did want to buy himself more time to prepare his federal petition, how would taking the time to file a state motion do that? Filing the state court motion takes just as much time and effort as filing a federal petition. So why did Mr. Streu file a state court motion? He did so because in general, issues that weren’t raised in state court can’t be raised in federal court. By filing his state court motion, he was trying to let the state court rule on an issue that he thought his state court lawyers had missed. If the state court had granted relief, that would have been fine with him, and he would not have needed to go to federal court at all. Obviously, this sort of filing should be encouraged by the federal court, not discouraged. The Streu decision will have the effect of doing that, and the federal court need not worry about delay.

FRED REVELS GOES HOME

The first entry in this blog concerned the decision of the Eighth Circuit Court of Appeals in the case of Frederick Revels v. Mary Sanders, holding that the State of Missouri’s formula for determining whether Mr. Revels could be discharged from the state mental hospital where he had been confined for many years was unconstitutional. The State of Missouri unsuccessfully challenged that decision in the court en banc and in the United States Supreme Court. Finally, last month, Fred received a new hearing in the circuit court of Jackson County, Missouri, and was granted an unconditional discharge. The court concluded, “Mr. Revels has met his burden of proving by clear and convincing evidence that he does not presently have a mental disease or defect that renders him dangerous to himself or others.” Therefore, the court, “with a great deal of angst and trepidation,” ordered his unconditional release. In the interim between the decision and his release, Mr. Revels has been diagnosed with some serious medical problems. It is hoped that in this case, justice delayed will not turn out to be justice denied.

THE STATUTE OF LIMITATIONS IS NOT A TECHNICALITY

In 1964, two Mississippi teenagers, Charles Moore and Henry Dee were kidnapped and murdered by the Ku Klux Klan. James Ford Seale was arrested shortly after the bodies were found, but prosecutors judged there was insufficient evidence to convict him and did not file charges. A conspiracy of silence prevented his prosecution until 2007, when an elderly KKK member told the story in exchange for immunity. Seale was prosecuted 43 years after the crime occurred for the offense of kidnapping. He was convicted and sentenced to two life sentences.

On September, 9, 2008, the Fifth Circuit Court of Appeals overturned the conviction. The Court found that the five year statute of limitations had run long before the prosecution was commenced, and that the case was barred. Commenting on this action, Juan Williams, one of my favorite correspondents for National Public Radio, said that witnesses “stonewalled local officials and even congressional committees by claiming their Fifth Amendment right.” He commented, “It’s just frustrating to see [the case] overturned on a technicality.”[1]

I remember, around the time of the murders of the teens, going with my father to a meeting in Indianapolis, Indiana, in support of Dr. Martin Luther King’s march in Selma, Alabama. I did a fifth grade research project on the civil rights movement. I have been fighting racial discrimination and violence most of my life. I have no sympathy for Mr. Seale, nor do I condone the negligence and inaction of prosecutors in this matter.

But when we start talking about “technicalities,” I say, the Statute of Limitations is not a technicality. Nor is the Fifth Amendment protection against self-incrimination. Here’s what the Fifth Circuit had to say about the purpose of the statute of limitations in the Seale opinion:

[C]riminal limitations periods “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322 (1971); see Toussie v. United States, 397 U.S. 112, 114-15 (1970) (“Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.”)

Or, as the Supreme Court put it in United States v. Kubrick, 444 U.S. 111, 117 (1979)

These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.

It is true that the Fifth Circuit spent a lot of its opinion deciding which statute of limitations applies to Mr. Seale, since the law of limitation has changed several times in the 43 years since Moore and Dee were killed. Maybe that’s what makes Juan Williams think the case turns on a “technicality.” But statutes of limitations are an important part of the framework of laws which protect all of us from an overzealous justice system. In this case, they protect us from having to explain where we were on a particular afternoon 43 years ago, something that an innocent person would likely find quite hard to do.

So, although I would like to see Mr. Seale receive the consequences of what he did 43 years ago, I am not willing to sacrifice the rule of law to that end. Nor was the Fifth Circuit: “While we are mindful of the seriousness of the crimes at issue, we cannot abdicate our duty to faithfully apply a valid limitations period.” Had the Fifth Circuit abdicated that duty, this would have been a particularly egregious example of that other maxim, “Hard cases make bad law.”

