Criminal Defense in the news

“Believe Survivors” vs. “Due Process”

[CW: discussions of sexual assault and questioning survivors’ veracity]

By Andy Piltser-Cowan and Jade Piltser-Cowan

This is a topic that we have been wanting to write on for a while.  It’s something Andy has grappled with over the years as an attorney of conscience whose job is sometimes to represent the accused, and other times the victim, and of course is also a member of society free to have his own opinions when not representing a client.

What do we mean when we say “believe women” or “believe survivors?”  Some folks say, “when you report a robbery, or a theft, or some other crime, nobody starts by asking how you fought back, what you were wearing, or whether you made it up.”  This is mostly true,  although if the case goes to trial, a defense attorney might ask any one or more of those things to try to poke holes.  
On the other hand, imagine that a member of the community comes to you and says they were mugged on the street last night, at knife-point, and relieved of their cell phone.  They have no injuries, because they yielded the phone when the attacker displayed a knife.  They are shaken up, and not sure what to do, but they can identify the assailant as a man they met at a cocktail party earlier in the night.  They had a few drinks at the party.  Our first reaction to this person is not “did you fight back?” Or “are you sure you remembered it right?” or “was it really robbery if they didn’t hurt you?  Did they actually pull the knife, or just say they had a knife?”  Or “maybe you just had a lot to drink and forgot what you did with your phone.”
The police identify the assailant based on the description.  He is carrying a knife and the victim’s phone.  It’s a 4″ folding knife, where the victim described a 6″ straight knife.  The victim described him as having a celtic knot tattoo on his neck, but it’s actually a Celtics shamrock.  When questioned, he says that he carries the knife for work, he found the phone on the street, and he was trying to get it back to its rightful owner as soon as he could get it charged up to turn it on and identify them.  He’s had a busy day, he says, and just didn’t have the chance.
Now I can tell you with near-absolute certainty, as a criminal attorney for ten years, that any police officer in Massachusetts would make an arrest based on the strength of that evidence.  They would not shrug and say “it’s a he said/she said.”  A judge would deny a motion to dismiss.  The case would go to trial, unless the defendant entered a guilty plea.  He would have an absolute right to say his piece before a jury of his peers, who would decide if he was guilty or not.  Would you consider this case difficult to resolve?  Would you question the victim’s veracity after learning the discrepancies in the story and the suspect’s excuse?  Most of us would not.  
“Believe survivors,” at least to us, does not mean that every allegation must be taken as categorically true and beyond question, or that an accused may not have the chance to say their piece and have it taken into account.  It means that somebody who comes to the community for support after being sexually assaulted should get at least the same baseline credence as the person above, who was mugged.  It’s not a presumption of guilt or a lack of openness to hear the other side, it’s a baseline willingness to treat somebody who has been sexually assaulted with the same dignity and respect as somebody who has suffered any other violation of their person or property.
in the news

We Stand in Solidarity with #BlackLivesMatter

We at the Law Office of Andrew Cowan stand in solidarity with the #BlackLivesMatter movement. Black lives matter, regardless of socioeconomic class, gender, orientation, ability, immigration status, criminal record or lack thereof.

The penal system in the US is built on systemic racism, and is heavily biased against the Black population.

Even in Massachusetts. Even in Boston.

The crime of police brutality against Black lives is nothing new. The prison system in this country incarcerates over five times as many Black people per capita than White people.  White people are less likely to be stopped, less likely to be searched, less likely to be arrested, and less likely to be shot, as compared to people of color in the same situation.

When so many of our society’s people live in fear of their government, the system cannot be allowed to stand unchallenged.

Black Lives Matter

in the news

Massachusetts’ Broken Public Records Law

The Boston Globe ran an article today on Massachusetts’ broken public record system.  They had Northeastern students request basic public information from every city and town in Massachusetts.  Few responded in the required ten days, and many quoted exorbitant fees to produce the records.

I request public records fairly often for my practice, and this mirrors my experience. Requests are never acknowledged within ten days, compliance is laggardly at best, and flimsy excuses why the records cannot be produced or cost a gazillion dollars are a dime a dozen (if only records were so cheap).

When I was a public defender, I volunteered to send public records requests to every police department in our office’s jurisdiction to get their standard operating procedures. We wanted nice binders of department policies (like some put online), so that it would be easy to check if police in a given case followed their own rules. Out of 17 police departments, one complied, a couple quoted exorbitant fees, and most refused on the basis that the request was “detrimental to the police function.” Since I didn’t have a budget for to pay fees or sue the departments, we tabled the project and went back to requesting policies case-by-case through the court discovery process.

