Two appeals affecting criminal cases made news this week.
In one, the US 9th Circuit reversed a conviction of the robbery murder defendant because a trial judge had removed a juror who was the lone holdout for innocence. The replacement made the guilt judgment unanimous. (Williams v. Cavasos ,filed May 23, 2011,)
Judge Reinhardt’s opinion begins this way:
“Consider two scenes:
Scene One
Juror #8: I just want to talk.
Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.
Juror #10: I want to ask you something: do you believe his story?
Juror #8: I don’t know whether I believe it or not — maybe I don’t.
Juror #7: So how come you vote not guilty?
Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.
Scene Two
Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .
Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two thirds of the jurors have tried to persuade — have actively tried to persuade . . . him that his current view is incorrect. . .
Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . . .
Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said. . . .
Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .
"The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted.
"The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.
"Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction.
"We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed.
"Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment.
"We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ."
This case reflects a practical truth about the criminal justice system:
Trial judges are under great pressure to prevent hung juries. Trials are expensive, the law has a strong preference for “finality”, and the truth is that almost all judges are biased in favor of conviction. The 11-1 for guilty hung jury is the bane of every prosecutor. The notion that one loony iconoclast can thwart justice is infuriating, to the judge, the D.A., and to the eleven who see clearly the same way.
Judges have tried to influence the verdict by exerting pressure on the hold out, using so-called “blockbuster” instructions, urging holdouts to bend to the majority vote. Appellate courts have decried the practice, but the pressure persists.
The facts of the case as detailed in the appellate opinion clearly support the appeals court conclusion that the trial judge violated the Sixth Amendment right to a jury trial.
First, he violated the long established rule that in questioning deliberating jurors, the judge may not inquire which way the allegedly offending juror is inclined to vote. Second, he misinterpreted almost every statement the juror made to justify his conduct. For example, when the juror said that he in a murder case, he had to be “very convinced” beyond a reasonable doubt, the judge concluded that he was wrongly applying a higher standard than the prosecution was required to carry.
In the second case, the U.S. Supreme Court ordered California to reduce its prison population by about 37,000 inmates, finding that the prison overpopulation (@157,000 in facilities designed for half that number) resulted in violation of the Eighth Amendment (cruel and unusual punishment) because of grossly deficient medical and mental health care which was documented in lengthy hearings in the District Court.
The opinion was 5-4, with separate dissents by Scalia (joined by his mate, Thomas), and Alito (joined by his partner, CJ Roberts). The majority opinion was by Kennedy, joined by Ginzburg, Breyer, Sotomayor, and Kagan. (Brown v. Plata - filed May 23, 2011,)
Of course, this case has far reaching implications. The dissenters provide ample fodder for conservative law and order types to scream bloody murder (and rape and robbery, etc) citing the imminent fall of civilization when the prisons are emptied of violent criminals.
This is highly unlikely to occur. A sizeable number of inmates are there because of non-violent crimes: drugs and thefts with “strikes” that extended their sentences because they once suffered “serious” prior convictions.
Some are suggesting out of state transfers or privatization of the prison system and Gov. Brown had suggested transfer to county jails (not L.A. County, which is in worse shape than the prisons, already so overcrowded that it has long been under scrutiny by the U.S. District Court).
The expensive alternative of upgrading medical and psychiatric facilities, and investing in rehabilitation programs in the institution and counseling and parole supervision on release, is not even on the table.
Nor is any serious adjustment of the disastrous sentencing system that results in disproportionately long mandatory minimum sentences and appointment to parole boards of citizens disinclined to release anybody from prisons.
Showing posts with label prison. Show all posts
Showing posts with label prison. Show all posts
Thursday, May 26, 2011
Saturday, March 28, 2009
Parole Or Pay
A few months ago, I received a phone call from the mother of one of my former clients. He had been convicted of aiding in a second degree murder and was serving a potential life sentence but now was eligible for a parole hearing. The mom wanted my help. She sent me a packet of documents of her son’s behavior while in prison which convinced me that he had done everything he could to earn his release.
The public still thinks that the justice system is a revolving door that is too lenient. The truth is that for thirty years, the California prison population has exploded because of harsh sentencing laws and the plitically motivated policies of governors pandering to the tough on crime climate of the times. On one end of the spectrum are the disproportionate sentences for non-violent crimes, like drug possession and street sales. The three strikes law is another example, resulting in life sentences or petty crimes committed by repeat offenders.
On the other end are the life sentences imposed for violent crimes for which the law prescribes a possibility of future parole. Governors regularly appoint members of the parole board who are disinclined toward parole. Guidelines for release have been stiffened, reducing the emphasis on rehabilitation and focusing on the evil of the crime itself.
