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Posts Tagged ‘Justice Clarence Thomas’

What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4f/M2500_washed_sand_on_conveyor_%286238147930%29.jpg/320px-M2500_washed_sand_on_conveyor_%286238147930%29.jpgIndeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”

Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, What Happens When Prosecutors Break the Law?”

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpg“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”

Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.

“So what happened to Mr. Kurtzrock?” Morrison asked.

Nothing.

Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Nina Morrison’s commentary should be widely read.

Verifiable support.

Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.

It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”

The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that

Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]

But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”

And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”

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Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.

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Clarence Thomas - Caricature | by DonkeyHoteyU.S. Supreme Court Justice Clarence Thomas told a meeting of lawyers last week that “unchecked judicial power” means “we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution.” To his point, the role of courts is to interpret constitutions not to make or enforce law. (I won’t repeat that umpire analogy).

Likewise among the states, their supreme courts are supposed to interpret and rule on the constitutionality of statutes not make law from the bench. But when things don’t go precisely like they’re supposed to, you notice.

Which brings me to what happened in Arizona last week. It was the state supreme court decision in the public employee pension case of Honorable Phillip Hall Et Al., v. Elected Officials Retirement Plan/State of Arizona.

Without diving into the weeds, Hall was about retirement benefits and contributions and whether they’re part of an ’employment contract.’ It was also about the Gift Clause in the Arizona Constitution. For an accessibly excellent commentary, see Arizona Republic Columnist Robert Robb’s aptly titled “Pension reform is now impossible in Arizona.”

Yipee! Project 365(3) Day 250 | by Keith Williamson

Pension reform matters because according to a 2013 report by the independent financial research group, Morningstar, most states’ pension plans continue to be underfunded below the 80 percent level considered healthy. As summarized by Ballotpedia, “Decreased funding and increasing liabilities since the 2008 recession continued to put pressure on local and state budgets, in some cases leading to bankruptcy. Higher pension costs can have the following consequences:

  • higher taxes
  • less intergovernmental aid for services
  • lower credit ratings
  • higher interest rates on state borrowing”

I agree completely with Justice Clint Bolick’s dissent in the Hall case. It was well-reasoned and persuasively argued. Most of all, it was refreshingly candid. Reading the majority opinion, you have the sense they didn’t much care for the demurrer.

How bracing, though, to hear a dissenting voice on this state’s high court — so welcome, so invigorating, so rare. Four of the five sitting justices recused themselves because the case would have had a bearing on their own retirement plans. But because Justice Bolick joined the high court after the law was changed, he had no such conflict nor did the four guest justices also deliberating.

Grisham-like legal fiction.

J.C. Hallman 10.06.09 | by kellywritershouse

Bolstered by a sharp wit, Justice Bolick’s keen analysis evoked nods and smiles from the first page. He likened the Court’s 51-year old finding that at-will state employees actually had a contract with the state to “a work of legal fiction to which the likes of John Grisham could only aspire.”

Equally remarkable, too, was that across its 21 pages, the majority failed to mention taxpayers — the poor slobs who’ll face higher taxes or cuts in services to pay promised pension benefits. To be fair, the majority did reference “the State” but in doing so, seemed to gloss over taxpayers who are ultimately the ones saddled with funding shortfalls in the State’s largesse. Indeed, Justice Bolick appeared to chide the majority’s rather cavalier observation that the retirement plan’s “actuarial soundness is within the Legislature’s control” — because it can always hike taxes and court fees — “apparently ad infinitum.”

Judges Gavel“Of the judges, by the judges, and for the judges.”

But the money paragraphs were these from Justice Bolick:
“If  ever  there were a  case in  which  we  should  seriously indulge  the  presumption  of  statutory constitutionality,  this  is  it.   The majority winks  at  that rule,  then  utterly fails  to apply it.   It  repeatedly invokes  the  mantle  of  judicial restraint  while  casually  invalidating  a statute designed  to  preserve  the financial stability  of  a  public  employee pension  plan,  a  purpose  so  important  that  the  voters  made  it  part  of  our state’s organic law.
 
 “The  majority  opinion  portends  a  huge  financial windfall  for the  class  members,  a  burden  the  taxpayers  will  shoulder.   Under  such circumstances,  we  should  act  with  great  restraint,  lest  the  rule  of  law be undermined by  a  public  perception  that  this  decision  is  of  the  judges,  by the  judges,  and  for  the  judges.   On  this  important issue,  the  majority exhibits  no such  restraint,  and we  therefore  respectfully  dissent.”

Outcome-based jurisprudence.

If there’s one thing you learn in law school is that courts sometimes back into their decisions. Adopting what’s called outcome-based jurisprudence, they first decide what the outcome of a case should be and then work backwards to find the reasoning that reaches the desired conclusion. A criticism of this approach was made in March when a split U.S. Supreme Court left mandatory union dues in place in Friedrichs v. California Teachers Association.

In my opinion, the Arizona Supreme Court found the outcome it wanted, which was to shift policy choice burdens away from active employee retirement plan members and place them instead on taxpayers “by freezing employee contribution rates in perpetuity” to quote Justice Bolick. Indeed, he referred to some of the majority’s rationale as “pick-and-choose jurisprudence.”

https://cdn.morguefile.com/imageData/public/files/p/pippalou/03/l/1363479372ipbgy.jpgIn Nevada, I remember its version of “pick-and-choose.” It was the 2003 Nevada Supreme Court case of Guinn v. Legislature, which came about when the Nevada Legislature deadlocked over the state budget. Nevada’s late Governor Kenny Guinn petitioned the Nevada Supreme Court for an Order declaring the Legislature in violation of the Nevada Constitution. More to the point, he wanted the Court to compel the legislature to fulfill its constitutional duty to approve a balanced budget; to ignore the 2/3rd super majority Nevada Constitutional requirement to raise taxes; and to appropriate funds for public education during that fiscal period.

