“In L.A. County, a juvenile suspect assigned an attorney for a flat fee is likely to fare much worse than one who gets a public defender”

This op-ed is from the L.A. Times:

Three hundred fifty dollars. That’s the amount Los Angeles County pays a private attorney to represent a child charged with crimes when the public defender has a conflict of interest and can’t handle the case. That $350 has to cover all legal work, even when the child is charged with a serious crime such as murder or rape. About 11,000 kids a year end up being represented by such appointed counsel.

. . .

Public defenders are hired through a highly selective national recruiting process. They are trained by senior attorneys and work in an office that rewards zealous advocacy with promotions and raises.

The county requires no vetting of appointed attorneys, nor does it have requirements for special training or experience.

In R. v. JORGGE, 2013 ONCA 485, July 18, 2013, the accused was convicted of the offences of sexual assault and administering a stupefying substance with intent to commit a sexual assault.  At his trial, after a voir dire, a statement the accused had given to the police was admitted as evidence. In this statement, the accused initially indicated that a consensual act of sexual intercourse has taken place.  He subsequently indicated that the complainant may have been asleep when this occurred.  The complainant testified that she had felt “paralyzed” and that “when the appellant had intercourse with her she could not move or defend herself.  According to a toxicological report she had a ‘date rape’ drug in her system – a commonly used antihistamine found in cold medicines and available over the counter.” The accused testified and indicated that he had lied to the police in relation to his latter comments.

The trial judge, in her reasons for convicting, said that she “unhesitatingly” accepted the evidence of the complainant. As regards the evidence provided by the accused, the trial judge relied on the accused having heard the arguments of counsel on the voir dire before testifying at trial:

I accept that Mr. Jorgge found the interview long and stressful, but I do not accept his evidence that he believed that he had to give some evidence to the police to conclude the interview.  Mr. Jorgge is intelligent and manipulative.  He was in control throughout the interview.  Mr. Jorgge had the benefit of listening to the various arguments raised by his counsel at the voir dire.  He also understands now that consent to sexual relations means more than a woman not protesting as sexual activity progresses.

Later in her reasons the trial judge referred to the accused having “tailored” his evidence to “fit” the arguments of counsel.  The trial judge concluded that the accused’s statement to the police was truthful and that his trial evidence, given after hearing counsel’s submissions, could not be accepted:

I conclude that the evidence given by Mr. Jorgge in his statement about the sexual activity that took place on July 18, 2008, and in particular whether [the complainant] was moving or was inert as she was sleeping or passed out, is truthful.  I conclude that his commentary given at the trial is simply an attempt by Mr. Jorgge to distance himself from any concessions made in the statement relevant to the issue of consent now that Mr. Jorgge has a better understanding of the issues.

I conclude that his evidence given at the trial, when it conflicts with his prior statement, is an attempt to challenge the ruling as to the voluntariness of his statement after hearing the capable arguments of his counsel.  In drawing this conclusion I have considered all of the statement and all of Mr. Jorgge’s evidence at this trial.

The accused appealed from the convictions and one of the grounds of appeal raised alleged that the trial judge erred in finding his evidence not to be credible on the basis that he had “tailored” his trial testimony to “fit” the arguments raised on the voir dire into the admissibility of his statement to the police.

 

The Ontario Court of Appeal held that the trial judge’s “reasoning was improper because it subverted the appellant’s right to be present at his trial.”  The Court of Appeal concluded that the “trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial”, but she “was not…entitled to attribute those inconsistencies to his presence at the voir dire.”

From Jurist:

The New Jersey Supreme Court [official website] ruled [opinion, PDF]  that police must obtain search warrants before obtaining tracking information from cell phone providers. The unanimous ruling marks the first time a state supreme court has recognized aFourth Amendment [Cornell LII backgrounder] protection for cell phone location data. In the decision, Chief Justice Stuart Rabner noted that cellphone tracking technology has the potential to violate a person’s privacy rights and must be subject to judicial review. Rabner also noted that no warrants will be required in emergency situations.

The decision to put the elderly into nursing homes over their objection is a crisis many families painfully face. But if the decision is not to place the elderly in a nursing home, is that neglect? The Washington Supreme Court ruled that the guardian of an elderly Pierce County woman was not negligent when she didn’t force her into a nursing home against her wishes.

The court explained in the unanimous ruling that even if the bed-bound woman could have gotten better care in such an institution, she should not have been forced to move into one. Following her wishes was not neglect.

In a unanimous ruling, the Supreme Court reversed a decision by the Washington Court of Appeals, citing the Legislature’s mandate against placing incapacitated persons against their will. The full opinion can be found here (PDF).

Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

Keith A. Findley 

University of Wisconsin Law School

June 3, 2013

Georgia Law Review, Vol. 47, No. 723, 2013

Abstract: 
The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories” — a few types of evidence (eyewitness identifications, confessions, forensic science, and snitch testimony) that are both recurring features of wrongful convictions and not otherwise susceptible to correction through traditional trial mechanisms and that, therefore, can and should be subjected to heightened scrutiny for reliability under the Due Process Clause.

Recognizing, however, that the Supreme Court is moving away from using constitutional doctrine to screen for reliability, this Article considers other mechanisms for better ensuring reliable evidence and accurate trial outcomes. First, current trends in Supreme Court jurisprudence suggest a due process framework that focuses upstream of the trial process on regulating the police and prosecutorial conduct that generates some of the most suspect trial evidence. Second, the Article assesses new applications of non-constitutional evidence law that offer promise for filling the void in reliability review of such suspect types of evidence. Finally, the Article considers remedies in addition to exclusion that might aid in the enterprise of mitigating the harm from flawed evidence. Principal among these are broader use of expert witnesses and jury instructions to educate fact finders about the counter-intuitive but scientifically established qualities of these categories of suspect evidence. And because courts have proven reluctant to apply reliability-based exclusionary rules rigorously, the Article concludes by exploring partial exclusion — excluding the most objectionable parts of the evidence while permitting other parts — as a remedy that courts might be more likely to actually enforce.

The National Association of Criminal Defense Lawyers has this new press release reporting on a new report about American criminal justice systems.   Here is how the press release starts (with a link to the report):

Issued today, a groundbreaking report on a matter of immense public importance — Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System — is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.

The HBO documentary Gideon’s Army is showing throughout the month of July (Next showing is tomorrow:  Friday, July 26 at 2:20 PM CT on HBO Signature East/5:20 PM CT on HBO Signature West).

The film follows the personal stories of three young public defenders in the Deep South. The issue of bail and pretrial justice is a theme throughout the documentary.

Schedule available at: http://www.hbo.com/#/documentaries/gideons-army/index.html/

The Law Blog has an article by Jacob Gershman which reports that:

 “More than a third of Americans say the First Amendment goes too far in the rights it guarantees, according to a new survey.

The results were released Tuesday by the First Amendment Center, a non-partisan group that advocates for First Amendment protections and conducts an annual survey of public views.”

The Anchorage Daily News contains an article that begins, “The Alaska Supreme Court Friday unanimously upheld a lower court decision that a voter initiative banning all abortions could not appear on the Alaska ballot because it was unconstitutional.”

You can access the  ruling of the Supreme Court of Alaska at this link (PDF).

The National Association of Court Managers held its annual conference last week in San Antonio. Judge Steve Leben and Dr. Pam Casey presented a session on procedural fairness and making better decisions….mindfulness. These are the Power point slides (PDF) but without the video.

NACM_San_Antonio_7-18-13-1