Criminal Judges and Justices

Back in 2002, I was accused of sexual assault by a 15 year old girl. The US District Court of Connecticut assigned me a federal defender, Thomas Belsky. Belsky failed his professional responsibilities at almost every turn and thereby coerced me into entering a guilty plea. His criminal behavior put me in prison for just under nine years. However, this essay is not about him but about the courts, which allowed him to get away with his villainy.

When a defense lawyer fails to do his job, his victim may file a habeas corpus petition. (Actually, I filed something slightly different. However, I’m writing this essay for legal laymen, so I’m going to gloss over legal technicalities and skip over things that didn’t apply to my case.) If the court grants the petition, it has to, as much as possible, reset the criminal proceedings to just before where the lawyer failed. For example, if the lawyer advises his client to plead guilty where a competent lawyer might have advised him to go to trial, the guilty plea is set aside. The defendant gets to decide anew, hopefully with a competent lawyer’s help, whether to plead guilty or go to trial.

My habeas petition was really large because I detailed all the things that Belsky did wrong. In this essay, I will detail just one of the claims that required setting aside my guilty plea: Belsky did not investigate my case and thereby made my plea involuntary. To win on this claim, I had to allege in my petition and later prove in a hearing:

  • Belsky did not investigate my case.
  • No competent lawyer would have failed to investigate my case.
  • There was a reasonable probability that, had a competent lawyer investigated my case, he would have advised me that I had a good chance at trial.
  • Had I been so advised, I would have gone to trial.

Here’s what the district court had to say about this claim. The quotes are all from the court’s ruling.

Next, Mr. Wells contends that counsel was ineffective in advising him to plead guilty without conducting an investigation, and thus claims that his guilty plea was not knowing and intelligent. [P. 15 of the district court’s ruling and I’ve omitted a footnote]

I had alleged that Belsky didn’t investigate, and the government didn’t deny my allegation. So, the court accepted that Belsky did no investigation and acknowledged that this is potentially grounds for setting aside my guilty plea.

According to Mr. Wells, if counsel had conducted an investigation of the victim, he might have obtained evidence showing that she lied, was mentally disturbed, manipulative, and had told three different stories about their encounter, [P. 15]

This is the court’s summary of what I alleged Belsky should have investigated. It’s rather incomplete, but never mind that.

and this information should have caused counsel to advise Mr. Wells that he had a ‘good chance’ at trial.

If counsel had given him such advice, Mr. Wells says he would have insisted on going to trial. [P. 15-16]

With this, the court completed its recognition that I had alleged sufficient facts to require vacating my guilty plea.

Putting aside the fact that this argument is, in essence, not about the scope of counsel’s investigation, but rather “a complaint about strategy cast in investigatory terms,” see Greiner v. Wells, 417 F.3d 305, 322 (2d Cir. 2005) (where petitioner’s “failure-to investigate” and “failure-to-introduce evidence” arguments are identical, they implicate trial strategy), and even assuming, arguendo, that counsel acted unreasonably by not undertaking an investigation, [P. 16 NB: The Wells case the court cites has nothing to do with me; the name is a coincidence]

Once the legal babble is stripped away, what the court said is that Belsky’s decision to do no investigation was one that a competent lawyer might have made. However, that simply is not the law. Barring extraordinary circumstances (none of which were even suggested in my case), a lawyer must investigate the case against his client.

Mr. Wells has failed to demonstrate that the investigation he describes would have uncovered sufficient exculpatory or favorable evidence that would have caused competent counsel to recommend against pleading guilty to kidnapping and go to trial on the three-count indictment. [P. 16 and the ruling goes on for three more pages detailing what I had failed to demonstrate]

To explain what’s wrong with this, I need to explain a little habeas arcana. To win on my claim, I had to allege and prove four things. Suppose that I had only alleged three of them. A hearing would have been pointless, since proving my three allegations would not have justified granting the petition. In a situation like that, a court is allowed to dispense with the hearing and deny the petition. To do this, the court must prove that the petitioner can’t win even if he proves all his allegations at a hearing.

