WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, March 05, 2012

THE END OF INNOCENCE

I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.
In Re: Winship, 397 U.S. 358, 327 (1970),  J. Harlan, concurring. 
The United States of America has the greatest legal system in the world, built upon the principle that it is so unjust to convict an innocent individual that it is better that some guilty people go free. 

Or that's what "They" want you to think.



Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White,  Patterson v. New York, 432 U.S. 197 (1977)
The title of the post links to the NY Times article on post conviction relief and the sad case of  Edward Elmore. 

From half a lifetime spent in the criminal justice courts of this nation, here is what we have learned:

The system is far from perfect, as any system administered by humans would be. The difference however between say airline pilots, or heart surgeons and criminal defense attorneys is that the standards for becoming a criminal defense attorney, once a person has passed the Bar, are non-existent. 

Any lawyer can take a fee, wander over to the REGJB and blow the arraignment (we have seen this regularly, especially when things get tough in civil court.) There are currently standards in Florida for attorneys handling death penalty cases, and that's a good start. But any civil hack can file a NOA in a murder case where the state is not seeking death,  or a sexual assault case,  or a child exploitation case, and ruin the life of a client facing lifetimes of minimum mandatories. 

Currently the United States Attorneys Office is lobbying hard to change the rules for federal habeas cases- and not in a way that makes is easier for the innocent person convicted to get relief.  The state and federal courts are overwhelmed with mostly pro se petitions seeking relief, and no one wants to pay for the  staff necessary to provide adequate review of that never ending mountain of petitions. 

What keeps us up at night is that tucked away in that stack of frivolous 2254, 2255 and 3.850s on some Judge's desk is one motion, not in a death case-so no special attention is paid to it- in which some innocent man or woman is serving five or ten or twenty years or life in prison for a case they did not commit. 

Make no mistake that in this country's criminal justice system, it's not the result, but the process that matters. Were the rules followed? Was the accused afforded due process? Nice inquiries, but for the courts (and unfortunately for innocent clients) the inquiry ends there.

Because in the United States of America, despite what they tell you, innocence really doesn't matter. See, Patterson, v.  New York, supra. 


Well at least in a capital case it's different, right? It must be unconstitutional to execute an innocent person, correct? 
Nope. 


We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief... But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. 
Herrera v. Collins, 506 U.S. 390, 417 (1993) 


So there, in all it's naked shocking truth, you have it: we are a country that values procedure- "rules must be followed and orders obeyed" (and where, disturbingly, have we heard that before in the 20th century?) over justice. Actual innocence is no bar to being executed, as long as the rules were followed. Because preventing the execution of an innocent person is too "disruptive" to our precious system. 

See You In Court.  



We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.


We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

14 comments:

Fisher girl esq said...

No Kenny day today. Herald says rough seas. Fleet stays in. I'm in the office early with a steaming mug of coffee banging out an appeal.

Anonymous said...

Rumpole:

Adam Gopnik made a very interesting point about the American justice system in a recent article in the New Yorker about the American prison system. He compared the Bill of Rights to the French Declaration of the Rights of Man (which might have been written in part by Thomas Jefferson) and points out that Bill of Rights emphasizes procedural fairness, while the Declaration of the Rights of Man focuses on fundamental justice. This had led to a process-driven judicial system in the United States that oftentimes produces impersonal, inhumane, and unfair results. While defense lawyers depend on this procedural based system to make a living, maybe it is time to start re-examining it, in light of cases like the one described in your post.

Anonymous said...

this is a rambling post that makes little sense, rump. perhaps you can write something intelligible?

George Frobisher said...

No talk of our very own Roy Black in the defense of HVAC heir, John Goodman? Best of British to you, Roy.

Anonymous said...

You are afraid of rough seas? Get out of the office and get a life like these two chaps.

http://adventure.nationalgeographic.com/adventure/adventurers-of-the-year/2012/sano-babu-sunuwar-lakpa-tsheri-sherpa-video/

DS sez said...

JUSTICE is Just US, no more no less. We are imperfect as our system is imperfect. It is up to US to rise above the system to acheive Fairness for our clients.
DS

Anonymous said...

Rambling post, yes. Let's go back to The Godfather or even better let's discuss what is the best trilogy ever made. Discuss.