In recent years, however, the pendulum has begun to swing the other way. Abused women serving life sentences for second degree (non-premeditated) murder were the first beneficiaries of the new attitude. In some instances, the parole board recognized the mitigating fact of the newly recognized "battered women syndrome" as mitigation. When the governor overturned his own board’s recommendation in favor of parole, the political winds blasted him. He dropped his objections. The law was changed, requiring consideration of the defense in parole consideration.
The second seismic event was the rumbling caused by DNA evidence that led the public to doubt the infallibility of the system. Recently, the appellate courts have begun to act. Appeals of denial of parole have criticized denials based solely on the facts of the crime. The standard should be whether the inmate currently poses a threat to society. Appellate oversight of the parole system which has been lacking for many years is an encouraging sign.
But now there is likely to be a backlash. The Oakland police officers were killed by a parolee. The Biography Channel has a new series called Parole Board which tells the horror stories about criminals seeking release. There is no doubt that the high rate of recidivism is a strong argument against parole. But the response is not necessarily continued warehousing. If the emphasis of imprisonment was on rehabilitation rather than mere punishment, lives could be redeemed, recidivism reduced, and crime rates managed.
The biggest problem is that reform of the prison / parole process would demand a commitment greater than the Wall Street bailout or Afghanistan nation building. I am less than sanguine about the chances.
In response to the plea from my client’s mother, I sent a lengthy letter to the parole board:
"... At the time of his arrest in this matter, Mr. P was eighteen (18) years of age, with no prior criminal history either as a juvenile or adult. My impression of him at the time I was appointed by the court was that he was an immature young man who became involved in the crimes charged through a misguided sense of loyalty to friends, but that he was not, as so many of my clients have been, irretrievably committed to a gang or habitual criminal life style.
"His culpability in the crimes was based on aiding his friend in the mistaken belief that to do so would be in his friend’s defense. He thus foolishly provided his friend with a knife and, with others, accompanied him to a confrontation with people who he was led to believe had wronged and injured his friend. The jury’s verdict confirmed the fact that P, himself, was not personally armed with a weapon during the encounter, and that his culpability was in fact as an aider-abettor, having provided a weapon which he should have known might be used to kill another.
"After Mr. P’s sentence to prison, I kept in touch with his mother, who continued to apprise me of her son’s progress toward rehabilitation. She has provided me with documentation of his strenuous and sincere efforts to change his life and to prepare himself for a future date when he might be freed from prison.
"I have been impressed that Mr. P has taken every opportunity while incarcerated to prepare himself for life as a responsible citizen. He has pursued an education, participated in vocational training programs to insure his employability, and perhaps most importantly, has taken every opportunity to achieve psychological understanding that will insure that he will be a mature and lawful member of society upon his release. The extent of the documentation of his actions convinces me that his efforts at rehabilitation constitute much more than a mere paying of "lip service" to the concept of rehabilitation, but in fact represents proof that he sincerely and diligently used his "time" productively in a serious effort to change his life.
"I believe that during his incarceration in every institution to which he has been placed, he has achieved a flawless disciplinary record, cooperating with staff in every respect, and avoiding associations with any troublesome groups or individuals. The comments of staff supervisors who closely monitored his behavior at each institution testifies to his continuing commitment to that goal.
"All of these considerations support a strong sense of confidence that Mr. P would not, if released on parole, pose a threat to society. It is clear that he is not the same impulsive, immature young man he was at the time of committing the offenses that resulted in his incarceration. He has shown a willingness and ability to conform to the rules of society, no matter how difficult his circumstances, and to keep his focus on leading a productive and useful life.
"I believe that he has matured, is remorseful about his involvement in the offenses and the harm that his actions caused. He has accepted his punishment for those actions without resentment, and made every effort to make up for his errors.
"If ever there was an appropriate subject for parole, I believe that Mr. P has shown that he has earned that trust."
A couple of days ago, his mother called. P was denied parole, apparently on the rationale that he hadn’t expressed enough remorse for his crime. He can re-apply in five years.
The public still thinks that the justice system is a revolving door that is too lenient. The truth is that for thirty years, the California prison population has exploded because of harsh sentencing laws and the plitically motivated policies of governors pandering to the tough on crime climate of the times. On one end of the spectrum are the disproportionate sentences for non-violent crimes, like drug possession and street sales. The three strikes law is another example, resulting in life sentences or petty crimes committed by repeat offenders.
On the other end are the life sentences imposed for violent crimes for which the law prescribes a possibility of future parole. Governors regularly appoint members of the parole board who are disinclined toward parole. Guidelines for release have been stiffened, reducing the emphasis on rehabilitation and focusing on the evil of the crime itself.
In recent years, however, the pendulum has begun to swing the other way. Abused women serving life sentences for second degree (non-premeditated) murder were the first beneficiaries of the new attitude. In some instances, the parole board recognized the mitigating fact of the newly recognized "battered women syndrome" as mitigation. When the governor overturned his own board’s recommendation in favor of parole, the political winds blasted him. He dropped his objections. The law was changed, requiring consideration of the defense in parole consideration.