The court didn’t give me a hearing, which means that it was obligated to do the proving. That is, the court was obligated to prove that no matter what an investigation turned up, competent counsel would have told me to plead guilty. I wasn’t obligated to prove anything. Yet, here the court is denying my petition because I hadn’t proven an allegation.

Any judge who deals with criminal cases knows that a defendant’s lawyer must investigate the case against his client. Any judge who deals with habeas corpus cases knows that he cannot dismiss a petition for failure to prove an allegation unless the petitioner has been given a hearing at which he has an opportunity to prove that allegation. This judge knew that Belsky had done wrong. She knew that she had not given me an opportunity to prove my case (she denied my request for a hearing later in that very same ruling).

A habeas petitioner doesn’t have the right to appeal the denial of his petition. He has to get a “certificate of appealability”. This judge refused to give me one, so I asked the appeals court for one. Getting a certificate of appealability should have been easy; all I had to show was that the ruling was debatable. It was more than debatable; it was clearly wrong.

The appeals court refused to give me the certificate of appealability, without giving a reason. The Supreme Court could not be bothered to hear my case.

This is intended to be an essay, not a book. I therefore haven’t discussed the numerous other claims in my habeas petition. However, the district court rejected them all, largely with equally spurious verbiage. The appeals court refused a certificate of appealability on all issues, giving no reason, and the Supreme Court wasn’t interested in any of them. Nor have I detailed how the Supreme Court itself violated the law when I asked it for a certificate of appealability (on another issue). If one puts all this together, what it adds up to is a judicial system made up of judges who only obey the law when it suits them. When it doesn’t, they pervert the law or hide behind procedures that allow them to ignore the law.

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4 thoughts on “Criminal Judges and Justices

  1. To start let me just say how sorry I am you were influenced into a guilty plea and feel aggrieved by the result. I agree with many of your conclusions. E.g., the rule of law is pretty much dead in this country. Boy howdy, you got that right.

    However, with respect to your bad experience in the federal criminal justice system, I am inclined to sympathize with the FPD for several reasons. First, when you use the phrase “good chance” at trial, I wd trust a local practicioner’s opinion more than a pissed-off former client, in custody. Second, he had a duty to explore swapping off your charge in exchange for a guilty plea, with or without your consent or direction. Third, the ultimate decision was yours. Period. I have stood before Article Three judges (and state court judges) hundreds of times while clients pleaded guilty to crimes randging from misdemeanors to murder. On numerous occasions judges have stopped the proceedings and refused to take a plea simply b/c the defendant sd, or even just suggested, “I am only doing this because my lawyer ‘made’ me . . . I m really innocent.”

    The joke in our district is that the judge says “you realize a monkey with a banjo could walk you at trial and yet you still want to plead guilty?”

    It is a rare case that does not turn out the way a lawyer experienced in a particular court predicts (not to say it never happens). I recently took a federal case to trial at a client’s insistence where the proof was far more devastating than anyone, me, the client, the prosecutors themselves, anticipated. Had I known what the proof would show I would have moved to withdraw before seating the jury. The proof included relevant conduct in a drug prosecution that propelled my client from the five year mimimum (which we anticipated, based on what the client revealed to me was his level of involved) to over 25 years — based on the USSG offense level for his actual level of involvement. I repeatedly advised my client to plead guilty. That person refused and we tried the case. Whose fault is that?

    As for using a public defender, did you consider hiring a lawyer? On the subject of investigation, in my experience it’s not the actual facts that sink a criminal defendant, but rather the admissible evidence againsthim or her. Rule 16 disclosure is very limited. You just don’t know what’s coming at you — unless the AUSA understands the best way to plead a case is to let it all hang out well in advance of trial.

    None of this is much comfort to you I am sure. I have seen some real travesties over the decades I have practiced but damned few of them on my watch and only on the order of two or three cases of literally hundreds where I actually would have acted differently if I had only known (some fact that I did not and could not know at the time).