A child's primer of natural history (1899) | by CircaSassyBut there was a fly in the apothecary’s ointment. Notwithstanding the Court’s decision, the Nevada Constitution at Art 4. Sec. 18(2) enacted in 1996 by voter initiative was not to be ignored. The voters and taxpayers enshrined in their state constitution the 2/3 super majority tax hike requirement to make raising taxes difficult. And that was the rub.

It’s clear the Court had the outcome in mind to fund education — a meritorious end to be sure. But to do so, it had to find justifiable means. So it parsed the super majority requirement to pirouette over the voter imposed 2/3 majority prerequisite. It said the requirement was “procedural” while the affirmative constitutional obligation to fund public education was “substantive.”

And so procedural rights were thrown under the bus when the Court decided the substantive right was more important even as Nevada’s Constitution Article 11, Sec. 6 only required that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, . . . .”

To its credit, Nevada’s high court reversed itself as part of a subsequent 2006 opinion.

But don’t expect a similar reconsideration in Arizona.

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Credits: Clarence Thomas – caricature by DonkeyHotey at Flickr Creative Commons attribution license; Yippee, by Keith Williamson at Flickr Creative Commons attribution license; J.C. Hallman, by kellywritershouse at Flickr Creative Commons attribution license; A child’s primer of natural history, by CircaSassy at Flickr Creative Commons attribution license.

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It's A Dry Heave | by cogdogblog

This is the time of year where anywhere is better than being trapped in Satan’s boxers. Sure, we missed the 120 weather forecast on June 19th. Just the same Phoenix spent the month breaking infernal records.

And now we’re bedeviled with the glistening humidity and demonic heat of monsoon season. What a combination. But how fitting for filing the following under WHAT. THE. HELL.

  1. Utah v. Strieff: The erosion of fundamental Constitutional freedoms continues.

On Monday, June 20, 2016, a 48-year Phoenix temperature record was broken when the thermometer hit 116 by 3 pm. On the same day, the nation’s highest court further undermined the part of the Fourth Amendment that safeguards individuals from unreasonable government searches and seizures. In Utah v. Strieff, No. 14-1373, the U.S. Supreme Court weakened the “exclusionary rule.” It’s the rule that excludes evidence from trial obtained by unconstitutional police conduct.

Bill of Rights | by GruenemannThe case involved police officer Douglas Fackrell who without probable cause stopped Edward Strieff after Strieff left a South Salt Lake City house under police surveillance thanks to an anonymous drug tip. Strieff was arrested after Officer Fackrell discovered an outstanding arrest warrant for a minor traffic violation. A search of Strieff turned up methamphetamines and drug paraphernalia.

But if the stop was unlawful, shouldn’t the drugs have been excluded? Or did the existence of an outstanding arrest warrant weaken or attenuate the connection between the government’s misconduct and the discovery of the evidence?

Writing for the majority, Justice Clarence Thomas wrote that the evidence obtained was admissible “because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

In spirited dissent, Justice Sonia Sotomayor declared:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Justice Sotomayor particularly warned about the risk of “treating members of our communities as second-class citizens.”

“It is no secret,” she wrote, “that people of color are disproportionate victims of this type of scrutiny.” And she added, “. . . this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Just 5 years ago, criminal defense lawyer Michael Cicchini deconstructed the ongoing erosion of our fundamental rights in Tried and Convicted. On the heels of Strieff, the bad news is that our individual rights continue being “hammered and softened by high court judicial decisions.” These rights are “intended to protect us from the vagaries of the criminal justice system” and from the “government agents” who “are easily able to bypass, and in fact destroy, our constitutional protections.” 

           2.   Brock Turner and Raul Ramirez: Racial and ethnic disparity in sentencing persists.

Unequal Justice in America | by DonkeyHotey

As though Judge Aaron Persky wasn’t facing enough opprobrium for sentencing Stanford swimmer Brock Turner to only six months in county jail for rape, The Guardian reported last month that the same Judge Persky had approved a much harsher three-year prison sentence for Salvadoran immigrant Raul Ramirez for committing a similar crime. And unlike Turner, Ramirez expressed genuine remorse and plead guilty, which should have mitigated his sentence. See “Stanford sexual assault case revealed racial bias.”

By itself the disparity in Ramirez’s sentencing is nothing unusual. It’s commonplace. It’s only newsworthy because of the light touch administered on Turner.

According to Census and Dept. of Justice analyses by the Sentencing Project, racial disparity in sentencing and incarceration is real. Indeed, research by Dr. Ashley Nellis bears out that prosecutors and judges often treat blacks and Hispanics more harshly in their charging and sentencing decisions.

“Sentencing policies, implicit racial bias, and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. Today, people of color make up 37% of the U.S. population but 67% of the prison population. Overall, African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men.”

WHAT. THE. HELL.

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Credits: “It’s A Dry Heave,” by Alan Levine at Flickr Creative Commons Attribution; “Bill of Rights,” by John W. Schulze at Flickr Creative Commons Attribution;”Unequal Justice in America,” by DonkeyHotey at Flickr Creative Commons Attibution.

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