Daily Archives: April 27, 2005

Recent Crim Law decisions

The Appellate Court released Smith v. Commissioner [pdf] and State v. Little [pdf] today. Both cases are brief, so here are brief summaries:

I.  In Smith, the petitioner appealed from the denial of a habeas corpus petition, in which he raised 1) IAC and 2) [F]actual innocence (he raised factual innocence, but presented legal authority for actual innocence so the court treated it as such).

The facts in Smith were that he robbed an 80 year old woman, pushed her to the ground and ran off. He was seen by two witnesses, one man and one woman. The woman rushed to the victim’s aid and the man threw a bottle at the petitioner that hit him, but did not deter him. The man made positive IDs pretrial and in court and the woman could only narrow it down to two "mug-shots" pretrial and was 90% sure it was him in court.

HIs claim of IAC was that he repeatedly claimed he was "innocent" and that his trial attorney did nothing to investigate his assertion. The Court described trial counsel’s performance as it oft does, glowingly, stating:

Upon review of the record, it is clear that the petitioner’s trial counsel conducted an adequate pretrial investigation. She obtained a complete copy of the state’s file in the matter. She met with Diaz [female witness] to attempt ‘‘to develop any discrepancies between what the witnesses were saying in their statements given to the police versus . . . the descriptive appearance of [the petitioner].’’ She attempted to meet with Pender [male witness], but he refused to meet with members of the defense team. She also investigated and developed the petitioner’s alibi defense.

The conduct of the petitioner’s trial counsel displays that she was attentive to the petitioner’s statement that he was not guilty of committing the crime and that she conducted an adequate pretrial investigation.

The next bit – the analysis of AI – is interesting for those who wish to know more about habeas law. The standard for a claim of AI is defined by Miller v. Commissioner, 242 Conn. 745 (1). The petitioner, in advancing a claim of Actual Innocence,

must establish by clear and convincing evidence, taking into account both the evidence adduced at the original trial and the evidence adduced at the habeas trial, that the petitioner is actually innocent and that no reasonable fact finder would find the petitioner guilty of the crime.

So you have to take all the evidence from the original trial and from the habeas trial and look at it together from the perspective of a jury and then decide whether a "reasonable jury" would convict. Quite different from the IAC standard.

The Court didn’t find any evidence to overturn the Habeas Court’s ruling that the AI standard wasn’t met.

II.  In State v. Little, the defendant was convicted of manslaughter in the first degree and carrying a pistol without a permit. The facts are unimportant, so if you want to know, please read the opinion.

The defendant raises two claims: 1) During the charge to the jury, the judge improperly marshaled the evidence against the defendant and in favor of the state and 2) Prosecutorial misconduct.

A claim of marshaling the evidence is not one that I have come across too often, so this is interesting to me. The appellate court has held that the trial court has the right and the duty to comment on the evidence adduced at trial. The purpose of this is to provide a summary, nothing more. To attain that, obviously, the court must achieve impartiality. It cannot be viewed as favoring one side of the case as opposed to the other. Applying it to the instant case, the Court held,

‘‘On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, [t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.’’ (Internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 282, (2004).

The Court reviewed the evidence adduced at trial and found that the trial court’s charge did not favor the state. It noted that the court repeatedly told the jurors to rely on their own memory and impressions and to judge the credibility of witnesses for themselves.

In claiming prosecutorial misconduct, the defendant stated that the prosecutor appealed to the emotions of the jurors.

‘‘It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . .

The remarks in question were:

‘‘You also have . . . three individuals disputing [the defendant’s] claim that it was [the victim] chasing him and not the other way around. All three of those individuals told you that it was [the defendant], the man who had the motive, the man [who] now had the means, the man who took advantage of the opportunity at this point to chase and track down essentially [the victim].’’

