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A portly O.J. Simpson is challenging his recent conviction on the time-worn theory that his lawyer screwed him. The Juice is no longer running through airports, like his old commercials. He doesn’t look like he could run to the bathroom having decided to eat his way through his prison sentence for robbery and kidnapping. Now the former Heisman winner is whining that his longtime attorney, Yale Galanter, has done him wrong.

Like Connecticut’s Michael Skakel, Simpson is pursuing a petition for a writ of habeas corpus, claiming ineffective assistance of counsel at his trial. Like so many convicts before him Simpson is attempting to re-write history. He claims he was prohibited from taking the witness stand by Galanter. This, despite a thorough interrogation of him during the trial, by the judge, on the record. He joins the ranks of the “I said it but I didn’t really understand it” defendants, who will say or do anything in a desperate effort to weasel out of responsibility for their wrongs

So now he wants a redo. He wants to testify and tell a new jury that he was drunk and really didn’t know his accomplices were armed. Like Skakel, O.J. took the stand to condemn his lawyer.

As in Skakel, the Juice’s lawyer will now testify to his recollection of the events. But what about the attorney-client privilege? Aren’t lawyers required to keep their silence regarding confidential discussions with their clients? The answer is maybe!

The privilege is the core of an attorney-client relationship. In almost all instances it is as sacred as the seal of the confessional or the communications with your doctor. But there are reasonable limits on the obligation of lawyer silence.

The privilege is codified in each state’s Rules of Professional Responsibility. Different states subscribe to several different formats for their ethical precepts; but the core concepts are the same. “Rule 1.6. Confidentiality of Information: (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by subsection (b), (c), or (d).”

The rule is clear, client communications cannot be revealed, except as the rules provide. In the case of a lawyer’s competence being challenged, either in a habeas claim or a legal malpractice lawsuit, the rules change. A disgruntled client cannot mount a challenge to his lawyer’s former representation and then demand that the lawyer remain silent and not defend himself.

The rule goes on to state: “(d) A lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

This glove may not fit any better than before. No more privilege; no longer is the lawyer bound to keep secret what the client has shared with him. Former clients make a clear choice when pursuing such a challenge: testify and the cloak of privilege is lifted. In the Juice’s case I suppose he can later claim these new lawyers never told him about this waiver of the privilege if Galanter takes the stand the reveals information O.J. would rather not hear.

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As the curtain descended on the latest skirmish in the Michael Skakel continuing attempt at winning a redo, a new prong was added to the attack. A last minute discovery of the sealed psychiatric evaluation of Ken Littleton, commissioned by the state raises the specter that retired State’s Attorney, Jonathan Benedict, withheld potential exculpatory evidence. Following the unsealing of the report the defense team amended the habeas petition and accused fallen celebrity, Mickey Sherman, of failing to aggressively pursue the release of the report. Sherman had remained as a spectator at the habeas corpus hearing, long after his skewering by Skakel’s new attorney, Hubert Santos. Banner headlines in the Connecticut Post detailed Santos’ dismantling of Sherman’s handling of the trial.

Retired Bridgeport State’s Attorney, Jonathan Benedict, was brought back to assist the state in the defense of the habeas claim. The central theme of the habeas has been Sherman and a myriad of claimed deficiencies in his approach to the defense. While the new focus was on Sherman, the question may be raised whether it should now be Benedict’s turn to field accusations that he failed in his affirmative obligation to provide this newly discovered piece of evidence to Sherman prior to or during the original trial. The report was apparently sealed after a pre-trial hearing by another judge at the time of the original prosecution, who reviewed the report privately (in camera). The protocol when that occurs is for the defense to at least request the appellate court to conduct an independent in camera review to determine on its own whether the sealing judge erred. The saving grace for Benedict is that he can rely on that judge’s determination that the report was not exculpatory. That would appear to absolve him of blame.

The concept of a duty to disclose exculpatory material is not novel. In 1963, the U.S. Supreme Court decided the seminal case of Brady v. Maryland. The concept has been so ingrained in our jurisprudence since that such information is interchangeably referred to as Brady material. The core concept is that evidence that is material to either guilt or punishment must be disclosed and the failure to so do implicates a defendant’s 14th Amendment right to due process of law. To secure a retrial for failure to disclose Brady material one must show that “there is a reasonable probability that [the defendant's] conviction or sentence would have been different had these materials been disclosed.”

