Last night, I attended the installation dinner for the Association of Criminal Defense Lawyers of New Jersey. This is a wonderful organization with some of the finest attorneys in the State. The keynote speaker was the extremely thoughtful, New Jersey Supreme Court Justice, Barry Albin. Justice Albin was, before his appointment to the Bench, a prominent defense attorney.
The topic of the talk was the above question: should the Rules of Professional Conduct be amended to permit attorneys to report client confessions, when another has been convicted of the crime? Justice Albin appeared to believe that the Rules of Professional Conduct in N.J. should, as they have been in MA, be amended to permit attorney disclosures to prevent manifest injustice. Justice Albin contended that the Rule would come into closer conformance with moral norms.
While I highly respect Justice Albin, I am not so sure I agree with him that attorneys should be permitted to disclose such client confessions. As an initial matter, I do recognize the troublesome question of anyone, particularly an attorney, remaining silent while an innocent person serves a jail sentence. On top of that moral quandary, the emotional toll on the attorney would be enormous. That being said, there are simply too many problems, in my mind, which would flow from such permitted disclosure.
First, the attorney-client privilege is intended to promote candid communications by clients. If the Rule were changed, such candor would be unwise for clients. This purpose would be undermined.
Second, such an exception could place attorneys at risk. If a hypothetical client is an admitted murderer, would he hesitate to eliminate his attorney if he knew the attorney were permitted to turn him in?
Third, such disclosures might be misused to disrupt legitimate convictions. There is little reason to believe that a client's confession is necessarily truthful. Perhaps false, manufactured confessions might be made to cast doubt upon a cohort's conviction. One Sean Connery-Blair Underwood film comes to mind.
Fourth, it is far from clear how such disclosures would even be used to avoid manifest injustice. If an attorney did disclose to authorities, what would happen? No doubt the authorities would investigate. The client is represented by counsel and could not be questioned. Even if he were questioned, he would deny the purported confession. Would his former attorney now be a witness against him? If authorities could not corroborate the confession, where would that leave the already-convicted? How could authorities prosecute the confessor? Presumably law enforcement did not already have sufficient evidence to charge the confessor.
Fifth, if the disclosure Rule were amended for attorneys, then why not for other protected communications? In other words, would priests and physicians then be permitted to make similar disclosures? This would rework the Rules of Evidence substantially and cause havoc among the public's expectations, formed by centuries of jurisprudence.
In sum, this is a very interesting and troubling situation. The proposed cure may, however, be equally problemmatic.
Friday, May 22, 2009
Friday, May 15, 2009
NJ Death Penalty Repeal Leads to Split on Sentencing Remedy for Pending Case
On May 12, 2009, the NJ Supreme Court decided State v. Fortin. The decision may be found here. In 1985, Fortin was charged with capital murder. In August 2000, six months before the penalty phase of his trial, the Legislature adopted a law to "take effect immediately," which permitted imposition of life without parole in certain capital cases. This was more severe than the prior sentencing scheme, which permitted a 30-year parole disqualifier. In 2001, defendant was convicted and found by a jury deserving of the death penalty. The Supreme Court then reversed and remanded the case for a new trial. Incidentally, the Court then noted that the use of the new sentencing scheme would have had ex post facto constitutional problems.
After the new trial, in 2007, Fortin was once again convicted. But before the sentencing phase, the Legislature amended the statute and replaced the death penalty with a mandatory life imprisonment without parole penalty. Previously, Fortin could have been sentenced to life in prison with a 30-year parole disqualifier, a lesser sentence.
The State requested that Fortin be sentenced automatically to life without parole under the new statute. The Trial Court refused, citing the constitutional prohibition on ex post facto laws (those imposing greater penalties than existed at the time of the crime). The Appellate Division agreed. The Supreme Court affirmed in part and reversed in part.