* * *

[1] http://www.npr.org/templates/story/story.php?storyId=94449413

SIGH OF RELIEF

The United States Supreme Court’s latest decision in the case of the Guantanamo Bay detainees (Boumedienee v. Bush, decided June 12, 2008) made me heave one. I don’t think most Americans realize how lucky they are to have a constitution which doesn’t let the government lock people up for a long time just because the government thinks they are dangerous, scary, or disagreeable. I have been alternately furious and terrified by the Bush administration’s position that because there are terrorists in the world, they can decide that anyone is an “enemy combatant” and keep him locked up forever. No trial, no charge, no hearing, no nothing.

I’m reminded of the poem attributed to Nazi resistor Pastor Martin Niemoller:

First they came for the Socialists, and I didn’t speak up,
because I wasn’t a Socialist.
Then they came for the Trade Unionists, and I didn’t speak up,
because I wasn’t a Trade Unionist.
Then they came for the Jews, and I didn’t speak up,
because I wasn't a Jew.
Then they came for me, and there was no one left
to speak up for me.

(I’ve learned from Wikipedia that Pastor Niemoller may not have written this poem, and that there are many variants. I still like it.)

The poem reminds us that what we do to those who are dangerous, or those whom Jesus calls “the least of these,” comes back on us. That’s what the Bush administration needs to be reminded of. Also the dissenters on the United States Supreme Court, who let fear-mongering overcome their duty to the Constitution.

I don’t want to close without commenting on the scariest comment I heard about this decision. That came from Newt Gingrich, who described it as a decision by “five lawyers.” That is exactly the sort of lawyer-bashing promoted by Dick the Butcher, whose statement, in Shakespeare’s King Henry VI, "The first thing we do, let's kill all the lawyers," was intended to keep his own treachery from being discovered.

ACCESS TO JUSTICE AND HABEAS CORPUS REFORM, PART 2

The second major change in habeas corpus created by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was a new limitation on the granting of relief. Under prior law, the state court's application of constitutional principles was reviewed de novo by the federal court which was not required to give any sort of deference to the state court's analysis. AEDPA provides, however, that a federal court may only grant relief for a state court's constitutional error if that error was an unreasonable application of federal constitutional law as decided by the United States Supreme Court.

This provision has had the effect of producing many federal court decisions that say, "We think the state court was wrong about the constitution, but not unreasonably wrong, so the conviction stands." Why state prisoners should not have the benefit of the United States Constitution is beyond me. I understand that many people think people who have been convicted of crimes are a different species from the law-abiding, but that is simply not the case.

If we do not speak out for those who seem not to deserve it, there will be no one to speak out for us.

ACCESS TO JUSTICE AND HABEAS CORPUS REFORM, PART 1

In the Anti-Terrorism and Effective Death Penalty Act of 1996, commonly known as "AEDPA", the United States Congress abruptly "overhauled" the remedy of habeas corpus available in federal court to persons with criminal convictions. Habeas corpus has traditionally been the remedy which provided a check on unjust or ineffective state criminal procedures. When habeas corpus relief is granted, the federal court can order a state court to release, retry, or re-sentence the petitioner. Because a habeas corpus petitioner must ordinarily raise his grounds for relief in state court before proceeding in federal court, habeas corpus serves as the remedy of last resort for many persons who are the victims of unjust conviction or sentence.

For many years before 1996, some law-and-order advocates had suggested that habeas corpus relief was too readily available and needed to be limited. These concerns had been overcome by the view that injustice needed a remedy, even if that remedy was sometimes long in coming or inconvenient to administer. In the wake of the Oklahoma City bombing, however, the law-and-order tidal wave swept over these calmer heads, and AEDPA was passed. The AEDPA made two primary changes in the habeas corpus remedy which greatly limit the access of wrongfully convicted persons to justice.

The first of these changes, which will be discussed in this post, was the enactment of a statute of limitations. Prior to AEDPA, there had been no deadline for filing a habeas corpus action. Most successful actions were filed within a relatively short time after state proceedings were complete, but a small number of persons obtained relief years after their convictions and sentences. This was not generally true in death penalty cases; in those cases the pressure of execution dates usually resulted in prompt filings. However, to fix this non-problem, the AEDPA established a one-year statute of limitations. The year begins when the conviction and sentence become final in state court. It is tolled while post-conviction proceedings are pending in state court. Once those proceedings are over, the year starts running again from the point at which tolling began. This sounds rather straightforward, but in practice, it has been difficult to determine both when the conviction and sentence become final and when post-conviction proceedings are pending. Different states have different procedures and when they start and end is not always clear. This has resulted in a number of cases in which either the litigant or his counsel has miscounted the deadline by a few days, and petition is dismissed as a result of the error. The situation is particularly difficult for those petitioners who have counsel who make a mistake about the deadline. The courts have been extremely reluctant to make exceptions to the deadline in those cases, holding the client accountable for the lawyer's mistake. Ineffective assistance of counsel is not considered to be a legal excuse for failing to meet the habeas corpus statute of limitations.

