"I know that a certain percentage of folks I send to prison are, in fact, innocent," he said. "I just don't know how to identify who those folks are."
"Then how can you do what you do?" I asked.
"I believe in the adversarial system," he replied. "If you do your job, then the risk of my making a mistake is minimized."
The speaker was a senior prosecutor here in Connecticut. We were discussing why he was deciding to take a case to trial, a case in which I was persuaded my client was not guilty. I won't name the prosecutor or his jurisdiction for fear he'd never speak candidly to me again if I did.
The exchange highlights an important truth about the criminal justice system: Lawyers are not witnesses, but advocates. If each does his or her job well, we hope, in most cases, most of the time, justice will prevail, meaning that the right folks will be convicted.
But we know that mistakes occur. The Innocence Project reports exonerations for about 300 people since 1989, based largely on the use of DNA evidence. Impressive social science research demonstrates that eyewitness identifications can be unreliable, that defendants can, and do, confess to crimes that they never committed, and that people of good will can err.
This growing awareness of the criminal justice system's fallibility is hard to square with Justice Antonin Scalia's shocking observation in a 2009 case: "The Court has never held that the Constitution forbids the execution of a convicted defendant who has a full and fair trial but is later able to convince [another] court that he is 'actually' innocent."
Every time I read that quote, I am stunned. The Constitution does not prohibit the killing of the innocent? Placing too high a premium on finality of criminal judgments can transform that law into something hideous. Did you know the law even permits the killing of the mentally retarded? In one famous case, the Supreme Court once condoned the execution of a man so impaired by a brain injury that he told prison guards to save the pie from his last meal so that he could eat it after his execution?
The law rarely yields certainty. Indeed, prosecutors go to great pains during jury selection to make sure jurors understand the state need prove its case by something less than certainty. The standard for a criminal conviction, proof beyond a reasonable doubt, is the law's highest, but it is not certainty.
I was reminded of all this the other day reading a wonderful book edited by Abbe Smith and Monroe Freedman, "How Can You Represent Those People?" Smith and Freedman are long-time educators and criminal defense lawyers who collected a series of essays in which contributors were asked to address what criminal defense lawyers call "the cocktail party question." That's when friends, neighbors, or, perhaps, new acquaintances, approach you, often emboldened by a drink, to ask, with just a tinge of skepticism, maybe even hostility, how you can represent the obviously guilty.
Answers to this question vary, and range from philosophic purism - I do not know a client is guilty or not, the jury decides that, to idealism - the state must be checked at every step, lest it grow too large, too bold, too aggressive, to the detriment of innocent and guilty alike.
I defend because I am persuaded that no one is the sum of their worst moments. Whatever a client may have done to land him in trouble with the law, there's so much more to him or her than the state's accusation. Is the isolated act the defendant is accused of committing really worth locking him up for decades, or even killing him? Almost never.
Perhaps I come by this attitude by way of my heritage. My father was an illegal immigrant, sneaking into the United States from Canada as a child with his father. They both came from Crete in search of opportunity.
My father found opportunities, all right. For years, I'm told he made his living as an armed robber, taking cash payrolls at gunpoint in much the same manner as did Sacco and Vanzetti. Unlike them, he never got caught, even when he shot a man and then fled from Detroit to Chicago to start a new life. He took the young woman his was seeing with him. She soon became my mother.
He disappeared from my life as if by black and horrible magic when I was eight, and I did not see him again for almost 40 years. When we were reunited, he was filled with excuses that didn't make sense. I couldn't summon much love for him -- affection had long fallen through the bottom of my broken heart, leaving a taint of bitterness I carry like a bad-luck charm to this very day.
My mother and I walked the wild side for several years after he left, migrating from the homes of relatives, to a rooming house, to an attic, to furnished apartments. All around me I saw ordinary people struggling to make sense of their surroundings, and who, given their lack of power, prestige and wealth, were easily ignored.
Being a criminal defense lawyer means making sure the accused, the damned, as Clarence Darrow referred to folks on my side of the aisle, are heard. I suppose criminal defense is, for me, a form of catharsis. When my mother's and my world fell apart after my father's desertion, no one heard my mother. A bankruptcy resulted in the loss of her keepsakes and most of our possessions. For a time, I was sent to live with relatives while she regrouped alone. When I cried, there was no one there to listen.
The world can be a hard place. We do cruel things to one another. The criminal causes pain by breaking the law. Society exacts its measure of pain in response. No one is the sum of the pain or she has caused. No one.