The answer to the question of how to handle this situation was not addressed by the revised statute. In other words, how do we treat defendants whose sentences were not yet rendered at the time of the statute's enactment? The Court majority adopted a "hybrid" approach, which is not set forth in the statute. The Court reasoned that, because defendant had knowledge of the possible death penalty at the time of the crime, then it is not fair to continue with the death penalty sentencing procedure (as previously in place but now repealed) before the jury. If the jury chose death, then it would not be unfair -- or violative of ex post facto -- to sentence defendant to life imprisonment as under the new statute. If, however, the jury rejected a death sentence, then defendant would be sentenced under the prior statutory scheme to life with a 30-year parole disqualifier.
In dissent, Justices Albin and Long argued that the majority's analysis was wrong and ignored the ex post facto problem previously recognized in its earlier Fortin decision. The Court was permitting imposition of a greater penalty than that permitted when Fortin committed the crime. Accordingly, the life-without-parole option is constitutionally infirm. The majority's hybrid analysis cannot be squared with the Court's earlier Fortin decision on this basis.
After the new trial, in 2007, Fortin was once again convicted. But before the sentencing phase, the Legislature amended the statute and replaced the death penalty with a mandatory life imprisonment without parole penalty. Previously, Fortin could have been sentenced to life in prison with a 30-year parole disqualifier, a lesser sentence.
The State requested that Fortin be sentenced automatically to life without parole under the new statute. The Trial Court refused, citing the constitutional prohibition on ex post facto laws (those imposing greater penalties than existed at the time of the crime). The Appellate Division agreed. The Supreme Court affirmed in part and reversed in part.
The answer to the question of how to handle this situation was not addressed by the revised statute. In other words, how do we treat defendants whose sentences were not yet rendered at the time of the statute's enactment? The Court majority adopted a "hybrid" approach, which is not set forth in the statute. The Court reasoned that, because defendant had knowledge of the possible death penalty at the time of the crime, then it is not fair to continue with the death penalty sentencing procedure (as previously in place but now repealed) before the jury. If the jury chose death, then it would not be unfair -- or violative of ex post facto -- to sentence defendant to life imprisonment as under the new statute. If, however, the jury rejected a death sentence, then defendant would be sentenced under the prior statutory scheme to life with a 30-year parole disqualifier.
In dissent, Justices Albin and Long argued that the majority's analysis was wrong and ignored the ex post facto problem previously recognized in its earlier Fortin decision. The Court was permitting imposition of a greater penalty than that permitted when Fortin committed the crime. Accordingly, the life-without-parole option is constitutionally infirm. The majority's hybrid analysis cannot be squared with the Court's earlier Fortin decision on this basis.
Monday, May 11, 2009
Search & Seizure Decision Reveals NJ High Court Split
In N.J., the automobile exception is no more. Police may not conduct warrantless searches of automobiles even after arrests of the occupants unless there is an exception -- usually exigency -- which prevents the obtaining of a warrant. In State v. Pena-Flores, the Court reaffirmed those principles in the context of opportunity to apply for a telephonic search warrant. Those warrants were held to the same requirements as non-telephonic warrants. Justice Long wrote for the Court majority.
In dissent, Justice Albin (joined by Chief Justice Rabner and Justice Rivera-Soto) opined that the Court had long departed from the correct path. The automobile exception, they wrote, is sound. Instead the Court has required law enforecment to meet an "amorphous" exigency requirement. The upshot, they contend, will be that officers will impound vehicles more regularly, so that they will not be second-guessed as to whether exigency requirements have been met. The result will be the delay of drivers in administrative limbo, under the guise of supposedly ensuring greater privacy rights.
This is a very interesting split. Perhaps it foreshadows a reversal, in the event the composition of the Court changes. Justice Albin writes that "Stare decisis is not a command to follow the mistakes of the past."
In dissent, Justice Albin (joined by Chief Justice Rabner and Justice Rivera-Soto) opined that the Court had long departed from the correct path. The automobile exception, they wrote, is sound. Instead the Court has required law enforecment to meet an "amorphous" exigency requirement. The upshot, they contend, will be that officers will impound vehicles more regularly, so that they will not be second-guessed as to whether exigency requirements have been met. The result will be the delay of drivers in administrative limbo, under the guise of supposedly ensuring greater privacy rights.
