a public defender

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Although the resolution passed and, in 1970, the Attorney General was added to Article Fourth, § 1, of the Connecticut constitution pursuant to Article First of the amendments, the amendment merely provided for the manner of electing the Attorney General. It said nothing about his powers or qualifications.5 This fact was not surprising, given the extensive statutory scheme that had existed for the prior seventy years and had established well-defined responsibilities and qualifications for the Office of Attorney General. In light of this history, there was simply no need for the General Assembly, as the framers of the Amendment, to import the details of this pre-existing scheme into the constitution.  The framers in 1970 were well aware of the existing statutes governing the Attorney General, and nothing in the legislative record suggests that they intended to alter the duties and qualifications set forth therein.  As in Dowe, those statutes must inform our analysis of the framers’ intent in drafting the constitutional provision. See Dowe v. Egan, 133 Conn. 112 (1946).

A further nail in the coffin of this preposterous “AG doesn’t have to be a lawyer” argument is provided by footnote 6:

Throughout the history of the Office of the Attorney General and continuing to the present date, the Attorney General has, as the title suggests, frequently acted in his or her capacity as an attorney in representing the State in some of the most significant legal matters facing the citizenry.  See generally, Cohn, Henry S., The Creation and Evolution of the Office of Connecticut Attorney General, 81 Conn. Bar J. 345 (Dec. 2007).  Indeed, when the Office was first established, the Attorney General had the sole responsibility of performing the duties and responsibilities of the Office and had no deputies or assistants.  See Id. at 355.  It was not until 1927 that the Legislature even authorized the Attorney General to hire a deputy, as well as “such other assistants as he deems necessary subject to the approval of the Board of Finance and Control.”  Id. at 356.

Moving, now, to the AGs opinion on what “active practice” means. Soon-to-be-Sen. Blumenthal holds the opinion that “active practice” must mean more than just being a member of the bar in good standing. And he makes a persuasive argument, to be honest. My initial reaction was that he may be right, generally speaking, but that a Court in CT might be inclined to hold that since there is no definition of the phrase in the general statutes, applying a modified sort of notice requirement test, the court would give current candidates the benefit of the doubt.

Then I came to my senses and realized how ridiculous that is.

So. She’s screwed. Sorry SOTS Bysiewicz. Your best bet is to lay low and hope no one challenges your candidacy or maybe try jumping back into the Governor’s race or perhaps take 4 years off, practice law somewhere and re-enter the race in 2014. But really, don’t do something stupid like seeking a declaratory judgment. If they do, I think we’re in for some protracted hearings on your qualifications and a “public interest” appeal to the 7 Wise Ones.

(And no, there is absolutely nothing in this post that you couldn’t have gotten elsewhere on the web, like here or here or here. I just wanted to feel a little vindicated, and let’s face it, I haven’t posted in a few days.)

To make you feel better, I leave you with a little Kevin Nealon:

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The irony of this all is that it is prosecutors who far more often commit egregious acts during the course of trials. It is prosecutors who engage in misconduct impropriety more often than defense attorneys. Yet, prosecutors are immune from civil liability.

Police departments cannot be sued unless there was no probable cause for an arrest. The so-called “forensic experts” in child sex cases can coax a victimization out of a rock, yet there are no consequences for them when the “allegation” is later proven to be utterly false.

No, it is everyone’s favorite punching bag and scum of the Earth, the criminal defense lawyer, who must expose himself to criminal liability for doing the very thing that the Constitution mandates: defending the accused.

It’s not like there aren’t avenues for discipline of defense lawyers who engage in offensive behavior: prosecutors and judges are free to file grievances if they think the lawyer has crossed the line: this results in suspensions and disbarments.

But to create a whole new category of criminal offense for merely giving the jury a reason to question the credibility of complainants? Might as well do away with the whole “trial” thing, no?

While lawyers have called this bill unconstitutional, Burchett said it is the right thing to do.

“If I was member of the legal community, I would quit wrapping myself up in the Constitution and start thinking about what’s right,” said Burchett.

I could say many things here, all sarcastic, all witty, all derisive, but I don’t think anything I can come up with can top the sheer stupidity emanating from every pore of that statement, so I shall let it stand on its own.

