Monthly Archives: April 2006

The High Cost of a Bad Defense

The pevious two posts from the San Jose Mercury News‘ 5-part series on the failures of the Santa Clara, California, criminal justice system (failures which are certainly not limited to that county or state) addressed unethical judges and prosecutors.  But these abuses would be far less endemic if the “circuit breaker” worked — if the defense attorney fullfilled his role as the protector of the accused, as the following article in that series shows: 


The High Cost of a Bad Defense


At first, after he was wrongfully accused of assault, Bobby Herrera believed he would find a lawyer who could prove his innocence. But in the last emotional minutes before he walked into court, attorney John Pyle was pressuring him to plead guilty.

Pyle already had collected more than $10,000 from Herrera’s family. But he hadn’t bothered to interview witnesses who could testify that Herrera didn’t shoot a guest at his girlfriend’s high school graduation party. Nor did Pyle pursue information that Herrera’s primary accuser had gone back on her story to friends.

Instead, in the courthouse hallway that day in April 1998, Pyle offered this assessment: Herrera would get no more than a year in jail if he pleaded guilty. If he went to trial, he risked 25 years in prison. And a trial would mean thousands more in legal fees.

Herrera, 19, couldn’t bear the thought of costing his parents — his father was a forklift operator, his mother a home health care provider — more money they did not have. “I had no choice but to plead,'’ he recalled recently.

But Pyle had misled him horribly. Herrera received a five-year prison sentence. And the family ultimately would pay tens of thousands more in an agonizing legal journey to free Herrera, a journey hindered by more ineffective lawyering and an unsympathetic appellate court.

Herrera’s saga — which was detailed in court records and interviews with participants — is one of more than 100 uncovered by the Mercury News in which the quest for justice was undermined by poor representation. The paper’s analysis, based on a review of 727 criminal appeals, hundreds of interviews and scores of additional cases, provides an unprecedented look at the scope of this problem.

The review showed how attorneys’ failures contribute to a system that repeatedly favors the prosecution. Often, the errors were so appalling that they would seem unthinkable even to first-year law students: failing to interview witnesses, gather crucial evidence or know basic criminal law. Experts who reviewed the Mercury News’ findings emphasized that another set of problems was just as critical: Attorneys repeatedly failed to respond aggressively to prosecutorial misconduct, a breakdown of the adversarial process that invites violations of defendants’ rights.

In the worst cases, as in Herrera’s, the attorneys’ failures were so fundamental that they left doubts about the guilt of convicted defendants.

Compounding the problem, the review found that the errors plagued defendants far beyond trial. Appellate justices routinely declined to consider allegations of misconduct by prosecutors or errors by judges when attorneys had failed to challenge the behavior at trial.

The newspaper review found the problems began at the earliest stages of a case, and continued all the way through trial and appeal:

� In nearly 20 cases, defense attorneys failed to take simple steps to investigate and prepare their cases for trial. Some attorneys went to trial without ever meeting their clients outside the courtroom. Some neglected to interview obvious alibi witnesses. Some accepted without question reports from prosecutors’ medical and forensic experts that were ripe for challenge.

� Once in the courtroom, defense attorneys failed their clients in dozens of additional ways. Some did not introduce key evidence — including evidence promised to jurors during opening statements. Others did not ask judges for rulings or jury instructions that were crucial to helping their clients. One defense lawyer so misunderstood the rules of evidence that he permitted his client to testify at a preliminary hearing without realizing the prosecutor could then introduce that testimony at trial.

� In 60 cases, defense attorneys failed to object when prosecutors introduced inadmissible evidence, asked improper questions or made prejudicial arguments to juries. Such failures have a lasting impact. Under court rules, appellate panels need not consider errors left unchallenged at trial; instead they can deem them “waived,'’ and outside the bounds of the appeal.

� Attorney errors are not easily corrected. In more than 100 cases, the 6th District Court of Appeal rejected challenges to the attorney’s performance by issuing single-sentence orders that lacked explanation. Other cases saw the appellate justices repeatedly rationalize poor conduct. In one instance, they suggested that an alcoholic lawyer’s repeated absences and tardiness during trial may have been a knowing tactic to permit him time to sober up before the jury saw him. Twice, justices found no problem with lawyers who could not legally represent their clients because they had been suspended by the State Bar of California….

“The level of practice is extremely low overall,'’ said appellate lawyer Michael Kresser, director of the Sixth District Appellate Program, which reviews hundreds of Santa Clara County cases each year. Attorneys are trying cases who “don’t know the basic tools of trial lawyers,'’ he said, from “making proper objections and motions to doing adequate investigation to developing a coherent defense strategy at trial.'’

Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn’t attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records — information that comes only through seeking court approval — because she was too busy.

