Recently in criminal law Category

January 30, 2008

Abolish Our Discriminatory Bail System

In an article by Adam Liptak, published on January 29, 2008 in The New York Times, I learned that only the United States and the Philippines have legal systems that use for-profit bail companies as a means of assuring that criminal defendants will appear in court.

According to the article, all other developed countries, as well as Illinois, Kentucky, Oregon and Wisconsin, provide a way for people presumed innocent to achieve their liberty pending trial without feeding a commercial bonding intermediary. Once again, this country that prides itself on its justice system lags far behind the rest of the civilized world -- as it does, for example, with capital punishment and life imprisonment for minors.

How the bail system works. For those not in the know, here is how the bail system works in most states.: When you are arrested, you can usually avoid spending the night in jail by paying a bail bond company a 10% non-refundable "premium" in exchange for the company posting a bond with the court for the full amount of the bail. The amount of the bail is typically based on a local bail schedule.

For instance, the bail in my county for common misdemeanors is $5000, and between $10,000 and $25,000 for felonies. Most people who are arrested for the first time are shocked at their lack of freedom and will do anything to get out right now. Friends and family are pressured to pay the premium, yesterday.

If you are released on bail, you're typically given an arraignment date (first appearance) a month or two in the future. If you don't "make bail," you'll stay in jail until you're taken before a judge a day or two later (or even three or four days if you're arrested on a Friday). At this first appearance, the judge can raise or lower the bail, or even let you go on your promise to return. All too often, however, the bail is either raised or remains the same, and the defendant remains in jail until trial -- which must be held within a couple of months, unless the defendant "waives time." Often, encouraged by their public defender, who invariably has a heavy caseload, defendants end up waiving time and remain in jail for many months before they get their day in court.

The problem with the system. The shame of this system is highlighted by the fact that people accused of misdemeanors can frequently escape further imprisonment by entering into a plea agreement for probation and a fine. And, it's not uncommon for people who insist on their innocence to languish in jail awaiting trial for crimes that predictably will not involve jail time even if there is a conviction. Keeping someone in jail because they can't make bail on a charge that is highly unlikely to result in imprisonment is nothing less than depriving people of their freedom solely because they are poor.

Allowing private companies to determine whether a defendant goes free pending trial is often tantamount to determining the trial's outcome. Defendants who are free pending trial have a tremendous advantage over defendants who must prepare their defense while behind bars. Justice that depends upon one's ability to pay for a bail bond is injustice at its core.

Even the legal establishment disapproves of the system. According to Adam Liptak, "[m]ost of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system."

Obviously, I agree. The Eighth Amendment to the U.S. Constitution should be further amended to provide that bail be administered solely by the justice system, rather than by the private sector, as it is now.

January 7, 2008

When Defense Lawyers Want Their Clients to Get the Death Penalty

In one case I know of, the defendant wanted death rather than life. After handing down a first-degree murder conviction, the jury must decide between death and life in prison. In most cases, the defendant wants the life sentence and the lawyer works hard to achieve this result. I know of one case, however, where the defense strategy throughout the trial was to make sure the jury brought home a death sentence. You know a justice system has to be screwed up when a murderer wants the death penalty rather than life in prison. Of course, some criminals prefer to die than be locked up for the rest of their life, but this isn't common.

A death sentence takes a long time to carry out. The starting point for this discussion is that it usually takes a long time to move a convicted murderer from the courtroom to the execution chamber. Stays of over 20 years on death row are not uncommon, which means that in many states, a death sentence means the murderer still has a lot of living left to do. Death row gets the condemned prisoner a cell all by himself and removes him from the general population. The prison wants to make sure that nothing bad happens to the prisoner before he's executed. The majesty of the law is hard at work here. (Incidentally, please forgive the male gender reference. As you'll see, this discussion applies almost exclusively to male prisoners.)

A life sentence is no picnic. Unlike the death penalty, a life sentence means the convict will necessarily come in contact with other prisoners, subjecting him to the possibility of sexual assaults, AIDS, and even attempts on his life. And the convict will likely be double- or triple-celled unless he is put in "lockdown" for long stretches -- which happens more often that you would care to think. Nonetheless, almost always, a convicted murderer prefers the opportunity to live a long life, even in prison, even in solitary confinement, rather than face execution somewhere down the line.

