Plea Bargaining in Capital Cases

December 30, 2014

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.


Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


Seasonal Farming Tasks in the Great Depression

December 28, 2014

Letty Owings, who turns 90 today, explains a few of the farming tasks that were seasonal, during the Great Depression.

Wheat shocking

In the spring of each year, the community farmers watched the sky and talked with each other about when to prepare the fields for planting. For corn, the fields had to be plowed and harrowed, and then the rows were set. The implements used to plow, break up and smooth the soil and form rows were horse-drawn. After the fields were prepared for planting, corn planters were also hitched to horses. A container on the corn planter was set to click open every three feet or so, and release three kernels of corn to the soil. So far, we are talking about mechanization.

The mechanization ended after the planting of the kernels. The next task involved human hands that belonged to kids, for the most part. Once the corn plants were about two inches tall, the kids in the community crawled up and down the corn rows, inspecting each three-plant corn hill, taking visual inventory. We crawled down each row with a knife and a bucket of kernels, to see if three plants were in each cluster. Less than three plants in a hill meant that there was a cutworm in the soil, dining. We dug and chopped the worm, and replaced the eaten kernel with the new kernel. This task was called “replanting the corn,” and if you were a kid, you got that assignment. Replanting the corn was labor intensive and ritually performed every year. In church, farmers would ask each other, “Did you replant your corn yet?”

Another task where fingers did the work was ridding each individual potato plant in any given field of the potato bugs. Potato bugs are fat with orange stripes, and they can completely decimate a field of potatoes. We crawled up and down the rows with a tin can of coal oil that served as our insecticide at the time. We looked at each leaf, picked off the bugs and the masses of eggs, and dropped them into the can of coal oil. These were days before pesticides. In addition to coal oil for the bugs, we rubbed coal oil and bacon grease on our skin to keep the chiggers away. Again, our fingers did the work and like replanting the corn, potato bug removal was extremely labor intensive.

Of all farming activities we performed during the Great Depression of the 1930s, two were notable because they involved the whole community: threshing of the wheat, and butchering the animals. Summer threshing of the wheat was the most exciting time of the year because it was a social time rolled into sustenance activity.

Farmers looked at the sky to determine when the wheat was ready to cut. If the dryness was right for thrashing on a Sunday, the farmers waited until Monday, figuring that God had good reason to wait the extra day. When the dryness was right, a horse-drawn binder (also called a reaper) cut and automatically tied the wheat into bundles weighing 50 pounds or so. The farmer would then pick up the bundles and put them in a shock. A shock of wheat consisted of four upright bundles together with one bundle on top. The shocks of wheat were left for some number of days to dry.

Only one person in the whole community owned a steam engine pulled thresher, and his name was Harry. Each farm set a day for the threshing of the wheat. The threshing of the wheat was special, dramatic, and planned in advance, almost as if the whole community was planning a state fair. The women all wore their best starched aprons and set their finest tables outside for the men to eat the finest meal of the year.

Each woman had a specialty, be it baked bread, custard, pie, butter, beans or canned goods, and all was brought forth on this day. The meat consumed was kept from the year before, unless they killed a chicken for threshing day. This was also the only day of the year for ice. A man would travel to the ice plant, get a hunk of ice, and put it in a gunny sack in a washtub. Then, each man at the table would chip off a piece of ice for his drink. On thrashing day, I woke at 4 AM, to listen for the steam engine. Children were on their best behavior, and they spoke only when spoken to. There was much bragging and comparing about whose wife could cook what the best.

The other community affair that involved mostly men and was not joyous was the butchering. The animal to be butchered was chosen in advance, and it had to be done in the late fall, so that the cold would preserve the meat. The man in the community who was the best shot would do the killing, so that the shot would not miss and the animal would not suffer. That man was usually my father. The community custom was that the man who helped with the slaughter got the best cut of meat from the animal, and that cut was usually the heart.