Connecticut has even codified Brady by statute: “Sec. 54-86c. Disclosure of exculpatory information or material. (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney . . . shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”

A prosecutor, in doubt about his/her Brady obligation who seeks a judicial determination of the potential exculpatory value of a piece of potential evidence has been shielded from a later claim of a due process violation or prosecutorial misconduct. The difficulty for a defense lawyer in the position that Sherman found himself is that you are arguing for the disclosure of something as potentially exculpatory without any knowledge of what that item is. Raising it on appeal would have provided some insulation for Sherman. The question now for the habeas judge is whether the newly revealed report would have really affected the outcome of the case. Even where there are clear Brady violations an appeals court can rule “no harm, no foul.”

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More than lives and limbs may have been lost on April 15th amid the horror of the Boston bombings. How much of our personal freedom are we willing to sacrifice to assure our protection from enemies walking among us? In the wake of this latest atrocity we rightly applaud the quick efforts of law enforcement to locate and bring to ground the the terrorists. How many of us watched the unfolding investigation and its use of street surveillance to isolate the bombers and retrace their steps? We were at once both captivated and relieved that the offenders were so readily found.

Once the younger of the Tsarnaev brothers was captured we heard of something called the public safety exception,relieving the police from the obligation to provide him with his Miranda warnings. First, the issue had to be resolved whether to even prosecute him in the civilian courts or treat him as an enemy combatant, stripped of the protections of our Bill of Rights.

At some point, there will be those believers in the paramount need to extend our constitutional protections even to the guiltiest offender; a label easily applied to Tsarnaev. They will remind us that despite the horror of his crimes above all we should not sacrifice the Bill of Rights. But have we?

Take the issue of the extensive video surveillance used in the hunt. Is this an example of Big Brother from the pages of Orwell’s 1984? Have we really welcomed the constant stream of video imaging as a means to protect us or is it an intrusion into our privacy? The answer requires an understanding of the underpinnings of many of our constitutional rights–the expectation of privacy. It is this expectation that triggers the application of the Fourth Amendment proscription against unlawful searches and seizures.

That right requires proof that Government has intruded into an area that we have attempted to shield from public view. Our homes, cars and our phone conversations are the typical protected areas. When we close our shades or speak in private on our hones we have made a silent statement that we do not intend the public at large to see or hear what we are engaged in.

Attempts at video surveillance that invade our private areas clearly offend the Fourth Amendment if done without prior judicial approval. To justify such intrusions a neutral and detached judicial magistrate must make an independent finding of probable cause. But when we walk the city streets we do so tacitly exposing ourselves to the view of all around us. What the naked eye of our fellow citizen observes, the following eye of electronic surveillance cameras is entitled to record. We do not carry the shield of the Fourth Amendment like Harry Potter’s cloak of invisibility.

The public safety exception to Miranda is a common sense concept that the rise in domestic acts of terror has engendered. It is an attempt to balance the Fifth Amendment rights to be free of self-incrimination–the basis of Miranda– against the need for law enforcement to act quickly to prevent greater injuries.

In the case of Tsarnaev the evidence revealed to the public to date appears overwhelming. Interrogating him in the absence of Miranda creates a risk that a court may later determine that the public safety exception was not justified. The effect of such a ruling would only suppress any incriminating statement he made from use in a subsequent trial. It would not lead to the unreasonable result of a dismissal of the case against him.

The actions of law enforcement in the wake of the bombings appear to have struck the right balance between individual liberties and our safety as a society– proof that the rights of one must at times bend to the good of all.

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The Vernon/Rockville Superior Court is host to the state’s habeas corpus trials. Each week disgruntled convicts claim that irrespective of their factual guilt, they deserve a judicial do-over because of lawyer error. This past week one of Connecticut’s more notorious inmates, Michael Skakel, is challenging the defense efforts of his trial counsel, Stamford’s Mickey Sherman.

Habeas corpus is a civil proceeding and a collateral attack on a conviction. An appeal, in contrast, is a direct attack. The usual habeas grounds are ineffective assistance of counsel (known in habeas jargon as “IAC” claims), and occasionally, a claim of actual innocence. IAC claims are not limited to jury verdicts; inmates who have resolved their cases with a plea of guilty have also resorted to seeking hindsight justice. A recent Supreme Court decision noted that over 97% of all federal and 94% of all state prosecutions resolve with plea bargains.

Generally, the task of dissecting the efforts of prior defense counsel falls on the shoulders of the Public Defender’s Habeas Unit and a group of attorneys who accept appointments as special public defenders to investigate and prosecute these claims. Most start with an inmate filing a pro se petition and seeking the appointment of counsel. In rare cases, an inmate can afford to retain private counsel. In Skakel’s case his team consists of one of the state’s premier trial lawyers, Hubie Santos, with the apparent budget and backing of Skakel’s famous cousins.