Now, in private practice, I consider myself lucky if the response to a record request is a fee quote that my client or I can afford to pay, even if it is excessive. That doesn’t happen often. I recently had to go to the Secretary of State to compel the State Police to produce records from a long-closed arson investigation, and I have learned to always send my requests by certified mail so the agencies can’t claim they never got them.

Massachusetts residents who are interested in government transparency, I urge you to contact your state legislators and light a fire under the stalled public records reforms!

in the news student questions

Lying Witnesses and Other Questions of Truth in the Courtroom

As the events in Ferguson unfolded, students from my MIT’s Splash class Know Your Rights continued to email me questions regarding the behavior of the DA running the Grand Jury, prompting this reply.

Those of you following Ferguson may have noted the news last week that the DA admitted that he presented witnesses to the Grand Jury whom he knew were lying. This was particularly interesting to lawyers and people who follow legal news because Missouri, like most other states, has a rule against an attorney presenting evidence in court that the attorney knows to be false.

On that note, I present the following questions for you to chew on. As usual, if you think that any of my questions have easy or obvious answers, you have missed an important point and should either think about them some more, or find somebody who disagrees with you to have an interesting conversation with.

Many of these questions have answers that can be looked up in law books or rule books, but that doesn’t mean that they are the “right” answer or the “best answer.” They are simply current law, and since we live in a democracy, we can change the law! Even if we can’t change a law, we can also grumble about it and philosophize about it and argue that it should be changed!

1) When we say that an attorney can’t present evidence that the attorney knows to be false, what do we mean by “knows?”

Should we define that really strictly to only include evidence that the attorney could prove false beyond a reasonable doubt? What about evidence that the attorney thinks is probably false, but can’t prove is false? What about evidence that the attorney can suggest is probably false, but not beyond a reasonable doubt?

2) Short of a Bob McCullough-type “I knew they were lying” confession, how are we ever going to prove that a lawyer knew the witness was lying?

The case I studied in law school involved a lawyer who was actually with a witness in place A, when the witness testified to have seen the defendant in place B (not committing the crime, which happened in place C). That seems to be about as unusual as the McCullough confession. Should we be spending a lot of time on rules that only apply in weird and unusual circumstances?

3) What happens when a client tell the lawyer a particular version of the facts, and then changes the story later on in the representation?

The lawyer has to know that at least one version is false. The lawyer may not know which one is true or false. Can the lawyer call the client as a witness? What if the client changed their story in response to the lawyer telling them that the first version wouldn’t win the case? If that’s enough for the lawyer to bar the client from testifying, aren’t we encouraging a “don’t ask/don’t tell” sort of gamesmanship between attorney and client?

4) Who decides whether the lawyer knew the evidence was false, and how sure do they have to be, before they can punish the lawyer?

5) Our adversarial system depends on having attorneys muster the best evidence they can to zealously fight for a position or result, and other attorneys zealously attacking that evidence and mustering counter-evidence to zealously fight for the other result.

Is this counterbalancing undermined when an advocate withholds evidence for fear of being disciplined if it turns out to be wrong? Can’t the adversarial system handle false evidence by relying on the other lawyer to prove it false?

6) Normally, attorneys are supposed to be the best possible mouthpiece for the client, not the one who decides what evidence to believe and what weight to give it. Judges and juries do that, after hearing from both sides.

What does it do to the attorney-client relationship when we put the attorney in the position of making this kind of decision before offering evidence to the tribunal? How would you feel if your lawyer refused to argue your evidence because he or she didn’t believe it? What if your evidence was true, and the lawyer was wrong?

7) In a criminal case, the defendant has an absolute right to testify in his or her own defense. This is one of the most absolutely true things we have in our legal system.

What happens if the defendant in a criminal case wants to testify in a way that the lawyer knows to be false? Can the lawyer stop the client from testifying? If so, how does that interplay with the rule that the defendant has an absolute right to testify? If not, how does that interplay with the rule that the lawyer can’t offer false evidence? If the client is allowed to give the false testimony, can the lawyer participate by asking the client questions on the witness stand? Can the lawyer argue to the jury that they should believe the client? If the client can testify, but the lawyer can’t ask the jury to believe it, doesn’t that put the whole defense in a weird, awkward position with the jury?

Comments are open for discussion below.