H/T

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The case for psychological damage is even weaker because there is a good argument that only a very small portion of psychologically damaging activity (such as torture) merits criminalization. Otherwise every nag would end up in the Big House. (The idea that judges could be counted on in their wisdom to apply a bad law such that Polanski would be sent up but nags given a pass is not relevant here, partly because there are untrustworthy judges just as there are bad laws, but primarily because our focus is to determine the moral grounds which could be used by a “wise” judge can make an exception in some unhappy situation. But if that is the case, why not just determine the moral grounds for good law and leave out the arbitrariness of the judiciary?) There is in fact abundant lack of reliable statistical evidence (pp. 24 ff.) that shows any psychological damage from childhood sex, even granting a highly prejudicial definition of psychological well-being. The anecdotal evidence compiled from interviews with children has been found to have been manipulated and in some cases invented (a genuine criminal act). Moreover, thanks to Melanie Griffith and the admirable Richard Dawkins (and indeed Samantha Geimer,  Polanski’s own “victim”), we do have dependable anecdotal evidence that childhood sex has no effect whatsoever. Although Dawkins does deplore the fact of his own “victimization,” he quite simply states that the experience itself was “embarrassing but otherwise harmless (p. 316).” He obviously seems to have suffered no ill effects in later life, unless one perhaps plausibly maintains that an Oxford professorship is a sure sign of a mental trauma. Indeed some of those baby beauty contests strike me as a lot more creepy than a passing blow job. Most tellingly, the legal age for marriage in many states and countries before the child abuse fad hit should have resulted in a long history of psychotic brides. Which it didn’t.

Finally:

So the elements of so-called child molestation – coercion, age and sex – are in themselves not criminal. Perhaps it is some lethal combination of the three that provides a basis for criminalization. Yet it is hard to see what combination would work. Coercion, except in cases where the coercion is directed against a potential criminal act, should stand alone as an immoral and possibly criminal act. If coercion is involved, it makes no difference what the victim was coerced to do. And, as we saw, coercion is not even a necessary element in sexual criminalization. Arguments for the supposed harmfulness of sex turn out to be arguments for instruction in practicing sex properly. Arguments for the harmful combination of sex and age turn out to imply to prohibition of any number of activities that children are now allowed to do or to restrict procreation to artificial insemination.

There is a lot more in the piece and it raises some interesting questions. We are already all mostly in agreement that some specific instances of “statutory rape” and not offensive and should not be criminalized; hence the so-called “Romeo and Juliet” laws. But on the other hand, most of us would identify a certain moral repugnance as we continue to increase the age gap between the participants: 16 and 18 is okay, but what of 20 and 15? 20 and 16? Why the dividing line at 16 or 17? And how is 20 and 15 that different from 36 and 15 or 16 for that matter?

I would certainly not recommend this line of philosophical thought as a “defense” to child sex allegations in Court. Taking such a tact is bound to lead to a sudden decrease in credibility and perhaps an involuntary “transfer” to the basement without a stapler.

But for a Saturday, which is today, this might serve as the perfect springboard for a mental excursion. This is what I hope to do. Let me know if you do and what you find. Thus far, I think I already have problems with his summary dismissal of “coercion” despite the assertion that consent is “irrelevant”.

Specifically, I am interested in these theories and any studies that may exist out there on the question of “moral harm” inflicted on victims, in the context of the ambiguous “risk of injury” statutes.

I suspect I may lose a few readers because of this post. That’s fine.

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This, in my opinion, is a major victory. Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The brand new Section 40-13A provides:

Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than  forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were  prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.

This is a tremendous improvement, making uniform discovery provisions across the State.

But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.

There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.

Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.

The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.

An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.

I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.

There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.

The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.

But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.

For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.

This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.

Do the benefits outweigh the costs? How is it done in your state?

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This powerful quote attributed to Dr. King is versatile and can serve many purposes. It can remind us to be better people, to engage in public service and to help others who are not as fortunate. Never has that been more important than this week, with the devastation in Haiti. With so many dead and so many more lives destroyed, we must put into action Dr. King’s quote in its most literal sense and do something for those in Haiti.

As with most readers of Blawg Review, we here at this blawg are lawyers and so don’t possess those skills that are immediately necessary in a relief effort like that currently underway. But there are still things that are needed, and needed now, as the lack of resources and relief is already leading to violence. Google has set up this page with information about the relief effort, ways to help and donate and other tools. Take a minute out of your day and do something for someone else.