IAC claims have a pecking order. They rarely can be raised during the first round of appeals, as they require facts that do not appear on the trial record. Following an appeal, an inmate has two possible routes; habeas, or a petition for new trial (raising the claim of newly discovered evidence). Both are civil claims, tried before a judge alone, without a jury, to establish the factual basis of the claim.

While the petition for new trial is based upon the facts developed, habeas IAC claims require, in addition, expert testimony. An experienced criminal defense lawyer is retained to review the trial record and the additional facts to be proffered at the trial, to opine whether trial counsel’s performance was deficient. In addition to proving deficiency, the habeas petitioner must show that his right to a fair trial was prejudiced by the deficiency.

If the petitioner fails in his habeas trial he can seek certification from the appeals court for a review of that decision. Failing a reversal there, some then turn to the federal court. A case claiming the denial of a federal constitutional right may be brought in the federal court, but only after the inmate exhausts his state remedies by resort to the state habeas process.

The focus of Skakel’s IAC is gregarious defense counsel, Mickey Sherman. In three days of testimony Sherman has been excoriated by Santos, not only for his trial strategies, but, also, for his apparent infatuation with his growing celebrity. Among the criticisms are his decisions to accept a cop on the jury, and his decision to not have Skakel testify. Legal pundits can debate the propriety of both decisions, but in the last analysis those decisions are generally judgment calls. In the case of the cop-juror, who is to say that he voted for conviction simply because of his occupation. As to the Skakel testimony issue, that one is a trial judgment that will almost always be upheld, provided a defendant was adequately advised of his right to testify. Most trial judges will require a canvass of the defendant, outside the juries presence before accepting that waiver.

Even in the law, hindsight is 20/20 vision.

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Why do they call them smartphones when people seem to continue to do stupid things with them? I find myself asking this question almost daily as I read the morning news. The combination of video and picture capability, together with with postings to Twitter, Facebook, Instagram and other social media, has encouraged the terminally stupid among the criminal population to document their foibles.

Take for example the Steubenville footballers and friends, recently in the news. Two lunkhead jocks, overcharged on booze and their own hormones, were recently convicted of sexual abuse of a drunken 16 year-old. Not satisfied with merely abusing this youngster, the pair chose to publish their actions through social media; I suppose to keep their “friends” updated. Instead they, and their friends, created a pictorial record of their crimes that led to their convictions. Stupid, right? Yes, but not as stupid as a bevy of their supporters who, despite widespread publicity of the role social media played in the case, took to that very social media to threaten the young victim with retribution. So instead of showing their solidarity and support for the first two lunkheads, they have become targets themselves of a further criminal investigation.

Then there are the gangbangers who pose with their personal arsenals, flashing gang signs. I’m not quite sure what those signs mean but my best guess is they are probably reporting their IQ’s with the number of fingers they are flashing.

The there is the New Jersey dad who posted a photo of his 11 year-old on Facebook, holding what appears to be an AR-15 assault rifle. The posting triggered a complaint to New Jersey’s Department of Youth and Family Services. In turn DYFS arrived at his home. This dad’s lawyer now claims it was merely a .22 caliber rifle that looks like an AR-15. In the law school I went to we would call that a distinction without a difference. Given the emotionally charged issue of gun control in the wake of Sandy Hook this certainly qualifies as stupid!

Really, there should be an App designed that measures the common sense of smartphone users. Criminals posting to Twitter, Facebook, Instagram, Foursquare, anxious to impress their friends and followers, are also not smart enough to know about geotagging. Similar to your car’s GPS, this allows certain software programs (ones not only law enforcement, but you also, can purchase) that will identify the place where the photo was shot as well as a great deal more information about the phone’s owner.

In February last year an NBC affiliate in Kansas City, Missouri, KSHB, ran a piece on geotagging. A staffer agreed to upload pictures of her four year old. A fellow Action News staffer then combed the various social sites, using a software program readily available. Frighteningly, clicking on the child’s picture not only provided her location but also allowed the fake “stalker” to learn where her daycare center was and even which part of the local park she played in.

For law enforcement, out to find the terminally stupid criminals who post their misdeeds, this is a bonanza. For the rest of us who innocently post cute photos of kids and grandkids this is pretty scary.

The Fourth Amendment protects us from unwarranted government intrusion into our homes and other areas where we have an expectation of privacy. For the photo-centric criminal addicted to social media the Fourth Amendment is unavailing. If you are dumb enough to put it out there don’t cry constitutional violation when it comes back to bite you in court.

