Love of justice

This post is some­thing I have been think­ing on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feel­ing that I could never defend crim­i­nals, and that if I went into Crim­i­nal Law it would be as a prosecutor.

Then I was intro­duced, through the eyes of cases skimmed dur­ing class and through the per­spec­tive of the Crim­i­nal Defense attor­neys I “met” through twit­ter, to the Crim­i­nal Injus­tice sys­tem of our country.

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Published on 07/02/2010 7:30 am.
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Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

Published on 06/01/2010 3:28 pm.
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One man’s anal retentiveness is another man’s freedom

In my Mary­land Crim­i­nal Prac­tice class this evening, the pro­fes­sor men­tioned an unre­ported opin­ion of the MD Court of Spe­cial Appeals that was issued on Tues­day, May 24th.

Par­en­thet­i­cally, this is an incred­i­bly inter­est­ing and seem­ingly prac­ti­cal class that is taught by Judge Dana Levitz, a for­mer State’s Attor­ney and head of the trial divi­sion for Bal­ti­more County and for­mer Md. Cir­cuit Court judge who is now the judge who deals with the ini­tial incom­ing prayers for jury cases from the Bal­ti­more County Dis­trict Courts. I plan on devot­ing an entire post to Judge Levitz and his phi­los­o­phy regard­ing his cur­rent position.

The opin­ion, Clark, Dar­rell Mau­rice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) sum­ma­rize, a first-degree bur­glary con­vic­tion which car­ried with it a 20 year prison sen­tence was vacated as a result of a slight, but incred­i­bly impor­tant, defect in Bal­ti­more County’s form first-degree bur­glary charge lan­guage.
The form lan­guage uses a short-form cita­tion to estab­lish the ele­ments of the crime, which I just learnt is per­fectly accept­able. How­ever, instead of cit­ing the statute within the charge, the cita­tion is recorded after the required con­clud­ing phrase of “against the peace, gov­ern­ment, and dig­nity of the State.”
The defense attor­ney moved to dis­miss the charg­ing doc­u­ment as defec­tive on this ground in pre­trial but the trial court refused, ask­ing how that could make any difference.

The Court of Spe­cial Appeals begged to differ.

Spec­u­la­tion as to how this will affect claims of inef­fec­tive assis­tance of coun­sel and whether this would or would not be counted as being charged in terms of dou­ble jeop­ardy were bandied about in class, but the most impor­tant thing Judge Levitz wanted us to get out of the case is how ripe with pos­si­bil­ity charg­ing doc­u­ments are for defense attorneys.

Like I said, this seems like a prac­ti­cal class.

Published on 05/27/2010 9:00 pm.
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Realities of Criminal Defense — Updated

UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruin­ing their mean­ings, and I apol­o­gize about that.
This post has been mod­i­fied in response to Rick’s com­ment below.

Yes­ter­day brought another inter­est­ing post from Scott Greenfield’s Sim­ple Jus­tice. He had been made aware of a blog by a new law school grad­u­ate with hopes of enter­ing the world of crim­i­nal defense. The author mono­logued about the moral dilemma a defense attor­ney has when rep­re­sent­ing a “guilty-as-charged” client. Her ulti­mate answer to it was that a defense attor­ney has a duty to tell her client’s story in order to achieve a fair outcome.

Scott, lodged in a les­son about the dan­gers of blog­ging (Loose blog posts Sink egos, or some­thing of the sort), explained that there is no moral dilemma. A defense attor­ney is there to beat the pros­e­cu­tion and win free­dom for his client. It is, after all, an adver­sar­ial sys­tem. (Dis­claimer: This is my sum­mary. Read his com­ment.)

That was yes­ter­day.
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Published on 11/23/2009 9:16 am.
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