The women made the sausage, and in those days the intestines were used because there was no casing. The women cleaned, washed and boiled, then stuffed, the intestine casing. Butchering was not a social function as was threshing the wheat. Aside from making sausage was a practice called “frying down the meat.” This involved layering grease, then ground fried meat, then grease, ending with a top layer of grease. The mixture was compacted and kept cold in a shed. The supply of fried down meat lasted all year. My mother canned beef but this was not really a usual practice. Sealing wax was a real mess; jar rubber was, in the end, a great invention.

There was never any idle time in those days. We grew cotton and sheared sheep for our materials and in our spare time, such as it was, we either picked apart the cotton or the wool with our hands. Wool smells awful, and I once complained to my dad because I was dirty and tired of the work. He stopped what he was doing and said, “You did nothing to earn this. Everything is a gift from God.”

Off-topic: If you haven’t heard these guys, make time:

Creative Commons photo courtesy of Texas A&M University-Commerce Digital Collections on flickr.

 


Mayor De Blasio should fire the cops who turned their backs

December 27, 2014

I do not believe there exists more powerful and persuasive evidence of racist policing by white officers than the unpleasant experiences reported by off-duty black police officers at the hands of white officers.

Meanwhile the beat goes on with a Houston grand jury’s refusal to indict an off-duty cop, Juventino Castro, for shooting and killing an unarmed black man named Jordan Baker, 26, who supposedly charged at the cop. Sound familiar? It should. Michael Brown all over again.

The petulant NYPD cops showed how unreasonable and immature they are today by turning their backs on Mayor Bill De Blasio at NYPD Officer Rafael Ramos’s funeral because he dared to express concern about the national epidemic of police killing unarmed black citizens, including Eric Garner. Proving that they lack basic reasoning skills and mature judgment, they blame the mayor and the mostly peaceful nationwide protests against police violence for the decision by a suicidal and mentally ill young man to ambush and kill Ramos and his partner.

The mayor should fire every one of these intellectually and emotionally impaired brats for insubordination. None of them deserve any respect and none of them should be trusted with a gun.


First Do No Harm

December 26, 2014

Friday, December 26, 2014

Good evening:

First, do no harm.

The death penalty trial of Dzhokhar Tsarnaev is scheduled to begin in federal court in Boston on Monday, January 5, 2015. This is the so-called Boston Marathon Bomber case (BMB). I say “is scheduled to begin” because the defense has requested (1) a change of venue due to prejudicial pretrial publicity and (2) a continuance of the trial date until next September to review voluminous discovery that the government recently disclosed to the defense. You can reasonably expect both motions will be denied because the jury summons have already been sent out.

Both motions were filed to protect the record should Tsarnaev be convicted and appeal. For example, if he were convicted and his lawyers had not filed these motions, he would be barred from claiming on appeal that he was denied a fair trial due to prejudicial pretrial publicity and being forced to trial in January when his lawyers were not prepared.

Although both motions were previously raised and denied in September, it’s not unusual for them to be refiled because community prejudice toward a defendant can change over time as can the necessity for a continuance when discovery is provided to the defense at the last minute.

The Boston Globe describes the defense motion for a continuance,

Just last week, prosecutors turned over a witness list with more than 730 names, and identified 1,238 exhibits and 413 digital files that could be used as evidence, the defense lawyers complained. The government provided a trove of other digital records, the lawyers said.

“To commence trial as scheduled on Jan. 5 would threaten both the fairness and finality of the proceedings,” the defense team argued. They have asked that the case be postponed until September.

“It [is] impossible for the defense to digest this information, much less attempt to pursue investigative leads it may suggest, in time to make effective use of it at trial.”

The Boston Herald reports the government’s response,

Prosecutors in the Boston Marathon bombing case called accused terrorist Dzhokhar Tsarnaev’s renewed push for a delay in the Jan. 5 trial just more complaints from a defendant who faces the death penalty.

In a Christmas Eve filing, federal prosecutors said a long list of law enforcement investigators ready to take the stand is not unexpected.

“Tsarnaev can hardly have been surprised by a witness list containing a large number of evidence-handling witnesses,” the U.S. Attorney’s Office in Boston wrote in a motion fighting any delay.