Anonymous said...

i will name my next two sons Strickland Washington and Lockhart Hill.

Anonymous said...

Here's a series of partial solutions that I'd wholeheartedly support:

1. Every time a case gets reversed on prosecutorial misconduct, the prosecutor should be referred to the Bar for a proper examination (the court should refrain from naming the prosecutor in the opinion since the prosecutor should be represented before getting anything akin to a verbal reprimand).

2. If the Bar sustains the complaint against the prosecutor and it involves a serious Brady violation, the prosecutor should be required to attend additional CLE courses and, in appropriate cases, fired. The courts should also consider requiring the State to pay the price of retrying the case.

3. Every time a case is reversed because of ineffective assistance of counsel, the defense attorney should be referred to the Bar (same limitation on naming him or her as above).

4. If the Bar sustains the complaint against the defense attorney, the attorney should be punished and forced to pay the cost of retrying the case.

5. Every time a judge is reversed, the judge should be referred to the JQC.

6. If the Bar sustains a complaint for incompetence, the judge should be required to attend an appropriate course. In extreme cases, the should be required to attend significant training. In either case, the judge should pay all costs of remediation.

7. Create exceptions to the above when the attorneys act in good faith and/or when there is excusable neglect/inadvertant error (this would, of course, account for new attorneys/judges, complex areas of the law, errors in the heat of the moment, etc.).
Needless to say, the success of this scheme would depend on everyone acting reasonably.

Implement these simple ideas and watch how much more cleanly cases are tried (and how learned our judges become).

BTDT

Anonymous said...

How about best movie franchise?

My vote goes to the Police Academy movies.

Anonymous said...

"Imperfect!" "Our system is imperfect!" It is not imperfect, and we are not imperfect. We are racist assholes!

We are creating a fascist police state at home, and raining death and destruction on innocents abroad.

Anonymous said...

8:49: i dare you to leave and hang out with those "innocents" abroad you speak of. if you come back with your head and your member intact, lunch on me.

Anonymous said...

Many of the comments missed Rumpole's point, which is that criminal defense lawyers need to focus on getting due process the first time around, because there may not be any second chances for the hapless (even if guilty, but especially if actually innocent) client. In doing so, they need to develop more expertise (i.e., read the law, prepare better, and hone trial and investigative skills).

As a former reader of the FACDL-Miami listserv, I often thought about just collecting the lame questions, posted by people who seemed never to have opened a law book, while collecting fees (sometimes large ones) from the aforesaid hapless clients. Maybe I could publish them, in a book called "Defense Lawyers Say the Darndest (Boneheaded) Things."

The many admirers of Roy Black should note that his victories always come down to preparation, preparation, preparation --- he was a pioneer of that method of defending criminal defendants. A perfect example of this is Daniel Petracelli's book about the civil OJ case: it's full of evidence of his exhaustive research, witness preparation, persistent investigation, careful attention to detail, etc. (none of which was demonstrated by prosecutors in the lost criminal case).

Criminal defense lawyers should look at what winning civil trial lawyers do to prepare for trial: many hours in library, with case law, honing evidentiary presentations so as to get stuff admitted (or successfully block other side's evidence), to give a few examples. Go hear Ervin Gonzalez sometime, if you want to hear a master of this stuff; his clients, even if they lose, surely have no doubt of his effectiveness on their behalf.

Questions to CJA and FACDL-Miami listservs show the defense lawyers are often surprised by the prosecution's efforts, and seek help only on the day-of, or a week before (at most). Yet AUSAs and ASAs are themselves both over-worked and uninterested in doing a bang-up job: we are giving them the wins, not making them work for them.

Successful trial practice only comes from hard work. Criminal defense lawyers' ineffectiveness goes unpunished because the clients can't sue for malpractice (must be acquitted, and, under Fla law, establish actual innocence, too). The Bar does do some disciplining for ineffectiveness, but most is outside their role and goes unpunished.

Rumpole was right on the money. I note that he did not simply blame unsympathetic judges, but pointed out the large numbers of clients who have been denied due process by their own attorneys. That's something we CAN fix.

Anonymous said...

to 3:36, thank you, thank you for saying what needs to be said on a more regular basis. When Judges stop punishing the defendants and their attorneys for going to trial we will have an equal and unfettered system. It is coming, rest assured