October 2009 Archives

October 30, 2009

Criminal Charges and Depression

I was in court the other day waiting for a hearing, and I saw a heart breaking scene. A woman who looked to be in her late twenties was the defendant in a criminal case and she had brought her daughter to court with her. I would bet her daughter was about four.

She didn't have anyone with her to watch her daughter, so she brought her up to counsel table for her hearing. When she got to counsel's table, the judge asked her where her lawyer was. She said she didn't have one. As it turned out, she had already plead guilty to felony theft. She was coming back for her sentencing hearing.

The judge asked her why she didn't have a lawyer. From looking at the docket for her case and his notes, he told her that he could see that they had continued the trial date twice for her. Each time the judge inquired about her eligibility for a public defender, and concluded that she was eligible. Each time he told her to go to the public defender's office. He also told her to go get a public defender after her plea hearing.

The judge was clearly frustrated. The woman rambled a little bit about how she didn't commit the crime (!), then told the judge that she didn't know, but she thought she might be depressed, and that she knew she was supposed to go to the public defender but she just couldn't make herself do it.

It was an incredibly sad, and all too familiar, moment. I find that too many of my clients are overwhelmed by the charges pending against them and can't really function to work on their case. It's hard to watch that happen, both as a person and as a lawyer. I've seen it hurt people badly. The criminal justice system is not forgiving of people who don't act in their own defense.

I find that when my rapport with my client is strong I can get through some of that depression to help the client focus on the case a little. When the rapport isn't strong, well, it's just a lot harder. I'd be very eager to hear from any readers about how they handle depression in their clients; it's a problem that I don't think gets enough attention in the criminal defense bar.

Perhaps the only solution is the one that came to the woman I saw in court that day. A lawyer in the courtroom, moved by the scene that she was watching, stood up and asked the judge if she could talk to the woman for a minute in the hallway. She didn't know if she would get paid (she may, in fact, have known that she wouldn't), but she was willing to help.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 29, 2009

Is there any incentive for prosecutors to do the right thing?

Over at Sentencing Law and Policy, Doug Berman reports on a recent article wondering why prosecutors are rarely punished when they do illegal things.

According to Radley Balko at Reason, one prosecutor in Florida has put four men in prison who were later exonerated. That prosecutor is now on the bench hearing criminal cases.

Balko asks,

[a]s DNA exonerations continue to accumulate across the country, we're left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect's innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Balko isn't just complaining in a vacuum, he notes that the Innocence Project identified prosecutorial misconduct as a significant cause of a false conviction in at least a quarter of its cases. None of those prosecutors have been subject to meaningful discipline.

This is yet another sad part of how the incentives for prosecutors line up in a way that is not consistent with the public interest.

Prosecutors are rewarded by career advancement and, in some cases, cash awards, for getting convictions. Prosecutors are not rewarded for exercising good judgment to decline to prosecute when they ought to, or to seek a lighter sentence when appropriate. Maybe prosecutors really do act in the public's interest most of the time, but I don't think we'd create an incentive structure like that in any other area of public life.

The rejoinder to this is that prosecutors, as public servants, will pull up and exercise their discretion well. Certainly that happens, and when it does it should be celebrated. But the incentives don't line up to suggest that it will happen often. Why should such a prosecutor care that they did the right thing?

Our system relies on prosecutorial discretion, yet there is no meaningful incentive to develop or exercise good judgment as a prosecutor. And Balko argues that there is no reason to fear any meaningful punishment for bad behavior. With no carrot for behaving well, and no stick to punish behaving poorly, what kind of discretion should we expect from our nation's prosecutors?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 23, 2009

Another Thought About Maryland's Error Ridden Sentencing

I realize that maybe not everyone is as scandalized as I am about the errors in Maryland's sentencing calculations. As I blogged about yesterday, Slate reported that Maryland lawyers have been wrong about 10% of the time they do sentencing calculations.

Could unfrozen caveman lawyer do a better job?

Obviously, this is really not great press for Maryland lawyers. But, the more I think about it, I think it exposes a significant problem with how we think about criminal justice.

Our system is the adversary system. The idea is that if you have two sides who both present their version of the truth, the truth will come out. Yet, in the Slate article, we have a nice example of how the adversary system fails.

Whether it fails because lawyers are lazy, or not bright, or not motivated is kind of irrelevant. Lawyers are missing things when it comes to sentencing; what does it say about the error rate for these same lawyers when it comes to what happened in the underlying crimes?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 22, 2009

What's Wrong With Maryland Lawyers?

Slate has reported that, apparently, the error rate for sentencing calculations in Maryland is about ten percent. That's right, ten percent. "A system designed to make justice more predictable was producing errors in one out of every 10 trials."

That's not, actually, the incredibly stunning part. Apparently the cause of the error rate wasn't that people were lazy, or bad at math, or didn't understand the guidelines well enough to do the calculations. No, the error rate is caused by something much more depressing:

With the stakes so high--months and years of freedom gained or lost--how could Maryland's Sentencing Policy Commission have been so sloppy? For academic research--a matter trivial by comparison--it's common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren't to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland's legal profession.

I'm a Maryland lawyer, and I find this completely depressing. If all the errors resulted in lower sentences, I guess I could see this making sense. Prosecutors, particularly in state courts, can be excused from making a mistake or two if the sentence winds up where their intuition for the right sentence is consistent with the guidelines calculation.

What's scary is that defense lawyers let bad guidelines calculations though. Obviously, everyone has a bad day, but a ten percent error rate is way outside of the range of acceptable errors.

This is just unacceptable.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.