This is a very interesting split. Perhaps it foreshadows a reversal, in the event the composition of the Court changes. Justice Albin writes that "Stare decisis is not a command to follow the mistakes of the past."
Wednesday, May 6, 2009
Bail Source Hearings in New Jersey
New Jersey seomwhat recently passed new ""Bail Source" statutes, N.J.S.A. 2A:162-13 et seq., which provide prosecutors with tools to mandate judicial inquiry into the source of bail for defendants in a wide range of circumstances. The statute is silent on a number of procedural questions, including burdens of proof and persuasion when source hearings are ordered. Last week, a Trial Court Judge's opinion on these issues was approved for publication. The opinion may be found here.
The Court essentially concluded that: the State bears the burden of persuasion that the bail does not satisfy the
requirements of the statute, N.J.S.A. 2A:162-13(b). However, upon prima facie proof by the State that the bail is unreliable, insufficient, or tainted, then the burden of production shifts to the defendant.
The Court essentially concluded that: the State bears the burden of persuasion that the bail does not satisfy the
requirements of the statute, N.J.S.A. 2A:162-13(b). However, upon prima facie proof by the State that the bail is unreliable, insufficient, or tainted, then the burden of production shifts to the defendant.
Hearsay Admitted Under "Tender Years" Exception Found Not to Violate Confrontation Clause
The New Jersey Supreme Court recently decided State v. Coder, a matter exploring whether a young child victim's statement, found admissible under the "tender years" exception to the hearsay rule was nonetheless barred under the Confrontation Clause. The decision may be found at http://www.judiciary.state.nj.us/opinions/supreme/A-28-08%20State%20v%20Terry%20Coder.pdf
In this case, the victim told her mother, moments after the event, that the landlord had touched her in her private areas. The child later could not even remember the event, which occurred when she was three years old. The Supreme Court ultimately concluded that there was no Confrontation Clause problem because the child's statement was not "testimonial," that is, the statement was not made within the law enforcement investigative process. Rather it was made outside of this process and before even an investigation began.
In this case, the victim told her mother, moments after the event, that the landlord had touched her in her private areas. The child later could not even remember the event, which occurred when she was three years old. The Supreme Court ultimately concluded that there was no Confrontation Clause problem because the child's statement was not "testimonial," that is, the statement was not made within the law enforcement investigative process. Rather it was made outside of this process and before even an investigation began.
Sunday, May 3, 2009
Trials for Those Who Authorized and Justified "Enhanced Interrogation Techniques"?
There has been much debate about what, if anything, to do about senior Bush Administration officials and attorneys who authorized and justified -- through legal memoranda and policy decisions -- techniques such as waterboarding and other methods deemed advisable to extract information from suspected terrorists.
What is apparent from these debates is that the premises of debaters appears to define their respective answers. In other words, agendas are at hand. This is not surprising or problemmatic. What is maddening about these discussions, however, is that they are circular. What is more, the questions raised -- what is torture, did it work, should we prosecute -- are separate questions without a ready answer.
Was It Torture?
I am far from an authority on this question. Nonetheless, I am prepared to accept that waterboarding is torture. I am also prepared to accept that no reasonable person can, with a straight face, claim otherwise. There is little doubt in my mind that waterboarding was the least of what suspected terrorists endured under Bush policies. Now that we have that question out of the way, the next issue is whether to do anything about it.
Who Was Responsible?
The curent debate is whether any inquiry and prosecution should be launched for those responsible. Who are those responsible? Plainly senior Bush Administration officials are responsible, leading up to and including former President Bush. Those senior officials who authorized torture should be included.
Legal counel is often lumped into this group. Various memoranda were prepared to justify, as perfectly legal, the practices which many (including me) regard as torture. But the inclusion of government attorneys in a group of potential target defendants is really troublesome. Those attorneys were asked to provide legal advice, perhaps even to find a rationale, under law, to justify a particular position. To my mind, they were not part of any criminal conspiracy. The alternative is to say that attorneys are responsible for clients' activities. This is a dangerous position and would create precedent where, in the future, attorneys may decline to give advice. Clients will act without advice, probably a more precarious position for them and for us.