“In responding to Tsarnaev’s continuing requests for information, the vast bulk of which is not required by the rules of discovery, the government has gone over and above anything the law requires,” prosecutors added. “Tsarnaev continues to complain about the volume of case-related information provided by the government even as he demands more and more of it.

Welcome to trial by ambush. This is how they do you in federal court. A defense lawyer can’t survive there unless he or she can read extremely fast and recall everything while going without sleep for days. The pressure to be perfect is enormous because any mistake, no matter how minor, could be the difference between the client living or dying.

First, do no harm.

The defense also filed an extremely unusual motion worth noting and discussing. They titled it, Motion to Protect Defendant from Prejudicial Effects of “Supporters” Demonstrations at Courthouse. I have never seen or heard of a motion like this. Most defendants in death penalty cases don’t have many supporters. They come and go quietly.

The defense team apparently is concerned about the following incident and they do not want prospective jurors exposed to similar incidents.

Shortly before the beginning of the final pretrial conference in his case on December 18, 2014, in the immediate vicinity of the courthouse, a group of demonstrators claiming to be “supporters” of the defendant were involved in a confrontation with members of the public, including a man who was severely injured by a bomb at the Boston Marathon on April 15, 2013. The demonstrators held signs and shouted statements to the effect, among other things, that the bombing and the survivors’ injuries were staged. Two news reports described the scene as follows:

His supporters, who claim Tsarnaev was set up and is actually innocent, massed outside the court building armed with provocative signs. Two women caught the eye of marathon bombing survivor Marc Fucarile, who limped by with a cane needed after he lost his right leg in the carnage. “That’s trickery?” Fucarile fumed as he lifted his prosthetic leg to show the damage Tsarnaev is accused of doing to score of innocents.

I think the word ‘aghast’ probably captures the defense reaction.

God only knows how many prospective jurors heard about this incident or read about it on social media. Judge O’Toole, to whom this case is preassigned, and counsel are going to have to voir dire (question) prospective jurors about it without actually mentioning it, just in case they do not already know about it. Better not to tell them about it, if they don’t already know. Jurors should be questioned individually out of the presence of other prospective jurors. That way their answers will not poison others.

Defense counsel expressed their concern as follows:

The continuing presence in the immediate vicinity of the courthouse entranceways of demonstrators–including those who gather to challenge as fabricated the injuries suffered by the survivors as they attempt to attend the proceedings–poses a grave threat to the fairness of the defendant’s trial. Beginning on January 5, prospective jurors and witnesses will be required to enter the courthouse through the same entranceways. Survivors, jurors, witnesses, and members of the public must be able to attend court without being assaulted by inflammatory accusations from any source. If they cannot,the fairness of the defendant’s trial is likely to be gravely harmed, in part because of the natural but false inference that the defendant and his counsel agree with the outrageous conspiracy theories that are being so vociferously advanced by demonstrators claiming to be the defendant’s “supporters.”

This motion is a very clear indication that the defense trial strategy will not involve presenting a conspiracy theory.

First, do no harm.

A life is at stake.

DISCLOSURE: I was a felony criminal defense lawyer for 30 years specializing in death-penalty defense, forensics and freeing the innocent from wrongful convictions. I also taught Criminal Law, Criminal Procedure, Wrongful Convictions and Trial Advocacy in law school. I have known Judy Clarke for close to 20 years dating back to when we were members of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL).


Illumination

December 24, 2014

Wednesday, December 24, 2014

Good evening:

My thoughts turn today to the meaning of Jesus and I want to share my view. I hope you will share yours in the comments below. I hope to begin a thoughtful ecumenical Christmas Eve discussion in which we all share our ideas, regardless of religious belief, doubt or non belief.

All are welcome in the house tonight.

Faith matters not to me. I do not know or care whether he existed in physical form or is just a story someone dreamed up. I don’t believe in magical virgin births or raising the dead and I could care less if he walked on water. I also reject the idea that someone 2,000 years ago died for my sins. I regard the story of the resurrection to be symbolic rather than literal.

I aspire to think and act as he would think and act. In the words of Rabbi Hillel, “That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is the explanation; go and learn.”

