I'm trying to writ a federal application for writ of habeas corpus on behalf of a guy who got 292 months in prison for carrying money ONE TIME from one person to another in a methamphetamine conspiracy. WOW! It was a huge conspiracy but the problem with the way the system works is that the first to the table (meaning the first snitch in the group that gets to the US Attorney with his/her information) gets the deal of the century. What does this really mean to the general public?
Well John Q., it means that the "big dogs" are getting much shorter sentences many times than say, a one-time mule. One of the reasons is that the one-time mule doesn't have anything to exchange for a lower sentence. (The mules are kept in the dark about Mr. Big & the other higher conspirators. The purpose of having the mules is to help insulate them from knowledge of the lessers like the mules who are more likely to be caught.) The one time mule is held just as responsible as, say the 20 time (5 years worth) mule. (There are some ways to raise sentences but I'm not addressing that.)
So, John Q., you've lost your job & been trying in vain to get a job to support your wife & 5 kids but this economy sucks eggs so it has been hard. You can't work a minimum wage job - that is a joke for a family person. Someone you know just slightly - maybe met him through a couple of buddies you used to play cards with, or a buddy of a former work buddy - sees you around. You get to talking about life & need for work, etc., & he tells you that he has this deal where he just picks up money from one guy and brings it to another guy, and that he thinks he can hook you up. Now, you suspect that this is not good - I mean, who would pay money for such. But, times being what they are, you decide that you will do it.
So, you carry money once & then decide that it just isn't worth it, and you won't do it again. Three years from now, the feds come beating at your door & you find that you are tied into a conspiracy because they had surveillance of you going to the house to get the money, as well as calls from you to the money guy getting directions. That's it. No more.
The Government is looking for someone they want you to tell on. To your knowledge, the person is deceased. They don't believe you so that means trial time. 292 months.
John Q. - do you feel safer now that all your tax dollars are spent locking this guy up for this long? And let me absolutely assure you that the Government acknowledged they had nothing else on this conspiracy but what I've listed. (They have him talking about drugs with other non-co-conspirators but nothing of any big issue.)
Believe me, I understand that you have to get as many as you can - to do something in this "war on drugs" - but seriously - at any cost? 292 months. Wow. I feel much safer - NOT. (Quit wasting my money on such crap is actually how I feel. But hey, when you've got a power hunger, mean spirited person in charge, this is the kind of "justice" you can expect.)
Friday, July 24, 2009
Monday, July 13, 2009
Why the Defense Does Not Share Info with the State
I have been practicing criminal defense for just about 21 years. One of the first lessons taught to defense lawyers is when you get a great piece of evidence or information, you do not share it with the prosecution until trial. Why? Because, especially if it is a problem with something an officer has said in his report (like an impossibility - there is no S curve where he says, etc.), then the State will "fix" it. Similar with other witnesses. If it can be "fixed", it will be - period.
How would this happen you ask? It is called woodshedding. I've already disclosed that I have never been a prosecutor but my understanding is that the prosecutor (person to whom you disclosed your great hose for their fire) talks to the witness & says something like, "hey - did you realize there is no S curve where you said. Could it be you made a mistake & were talking about the S curve a mile away." Witness, "oh yes - that must have been a typographical error when I wrote the mile marker number." . . . or something like that.
My last trial had a great piece of evidence. (Well, it would not have been as great as I thought had the State bothered to disclose Brady / exculpatory evidence because I would have had some impeaching evidence from their own file but, that is another story.) Anyway, my investigator attempted to call the brother of the c/w (complaining witness - girl who was making the accusation) to interview him, only to find that the c/w had the phone. Moreover, she was just happy as a peach to run off at the mouth of what she claimed happened.
Without going into details, her claim to the investigator was NIGHT & DAY different from her prior claims: new manner & means, new location, craziness claiming everyone was in the room right next door & wide awake! YEAHHHHHHHH. Wow.
Normally I would have just gone to trial & stuck it up her nose sideways, but there was a lot at stake here. Not only was my client's freedom at stake, but he loves his family & this was tearing a rift in the entire family. Moreover, there was going to be some graphically, embarassing details about 2 girls that would come out - and I truly did not want to embarass them. (Kids some times do things that no one else knows. There is no need to elaborate but I really do have a heart, and I did not want to cause unnecessarily embarassment.)
I fought with myself about disclosing this. I don't disclose, but there were these other issues. I finally had a talk with the prosecutor who led me to believe that if the girl really said X on the tape, then he felt he could not convince a jury beyond a reasonable doubt. I knew she said X, and took his words to mean he would dismiss. SO, with the client's understanding, I played the audio. (It is always better to get a dismissal than a trial - trials are NEVER a sure thing - especially when the allegation is sexual assault of a child.)
The prosecutor took detailed notes & disappeared for a meeting with c/w. My investigator even let c/w hear the beginning which had her voice. (She had denied to prosecutor having a conversation with investigator WHO FULLY IDENTIFIED HERSELF AS INVESTIGATOR FOR THE ACCUSED.)
