Once upon a time in the land of the midnight sun, a nearsighted woman was raped by two men. She identified a man as one of them and he was sentenced to prison. Now, with the aid of the Innocence Project, he wants his DNA compared with fluids donated by the rapist to prove his innocence, asserting his willingness to pay for the tests himself so the state will have no financial excuse.
Many states have fashioned procedures for such post conviction testing. Alaska is not one of them. Their high court denied his request in 2001. Now the U.S. Supreme Court has issued a 5-4 opinion upholding the denial. Chief Justice Roberts wrote for the majority. He could find no provision in the Constitution that mentioned the right to a DNA test. As an example of the philosophy of judicial restraint, he suggested that this was an issue that state legislatures are better able to address. He was joined by Alito, Thomas, Scalia, and Kennedy (the so-called swing vote).
Justice Stevens dissented, finding it outrageous that a man must serve a life sentence when there is a means of proving or disproving his guilt which is available, cheap, and certain. And, oh yeah, isn’t there a provision called the 14th Amendment which guarantees "due process"? He was joined by Ginsberg, Breyer and Souter, who filed as separate dissenting opinion - differing from the other dissenters in the issue of how broad a "right" should be.
The case presents a fairly clear example of what is at stake in the selection of Supreme Court justices. The trenches are deep and apparent: judicial restraint vs. judicial activism. The issue: is there a court of last resort when an injustice is ignored by legislatures and state courts?
To be clear, before trial, an accused has a recognized right to access of the evidence to test it. That right was recognized long ago by the same Supreme Court (in Brady v. Maryland). Also, during post-conviction habeas corpus proceeding, most states and federal courts authorize appointment of experts for DNA testing. State rules about these processes vary greatly - most impose nearly insurmountable obstacles to overturn convictions.
The fact is that the legal system is psychologically defensive about admitting its possible errors. The tradition and bias is to favor closure over certainty. Conservative jurists wax eloquently about the need for finality in the system. Public opinion generally concurs - how many times have you heard the media decry the "endless appeals" by prisoners alleging "technicalities" and using "legal tricks" to overturn convictions?
In the 90's, Congress passed legislation (with President Clinton’s support) limiting access to habeas corpus post-convictions appeals. We are now living with the effects of that misguided law. To date, more than 200 guilty verdicts have been proven by DNA evidence to have been wrong. Many of those innocent people had been condemned to death or life sentences.
Showing posts with label justice delayed. Show all posts
Showing posts with label justice delayed. Show all posts
Friday, June 19, 2009
Wednesday, September 03, 2008
Crossing the bar
Confession. I violated my own pledge never to watch a TV crime / lawyer show. I saw the first episode of a series produced by Stephen Bochco called "Raising The Bar," which was touted as being about a public defender in New York City.
The creator is David Feige, billed as a "former New York public defender" who wrote a book called "Indefensible" about his experiences. Feige is a founder of a laudible New York defender program called "Bronx Defenders," which pioneered a holistic approach to indigent criminal practice, including social workers and a team of experts supporting the lawyers. They claim legal breakthroughs, including cases that reformed New York's law regarding suggestive identifications.
The show he and Bochco created contains no more than caricatures of the denizens of NY criminal practice and flimsy sketches of the kind of cases and issues that arise there. It is mostly about sex and sensation, over-the-top drama, and appeal to audience demographics.
One of the characters is a public defender. His name is Jerry Kellerman (played by Mark-Paul Gosselaar). Kellerman looks like some PD’s I’ve known. With shoulder length hair, shirt out and intense scowl, he looks and acts the way people think PD’s should look and act. He whines about "injustice" to the DA, his superiors, his client, and especially to the judge.
In this first episode, he ultimately "wins" his case, but only after an hour of struggle. The win comes despite his ineffectual ranting which is reminiscent of Al Pacino’s conduct in the classic, "And Justice For All" (1979) in which a lawyer assigned to defend a despicable judge charged with sexual assault, comes unglued, screaming, "This whole system is out of order!"