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The late American poet and humorist, Ogden Nash, was known for his witty phrases. One that every hormonal school boy has heard, probably without knowing whom to credit, was, “Candy is dandy, but liquor is quicker.” To the chagrin of two testosterone and liquor fueled football players from Steubenville, Ohio, it wasn’t the quick way to a girl’s arms but a fast track to juvenile prison.

The two jocks took advantage of a 16 year-old too drunk to fend them off or consent to their sexual advances. Then to add to their degrading behavior, they used smartphones and social media to tout their abuse. It was this that led to their arrest. This weekend in an Ohio courtroom the pair were convicted and immediately sentenced to juvenile prison. Their terms were light in comparison to their crimes and what an adult court would have faced; respectively, minimums of one and two years. The pair can be detained until 21 and must register as sex offenders. In this state the pair would have been charged as adults and subjected to up to 20 years in prison, and 35 years of sex offender probation on release.

Their crime wasn’t about force or statutory rape. It was about non-consensual sex with an incapacitated victim. In Connecticut it is crime to engage in any sexual act with someone who is physically helpless or mentally incapacitated to the extent that such other person is unable to consent to such sexual intercourse. Ohio calls the crime rape. Here we refer to four different degrees of sexual assault. Under our laws there is no distinction between the armed rapist who uses violence or the threat of it, and the conduct in which these two engaged. Our statutes protect people unable to protect themselves and consent to sex: the underaged, the threatened, the physically helpless, the mentally challenged and the mentally incapacitated.

“‘Mentally incapacitated’ means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent, or owing to any other act committed upon such person without such person’s consent.” Sec. 53a-65(5).

The statute also defines physically helpless, ” . . . means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

The Ohio victim was seen drinking a mix of alcohol. There were no reports that the two defendants drugged her or even plied her with liquor. It didn’t matter that she was the architect of her own drunken stupor, she was unable to communicate her unwillingness to submit to their actions.

What drew national attention to this Rust Belt town was not the rape itself but the evidence of what were described as “lurid texts,” videos and social media posts. In other words, these two knuckleheads not only took advantage of a girl unable to fend for herself, but magnified their crimes by allowing their assaults to be photographed and videoed, then published through social media. To their undoing, the only real evidence of the assaults was what they memorialized, as the young victim could only recall awakening mostly unclothed after a night of heavy drinking.

There will be no high school prom or graduation for these two. Their case should be the focus of every junior high and high school health class. Scenes from movies like Animal House and Superbad portray drunken sex as part of the rite of passage for young males. Hormonally supercharged young men should be taught to respect a woman’s right to consent, particularly one who is unable to protect herself. Maybe “candy is dandy” but liquor is the quicker way to jail, only. Stick to the candy!

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The ongoing saga of Michael Skakel is set for round 3 in Rockville Superior Court in mid-April, as trial starts in the second of his collateral attacks on his conviction in the death of Martha Moxley. Skakel was first convicted in the decades-old cold case in 2002. In that first trial “celebrity” lawyer, Mickey Sherman was pitted against an adversary whose style stood in stark contrast to Sherman– Jonathan Benedict. Never one for the TV cameras Benedict was a quiet, but formidable trial lawyer, with a dogged work ethic.

Each afternoon, while Mickey embraced the attention of the world and national media, Benedict quietly returned to his office, thoroughly preparing for the next trial day. Skakel’s alibi didn’t wash and the jury of twelve returned a guilty verdict. After an unsuccessful appeal, where he was now represented by two of this state’s formidable appellate lawyers, Richard Emmanuel and David Grudberg, Skakel was left to face the prospect of life in prison.

In relatively short order, rumors began to spread that Sherman’s approach to the case would come under attack at some point. First, however, Skakel’s new legal team, two of Connecticut’s premier criminal defense lawyers, Hubie Santos and (now Judge) Hope Seeley, filed a civil action entitled, Petition for New Trial. In this second round they raised issues that there was newly discovered evidence. Once again, CourtTV and the media multitude assembled outside the Stamford Superior Court. Once again, Skakel was back to prison with no relief. The attempt failed as most of what was proffered was available to the original defense team prior to his trial, a fatal flaw in such a claim. As well, his recent bid for parole failed, most likely because he continues to maintain his claim to innocence.

The precursor to the inevitable third round, a petition for a Writ of Habeas Corpus, came in the form of a 2003 full frontal attack on Sherman’s competence, penned by Robert Kennedy, Jr. in the Atlantic Monthly, “Michael’s [Skakel's] problems were aggravated by an overconfident and less than zealous defense lawyer who seemed more interested in courting the press and ingratiating himself with Dominick Dunne than in getting his client acquitted.” Claiming that Sherman was paid in excess of a million dollars, the article accused him of attempting to suborn perjury and being over-matched.