He comes back - trial. He cannot explain why but I can - he let the father who is a vindictive jerk, who knew nothing about all the things going to come into play in this case, intimidate him. Rather than "do the right thing" with information I disclosed, suddenly at trial the c/w remembers talking to my investigator & saying the things (that the prosecutor had detailed notes on.)
I got a hung jury 8 to 4 for not guilty. (2 jurors lied - they had family members who had been victims & failed to disclose it although this question was specifically asked.) See, the prosecutor was right when he said that if she says X, then I can't prove the case beyond a reasonable doubt - and he couldn't. (They dismissed after trial.)
But, I re-learned my lesson - I will not share again. Nope. That was it for me. I knew better but I was trying to protect HIS c/w and another witness from massive embarassment but the prosecutor just didn't get it. I get it though - I'm done with sharing after that. From now on, expect to hear my good stuff during the trial. I may be an old fool, but I won't be that foolish again.
How would this happen you ask? It is called woodshedding. I've already disclosed that I have never been a prosecutor but my understanding is that the prosecutor (person to whom you disclosed your great hose for their fire) talks to the witness & says something like, "hey - did you realize there is no S curve where you said. Could it be you made a mistake & were talking about the S curve a mile away." Witness, "oh yes - that must have been a typographical error when I wrote the mile marker number." . . . or something like that.
My last trial had a great piece of evidence. (Well, it would not have been as great as I thought had the State bothered to disclose Brady / exculpatory evidence because I would have had some impeaching evidence from their own file but, that is another story.) Anyway, my investigator attempted to call the brother of the c/w (complaining witness - girl who was making the accusation) to interview him, only to find that the c/w had the phone. Moreover, she was just happy as a peach to run off at the mouth of what she claimed happened.
Without going into details, her claim to the investigator was NIGHT & DAY different from her prior claims: new manner & means, new location, craziness claiming everyone was in the room right next door & wide awake! YEAHHHHHHHH. Wow.
Normally I would have just gone to trial & stuck it up her nose sideways, but there was a lot at stake here. Not only was my client's freedom at stake, but he loves his family & this was tearing a rift in the entire family. Moreover, there was going to be some graphically, embarassing details about 2 girls that would come out - and I truly did not want to embarass them. (Kids some times do things that no one else knows. There is no need to elaborate but I really do have a heart, and I did not want to cause unnecessarily embarassment.)
I fought with myself about disclosing this. I don't disclose, but there were these other issues. I finally had a talk with the prosecutor who led me to believe that if the girl really said X on the tape, then he felt he could not convince a jury beyond a reasonable doubt. I knew she said X, and took his words to mean he would dismiss. SO, with the client's understanding, I played the audio. (It is always better to get a dismissal than a trial - trials are NEVER a sure thing - especially when the allegation is sexual assault of a child.)
The prosecutor took detailed notes & disappeared for a meeting with c/w. My investigator even let c/w hear the beginning which had her voice. (She had denied to prosecutor having a conversation with investigator WHO FULLY IDENTIFIED HERSELF AS INVESTIGATOR FOR THE ACCUSED.)
He comes back - trial. He cannot explain why but I can - he let the father who is a vindictive jerk, who knew nothing about all the things going to come into play in this case, intimidate him. Rather than "do the right thing" with information I disclosed, suddenly at trial the c/w remembers talking to my investigator & saying the things (that the prosecutor had detailed notes on.)
I got a hung jury 8 to 4 for not guilty. (2 jurors lied - they had family members who had been victims & failed to disclose it although this question was specifically asked.) See, the prosecutor was right when he said that if she says X, then I can't prove the case beyond a reasonable doubt - and he couldn't. (They dismissed after trial.)
But, I re-learned my lesson - I will not share again. Nope. That was it for me. I knew better but I was trying to protect HIS c/w and another witness from massive embarassment but the prosecutor just didn't get it. I get it though - I'm done with sharing after that. From now on, expect to hear my good stuff during the trial. I may be an old fool, but I won't be that foolish again.
Sunday, July 12, 2009
What Is Exculpatory Evidence & When Must It Be Given To The Defense
My recent trial opened my eyes on several levels, the first being that some people do not understand what exculpatory evidence is. It is not quite what you think by definition of the word. In fact, it was interpreted by a Supreme Court case - Brady v. Maryland (which is why many people call exculpatory evidence simply "Brady").
Prosecutor 4 on the case was the first to interview the complainant (to my knowledge.) Before our motions hearing (in which I request evidence & additional hearings outside the presence of the jury), prosecutor 4 & I discussed Brady. He said that conflicts between what the complainant said on the video & what she said to him, if there were conflicts, is not Brady. This is WRONG. In fact, this is the kind of stuff that not guilty verdicts are made of! It impeaches the complainant to tell a different story. (Now, I know that many are thinking little kid - can't remember details. I won't get into that right now but this was an 18 year old whose outrageous claims were during the time period from when she was 14 - 16, depending upon on which story one relied.)