But the newspaper review found a telling distinction, in that private attorneys’ failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial…

Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles’ Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes “one of my biggest concerns. Unfortunately, it happens all the time,'’ she added, because guilty pleas “take a lot less work.'’…

Prosecutors Over the Line

Continuing the previous post about the San Jose Mercury News3-year study of a criminal justice system turned railroad, the following article focuses on the abuses of ambitious, win-at-all-costs prosecutors:


Prosecutors over the line


A Mercury News review of the work of Santa Clara County prosecutors turned up a chilling pattern: Three veteran deputy district attorneys — Benjamin Field, Terence Tighe and John Schon — made misjudgments or missteps in cases that ended in wrongful convictions. And in each instance, the district attorney’s office missed opportunities to correct the injustices, by failing to react to warning signs in those cases and others the prosecutors handled…

The Mercury News uncovered the pattern of troubling conduct involving Field, Tighe and Schon as part of a three-year study of Santa Clara County criminal justice. The review, which included an unprecedented review of 727 jury trial appeals, established that problems driven by the conduct of the prosecutor repeatedly mar criminal trials. The examination identified nearly 100 instances of questionable behavior within the study period, and dozens in additional cases, involving more than two dozen prosecutors. Many more trials were undermined by the failure of judges and defense attorneys to challenge prosecutors’ conduct…

(District Attorney George) Kennedy and his aides concede that the Mercury News found instances in which certain prosecutors acted inappropriately in their quest to win convictions — and that Field, Tighe and Schon were among those prosecutors.

“Are there people in this office who have acted improperly? It would be impossible to deny that,'’ Chief Assistant District Attorney Karyn Sinunu said. “Do we condone such conduct? I am confident we do not.'’

The three prosecutors insist that they have conducted themselves honorably, and each says the criticism from supervisors is unfair. Field said that he has strived “to play by the rules at all times.'’ Tighe blamed the concerns about him on untrustworthy defense attorneys whose accusations sparked a “witch hunt'’ within the office. Schon said, “I always played fair.'’

No one suggests that these or other prosecutors seek to lock up people without regard to their innocence. But some experts acknowledge a hazard of the profession: As prosecutors prepare for trial, they tend to become convinced of the rightness of their case — and unable to recognize the possibility of anything but guilt.

“The bottom line is that the more prosecutors get ready for the ‘battle’ of trial, the more they want to win,'’ said Laurie Levenson, a former federal prosecutor and a professor at Loyola Law School. She said “there are great risks to justice when a prosecutor sees a criminal trial as a win-lose proposition.'’

Judges Indicted by Newspaper Investigation

The criminal justice system is broken.

That’s a fact, folks, particularly in the politically-sensitive area of DUI (as I’ve repeated in lectures in over 38 states). And if you doubt the seriousness of the situation, consider a series of articles in a 3-year investigation of judges and prosecutors in Santa Clara County (aka the Silicon Valley) conducted by reporters from the San Jose Mercury News. The following article in that series addresses the growing problem of defendants having to face two prosecutors in the courtroom — one wearing black robes:


How Judges Favor the Prosecution


The first sign that the proceedings seemed biased against her client came when Judge Edward Lee began questioning a witness, attorney Elissa Eckman would later recall. But that hardly prepared her for what happened near the end of the Santa Clara County robbery trial.

Lee left his seat on the bench, took a water bottle to the podium and gave the jury his own closing analysis of the evidence. In his remarks, Lee offered reasons to doubt the witness testimony supporting Eckman’s client, expanding on issues raised during his questioning.

A Mercury News review of five years of criminal jury trial appeals establishes a pattern of judicial conduct that favored prosecutors, with incidents occurring at nearly every step of the proceedings. Santa Clara County judges made missteps or questionable rulings in nearly one of every four of the cases.

The impact of their behavior can be crucial: Judges exert tremendous powers as the arbiters of the courtroom — determining what evidence to admit at trial, guiding the jury with their instructions, and setting boundaries for the prosecution and defense as thorny issues unexpectedly arise. Often judges use those powers firmly and fairly. But when they fail to do so, their actions may skew the course of the trial.

Rulings on evidence. In more than 50 of the 727 cases reviewed by the Mercury News, judges allowed prosecutors to introduce questionable — and often improper — evidence. In nearly 50 other cases, defense attorneys were restricted from introducing their own evidence, rulings that often raised concerns from appellate justices or independent experts. For example, in one manslaughter trial, the judge permitted the jury to hear the portion of a defendant’s statement to police in which he confessed to striking the victim with a board, but not the portion in which he explained that it happened in a frenzy, after he was stabbed, and that he had not intended to kill the man.

Jury instructions. In 48 cases, judges failed to give the jury appropriate guidance on the law — in ways that either bolstered the prosecution’s view of the case or undermined the defense’s contentions. As he directed jurors in a gang slaying case, a judge refused to tell them they should convict the defendant of manslaughter, not murder, if they found he acted “in the heat of passion'’ when he opened fire on rival gang members an hour after someone shot his brother.

Judicial partisanship. In 10 cases, including Guerrero’s, judges made explicit remarks or took actions in the presence of the jury that suggested their bias against the defendant.

All told, the Mercury News identified more than 100 instances when the appellate courts found that trial judges erred in ways that helped prosecutors, and more than 40 additional instances of troubling conduct that the appellate courts declined to assess.