    So far as my coercing guilty pleas. Forget it! I tell my clients that the judge should make me pay him for trying cases. I love it. I love fucking with cops, BATFE agents, FBI queers, federal prosecutors and most of DEA stooges. I’d do it for free. Indeed, I have done it for free. I’ve noticed that judges almost always let the lawyers go home at the end of trial, not every single time but almost.

    I am genuinely sorry about your bad experience but lawyers, especially indigent criminal defense lawyers, are limited by the facts, limited resources, including time, and frequently clients who substitute their skewed view of the facts for what a jury would actually see at trial, and thier often incorrect understanding of the law, partiuclarly criminal procedure, for what is actually is.

    • I am inclined to sympathize with the FPD for several reasons. First, when you use the phrase “good chance” at trial, I wd trust a local practicioner’s opinion more than a pissed-off former client, in custody. Second, he had a duty to explore swapping off your charge in exchange for a guilty plea, with or without your consent or direction. Third, the ultimate decision was yours. Period.

      First, I’m not just a “pissed-off former client” nor am I in custody. Believe it or not, I know the relevant law at least as well as you do. I also have Belsky’s case file and what I could get from the prosecutor via FOIA, not to mention my memories of the events, none of which you have. I’m prepared to discuss whether Belsky’s judgment was sound, based on facts. I am not willing to address any argument that boils down to, “I’m a lawyer and you’re not.”

      Second, certainly a lawyer has an obligation to explore potential plea bargains and he doesn’t have to tell his client about doing so. But consider: Belsky’s first plea “bargain” was based on a gross misreading of the sentencing guidelines (or so Belsky claimed), and dramatically underestimated the sentence I would have got. His second plea “bargain” would not have reduced my sentence in any way. His third plea “bargain” had me pleading guilty to a non-crime. Does that sound like a lawyer who’s trying to do his best for his client?

      Third, indeed, the final decision to plead guilty was mine. But, as you certainly know, that decision had to be an informed one, and it was up to Belsky to ensure that I was properly informed. Instead, Belsky withheld material information and lied to me.

      As for using a public defender, did you consider hiring a lawyer? On the subject of investigation, in my experience it’s not the actual facts that sink a criminal defendant, but rather the admissible evidence againsthim or her. Rule 16 disclosure is very limited. You just don’t know what’s coming at you — unless the AUSA understands the best way to plead a case is to let it all hang out well in advance of trial.

      I’d have hired a lawyer if I could have afforded one.

      Belsky had no idea what facts might have been admissible since he never did anything but look at the police reports, which the AUSA more or less promptly gave him.

      Maybe it’s not clear from my posts so I’ll say this explicitly: The problem with Belsky wasn’t that he made mistakes, was lazy, or was incompetent. The problem with Belsky was that he acted as a second prosecutor, with no goal other than to get me convicted. Nothing else can explain his actions.

  2. “As for using a public defender, did you consider hiring a lawyer?” Hey now, do public defenders not count as lawyers?

    “The problem with Belsky was that he acted as a second prosecutor, with no goal other than to get me convicted. Nothing else can explain his actions.”

    With the acknowledgment that our criminal justice system is deeply corrupt and unjust at a systemic level, I don’t believe that’s true. It sounds like Mr. Belsky realized that you had a very difficult case for trial (finding 13-15 year old girls through chat rooms for troubled teens, telling them that you are a counselor with a facility that can help them, and then sending them the means to travel to your home is not sympathetic even to those of us who fully recognize that sexually mature people are capable of making the decision to engage in sexual activity) and was trying to work out a deal that would keep you off the sex offender registry. A kidnapping conviction would be better for that than sexual assault, so Mr. Belsky worked out a compromise deal that resulted in less prison time and a lesser charge, even though you correctly point out that your set of facts is legally insufficient for the crime of kidnapping (though by a relatively small margin – but still, criminal laws should always be construed strictly against the state).