Kellerman's client, wrongfully accused of rape, misidentified in a highly suggestive one-photo show up, is offered a plea bargain to a second count of possession of a Swiss Army knife with intent to do harm, which (apparently in New York) carries up to seven years in prison. Kellerman advises his tearful client to take the deal, but the judge, a woman who appears to be a sarcastic, vindictive "power junkie," refuses to accept the deal and forces a trial, over the objections of the DA, who points out the weakness of her case.
The D.A., "Michelle Ernhardt," (played by Melissa Sagemiller) is depicted as an ethical, smart hottie who wants to dump the case because of her doubts about guilt. Her superior, a sexist buffoon whose harrassment bluff she calls by sitting on his lap in his office, insists that she go forward because the accused must have done other crimes.
Ernhardt supports the plea bargain but when the judge refuses it and orders her to trial, she complies and argues strenuously for guilt. After the jury acquits on the rape, but convicts on the knife possession charge, the judge insists on a prison sentence and high bail on appeal. The PD whines about the ruling, accuses the judge of every fault but bribery, and winds up in jail with his client.
Ultimately, both are freed despite the defense lawyers incompetent petulance, but because of interventions --- from his superior (played by Gloria Rubens, who used to be on "ER"), the judge’s clerk / lover who is secretly gay (don’t ask!), another DA who happens to find the real rapist, and form Michelle, who pleads to her boss and then to the judge to do the right thing and then at the end is revealed to be sleeping with Kellerman – who is still pissed off at "the system."
My overall impression is that this series is about as "realistic" a depiction of the justice system as Hollywood can manage in a televised basic cable series. I do wonder whether it will inspire some in the audience to service as the 1950's classic series, "The Defenders," once did. I think it more likely that it will inspire young lawyers to grow out their hair, loosen their ties, keep their shirts out, and hit on some hot D.A.’s.
The creator is David Feige, billed as a "former New York public defender" who wrote a book called "Indefensible" about his experiences. Feige is a founder of a laudible New York defender program called "Bronx Defenders," which pioneered a holistic approach to indigent criminal practice, including social workers and a team of experts supporting the lawyers. They claim legal breakthroughs, including cases that reformed New York's law regarding suggestive identifications.
The show he and Bochco created contains no more than caricatures of the denizens of NY criminal practice and flimsy sketches of the kind of cases and issues that arise there. It is mostly about sex and sensation, over-the-top drama, and appeal to audience demographics.
One of the characters is a public defender. His name is Jerry Kellerman (played by Mark-Paul Gosselaar). Kellerman looks like some PD’s I’ve known. With shoulder length hair, shirt out and intense scowl, he looks and acts the way people think PD’s should look and act. He whines about "injustice" to the DA, his superiors, his client, and especially to the judge.
In this first episode, he ultimately "wins" his case, but only after an hour of struggle. The win comes despite his ineffectual ranting which is reminiscent of Al Pacino’s conduct in the classic, "And Justice For All" (1979) in which a lawyer assigned to defend a despicable judge charged with sexual assault, comes unglued, screaming, "This whole system is out of order!"
Kellerman's client, wrongfully accused of rape, misidentified in a highly suggestive one-photo show up, is offered a plea bargain to a second count of possession of a Swiss Army knife with intent to do harm, which (apparently in New York) carries up to seven years in prison. Kellerman advises his tearful client to take the deal, but the judge, a woman who appears to be a sarcastic, vindictive "power junkie," refuses to accept the deal and forces a trial, over the objections of the DA, who points out the weakness of her case.
The D.A., "Michelle Ernhardt," (played by Melissa Sagemiller) is depicted as an ethical, smart hottie who wants to dump the case because of her doubts about guilt. Her superior, a sexist buffoon whose harrassment bluff she calls by sitting on his lap in his office, insists that she go forward because the accused must have done other crimes.