Shortly thereafter, near the end of his closing argument, the prosecutor urged the jury

‘‘to recall the fact that the state claims the defendant had a motive, a clear motive, to shoot and kill [the victim]; the fact that he purposely sought out and obtained a deadly weapon to accomplish that; [and] the fact that he chased, in effect, hunted down, [the victim] over a block and a half . . . .’’

The court held that the prosecutor’s remarks were not improper and upheld the conviction.

Ok, so the summary wasn’t brief. Sorry.

(1) Larry Miller’s case is fascinating. Read a little about it here.


Miami toughens up sex offender laws

Ok, here’s the disclaimer, front and center: I’m probably going to say things in this post that most may not agree with, so if you’re not in the mood for a disagreement, don’t read.

Ok? Still here? You’ve been warned.

At PrawsBlawg (& Crimprof), I saw reports of a story that Miami is considering changing it’s sex offender laws (via zoning restrictions) that would basically drive all "sex offenders" out of the city. These restrictions are prompted by the slayings of two young girls.

New proposed laws in Florida include lifetime monitoring of some sex offenders by global satellite
positioning systems, mandatory 25-year prison terms for sex offenses
against children younger than 12, and automatic jailing of sex
offenders who violate probation until a judge can determine whether
they represent a threat.

I’ll address those proposed laws a little later. The Mayor’s measure

would more than double the buffer zone required between the homes of
registered sex offenders and schools, parks, school bus stops or any
”place where children regularly congregate."

I have some serious, serious reservations about this. It is one thing to impose lengthy sentences on "sex offenders" and then require them to register for life with their information available on a public website (which, unfortunately, the Supreme Court has held constitutional), but it is quite another to effectively bar them from a whole city. Not only does this proposed legislation raise equal protection concerns, it is exactly the kind of knee-jerk reaction that has effectively removed all notion of "correction" and "rehabilitation" from the criminal justice system.

Look, I know what you’re thinking: What the hell is wrong with this guy? I understand the importance of sex offender laws and the need to protect children. I am all for it. So, if sentences for certain sexual offenses need to be increased to keep "offenders" locked up longer and out of society longer – I’m all for it. But when we start getting to the point that "offenders" cannot live within a city then we really need to stop and think about what we’re doing.

Analogizing (and yes, you can analogize this situation to other crimes – because there is always a victim) this to say, robbery, why are we not passing ordinances, zoning laws and legislation that bars people convicted of two or more robberies from being within 1500 feet of a store? Experience in the criminal defense field will tell you that the most recidivist "criminals" are those with robberies, burglaries and assaults on their record. So let’s keep people convicted of assaults from within 1500 feet of any store where they can purchase a knife/gun/sharp instrument. In fact, let’s not even let them near kitchens!

See how absurd this is getting? If you want to effectively "ban" them from cities, just increase jail terms. That serves the same purpose.

The other problem is that not all sex offenders are convicted of Class A or Class B felonies. There are a large number of "sex offenders" who are convicted of offenses that involve nothing more than public indecency or, heck, don’t even involve children! Do we banish them too?

So we banish them. Then what? They go live in another city, or the countryside, or some small town. And that small town passes the same law and so they move elsewhere and so on and so on. What happens then? All the sex offenders in the country congregate in some remote vast open space in the middle of nowhere in, say, Montana? You think the residents of Montana will have nothing to say about that? That’s not a risk?

What about people that were convicted of a sexual offense 20 years ago and have not a blemish on their record since? What about those that are now working and hold jobs and have families? Do we banish the families too?

Again, I’m not belittling the horrific murders of the two young girls. But banishing all sex offenders is not the answer.

Let’s talk a little about this global positioning system tracking that’s been proposed. Do we need to know where "sex offenders" are every single minute of the rest of their lives? If we’re that concerned about where they are – leave them in jail!

All right. Here’s the deal: All I’m saying is that the "remedy" here is excessive and we really need to stop and think before we take such drastic measures. Is there a better alternative? One that is selective and targets only those that pose a real risk to the community and the safety of little children.

I told you my rant would piss you off.