The trial in April will, no doubt, air all of the Kennedy clan’s criticisms of Sherman. In the intervening decade since the article Sherman also found himself in prison, convicted for failing to pay income taxes. This will also be a prominent point in this next attack.

There are several limited grounds for a state Habeas petition. In most instances, the claim is that prior counsel was ineffective, denying the defendant the type of defense embodied in the Sixth Amendment right to counsel. Petitioners may also make what the courts refer to as a “freestanding claim of actual innocence,” without claiming a violation of the Constitution. The latter is nearly impossible to prove. The burden of proof is greater than in a civil lawsuit, requiring clear and convincing evidence of actual innocence and that no reasonable fact finder would find the petitioner guilty. Based on the extensive witness list the Skakel team has revealed we can expect this claim will be raised. Unlike his failed Petition for New Trial, he need not prove the existence of newly discovered evidence.

On the ineffective assistance of counsel claim the court will be guided by the standard established in the U.S. Supreme Court decision, Strickland v. Washington. To succeed in such a claim the petitioner must satisfy Strickland’s two prong test: 1. that counsel’s performance was deficient; and, 2. that deficient performance prejudiced the defense. The first prong must be proven through expert testimony; generally, the opinion of a highly respected criminal defense lawyer. The second prong is more difficult.

Whether Skakel is pursing actual innocence or throwing Micky Sherman under the proverbial legal “bus”, his path to regain his freedom remains a difficult one.

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The sensational murder trial of Jodi Arias became the seeming theater of the absurd in the 18 days of testimony by Arias. Adding to the drama from the exhausting and often inconsistent proffer of facts from Arias, was the unusual role played by the jury. Arizona permits jurors to put questions to a witness, not directly but submitted first to the Court.

Lawyers struggle with putting a defendant on the stand. Experienced practitioners differ in philosophy; however, the consensus in most criminal trials is to have the defendant remain silent and not testify. Courts will instruct jurors that no adverse inference may be drawn from that silence. In Connecticut the courts refer to it in a standard instruction as the defendant’s “failure to testify.” To my mind that phrase adds a negative connotation, as the word “failure” implies a duty one is shirking.

The instruction embodies the Fifth Amendment right against self-incrimination. So important is that right that in an appeal I handled some years ago a trial judge became tongue tied and added to the standard instruction, “. . . and no presumption of innocence may be raised. . . .” The Appellate Court was particularly harsh in its criticism, “In making a connection between the defendant’s failure to testify and the loss of his constitutional right to be presumed innocent, the instruction not only altered the substantive meaning of the statutory requirement, it turned it on its head.”

The exception to the general practice of the defendant not testifying is most often found in cases of self-defense. The perceived need for the defendant’s testimony is that jurors must be able to conclude that her belief that she was about to suffer imminent, deadly harm is objectively reasonable. It can usually only be told through the defendant’s impressions of those stressful moments before the deadly act occurs.

In the case of Arias she, alone, possessed information that would potentially establish the defense. No one else was a witness to the bizarre incident. Eighteen days of examination, including an aggressive cross-examination and telling questions from the jury, demonstrated the risk that was involved in putting her on. One legal analyst observed that her guilt is not what is in issue–that being readily established so far by the evidence– but, rather, her 18 day “conversation” with jurors may be the factor that leads them to spare her life on conviction.

When a lawyer elects not to call the defendant most courts will canvass the accused, out of the presence of the jury. The purpose of the canvass is to protect the record on appeal, and to insure that the waiver is a knowing and voluntary choice by the defendant. In the instance that such a canvass does not occur, the later-convicted defendant may raise a collateral attack on the verdict claiming, “my lawyer never told me I could take the stand.” Courts refer to this as the “right to testify.” That “right” does not appear specifically in the Bill of Rights, but rather, through the years, has achieved constitutionally protected status.

The right stems, historically, from the fifth century Anglo-Saxon concept known as the “wager of law” where an accused swore an oath of innocence. As American law developed, at first defendant’s were deemed incompetent to testify. Eventually that practice eroded, and in 1948 The U.S. Supreme Court first referred to this as a right embodied in the Constitution, viewing it as a component of the accused’s right to a defense. In 1987 the case of Rock v. Arkansas found that this “right” stemmed from an amalgamation of rights in the due process clause of the Fourteenth Amendment, the Sixth Amendment right to confrontation, and the Fifth Amendment protection against self-incrimination.

If the Arias jury condemns her to death eventually her counsel’s decision to put her on the stand will be roundly scrutinized.