Ernhardt supports the plea bargain but when the judge refuses it and orders her to trial, she complies and argues strenuously for guilt. After the jury acquits on the rape, but convicts on the knife possession charge, the judge insists on a prison sentence and high bail on appeal. The PD whines about the ruling, accuses the judge of every fault but bribery, and winds up in jail with his client.
Ultimately, both are freed despite the defense lawyers incompetent petulance, but because of interventions --- from his superior (played by Gloria Rubens, who used to be on "ER"), the judge’s clerk / lover who is secretly gay (don’t ask!), another DA who happens to find the real rapist, and form Michelle, who pleads to her boss and then to the judge to do the right thing and then at the end is revealed to be sleeping with Kellerman – who is still pissed off at "the system."
My overall impression is that this series is about as "realistic" a depiction of the justice system as Hollywood can manage in a televised basic cable series. I do wonder whether it will inspire some in the audience to service as the 1950's classic series, "The Defenders," once did. I think it more likely that it will inspire young lawyers to grow out their hair, loosen their ties, keep their shirts out, and hit on some hot D.A.’s.
Sunday, February 24, 2008
Justice ... update
Today, the L.A. Times reported that California Supreme Court Chief Justice Ron George withdrew his proposal to shift work to lower appellate courts intended to speed up death penalty appeals.
He did so because of supposed budget constraints which would reduce the amount of money available to pay the salaries of clerks for appellate judges, deputy attorneys general to prosecute, and attorneys to defend in these cases.
Aww.... too bad.
Oh, and he didn't mention yesterday's post here as motivation.
He did so because of supposed budget constraints which would reduce the amount of money available to pay the salaries of clerks for appellate judges, deputy attorneys general to prosecute, and attorneys to defend in these cases.
Aww.... too bad.
Oh, and he didn't mention yesterday's post here as motivation.
Saturday, February 23, 2008
Justice Delayed Is ...
"Justice delayed is justice denied."
Who says?
In my own experience, the exact opposite is more often true:
justice delayed is ... justice perfected, or at last ... finally attained.
The cliché is usually attributed to 19th Century English politician, William Gladstone, who also said,
"Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear."
Gladstone it seems was something of an enigma:
he opposed the abolition of slavery and proposed recognition of the Confederate States Of America.
On the other hand, he favored universal suffrage, at least for men, and opposed British imperialism.
His supporters called him the "Grand Old Man." His rival, Disraeli, preferred "God’s Only Mistake."
The "justice delayed" phrase is widely quoted these days by proponents of speedy justice for criminals. Prosecutors, victims rights advocates, politicians calling themselves "Conservatives," (don’t know what old Gladstone would call them) all bemoan delays built into the justice system.
Some years ago, Californians voted overwhelmingly for something called "The Speedy Trial Initiative" which was meant to streamline the trial process. State Supreme Court Chief Justice Ron George has been lobbying for a reform of the appellate process to relieve his court from the obligation to hear every capital appeal. He wants to transfer the onus to intermediate appellate courts (which are more numerous), just like other cases. The Supremes could then simply review the lower court’s opinons without the need to spend the time of independent judgment.
Those in power are annoyed by the fact that there are more than 600 people on the state’s death row, many of whom have been waiting for years to have cases heard. Many have no lawyers appointed to represent them. Others have been slogging through complicated and seemingly endless habeas corpus proceedings, bouncing back and forth from state and federal courts.
The only fly in the speedy justice ointment is that every day or two a "criminal's" conviction or death sentence is reversed after years and years of languishing, when new evidence uncovers the IN- justice that actually happened all those years ago. DNA tests (or other technological marvels) or reneging snitches and / or eyewitnesses or dishonest jurors are unwrapped, proving that the initial verdicts, which had been affirmed by all the courts along the way were dead wrong.
Miscarriages of justice are not limited to capital cases.
The L.A. Times today reported that the Northern California Innocence Project at Santa Clara University Law School (guided by Prof. Gerald Uelman) and the California Innocence Project at Cal Western Law School in San Diego "have succeeded in helping to exonerate 11 people, two based on DNA evidence, nine on other grounds... The two Innocence Projects are now actively investigating 288 cases and have a backlog of 700 cases." (L.A. Times, California, Saturday, February 24, 2008, p.B-3).