The second seismic event was the rumbling caused by DNA evidence that led the public to doubt the infallibility of the system. Recently, the appellate courts have begun to act. Appeals of denial of parole have criticized denials based solely on the facts of the crime. The standard should be whether the inmate currently poses a threat to society. Appellate oversight of the parole system which has been lacking for many years is an encouraging sign.
But now there is likely to be a backlash. The Oakland police officers were killed by a parolee. The Biography Channel has a new series called Parole Board which tells the horror stories about criminals seeking release. There is no doubt that the high rate of recidivism is a strong argument against parole. But the response is not necessarily continued warehousing. If the emphasis of imprisonment was on rehabilitation rather than mere punishment, lives could be redeemed, recidivism reduced, and crime rates managed.
The biggest problem is that reform of the prison / parole process would demand a commitment greater than the Wall Street bailout or Afghanistan nation building. I am less than sanguine about the chances.
In response to the plea from my client’s mother, I sent a lengthy letter to the parole board:
"... At the time of his arrest in this matter, Mr. P was eighteen (18) years of age, with no prior criminal history either as a juvenile or adult. My impression of him at the time I was appointed by the court was that he was an immature young man who became involved in the crimes charged through a misguided sense of loyalty to friends, but that he was not, as so many of my clients have been, irretrievably committed to a gang or habitual criminal life style.
"His culpability in the crimes was based on aiding his friend in the mistaken belief that to do so would be in his friend’s defense. He thus foolishly provided his friend with a knife and, with others, accompanied him to a confrontation with people who he was led to believe had wronged and injured his friend. The jury’s verdict confirmed the fact that P, himself, was not personally armed with a weapon during the encounter, and that his culpability was in fact as an aider-abettor, having provided a weapon which he should have known might be used to kill another.
"After Mr. P’s sentence to prison, I kept in touch with his mother, who continued to apprise me of her son’s progress toward rehabilitation. She has provided me with documentation of his strenuous and sincere efforts to change his life and to prepare himself for a future date when he might be freed from prison.
"I have been impressed that Mr. P has taken every opportunity while incarcerated to prepare himself for life as a responsible citizen. He has pursued an education, participated in vocational training programs to insure his employability, and perhaps most importantly, has taken every opportunity to achieve psychological understanding that will insure that he will be a mature and lawful member of society upon his release. The extent of the documentation of his actions convinces me that his efforts at rehabilitation constitute much more than a mere paying of "lip service" to the concept of rehabilitation, but in fact represents proof that he sincerely and diligently used his "time" productively in a serious effort to change his life.
"I believe that during his incarceration in every institution to which he has been placed, he has achieved a flawless disciplinary record, cooperating with staff in every respect, and avoiding associations with any troublesome groups or individuals. The comments of staff supervisors who closely monitored his behavior at each institution testifies to his continuing commitment to that goal.
"All of these considerations support a strong sense of confidence that Mr. P would not, if released on parole, pose a threat to society. It is clear that he is not the same impulsive, immature young man he was at the time of committing the offenses that resulted in his incarceration. He has shown a willingness and ability to conform to the rules of society, no matter how difficult his circumstances, and to keep his focus on leading a productive and useful life.
"I believe that he has matured, is remorseful about his involvement in the offenses and the harm that his actions caused. He has accepted his punishment for those actions without resentment, and made every effort to make up for his errors.
"If ever there was an appropriate subject for parole, I believe that Mr. P has shown that he has earned that trust."
A couple of days ago, his mother called. P was denied parole, apparently on the rationale that he hadn’t expressed enough remorse for his crime. He can re-apply in five years.
Friday, February 29, 2008
The Prison Vote
The L.A. Times, Washington Post and Associated Press today summarized a new research paper published by the nonpartisan Pew Center. The report confirmed what some of us already knew, but with startling clarity.
1. At the start of 2008, the U.S. has more than 2.3 million people in prisons and jails. The U.S. leads the world in numbers and percentages of population in that statistic, more than in China (despite its far greater population) or Russia.
2. One out of nine black men between 20 and 34 is behind bars. For white men, the number is 0ne in 30.
3. Nonviolent offenders make up about half of the prison population.
4. Florida, which doubled its prison population in the last 15 years has experienced a smaller drop in crime than New York, which eventually reduced the number of inmates below the 1993 level.
5. The study concluded that while "imprisoning more offenders reduces crime, the effect is influenced by the unemployment rate, wages, the ratio of police officers to residents, and the percentage of young people in the population."
6. State governments spend over $50 billion per year, the feds $5 billion, to incarcerate 1 out of every 100 American adults.