Not so for the case I'm talking about. In this case, the defendant raped, tortured, and murdered a young girl. The evidence was overwhelming -- including a solid confession -- and an insanity plea was not viable for a number of reasons. In other words, it was clear that the jury would convict this defendant of first-degree murder. The defendant and his lawyers had to decide whether they should at least introduce evidence that would soften the jury's attitude toward him, such as the fact that the defendant was horribly abused as a child, or whether they should play along with the prosecutor's portrayal of the defendant as a monster.

The decision was a no-brainer. As it turned out, the decision by the defense team was an easy one. As most of you know, the life span for prisoners who have raped, tortured, and murdered children is short. We're talking vigilante justice to the max. When the jury came back with a death sentence, the defendant and his lawyers felt they had won the day, or, rather, a good 20 to 25 years of a not-half-bad life on death row. How do you like them apples? Of some interest, the U.S. Supreme Court will soon decide whether raping a child justifies the death penalty even though no death resulted. If the Court approves of the death penalty in such an instance, it may cut down on the number of vigilante murders, since these folks will now be put on death row instead of the general prison population.

And now for the editorializing. We really ought to follow the lead of the rest of the civilized world and do away with the death penalty in all states. In my opinion, it's flat out immoral and serves no useful purpose, an opinion that is corroborated by the many studies on the subject. Also, it is a waste of public resources. Capital murder cases are hideously expensive to try, and a 20-year stretch on death row eats up millions of dollars per prisoner. And then, of course, there is the issue of those who are wrongfully convicted. Our experience with DNA, and the fact that many innocent prisoners have been executed, should teach us that we always should allow for an opportunity to prove a convicted prisoner's innocence -- through new technology or other new evidence. The death penalty, of course, puts an end to such possibilities.

We need prison reform. Whether or not the death penalty is abolished, we desperately need prison reform so that a life sentence means life with at least a minimum amount of dignity, freedom from sexual assaults, and protection from murder as a result of an uncontrolled vigilante system of justice operating within the prison. See Rebecca Tuhus Dubrow's article in The Nation about prison reform for more on what we can do to make our prisons more humane.

November 29, 2007

Let's Give Barry Bonds the Benefit of the Doubt

I'm glad that Barry is finally getting his trial. Let me start by saying I'm a Barry Bonds fan. Over the past couple of years I've hated watching Barry being booed in stadium after stadium, each filled to the brim with screaming fans hoping, in spite of the boos, to see him hit a home run. I'm therefore actually happy that Barry was finally indicted and is headed for a trial in which he can confront his accusers and establish his innocence in a forum dedicated to finding the truth. Or so I hope.

An acquittal on the charges against him won't necessarily restore Barry's good name. If he's acquitted, Barry's standing in the community--baseball and otherwise may be resurrected. I say "may" because of the obvious fact that acquittals don't necessarily change people's minds about what they think they know. Remember the O.J. double-murder trial? A jury acquitted O.J. pretty darn quick--and vast numbers of (mostly white) people decided that the jury was either reckless or stupid and continue to believe in his guilt.

What you think you know might not be how it really is. You may be quietly snickering at my reference to Barry's possible innocence. It's obvious, isn't it, that Barry lied to the grand jury when he said he didn't knowingly use steroids. I mean, look at the guy, all bulked up. Give me a break. Barry should cop a plea, do his time, and retire to a world marred only by a flood of asterisks accompanying his many marvelous records. Not so fast.

The case against Barry has not yet been challenged in a court of law. The case against Barry--largely built by the media--depends heavily on testimony and evidence from a 2002-2003 grand jury proceeding. In our system of justice, evidence introduced in a grand jury proceeding is supposed to remain secret, at least until an indictment issues. In this case, the testimony was leaked early. Journalists and sports pundits alike treated the testimony as the truth incarnate. Barry has been tried in the media and we, the public have adjudged him guilty --most unfairly.