“Of all the forms of inequality, injustice in health care is the most shocking and inhumane”

The topic that has dominated the national consciousness for the last few months has been health care reform. Universal health-care, single-payer, opt-in, opt-out, triple lindy, oh my. The long, tortured saga of HCR took an interesting turn this week with the suddenly tight congressional race in Mass to pick a successor for Ted Kennedy. Martha Coakley, the Democrat and AG of Mass., is suddenly facing stiff competition from Scott Brown, a Republican. By some accounts, a Republican win would result in a loss of one Dem seat, reducing their number to 59 and thus spelling a death-knell for HCR. Others, however, don’t see it this way.

What the story has done, however, has brought some national attention to Coakley’s record as a prosecutor, specifically in her dealing with the Amirault/Fells Acre sex abuse cases. Balko writes again, mystified by the justifications offered in support of Coakley’s witch hunts. Walter Olson provides us with a video of John Stossel investigating the Fells Acre prosecutions and convictions (be sure to see Stossel’s reaction at the 6:07 mark):

Speaking of Attorneys General, whimsical CT law blogger Ryan McKeen stirred up a hornet’s nest this week when he asked if current Secretary of State and Gubernatorial Attorney General candidate Susan Bysiewicz was actually qualified for the position (the answer: it depends). In a rather refreshing and surprising move, SOTS Bysiewicz chose to respond with a post on Ryan’s blog.

“Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity”

We live in the Facebook and Twitter era, where everything is open and everything you write could, ostensibly, belong to everyone but you. Some, like Twitter, go about it openly, and others, like Facebook, sneak it up on you like the mother-in-law that arrives for a week and stays forever.

So when Facebook CEO Mark Zuckerberg tries to backtrack and plead that Facebook is merely keeping up with the times rather than forging a path ahead on the dilution of privacy, it is only natural for people to snicker.

Homelessness is another issue that deserves attention in this country. What with the economy in the crapper, growing numbers of people going in and out of jail and a distinct lack of resources for those who need them, the population of those who call the streets their home is rising. This week brings us two distinct takes on the problem of homelessness.

First you get to hear a podcast by Bob Ambrogi and J. Craig Williams as they interview the founder of the Homeless Court Program and executive director of the National Law Center on Homelessness and Poverty. Second, we have proposed legislation in Florida, via the 13th juror, that seeks to make attacks against the homeless a hate crime:

Senate and House committees approved legislation that would make prejudice-driven attacks against the homeless a hate crime, meaning longer jail sentences for offenders. The issue will get more consideration during the legislative session, which starts March 2.

Florida has led the nation for four consecutive years in violent attacks against the homeless with 30 such incidents in 2008.

Brian Cuban has an interesting and lengthy post discussing whether the obviously stupid comment above is actually protected by the First Amendment and reminds us all (specially the younger among us) of the dangers of posting thoughtless comments on the everlasting internets:

This is certainly hate speech.  Did Rachel break any laws?  Interesting question. If Rachel had simply tweeted to the Twitter universe I would argue that no laws were broken and she had 1st Amendment protection for her speech.

Rachel however tweeted to another individual with a Twitter account. This adds a different type of context and new questions.  Was there any further act between Rachel and this person in furtherance of her desire to “Kill Jews” such as meeting to discuss it?  If the answer is yes,  there is an argument that laws regarding solicitation and conspiracy would come into play.  Did the individual respond with any tweet?  I do not know. What if this individual tweeted back, “Lets do it! Meet you in 5 Minutes!” ( I have no reason to believe this person tweeted anything back at all-it is a hypothetical).

What if the desire to “Kill Jews” was re-tweeted to someone who took Rachel seriously and actually committed a murder?  These are the problems of “Hate 2.0? that have not yet been addressed by our courts.  The  new laws of “imminence” in a viral world.

Some of the curmudgeonly among us are still struggling to adapt to this new-fangled internet and cell phone technology. Some have already recognized the dangers of texting, sexting and drive (not all at the same time and certainly not the latter two) and are mounting a mad MADD-esque campaign against it.

Still others are fighting that old technology: bad humor, and many, many more just don’t know a good joke when they see it. It seems that any combination of the words “bomb” and “plane” is enough to get you in a lot of trouble, especially if you’re on a plane, regardless if those words are surrounded by others like “Gilligan’s Island”, “Lovey”, and a very interesting question about why headhunters don’t eat members of their own family.

Taking sincere ignorance and conscientious stupidity to an entirely new level are two stories: a new “blasphemy law” in Ireland, which makes it a crime to, well, blaspheme; and the dogged pursuit by prosecutors of journalism students assisting in innocence investigations in Chicago.