Some contend that trials, especially criminal trials, are won or lost during jury selection. Although jury selection is intended merely to assure that litigants get a fair trial, jury consultants and savvy lawyers spend a great deal of time trying to frame the questions they ask jurors so as to predispose jurors to see the evidence their way, a process known as “indoctrination.”
One would think, therefore, that a judge would take special pains to make sure that jury selection is open to the public. If the game is won or lost at hello, shouldn’t the public get a chance to see the questioning?
Instead, in the case of United States of America v. John G. Rowland, certain portions of jury selection will take place in secret, at the sidebar of United States District Judge Janet Bond Arterton, where lawyers and the judge will be permitted to question potential jurors in a manner no one else — and that means you — can hear.
The former governor is once again in the federal dock. This time the claim is violation of campaign finance laws for receiving money under false pretenses for work he did for Lisa Wilson-Foley, a former congressional candidate . (The last time Rowland faced federal charges, it was for his conduct as governor; he pleaded guilty to fraud and tax charges and spent 10 months in federal prison.) If convicted here, he’ll likely do far more than 10 months.
Plenty of folks are interested in Rowland II. It’s not just that the former Republican wunderkind has fallen from grace; he’s now back for a repeat performance as a defendant. Rare is the white-collar defendant who pleads guilty, does time, and then comes back for more.
Of course, from Rowland’s perspective, this second prosecution is all horribly unfair, a low-blow by the feds. Never mind that Wilson-Foley and her husband have already pleaded guilty to their role in illegally paying Rowland, the former governor feels targeted and he is spoiling for a fight. No pleas, he has announced; he’s heading for trial. He’s hired out-of-state counsel to represent him.
Rowland’s lawyer worries that given the high-profile character of the case, it will be difficult to find a far and impartial jury. Maybe, but I suspect in the wake of the recent recession and partial recovery most folks have far better things to do than worry about what happens to Rowland. He’s old news.
In anticipation of trial, Rowland’s lawyer asked the judge for permission to question jurors outside one another’s presence. That is what is known as individual sequestered voir dire. In the state courts of Connecticut jurors are picked that way as a matter of right. It is not uncommon in Connecticut for the process of selecting a jury to take longer than presentation of evidence in simple cases. In state court, lawyers have the right to questions jurors, one at a time, outside the presence of other jurors — but the questioning takes place in open court. Any member of the public or press can attend and watch the proceedings.
Jury selection is entirely different in the federal courts. Most federal judges don’t permit the lawyers to questions jurors at all. And such questioning as is done is done of all jurors collectively assembled in open court. A federal jury can be picked in a couple of hours, although it is an open question just how meaningful it is for judges to bark questions to folks assembled together in open court.
Rowland’s lawyer appears to be concerned that if folks are asked questions in one another’s presence about what they think of the governor, the answers of those who don’t like Rowland will poison or prejudice those with no opinion. He’d prefer to question potential jurors outside one another’s presence, but the judge won’t go along with that. Instead, she’s offering a chance for the lawyers to question jurors at sidebar, outside the earshot of other jurors, and members of the public who are assembled to listen to the case and to see justice in action. Secret sidebar voir dire is a common practice in the Connecticut federal courts.
I wonder if it is lawful, and I wonder why the state’s press corps isn’t up in arms about it. What about the public’s and the press’ right to attend, and observe the trial? Watching judge, lawyers and potential jurors lip synch isn’t meaningful.
In 2012, the United States Court of Appeals for the Second Circuit, the federal appeals court for Connecticut, New York and Vermont, reversed the conviction of a man named Raghubir Gupta, who was convicted of immigration fraud. The reason the case was sent back for a re-trial? During voir dire, members of his family were removed from the courtroom by United States marshals. This removal was ruled to have violated Gupta’s Sixth Amendment right to a public trial.
Unless Rowland’s lawyer objects to sidebar voir dire, Rowland will be deemed to have waived any Gupta-like claim.
But independent of Rowland’s Sixth Amendment right to a public trial is the First Amendment right the rest of us enjoy to watch the show. The Second Circuit confronted this issue not long ago in the federal prosecution of Martha Stewart. When newsmen were excluded from part of jury selection, they protested. The appellate court agreed, concluding that exclusion of the public from any stage of a criminal trial requires, among other things, a compelling necessity and that the court consider reasonable alternatives to closing the proceedings.
Frankly, there is no justification for secret voir dire in the Rowland case. If the case is to be won or lost at jury selection, the public has a right to know what happened. Holding voir dire in secret at sidebar is a far broader closure than necessary. Rowland jurors can be questioned one at a time in open court, outside the presence of the others. Such a procedure takes place daily in the state courts. It might take a little longer, but what’s the rush, judge?