I had the judge admonish prosecutor 4 that conflicts WERE Brady & were to be turned over. His response to me was that he would have to re-watch the video. The case was set for trial and on the trial docket for 2 weeks before the court reset the case. I never heard anything about any Brady information from prosecutor 4 (who later got into trouble for violating Batson - but that's not my case).
Jump ahead three months to prosecutor 5 at the second trial setting. I hear nothing from him despite a couple of requests for Brady. Finally, on the first day of trial, he discloses a conflict that the complainant told him about. What the hell?! Apparently, according to prosecutor 5, it is the same as what she told prosecutor 4.
Now, I was able to use the information but you know, the rules are there to protect the accused. I'm sorry if some don't like that, but it is the law. It is the Constitution. What if it affected my trial strategy?! Moreover, prosecutor 4 had already been admonished (which is RIDICULOUS - as a felony prosecutor he should know the law & the rules. This person is putting people in prison left & right!)
More on this trial but the bottom line gripe, as a division chief in the prosecutor's office told me after I discussed this, and other problems with the trial, is when you think it MIGHT be Brady, turn it over - IMMEDIATELY. Don't you guys see all these DNA not guilty people whose cases are being overturned?! Does anyone give a damn that years of their lives were WASTED in prison?!
If it MIGHT be Brady - disclose it. Yes, you might get it shoved up your nose at trial but that is okay - isn't it? Don't you want justice? Don't you want the truth? Do you REALLY want to put an innocent person in prison? Why would you take that chance?
BTW, I've heard that everyone now has to read the District Attorney's Association book on Brady - what it is & when to disclose it. Shame especially that at a felony stage this is not already known, but at least some of the uppers are concerned enough to take action.
(Also note - this issue does not apply to all prosecutors. Many are quite diligent about turning things over. But, as we learn from the paper every day, some not only turn stuff over late, some cover & hide stuff. Get real. This is just your job, but this is the life of not only the accused but also an entire family - in this case. A family that could have healed much easier, much quicker, if the case had been dismissed - the right thing to do.)
More later.
Prosecutor 4 on the case was the first to interview the complainant (to my knowledge.) Before our motions hearing (in which I request evidence & additional hearings outside the presence of the jury), prosecutor 4 & I discussed Brady. He said that conflicts between what the complainant said on the video & what she said to him, if there were conflicts, is not Brady. This is WRONG. In fact, this is the kind of stuff that not guilty verdicts are made of! It impeaches the complainant to tell a different story. (Now, I know that many are thinking little kid - can't remember details. I won't get into that right now but this was an 18 year old whose outrageous claims were during the time period from when she was 14 - 16, depending upon on which story one relied.)
I had the judge admonish prosecutor 4 that conflicts WERE Brady & were to be turned over. His response to me was that he would have to re-watch the video. The case was set for trial and on the trial docket for 2 weeks before the court reset the case. I never heard anything about any Brady information from prosecutor 4 (who later got into trouble for violating Batson - but that's not my case).
Jump ahead three months to prosecutor 5 at the second trial setting. I hear nothing from him despite a couple of requests for Brady. Finally, on the first day of trial, he discloses a conflict that the complainant told him about. What the hell?! Apparently, according to prosecutor 5, it is the same as what she told prosecutor 4.
Now, I was able to use the information but you know, the rules are there to protect the accused. I'm sorry if some don't like that, but it is the law. It is the Constitution. What if it affected my trial strategy?! Moreover, prosecutor 4 had already been admonished (which is RIDICULOUS - as a felony prosecutor he should know the law & the rules. This person is putting people in prison left & right!)
More on this trial but the bottom line gripe, as a division chief in the prosecutor's office told me after I discussed this, and other problems with the trial, is when you think it MIGHT be Brady, turn it over - IMMEDIATELY. Don't you guys see all these DNA not guilty people whose cases are being overturned?! Does anyone give a damn that years of their lives were WASTED in prison?!
If it MIGHT be Brady - disclose it. Yes, you might get it shoved up your nose at trial but that is okay - isn't it? Don't you want justice? Don't you want the truth? Do you REALLY want to put an innocent person in prison? Why would you take that chance?
BTW, I've heard that everyone now has to read the District Attorney's Association book on Brady - what it is & when to disclose it. Shame especially that at a felony stage this is not already known, but at least some of the uppers are concerned enough to take action.
(Also note - this issue does not apply to all prosecutors. Many are quite diligent about turning things over. But, as we learn from the paper every day, some not only turn stuff over late, some cover & hide stuff. Get real. This is just your job, but this is the life of not only the accused but also an entire family - in this case. A family that could have healed much easier, much quicker, if the case had been dismissed - the right thing to do.)
More later.
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