Should We Prosecute?
This is an extremely complicated question. In order to prosecute, we must be convinced that laws were willfully broken. This means that we must be certain that the Executive Branch of the Government actually had no authority to authorize the actions. Is that the case? Once again, I am no authority on Executive Branch authority. But I suspect the issue is not "cut and dried." We do have a strong Executive. That coupled with a time of crisis may translate into ample authority. If we conclude that, in no circumstances, was there lawful authority, would the federal courts see it that way? Would this be considered a "political question" the courts would not undertake? Moreover, there has been some call for prosecution in the War Crimes Tribunal at The Hague. Is this what we want as a society? Is the prosecution of a former American President the type of precedent we wish to promote?
What would be the goal of such prosecutions? It is easy to claim that trials would have deterrent effect on future torturers. But it is far from clear this would be the case. Perhaps the goal would be re-establish our world leadership as enemies of torture, and strong proponents of the rule of law. But would prosecutions actually have this result? Maybe the true motive for some proponents is a type of payback for perceived extra-lawful actions and fabrications of the Bush Administration. But such revenge motivation would be dangerous precedent and weken the Executive Branch for generations.
Did It Work?
Former Vice President Cheney has been calling for the Obama Administration to release classified memoranda purportedly extolling the virtues of enhanced interrogation techniques. These documents will, according to proponents, prove waterboarding's usefulness for extracting information.
This is, in my opinion, a red herring. First, there is no doubt in my mind that those subject to torture will provide information. Of course they would do so. They would want to end the torture. Second, there is no evidence that most of the information obtained was actually accurate. You can bet that if I were subjected to torture (or threatened with it), I would, if necessary, spin a tall tale to avoid the whole thing. Third, so what? Is there a suggestion that torture is justified based upon a risk-utility analysis? It is easy -- as a mantra -- to claim that the saving of even a single American life is worth the price we pay. But did we actually save lives because of these techniques or because of other actions we undertook? We lose so much of our ideals, and create such a troublesome precedent in the eyes of the world, when we avoid our own standards of law and decency. We must be mindful of the historical significance of our actions.
It has been interesting to hear President Obama carefully deflect questions about possible prosecutions. He is rightfully concerned about the potential impact such prosecutions would have on Executive Branch authority. he is rightfully concerned with the host of ancillary issues inhenerent in a declaration of past unlawfulness by our leaders. President Obama has urged us to move forward, and not to harp on the mistakes of the last administration. I do not believe President Obama is asking us simply to "play ostrich" to torture. On balance, I agree with the concept that we should learn from past errors and move forward carefully to avoid the same mistakes.
What is apparent from these debates is that the premises of debaters appears to define their respective answers. In other words, agendas are at hand. This is not surprising or problemmatic. What is maddening about these discussions, however, is that they are circular. What is more, the questions raised -- what is torture, did it work, should we prosecute -- are separate questions without a ready answer.
Was It Torture?
I am far from an authority on this question. Nonetheless, I am prepared to accept that waterboarding is torture. I am also prepared to accept that no reasonable person can, with a straight face, claim otherwise. There is little doubt in my mind that waterboarding was the least of what suspected terrorists endured under Bush policies. Now that we have that question out of the way, the next issue is whether to do anything about it.
Who Was Responsible?
The curent debate is whether any inquiry and prosecution should be launched for those responsible. Who are those responsible? Plainly senior Bush Administration officials are responsible, leading up to and including former President Bush. Those senior officials who authorized torture should be included.
Legal counel is often lumped into this group. Various memoranda were prepared to justify, as perfectly legal, the practices which many (including me) regard as torture. But the inclusion of government attorneys in a group of potential target defendants is really troublesome. Those attorneys were asked to provide legal advice, perhaps even to find a rationale, under law, to justify a particular position. To my mind, they were not part of any criminal conspiracy. The alternative is to say that attorneys are responsible for clients' activities. This is a dangerous position and would create precedent where, in the future, attorneys may decline to give advice. Clients will act without advice, probably a more precarious position for them and for us.