    It does sound like a situation in which a really aggressive lawyer could have pushed harder – attacked the girls’ credibility, etc. – but if Mr. Belsky talked to you and got the facts as they appear to be (again, keeping in mind that appellate courts are often little more than rubber stamps and their versions of the facts should be treated critically), it doesn’t sound like he was ineffective or working to get your convicted for him to go straight to the plea bargaining stage after interviewing you and reading the reports in the case.

    Your thorough analysis of the situation is commendable, and your inclusion of actual transcript material very helpful, but as the previous commenter noted it does seem like you had several chances to express your concerns. I totally agree that it’s an intimidating and confusing situation, but the judge was giving pretty clear explanations here, and your decision to lie to the judge isn’t something you can hold other people responsible for failing to notice.

    • You evidently read the government’s brief for my appeal, where it asserted that I was a sexual predator who found victims in teen chat rooms and enticed them to my home by claiming to be a counselor. Guess what: The government just made that up; only my accuser made that claim. Nowhere in any of the evidence did anyone else make a similar claim. You seem to recognize that the judicial system is corrupt; why were you so willing to believe what was written by the government? Why were you willing to present government assertions as fact, without attributing those assertions to the government?

      Anyway, you conclude from that that Belsky understood himself to have a difficult case. Of course, when a defense lawyer knows that he isn’t likely to win at trial, he should so advise his client and do his best to work out a plea deal that’s to the client’s benefit. However, Belsky didn’t have any idea about how we’d do at trial because he never investigated my case. He had no idea what the witnesses would say. He had no idea what the sexual assault examination would reveal. He had no idea what the chat logs would say. Investigating is one of the basic duties of a lawyer, and Belsky claimed to be investigating my case, but he didn’t. He just let me rot in prison for four months while he went off and did other things. Let me make this clear: It is essentially never proper for a lawyer to only read the police reports and interview the client before giving the client plea advice. (And, were it proper, why the fuck didn’t he give me the plea advice right away instead of letting me rot in prison?)

      This may come as a shock, but it is not good lawyering to lie to the court or one’s client in order to benefit one’s client. So, even if Belsky had correctly concluded that I had little chance at trial, once I told him that I wasn’t going to plead guilty to a sexual offense, he was obligated to gird his loins and prepare for trial. Instead, he did lie to the court and to me, in order to get me to plead guilty to a nonexistent kidnapping.

      You haven’t seen the evidence, so you have no idea what sort of case this was. I plan to expand on this elsewhere but I’ll go ahead and say a few things about the evidence. My accuser told the police and FBI three contradictory stories. She also had a history of making false claims of abuse. Friends and family contradicted things she said about that weekend. She had a general history of lying and a psych history going back at least to preschool. She had enmeshed other people on the Internet with false stories of being abused. There was a chat log that flatly contradicted her stories of how we met. She accused me of doing things that would have damaged her physically and, since I didn’t do those things, her sexual assault examination results could have proven her a liar. I could go on but I hope my point is clear: A half decent lawyer could have had a field day with my case; if his investigation produced admissible evidence to support all this, his only real difficulty would have been to avoid alienating the jury by piling on too much evidence of my accuser’s lack of credibility!

      And, ya know, all of this is beside the point of my post, which was about the habeas judges, not Belsky. They were supposed to follow the law. They didn’t. Even if Belsky had done his job absolutely correctly, the judges didn’t know it because Belsky offered no explanation for his apparent failures. They should therefore have labeled his failures as unprofessional conduct and then given me the opportunity to prove that the failures prejudiced my guilty plea. They didn’t do that either. These judges merely rubber stamped a criminal proceeding that, on the evidence they had, lacked any semblance of justice. Justice requires more than “several chances to express [my] concerns”, it requires those concerns to be evaluated in accordance with law, and, if you think that the habeas judge gave a coherent rejection of my claim, you obviously don’t know the law.

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