Of particular importance to the conscientiously stupid among us who choose to operate blogs is this post at Internet Cases on a recent “Ripoff Report” case:

Even though Section 230 didn’t form the basis of the court’s decision in favor of Ripoff Report, the notion of a website operator “acting in concert” with its users is intriguing. Clearly the policy of Section 230 is to place some distance, legally speaking, between site operator and producer of user-generated content. And the whole idea behind the requirement in copyright law that infringement must arise from a volitional act and not an automatic action of the system is a first cousin to this issue. See, e.g., Religious Tech. Center v. Netcom, 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (“[T]here should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”).

For the web to continue to develop, we are going to need this continued protection of the intermediary.

In that vein, the Electronic Frontier Foundation offers a list of a dozen important trends in law, technology and business that might play a significant role in shaping online rights in 2010 and Eric Goldman offers a backward looking list of most important developments of the past year. While we’re on lists, don’t miss Lowering the Bar’s annual honors.

Another area of law that is underdeveloped, but will need some quick articulation is the intersection of the 4th Amendment and virtual file storage (aka “cloud computing”):

Coulliard wraps up with a suggested framework for applying the Fourth Amendment to “the cloud” that is very much in line with my own thinking. Treat digital assets on third-party sites not as transactions (like phone numbers dialed), but in the same way you would treat physical assets kept in an apartment or storage locker:

[T]he service provider has a copy of the keys to a user’s cloud “storage unit,” much like a landlord or storage locker owner has keys to a tenant’s space, a bank has the keys to a safe deposit box, and a postal carrier has the keys to a mailbox. Yet that does not give law enforcement the authority to use those third parties as a means to enter a private space.

The same rationale should apply to the cloud. In some circumstances, such as search engine queries, the third party is clearly an interested party to the communication. But when content data, passwords, or URLs are maintained by a service provider in a relationship more akin to that of landlord-tenant, such as private Google accounts, any such data that the provider is not directly interested in should not be understood to be open to search via consent or a waiver of Fourth Amendment protection.

Of all the stupidity on display for us, nothing is more infuriating than the arrogant stupidity of cops who protect their own. A damning report from New York alleges that cops gave their fellow “brothers” big breaks in DUI cases, even supposedly “botching” the investigations:

Attorney Harold Dee, a former New York City traffic judge, suggested that police intentionally botch their cases against fellow cops.

“They’re all in the brotherhood, so I don’t imagine all of the prosecuting cops are going to show up,” Dee said. “It’s the famous blue wall. If they do show up, they’re going to ‘dump,’ say, ‘I didn’t see this or that.’ “

And finally, an in-depth explanation of why Jon Stewart failed to dent John Yoo’s armor this past week (video here).

“I submit that an individual who breaks the law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law”

The Supreme Court has been in the news a lot this week, here in these United States. Starting on Monday with a thrillingly academic sidetrack on the meaning of the word “orthogonal” during oral argument in a case revisiting Melendez-Diaz, to Tuesday’s riveting argument and subsequent analysis of the right of the Federal government to civilly commit “high-risk” sex offenders past the expiration of their sentence in US v. Comstock, attention on the Court reached a fever pitch on Thursday first with its affirming a ban on the broadcast of the “Prop 8″ trial in California and then its spontaneous written opinion on that subject.

Orin Kerr notes an odd similarity between the two cases Ted Olson and David Boies have simultaneously been involved in. The blawgosphere was atwitter with commentary on the broadcasting itself and then on the opinion of SCOTUS.

Elsewhere, the Third Circuit rejected an “internet ban” as a condition of a sex offender’s probation; a Texas forensic psychologist artificially inflated inmates’ IQ scores to make them eligible for the death penalty; there is a growing (heh, get it?) momentum toward marijuana sanity; Jeff Gamso (whose is the absolute must-read blog of the last 6 months) writes poetically about the bullshit science that infests our courts and leads to dubious convictions; and Mark Edwards at Co-Op explores the idea of acceptable deviance – in other words the gap between the law and norms:

Roscoe Pound observed more than a century ago that in “all cases of divergence between the standard of common law and the standard of the public, it goes without saying that the latter will prevail in the end.”  I suppose if one sentence could sum up my research agenda, that would be it (let us not pause to consider that my research agenda is therefore over one hundred years old).  Interestingly, it’s not necessary that the law change under those circumstances; rather, enforcement practices come, eventually, to reflect the standard of the public — what we usually now call norms.  I’ve called those gaps between law and norms ‘parameters of acceptable deviance’ or PADs.  Behavior within them is formally illegal but socially acceptable, and generally does trigger either a formal enforcement response or social sanctions.  Behavior outside of them may be either formally legal or illegal.  Behavior that is both formally illegal and socially unacceptable usually triggers a formal enforcement response; behavior that is formally legal but socially unacceptable usually triggers social sanctions.