(Originally written on 12/22/2014.)

in the news student questions

Grand Juries, Mike Brown, and Eric Garner: Questions from Students

Every November at MIT’s Splash program I teach a class called Know Your Rights.  The class covers the fine points of the police-citizen interaction and teaches students what to do and what to expect if they encounter a police officer at home, at school, on the street, or in a car.  I always invite my students to contact me if they have legal questions later.

This year, I have been inundated with excellent questions concerning the deaths of Mike Brown and Eric Garner, and some of the related legal principles.

I will try to answer three of those questions here.

First, what is the difference between a trial and an indictment? Or between a Grand Jury and a trial jury?

Second, what do I think about Ferguson, the death of Mike Brown, and the death of Eric Garner?

Third, was it lawful for the NYPD to touch Eric Garner without his consent, given that he did not have a weapon and was not assaulting the police?

Function of the Grand Jury

A grand jury is not like a trial jury. They do not hear a contested case with evidence from both sides, and they do not decide whether the Defendant is guilty or not guilty.

A Grand Jury is a secret proceeding controlled by a prosecutor, without a judge or a defense lawyer. They hear evidence selected by the prosecutor, and decide whether or not there is probable cause to charge the Defendant with a crime.

If the Grand Jury decides that there is probable cause to issue a charge, that decision (and the corresponding charge) is called an “indictment” or a “true bill.” If they decide that there is no probable cause, the decision is called a “no bill.”

Grand Jury procedure differs a lot by state, but in many states an indictment is required to charge a person with a felony (such as murder or manslaughter). If you want to know more about how they work (and how they don’t), I recommend the following articles:

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich, by Pope Hat (this is a hilarious law blog that I recommend in general).

England Abolished Grand Juries Decades Ago Because They Didn’t Work from Public Radio International.

On Ferguson, Mike Brown, and Eric Garner

I am not going to tell you what I personally think of Ferguson, or Eric Garner, or any of the rest. I will give you a few articles to read and a few questions to think about. If you think that you have come to an easy answer to any of these questions, I recommend that you discuss it with a friend or family member whom you are comfortable disagreeing with, and see what they think.

Ferguson and the Cult of Compliance by Professor David Perry.

Being a Cop Showed Me Just How Racist and Violent the Police Are. by Reddit Hudson.

It’s Past the Point of No Return, a New York Magazine interview with an NYPD officer.

Protest in a Liberal Democracy by Professor Brian Martin.

The Parable of the Polygons by Vi Hart and Nicky Caes.

Questions to consider and discuss:

  1. What rule should we teach police officers that they should use to determine whether they are allowed to use deadly force in a particular situation? Keep in mind that the rule should be easy to apply in a split second, without consulting a book or a superior officer.
    • Should the police ever be allowed to use deadly force to apprehend a fleeing suspect? Does it depend on what the person is suspected of?
    • How much danger does an officer need to be in before they can use deadly force in self-defense? Should they be required to try retreating or de-escalating before they use force?
  2. Okay, so you’ve got a rule. Now, there will be situations where an officer used deadly force, and people disagree about whether it was authorized or not. In fact, people even disagree about what happened. And there will be circumstances where there are honest mistakes by officers who really thought somebody was pointing a gun at them, when that person really wasn’t. How sure do we have to be, before we will agree that criminally prosecuting the officer (that is, putting them in jail for a while, branding them as a felon for life, and never letting them be a police officer again) is the right thing to do?
    • Who decides? A prosecutor, a judge, or a jury? Should they hear from both sides first? Who will represent the pro-prosecution side? Will it be a prosecutor from that officer’s jurisdiction, who might have prosecuted cases that the officer was involved in?
    • Should there be circumstances where the officer loses his or her job, or gets sued for money but doesn’t get criminally prosecuted? Where do you draw the line?
    • If the officer gets sued for money, does the department pay? (The current practice is, almost always). If so, should there be other consequences for the individual officer?
    • The government gave these people weapons and told them that sometimes it’s okay to use force. Under what circumstances might the government acknowledge that a use of force shouldn’t have happened, and take responsibility for it? What will that responsibility look like? An apology? A cash payment? Should there be circumstances where the government takes responsibility, but the individual officer isn’t punished?
    • How will your rule impact people’s willingness to be police officers in the first place?
    • How will your rule impact society’s ability to feel safe with its police officers?

On Eric Garner and the Current Laws About Use of Force

The third question was whether it was legal for the officers to put their hands on Eric Garner at all, since he wasn’t attacking anybody and didn’t have a weapon.