Should We Prosecute?
This is an extremely complicated question. In order to prosecute, we must be convinced that laws were willfully broken. This means that we must be certain that the Executive Branch of the Government actually had no authority to authorize the actions. Is that the case? Once again, I am no authority on Executive Branch authority. But I suspect the issue is not "cut and dried." We do have a strong Executive. That coupled with a time of crisis may translate into ample authority. If we conclude that, in no circumstances, was there lawful authority, would the federal courts see it that way? Would this be considered a "political question" the courts would not undertake? Moreover, there has been some call for prosecution in the War Crimes Tribunal at The Hague. Is this what we want as a society? Is the prosecution of a former American President the type of precedent we wish to promote?
What would be the goal of such prosecutions? It is easy to claim that trials would have deterrent effect on future torturers. But it is far from clear this would be the case. Perhaps the goal would be re-establish our world leadership as enemies of torture, and strong proponents of the rule of law. But would prosecutions actually have this result? Maybe the true motive for some proponents is a type of payback for perceived extra-lawful actions and fabrications of the Bush Administration. But such revenge motivation would be dangerous precedent and weken the Executive Branch for generations.
Did It Work?
Former Vice President Cheney has been calling for the Obama Administration to release classified memoranda purportedly extolling the virtues of enhanced interrogation techniques. These documents will, according to proponents, prove waterboarding's usefulness for extracting information.
This is, in my opinion, a red herring. First, there is no doubt in my mind that those subject to torture will provide information. Of course they would do so. They would want to end the torture. Second, there is no evidence that most of the information obtained was actually accurate. You can bet that if I were subjected to torture (or threatened with it), I would, if necessary, spin a tall tale to avoid the whole thing. Third, so what? Is there a suggestion that torture is justified based upon a risk-utility analysis? It is easy -- as a mantra -- to claim that the saving of even a single American life is worth the price we pay. But did we actually save lives because of these techniques or because of other actions we undertook? We lose so much of our ideals, and create such a troublesome precedent in the eyes of the world, when we avoid our own standards of law and decency. We must be mindful of the historical significance of our actions.
It has been interesting to hear President Obama carefully deflect questions about possible prosecutions. He is rightfully concerned about the potential impact such prosecutions would have on Executive Branch authority. he is rightfully concerned with the host of ancillary issues inhenerent in a declaration of past unlawfulness by our leaders. President Obama has urged us to move forward, and not to harp on the mistakes of the last administration. I do not believe President Obama is asking us simply to "play ostrich" to torture. On balance, I agree with the concept that we should learn from past errors and move forward carefully to avoid the same mistakes.
Friday, May 1, 2009
Withdrawing from the Defense of a Criminal Case
There is a very interesting recent article discussing the potential pitfalls of withdrawing from a criminal case. The article, found at http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202430344963, notes the continued duties of confidentiality and possible conflicts with the client. The author, a N.Y. defense attorney, further explores how the withdrawal may be perceived by the public. There can very well be adverse impact on the client by virtue of the withdrawal. In high-profile cases, there will surely be rampant speculation about the reason for withdrawal. The same may be said for an attorney being removed by the client.
There are many reasons why an attorney may seek to withdraw. Without exhausting the possibilities, fee disputes, non-payment, strategic disputes, and an attorney's ethical inability to continue representation come to mind. In my experience, attorneys do not wantonly seek to withdraw. They recognize there is a stigma and possible adversity to the client -- and sometimes to the attorney -- where there is withdrawal. It is not a decision to be taken lightly. If undertaken, care must be taken not to run afoul of ethical prohibitions.
An attorney should remain close-lipped about client disputes, including the reason(s) for withdrawal. Likewise, an attorney should refrain from grousing about the client who discharges him. It happens. It is not pleasant. Move on. Remain professional. If you must continue to deal with the press on the matter, be sure to coordinate with the client and new counsel about any statements.
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