The inimitable CharonQC wrote from the other side of the pond about the first non-jury trial in the UK in 400 years and then wasted half an hour out of his day to do a podcast with yours truly. Also from the original motherland, a report recommending sweeping reforms to their incarceration policy. Finally, in keeping with Dr. King’s motto of passive resistance and non-violence, here are some tips on how to get jurors to like you and in the “little ditty” department, here’s one from a “recovering lawyer” in honor of Conan O’Brien.

If you want more, check out Colin Samuels’ weekly Round Tuit collection of posts from around the ’sphere (from which I’ve shamelessly lifted some links).

“Cowardice asks the question, ‘Is it safe?’ Expediency asks the question, ‘Is it politic?’ But conscience asks the question, ‘Is it right?’ And there comes a time when one must take a position that is neither safe, nor politic, nor popular but because conscience tells one it is right.”

Here is a collection of MLK posts from around the blawgosphere:

• Praising and thanking Martin Luther King, Jr. by Jon Katz (Underdog blog)
• Blawg Review on MLK Day
• Happy Martin Luther King day! at Above the Law
• Dallas law firm keeps MLK’s dream alive with annual oratory competition
• For Doctor King at The Dream Antilles
• Injustice Anywhere: MLK and criminal justice at Change.org
• I am in Birmingham because injustice is here at Concurring Opinions
• African-Americans and crime after MLK at Women in Crime ink

“Injustice anywhere is a threat to justice everywhere”

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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(e) “Elector” means any person possessing the qualifications prescribed by the Constitution and duly admitted to, and entitled to exercise, the privileges of an elector in a town;

and 9-181 which lays out the method via which elections are to be held. Now let’s look at Amendment XV to the state constitution and the crux of the arguments in support of the unconstitutionality of 3-124. It amends Article 6, Section 10 of the Constitution from:

SEC. 10. Every elector shall be eligible to any office in the state, except in cases provided for in this constitution.

to:

SEC. 3. Section 3 of article two of the amendments to the constitution is amended to read as follows: Every elector who has attained the age of eighteen years shall be eligible to any office in the state, but no person who has not attained the age of eighteen shall be eligible therefor, except in cases provided for in this constitution.

The tricky language here is “eligible to any office”. The implication, to some, then is that the only requirement to be Attorney General – an “office in the state” – is that a person be an elector. (And it’s not like our current AG hasn’t sometimes acted as if he had no legal training)

So we are left with two choices: either there is no requirement that the Attorney General be an actual, you know, attorney, or that Amendment XV did something very limited: lower the age at which one can be an elector (for further context see Secs. 1 and 2 of Amendment XV).

There can be no middle ground, however: either the Constitution bars any additional qualifications for AG beyond “elector” or it is silent, in which case 3-124 is appropriate.

It might be important to note the duties of an Attorney General:

The Attorney General shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction. He shall appear for the state, the Governor, the Lieutenant Governor, the Secretary, the Treasurer and the Comptroller, and for all heads of departments and state boards, commissioners, agents, inspectors, committees, auditors, chemists, directors, harbor masters, and institutions and for the State Librarian in all suits and other civil proceedings, except upon criminal recognizances and bail bonds, in which the state is a party or is interested, or in which the official acts and doings of said officers are called in question, and for all members of the state House of Representatives and the state Senate in all suits and other civil proceedings brought against them involving their official acts and doings in the discharge of their duties as legislators, in any court or other tribunal, as the duties of his office require; and all such suits shall be conducted by him or under his direction.

So this statute, too, would be unconstitutional as would any other statute that requires a person appearing in court on behalf of any party to be licensed to practice law in the State. But then again, keep in mind that this is a State Constitution where the words “double jeopardy” appear exactly zero times.

As an intrepid reporter and longtime reader points out, there is also no requirement that the AG be a live person. /snark

It might be of some relevance that 3-124 was enacted in 1949, some 31 years before Amendment XV.

I think you know where I fall on this. Where do you?

[2nd update: This issue fully deserves this image:

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