It appears that New York makes it a crime to sell loose, untaxed cigarettes, and that Officer Pantaleo said he was trying to arrest Garner for this crime. You might ask yourself whether selling untaxed cigarettes should be something you get arrested for at all, rather than just being ticketed or summonsed. But in New York, right now, as far as I know, you can get arrested for it.

Usually, officers are allowed to use reasonable force to arrest somebody and to overcome that person’s resistance. What is “reasonable” depends on the circumstances. Lethal force is not usually considered “reasonable.”

Another question for you to consider is when the police should give up. The “cult of compliance” article above talks about a police culture of increasing the level of force until they win, but many US police departments have historically had laws that limit their escalation. For example, many police departments will not continue a high-speed car chase unless the person they are chasing is believed to be dangerous, because the chase itself is dangerous.

Ask yourselves and discuss: what rule should limit police use of force? When should they just give up, and mark the person as wanted? Does it depend on what the person is suspected of? How do we formulate a rule that can be quickly applied in the field?

The relevant language on chokeholds is:

Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.

Several commentators from law enforcement have argued that the “take down” maneuver used to arrest Garner was not a choke hold at all.  You can read one of the more coherent arguments on that point here.

As you’ll see in the use of force manual, there is very little commentary on specific tactics that are allowed or disallowed.  However, there is a provision that says,

Whenever possible, members should make every effort to avoid tactics, such as sitting or standing on a subject’s chest, which may result in chest compression, thereby reducing the subject’s ability to breathe.

In general, the rule is that the use of force must be ‘reasonable’ and that non-deadly force should be used when possible.  Of course, telling police officers that a judge or supervisor will decide later whether their use of force was ‘reasonable’ gives them zero guidance as to what they should do or not do in the field.

The question brings up an important point about what it means to say that something is “legal” or “illegal.”  Usually we do not think of breaking rules at your job as “illegal,” even if you work for the government. And when you ask whether something is illegal, you are actually asking a few questions.  Is there a law that says it’s not okay to do this thing?  Is that a criminal law that imposes a jail sentence or fine?  If not, what happens to people who break the law?  Will a police officer arrest a person for doing this thing, even if there isn’t a specific law about it?  Will a judge uphold such an arrest?  Will a jury convict the person arrested of the crime that the police charged them with?  Will an appeals court say that the conviction was valid?

Comments are open for discussion below.

in the news

“Contempt of Cop”: Why a Public Defender Was Arrested Over Nothing

Come and see the violence inherent in the system.

On January 27th, Deputy Public Defender Jami Tillotson was arrested for refusing to allow her client to be questioned by police without an attorney present. I have much respect for Attorney Tillotson for calmly and implacably inviting the inspector to carry out his threat of unlawful arrest.

You can watch the video here. “I’m going to arrest you for resisting arrest,” is a pretty strong tip-off that there is no valid arrest being made — especially where he had just said the other man would be free to go after having his picture taken. Resisting what arrest?

My reference to “the violence inherent in the system” isn’t just a Monty Python reference. It’s very common for police officers to make “contempt of cop” arrests, where the only offense is being in the way of the police doing things their way. In many of these cases, the arresting officer knows that the arrest will not stand up in court, but is simply using force to punish the person for non-compliance.

The identifying features of a “contempt of cop” arrest are  some apparently lawful activity that is inconvenient to the officer, and a vague misdemeanor charge like “Disorderly conduct,” “resisting arrest,” or “criminal mischief.” In Massachusetts we sometimes see “interfering with a police officer in violation of the common law,” which is literally not a crime that exists.

There’s also a common thread in the culture of many police departments that resent public defenders as being on the side of crime and against peace and good order.

In this worldview, private attorneys are seen as understandable because they are in a lawful occupation making an honest buck — even when hired to advise suspects in pending investigations, in ways that are inconvenient to the police.

Public defenders get the extra contempt because it’s a financially irrational occupation, and the idea that public defenders would sacrifice pay to defend criminals is beyond the officer’s capacity or willingness to understand.

The intellectually lazy, stand-in explanation is that the public defender is an evil person who wants to see the collapse of law and order and the reign of anarchy. They tolerate advocacy in the courtroom because it is a behavior that is defined and specifically endorsed by the social order, and the officers can tell themselves a story about how the public defenders are “just doing their jobs,” however misguided that job may be. Many police officers assume that defense lawyers find courtroom advocacy distasteful (we don’t).