Grand jury indictments are not evidence of guilt. We should never, ever, treat a grand jury indictment--or the testimony on which it's based--as evidence of guilt. In grand jury proceedings, the prosecutor orchestrates the testimony and evidence for the sole purpose of obtaining indictments. The witnesses who the prosecutor brings in to testify are not subjected to cross-examination. In fact, the suspect is not even present and there isn't even a defense. It's the prosecutor's show all the way, with predictable results: As the old saying goes, "the grand jury will indict a whole ham sandwich if given half a chance."

All our rules of fairness preclude pre-judging Barry. If we really believe in due process, in the right to confront our accusers, and in the presumption of innocence, we would refrain from judging Barry unless or until his guilt is proven "beyond a reasonable doubt " in a court of law. If we really believe in the Golden Rule--Do Unto Others As You Would Have Them Do Unto You--we would remember how it feels to be unjustly accused. We would say to our family, friends and associates, "Hey, wait until the trial, give Barry the benefit of the doubt."

Why we give some people the benefit of the doubt. All of this leads me to wonder why we give some people the benefit of the doubt and not others. It probably boils down to trust. We tend to trust people of our own ilk--our religion, our race, our family. But maybe we should strive to move beyond our genetic and cultural predispositions--just because it's the right thing to do. Barry is a baseball immortal, and in my mind that fact alone justifies giving him the benefit of the doubt. Plus, I know from my legal career just how unreliable un-confronted testimony and unexamined evidence can be. And I would like to believe I'm the kind of a person who will give just about anyone the benefit of the doubt since the opposite approach feels, well, uncivilized.

October 26, 2007

When You Don't Need a Lawyer to Represent You in a DUI Case

The other day in court I saw a person--call him Frank--plead guilty to a first offense "driving under the influence" charge. He received the same standard sentence as the judge hands down in hundreds of other first offense DUI cases. A local pricey lawyer stood by Frank's side when he entered his plea.

From the outset it was clear that Frank would be pleading guilty to the DUI charge. A blood test had shown him to be driving with a blood alcohol content considerably in excess of the limit, which is .08. It's almost impossible to fight a blood test (or breath or urine tests for that matter), thanks to various California statutes that, in effect, make these test results conclusive of your guilt. This same lockstep approach to "over-the-limit" DUI cases can be found in most other states.

It turned out that Frank had paid the lawyer $3,000 for his services, which consisted of appearing for Frank at an arraignment, reviewing the police report, interviewing Frank, attending a status conference where he negotiated with the D.A., talking Frank into taking the deal, and standing at Frank's side while the judge handed down his standard sentence for a first offense DUI. All in all, the lawyer spent about 3 hours, at most, on the case -- none of it really necessary in a first offense DUI case.

Now as many of you know, I'm highly skeptical of the claim that you need a lawyer if you are headed for civil court (divorces, probate, contract disputes, personal injuries, you name it). But what about criminal cases--cases where you can go to jail or receive a substantial fine if you lose? That's a different question. But more specifically, what about DUI cases? How can you tell which category your DUI case fits in--a standard case you can handle yourself or an unusual case where you might benefit from representation?

Simple. Get a copy of Nolo's Criminal Law Handbook, by Paul Bergman and Sarah Bergman Barrett, represent yourself at the arraignment, and obtain a copy of the police report. Take the report to a lawyer versed in DUI defense, pay the lawyer a couple of hundred dollars for an independent consultation, and find out just what kind of case you have.

If it appears that there is something unusual about your case--perhaps you have one of those rare cases where you can defeat the "over-the-limit" charge--you can hire a lawyer to appear on your behalf or perhaps you can qualify for a public defender. Otherwise, from the time you are arrested till the time you plead guilty, DUI procedures are typically sufficiently straightforward to be handled without a lawyer, and you're unlikely to get off any more easily with a lawyer.

For more information on going to court for yourself, try reading  Represent Yourself in Court: How to Prepare & Try a Winning Case, by Attorneys Paul Bergman & Sara J. Berman-Barrett (Nolo).