1. At the start of 2008, the U.S. has more than 2.3 million people in prisons and jails. The U.S. leads the world in numbers and percentages of population in that statistic, more than in China (despite its far greater population) or Russia.
2. One out of nine black men between 20 and 34 is behind bars. For white men, the number is 0ne in 30.
3. Nonviolent offenders make up about half of the prison population.
4. Florida, which doubled its prison population in the last 15 years has experienced a smaller drop in crime than New York, which eventually reduced the number of inmates below the 1993 level.
5. The study concluded that while "imprisoning more offenders reduces crime, the effect is influenced by the unemployment rate, wages, the ratio of police officers to residents, and the percentage of young people in the population."
6. State governments spend over $50 billion per year, the feds $5 billion, to incarcerate 1 out of every 100 American adults.
Sunday, February 17, 2008
Random Thoughts From My Calendar
February 8, Friday:
I meet a San Francisco habeas lawyer to talk about a couple of cases I have a "past" with. More about the details at some future date.
February 11, Monday:
Spend the day in court in the second day of a preliminary hearing that the D.A. had estimated at one day. Because of her absurdly low estimate, the judge was peeved that I spent so much time in the tedious job of cross-examining the many witnesses she decided to put on. At 4 p.m., the judge recesses the case until the 28th, when we will resume.
February 12, Tuesday:
Lincoln’s birthday - a court holiday. (They also take 2/18, next Monday - President’s Day). I spend it preparing billing and filing.
February 13, Wednesday:
I appear in Van Nuys to represent my client who had sex several times with a 12 year old girl. He is 40. He can’t quite understand why the D.A. wants him to do 11 years. He told the appointed shrink that he had drunk 36 beers before the first time, 15 the second time, and 9 the third. The shrink thought he was exaggerating - about the number of beers. I wonder if he had to drink less each time to get in the mood. I give him until the 27th to decide whether to take the deal or coerce me to trial.
February 14, Thursday:
I spend some time watching Roger Clemons squirm before a House Committee, answering their softballs & innuendos. These congressmen all claim to have been prosecutors in their youth, but none can ask a decent lawyerlike question to a witness. Of course, like all prosecutors they only know how to ask leading questions prepared by their staffs which they’ve never seen before. Given a time limit of 5 minutes, they ask one 5 minute question, which is really a statement or argument followed by "Isn’t that right?"
February 17, Sunday:
In the L.A. Times, there is a story about California prison inmates who have served more time than they should due to incompetent prison officials who can’t understand the complex sentencing laws. I sympathize. I don’t understand them either. There are so many enhancements and amendments to the statutes that no one involved can accurately predict any sentence.
Even misdemeanors are a joke. On a DUI, where the stated fine is, say, $300, the total cost to the defendant is over $1000 because of penalty assessments - like lab costs, police education, ink, air, whatever.
I meet a San Francisco habeas lawyer to talk about a couple of cases I have a "past" with. More about the details at some future date.
February 11, Monday:
Spend the day in court in the second day of a preliminary hearing that the D.A. had estimated at one day. Because of her absurdly low estimate, the judge was peeved that I spent so much time in the tedious job of cross-examining the many witnesses she decided to put on. At 4 p.m., the judge recesses the case until the 28th, when we will resume.
February 12, Tuesday:
Lincoln’s birthday - a court holiday. (They also take 2/18, next Monday - President’s Day). I spend it preparing billing and filing.
February 13, Wednesday:
I appear in Van Nuys to represent my client who had sex several times with a 12 year old girl. He is 40. He can’t quite understand why the D.A. wants him to do 11 years. He told the appointed shrink that he had drunk 36 beers before the first time, 15 the second time, and 9 the third. The shrink thought he was exaggerating - about the number of beers. I wonder if he had to drink less each time to get in the mood. I give him until the 27th to decide whether to take the deal or coerce me to trial.
February 14, Thursday:
I spend some time watching Roger Clemons squirm before a House Committee, answering their softballs & innuendos. These congressmen all claim to have been prosecutors in their youth, but none can ask a decent lawyerlike question to a witness. Of course, like all prosecutors they only know how to ask leading questions prepared by their staffs which they’ve never seen before. Given a time limit of 5 minutes, they ask one 5 minute question, which is really a statement or argument followed by "Isn’t that right?"
February 17, Sunday:
In the L.A. Times, there is a story about California prison inmates who have served more time than they should due to incompetent prison officials who can’t understand the complex sentencing laws. I sympathize. I don’t understand them either. There are so many enhancements and amendments to the statutes that no one involved can accurately predict any sentence.
Even misdemeanors are a joke. On a DUI, where the stated fine is, say, $300, the total cost to the defendant is over $1000 because of penalty assessments - like lab costs, police education, ink, air, whatever.
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