These patterns make a particular impact in Santa Clara County, where the Mercury News investigation has revealed a justice system populated by many aggressive prosecutors and lackluster defense attorneys. As the most significant check on the conduct of both prosecution and defense, the judge is often called upon to protect the defendant’s rights….

“It seems clear that errors have become pernicious,'’ said Bennett Gershman, a former prosecutor and now a professor of criminal justice at Pace University in New York who has written texts on both prosecutorial and judicial ethics. In the worst instances, he said, it appears that “prosecutors know they can overtry cases and push as hard as they want because the judges will not stop them…'’

Note the comment about “lackluster defense attorneys”. Generally viewed by today’s American public as obstructionists, the simple fact is that there is only one thing standing between the combined power of police, prosecutors and judges and a corrupt criminal justice system. Neutralize that individual, as has been done by here by constantly beating them down, and truth, justice and the Constitution become little more than fine-sounding memories.

(Thanks to Public Defender Dude.)

Texas Backs Off Preemptive DUI Arrests

I commented earlier about Texas' new preemptive approach to DUI: Arrest them in the bars before they can commit the crime. Besides the obvious objection to arresting people for being potential drunk drivers, the arrests included those who were walking home, had designated drivers, would have called cabs, were staying at the bar's hotel, etc.

Although fairly typical of what we are used to seeing in MADD's War on Drunk Driving, this prophylactic approach to DUI law enforcement has drawn complaints from more rational Texans — not to mention ridicule from around the world, as the following news story from Scotland indicates:

Texas Halts Programme to Arrest Drunks in Bars

SAN ANTONIO, Texas (Reuters) – A controversial Texas programme to send undercover agents into bars to arrest drunks has been halted after a firestorm of protest from the public.

The Texas Alcoholic Beverage Commission has "temporarily suspended" what it called "Operation Last Call" even though it still believes it was worthwhile, commission spokeswoman Carolyn Beck said on Thursday….

Recent media reports that drunks were being arrested in bars provoked both ridicule and anger around the world and, perhaps more importantly, complaints from hotels, restaurants and bars in Texas who said it could hurt business. The programme drew support from groups such as Mothers Against Drunk Driving.

(Thanks to Jeanne M. Prutt of Responsibility in DUI Laws.)

Arizona Supreme Court: “Expedite” DUI Cases

As most of those involved in the American criminal justice system understand, that system increasingly resembles an assembly line more than a search for justice.  And this is nowhere more obvious than in the politically unpopular world of DUI.

A recent example of this shift in focus from justice to expediency is the Arizona Supreme Court’s recent directive to lower courts of that state to begin ”expedited disposition of DUI cases”.  (No, not cases involving murder, rape, burglary, theft, wife beating, drug sales, child molesting — just drunk driving.)  Based upon the recommendations of the Court’s own “DUI Case Processing Committee” (made up entirely of judges and beaurocrats; no prosecutors or defense attorneys were included), these new policies have already been implemented in pilot programs in designated courts before being adopted statewide.

Concerned that there will be a rush to “process” DUI cases at the expense of Constitutional protections, a group called the Arizona Attorneys for Criminal Justice has issued a “white paper” entitled Justice Without Quality is Justice Denied:

….Our primary objective is to ensure that our clients’ constitutional rights are scrupulously enforced.  Our job is to ensure that our clients are treated fairly, and that each person accused of a crime has a meaningful day in court, before an even-handed, impartial and unbiased Trier-of-Fact.  Our clients’ rights cannot be sacrificed in the name of expediency, or because the courts have a large number of cases to process.   

Some members of the judiciary may not understand the importance of obtaining highly technical proof of standards for maintaining and operating these (breath) machines, and establishing whether there was compliance with state and federal regulations, manufacturer specifications and nationally accepted standards in the case before the court.  Efforts to obtain such information are inaccurately described as “fishing expeditions” by prosecutors and some courts.  But to the defendant, whose main accuser is a machine, such information is at least as important to him as similar information is critical to determine whether a jet airliner is airworthy.

The challenge is to improve the efficiency of the DUI process without detrimentally affecting the quality of justice administered.  Justice delayed may be justice denied; but expediency without regard to fairness will produce injustice…

Included among a discussion of the issues in the white paper are two warnings from the U.S. Supreme Court handed down over 30 years ago:

“The volume of misdemeanor cases, far greater in number than felony prosecutions,  may create an obsession for speedy dispositons, regardless of the fairness of the result, and we must continually guard against assembly-line justice, in which expediency is place ahead of  fundamental fairness.  Such an obsession with speed often results in inadequate attention given to the individual defendant, and the frequent result is futility and failure.”  Argersinger v. Hamlin, 407 U.S. 25, 34-35 (1972).

“(T)he Constitution recognizes higher values than speed and efficiency.  Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.”  Stanley v. Illinois, 405 U.S. 645, 656 (1972).

But, of course, that was 30 years ago…


(Thanks to Kathleen N. Carey of Phoenix.)