However, when a public defender steps outside the courtroom and advises a suspect on how to protect their rights, the contempt erupts. In the officer’s view, fieldwork is the private domain of cops (even if it happens in a courthouse), and lawyers are not welcome there and must be punished for straying outside of their box.

When I was a full-time public defender, I once took a call from a former client who was under investigation for a new crime. I advised him not to talk (as I always do), and told him, as I always do, to give my card to the investigating detective and tell him that I was the asshole who said not to talk. I do this so that my clients can deflect onto me the social pressure of going against the police authority.

Within an hour, I took a call from the detective demanding to know what right I had to advise a suspect who had not been arrested. The detective informed me that, after speaking to his chief, they were prepared to file a bar complaint against me for “using your authority as a public defender to represent him.” (I told him that I would welcome such a complaint, and he and the chief should feel free to file it. That was the last I heard of it.)

Massachusetts does make it a crime to resist even an unlawful arrest — whether the arrest of one’s self or another. However, even by that standard, the arrest in San Francisco is problematic, since the inspector had said the client would be free to leave after being photographed.  It appears that there was no arrest to resist.

The greater point is that contempt of cop arrests are questionably legal at best. They are an abuse of authority under color of the law, not an idiosyncratic lawful act.

How does the arrest take place? Easy. The officer says, “you’re under arrest,” and then puts the cuffs on or orders a junior officer to do so, and the lawyer is taken away.

The fact that there is absolutely no legal justification for it is why the attorney was only detained for an hour, and why she will almost certainly win her lawsuit against the Inspector and the other officers who were involved.

My point is that “resisting arrest” is a meaningless mouth noise that the Inspector made while ordering her arrest. He might as well have said “you’re under arrest for flibbitygibbet.” Trying to find a narrative in which the Inspector’s words connect with his actions in a way that you can recognize as having something to do with the actual content of the law is an exercise in pursuit of madness. If you’re hoping to find a colorable justification for the arrest, I will save you the trouble: There isn’t one.

It is absolutely illegal for a police officer to make an arrest without probable cause, but the law is not self-executing. Who will enforce the law? Police are notoriously reluctant to arrest or even internally discipline their own. Many departments have a cultural narrative that says the people want the police to protect us at whatever cost, and don’t want to know the details about what they do for us. It is a “you can’t handle the truth” mentality.

People who are harmed by the illegal acts of police officers can sue, but there are some systematic obstacles to getting relief that way too.

We currently have two primary tools for controlling police misbehavior: lawsuits and criminal prosecutions. There is also internal affairs, but in many departments that is a toothless entity, or more interested in petty irregularities than serious misconduct.

Lawsuits are meant in part to be a deterrent: an officer who is worried about getting sued will be more careful, the theory goes, and a department that is worried about being on the hook for lawsuits against officers will better train and supervise its officers.

There are a couple of problems here. First, big departments with long histories of misconduct (I’m looking at you, NYPD), are able to buy insurance to cover these costs rather than addressing the root problem.

Second, the Supreme Court fabricated a defense to these lawsuits for officers to use: if it was at all ambiguous whether the conduct was illegal, the officer wins even if the court later finds that the conduct was in fact illegal. This defense is not in the statute Congress created to let people sue police officers for misconduct–the Supreme Court made it up.

Criminal prosecutions have several related problems. First, most US jurisdictions do not include a credible mechanism for private citizens to bring criminal charges without the active participation of police and/or district attorneys. Police and district attorneys are really reluctant to ever prosecute police officers for unlawful acts in the line of duty, even where the liability is really pretty clear.

Second, judges and juries are often reluctant to convict police officers. Police, prosecutors, judges, and juries all worry that convictions will deter people from being willing to serve as police officers out of fear that their mistakes will be treated as crimes and they will face draconian consequences.

In part, this is a problem of society’s rational unwillingness to hang individual officers out to dry for structural problems in which they are mere participants. And in part it is a problem of society’s unwillingness to call out real cases of individual misconduct when they occur, out of real or feigned fear that hindsight bias will conflate the two, or make a mistake look like a crime.

That, in turn, is a benefit that we as a society offer to white police officers more than to non-white police officers, to all officers more than to non-police officers, and to white or economically privileged non-officers more than to poor, black, non-officers, who get almost none of it.

Ultimately, we have two fundamental problems: the existence of legal structures that will adequately deter or remediate police misconduct, and the willingness of human actors to enforce those structures in practice.

(Originally written as a series of comments on 1/28/2015.)