Holding a client accountable for her lawyer's mistake about the statute of limitations makes sense in the context of the ordinary civil case. If my lawyer fails to file suit in time on my claim against the person who ran into my car, I can sue my lawyer for malpractice, and if my suit had merit, I will be entitled to a judgment against my lawyer for the damages I would have recovered in the lawsuit. In that situation, the defendants in the lawsuit get the benefit of the statute of limitations to which they are entitled, and I get the benefit of the damages to which I am entitled. Unfortunately, if my lawyer makes a mistake about my habeas corpus deadline, I can't sue my lawyer to get my conviction reversed. That can only happen in the habeas corpus action. So, as a result of my lawyer's negligence over which I have no control, I may find myself denied access to the courts. Since many people in this situation have court-appointed lawyers, they cannot even be faulted for picking the wrong lawyer. This result, while protecting the interest in finality that underlies the statute of limitations, is highly unjust to the petitioner.

What's the solution? One possibility would be to repeal the statute of limitations, but allow a defense of laches. If the state could show that the petitioner was or should have been aware of his ground for relief well before the petition was filed, and that the state's interests were harmed by the delay in bringing the action, dismissal would be appropriate. This is really the most just resolution of the problem, but it seems unlikely to win much support.

A less drastic solution would be to expand the doctrine of equitable tolling, now available only in very limited situations. If the delay is relatively short, little would be lost from the certainty of the statute of limitations to ease the requirements for equitable tolling to cover the situation where a lawyer makes a mistake. Most lawyers would prefer not to be in this situation, so it is unlikely that wholesale disregard of the statute would occur. Obviously, if the delay were several months, the burden would fall on the client to show that she diligently kept up with what her lawyer was supposed to be doing. If it were shown that the lawyer was recklessly negligent, for example that she failed to inform the client that there WAS a deadline, or did not know herself that such a deadline exists, disciplinary proceedings against the lawyer would serve to inform the bar that if they choose to accept such representation, they must inform themselves about the statutory requirements. The threat of such proceedings should be a sufficient deterrent to lawyers. Similarly, if a pro se litigant claimed total ignorance of the statute, barring his suit would be justified on the general principle that one is presumed to know the law. But an honest mistake about the limitation period which resulted in a filing which was not seriously late should not bar a pro se petition, either.

ADDICTION TO IMPRISONMENT

The American criminal justice system--and maybe Americans in general--are addicted to imprisonment. Recent studies show that 1% of Americans are in prison, a very high percentage. Few other countries routinely imprison people for stealing and drug offenses as we do. This addiction, like all addictions, is expensive. And, like other addictions, it creates its own economy. Economically depressed areas want prisons for the jobs they generate, but that requires prisoners to fill the beds. Of course, people who spend significant amounts of time in prison are likely to return, particularly since our society is highly intolerant of people who have been convicted of crime, done their time, and been released. We seem to want to show those who break the law that we are "mad as hell and just won't take it any more!" But returning anger for wrongdoing only generates anger in the wrongdoers. There has to be another way.

FREEDOM FOR NGRI DEFENDANT

Some twenty years ago, my client Frederick Revels, in a drug induced psychotic rage, killed three members of his family. Initially, his mental condition made him incompetent to proceed. After he recovered, he was found not guilty by reason of insanity and placed in a mental institution. He has been there ever since! However, for at least 15 years, he has not received any psychiatric treatment. His doctors agree that his mental illness is in remission, and he is not dangerous. However, under Missouri law, Mr. Revels must prove not only that he is not dangerous, but that he will never again be dangerous. In a decision earlier this month, the Eighth Circuit Court of Appeals held this requirement unconstitutional. A motion for rehearing will likely be filed, but assuming this decision holds, Mr. Revels will likely be released after a new hearing.