The positive form of the idea is expressed in Matthew 7:12 NCV, “Do to others what you want them to do to you. This is the meaning of the law of Moses and the teaching of the prophets.”

It’s all about the works, not the faith.

I chose long ago to represent the poor, the marginalized and the mentally ill. To give voice to those who had no voice. To save the lives of those whom the government would kill. And I found that every person, no matter what horrors they had visited upon others, possessed a core of decency and grace.

I didn’t do it to earn salvation and eternal life in some heaven somewhere and I didn’t do it to avoid eternal fire.

I chose to live this way, regardless of the consequences, because it is the right way to live. If we all lived this way, we would realize the fabled Garden of Eden. It’s there in your heart.

Although I stumble a lot, I pick myself up, return my eye to that distant star and take another step.

No matter what happens, there is no other path for me to follow.

Love is the most powerful transforming force in the universe. It is here in this house. Feel it. Believe it and live it.

Namaste and Happy Holidays

Fred


NYC asks federal court to approve mass arrests of protesters

December 22, 2014

Monday, December 22, 2014

Good evening:

With our nation in crisis regarding the epidemic of police killings of innocent unarmed citizens, most of whom are young black males, including Michael Brown, John Crawford, Tamir Rice and Eric Garner, to mention a few, the NYPD police union president Patrick Lynch pushed back hard on Saturday against people who protest against the killings. In classic right wing nonsequitur fashion, he blamed the predominantly peaceful protesters, Mayor De Blasio and President Obama for the ambush murders of two NYPD officers sitting in a parked patrol vehicle in Brooklyn on Saturday afternoon. Never mind that the killer was not involved in any of the protests and apparently decided to bag two cops after shooting his ex-girlfriend in the abdomen.

Terrell Jermaine Starr of Alternet reports,

It was just hours after officers Wenjian Liu and Rafael Ramos were shot and killed by a lone gunman, when further inflamed tensions between the police and the minority community during a shockingly divisive and incendiary speech to the media.

“There’s blood on many hands tonight,” Lynch said. “Those that incited violence on the street under the guise of protests that tried to tear down what New York City police officers did everyday. We tried to warn, ‘It must not go on. It cannot be tolerated.’ That blood on the hands starts on the steps of City Hall in the office of the mayor [Bill de Blasio]. When these funerals are over, those responsible will be called on the carpet and held accountable.”

Fortunately, some cooler heads are attempting today to pull back from the abyss. However, the NYPD continues to rattle the saber as the NYC Law Department will be attempting to persuade the Second Circuit Court of Appeals sitting en banc to reverse an earlier decision by a three judge panel that held the NYPD had violated Occupy Wall Street protester’s First Amendment rights to freedom of speech and freedom of assembly and their Fourth Amendment rights to privacy by making mass arrests without individualized probable cause.

The City is arguing in its legal brief that the three judge panel’s “decision will frustrate, not further, the work of police attempting to facilitate peaceful demonstrations while ensuring both the safety of demonstrators and those among whom demonstrations are staged.” This argument is ridiculous because the Fourth Amendment specifically states that police cannot arrest a person without probable cause to believe he or she committed a crime. Police are also prohibited from entrapping law abiding citizens into committing crimes they did not intend to commit. In this case, officers from the NYPD entrapped Occupy Wall Street protesters by leading and escorting them onto the Brooklyn Bridge only to arrest them en masse for violating an order not to go on the bridge that no one heard.

Steven Rosenfeld of Alternet reports,

“This is the most significant and most defining legal case on protesters’ rights in the last 40 years, since the mass arrests of May Day 1970,” said Carl Messineo, Partnership for Civil Justice Fund legal director, which represented the protesters. “Mayor de Blasio seeks the authority to arrest today’s protesters in the same manner Mayor Bloomberg falsely arrested Occupy Wall Street protesters by the hundreds.”

Seeking to legitimize a practice of widespread false arrests by entrapping protesters is an egregious Fourth Amendment violation that deserves condemnation. This is no way to calm troubled waters. Instead it’s yet another reason, as if we needed one, to increase the protests.

Obviously, the NYPD doesn’t get it.


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