The facts were part of a Times article devoted to reporting the findings of a "blue ribbon commission" chaired by former L.A. D.A. John Van De Kamp, which found that exonerated prisoners, many who have served decades in prisons before being released, were inadequately compensated by the state for the loss of their freedom.
Advocates of speedy justice would have denied such prisoners any of the processes that had reviewed and eventually overturned their wrongful convictions and sentences by terminating their rights to appeal and habeas corpus to federal courts or to re-file dismissed appeals when new evidence is exposed.
The conservative strain of The Law favors certainty and cost efficiency in its justice system and closure for victims and their families over the nuisance of interminable appeals.
After all, as old GOM observed: "Conservatism is distrust of the people tempered by fear."
Who says?
In my own experience, the exact opposite is more often true:
justice delayed is ... justice perfected, or at last ... finally attained.
The cliché is usually attributed to 19th Century English politician, William Gladstone, who also said,
"Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear."
Gladstone it seems was something of an enigma:
he opposed the abolition of slavery and proposed recognition of the Confederate States Of America.
On the other hand, he favored universal suffrage, at least for men, and opposed British imperialism.
His supporters called him the "Grand Old Man." His rival, Disraeli, preferred "God’s Only Mistake."
The "justice delayed" phrase is widely quoted these days by proponents of speedy justice for criminals. Prosecutors, victims rights advocates, politicians calling themselves "Conservatives," (don’t know what old Gladstone would call them) all bemoan delays built into the justice system.
Some years ago, Californians voted overwhelmingly for something called "The Speedy Trial Initiative" which was meant to streamline the trial process. State Supreme Court Chief Justice Ron George has been lobbying for a reform of the appellate process to relieve his court from the obligation to hear every capital appeal. He wants to transfer the onus to intermediate appellate courts (which are more numerous), just like other cases. The Supremes could then simply review the lower court’s opinons without the need to spend the time of independent judgment.
Those in power are annoyed by the fact that there are more than 600 people on the state’s death row, many of whom have been waiting for years to have cases heard. Many have no lawyers appointed to represent them. Others have been slogging through complicated and seemingly endless habeas corpus proceedings, bouncing back and forth from state and federal courts.
The only fly in the speedy justice ointment is that every day or two a "criminal's" conviction or death sentence is reversed after years and years of languishing, when new evidence uncovers the IN- justice that actually happened all those years ago. DNA tests (or other technological marvels) or reneging snitches and / or eyewitnesses or dishonest jurors are unwrapped, proving that the initial verdicts, which had been affirmed by all the courts along the way were dead wrong.
Miscarriages of justice are not limited to capital cases.
The L.A. Times today reported that the Northern California Innocence Project at Santa Clara University Law School (guided by Prof. Gerald Uelman) and the California Innocence Project at Cal Western Law School in San Diego "have succeeded in helping to exonerate 11 people, two based on DNA evidence, nine on other grounds... The two Innocence Projects are now actively investigating 288 cases and have a backlog of 700 cases." (L.A. Times, California, Saturday, February 24, 2008, p.B-3).
The facts were part of a Times article devoted to reporting the findings of a "blue ribbon commission" chaired by former L.A. D.A. John Van De Kamp, which found that exonerated prisoners, many who have served decades in prisons before being released, were inadequately compensated by the state for the loss of their freedom.
Advocates of speedy justice would have denied such prisoners any of the processes that had reviewed and eventually overturned their wrongful convictions and sentences by terminating their rights to appeal and habeas corpus to federal courts or to re-file dismissed appeals when new evidence is exposed.
The conservative strain of The Law favors certainty and cost efficiency in its justice system and closure for victims and their families over the nuisance of interminable appeals.
After all, as old GOM observed: "Conservatism is distrust of the people tempered by fear."
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