Archive for July, 2005
Here come the EP claims
Jul 29th
As most civil union opponents feared would happen, eight same-sex couples have filed suit in New Haven alleging equal protection violations. They plan to use the passage of the civil unions bill and the debate surrounding it to bolster their claim.
Death penalty streamline bill facing opposition
Jul 28th
The Federal Streamlined Procedures Act of 2005 [previous commentary here] is facing growing opposition. The bill, introduced by Sen. Kyl and Rep. Lungren would severely restrict Federal Habeas Corpus review. Therefore the poorly titled "streamlined procedures".
Opposition is coming from all quarters, however, and not just from defense lawyers. The LATimes reports [requires registration - if you don't want to register, go here]
Concerns come not only from death-penalty opponents but from individuals and groups not often thought of as vocal supporters of the rights of criminal defendants.
Among the critics are the Rutherford Institute, a conservative legal
group that specializes in religious freedom and antiabortion issues;
Bob Barr, the conservative Republican former congressman from Georgia;
more than 50 former prosecutors; and more than a dozen former federal
judges.The legislation, opponents say, would dramatically restrict federal
courts’ ability to consider habeas corpus petitions from state
prisoners who claim that their constitutional rights have been violated
or that they have evidence they are innocent.
Sen. Kyl says that the restrictions imposed by the AEDPA aren’t enough and cites an increase in the number of petitions filed – almost 10,000 over the last 10 years. Gee, you think maybe it’s because of longer and stricter sentencing?
Kyl said the bill had an exception that would enable innocent people to obtain relief from a wrongful conviction.
But the former judges — including William H. Webster and William S.
Sessions, both of whom served as directors of the FBI in Republican
administrations — countered that "the language of the exception is so
narrow that it will cover virtually no one."The former jurists
also said the bill would overturn several recent Supreme Court
decisions interpreting the 1996 death penalty act "as well as several
other decisions of the Rehnquist court, many of which have helped to
further streamline the system and eliminate delays. It serves no one’s
interests to engender the kind of delays that this bill will create" by
precipitating more litigation.
Prosecutors and defense attorneys united in their criticism:
At the [first senate] hearing, Seth P. Waxman, who was U.S. solicitor general in
the Clinton administration, described four death penalty cases in the
last four years in which the Supreme Court found major constitutional
violations overlooked by state courts. In one instance, prosecutors hid
critical information from the defense. In another, the Supreme Court
found that prosecutors had improperly kept blacks off a jury. If the
Kyl-Lungren bill had been in effect, none of those cases would ever
have been reviewed by a federal court, Waxman said.Attorney Barry Scheck, co-founder of the Innocence Project, which had
played a key role in freeing more than 100 wrongly convicted people —
eight of whom had been on death row — said a number of those people
would be in prison or dead if the proposed legislation had been in
effect.Scheck told the Judiciary Committee that the proposed
law turned the lesson of those cases "on its head. It threatens to make
what is already a torturous, difficult mountain for the wrongfully
convicted to climb into a wholly impenetrable steel wall."
Anyone who does Habeas work knows how difficult it is to get a petition granted. Case law restrictively defines ineffective assistance and the actual innocence standard is torturous. Hopefully, this legislation won’t pass. Thanks to Howard Bashman for the link.
more sex offender legislation
Jul 27th
Alabama’s legislature passed a slightly less-strict sex offender law yesterday. What did they leave out? The castration requirement [previous commentary]. Prof. Berman also reports a Federal Sex Offender bill, which is slated for full committee mark-up in the House. The bill – Children’s Safety Act of 2005 (H.R. 3132), combines various different sex offender bills into one. It has pretty standard provisions, including lifetime registration for felony sex offenders, a national internet database and grant-related incentives. Thankfully, there is an exception for minors having sex with other minors in a 4 year age range.
[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal. Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru’s Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru’s Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.
In addition to the Dru’s Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children.
The bill can be accessed here and a .pdf version is here. Elsewhere, South Dakota’s Attorney General is also pushing for reform in their sex offender laws, seeking tougher legislation, including making it a crime to view child pornography. Hopefully there will be an exception for unintentional viewing/download.
I still haven’t had the time to re-read buck in the context of skinner, but for some reason – wishful thinking? – my gut tells me that castration would still be unconstitutional.
Reader comments on castration
Jul 26th
I’ve received a couple of comments to the castration post below that I’d like to share. First, "jack" of Gideon’s Guardians points out that Alabama isn’t the only state to propose such legislation. Apparently, Sen. Shurden of Oklahoma consistently introduces this bill. The closest it ever got to becoming law was in 2002, when it passed both houses but was vetoed by the Governor.
Under Shurden’s bill, the jury would have to determine if the crime meets at least two aggravated circumstances as outlined in the legislation. Aggravated circumstances would include the rape of a child, rapes resulting in significant physical injury to the victim, gang rapes and previous convictions for sex crimes. In addition, a DNA test positively identifying the defendant as the rapist would be required before castration could be ordered by a judge.
Susanna writes,
I agree with you 100% when you say "I’m just against sensationalist legislation that doesn’t take into account data-driven reality and logistics." Setting penalties for crime is driven more by the election cycle than any coherent philosophy or even practical goal setting. The problem is that what is in place keeps failing, so public reaction pushes harsher penalties that just create more chaos. Somewhere, some governmental entity needs to fund more investigators, faster trials, fully staffed correctional programs and parole officers with fewer offenders to track so they can genuinely track the ones they’re assigned. Then we can see what does and does not truly work, and adjust from there.
Very true. This, ofcourse, can be said of the entire correctional system in general. Before legislation is passed calling for castration, we need to figure out what is wrong with the current system and how to fix it. Why is it that this has become national news only very recently? What were we doing right in the past and what is wrong now?
Which brings me to the past. Buck v. Bell specifically. We know the case – "three generations of imbeciles are enough". David Schraub of The Debate Link invokes Buck in determining that Alabama’s proposed law probably would be constitutional. I haven’t read Buck in a while (I’ll do it during lunch), but if my memory serves me right, the rationale in Buck was to prevent furthering the line of the "feeble-minded" by sterilizing Carrie Buck, so that she could not reproduce. Far more than prevention of crime, the underlying rationale was to "cleanse society", so to speak, of the feeble-minded and mentally ill. Justice Holmes writes,
The statute then enacts that whenever the superintendent of certain
institutions including the abovenamed State Colony shall be of opinion
that it is for the best interest of the patients and of society that an
inmate under his care should be sexually sterilized, he may have the
operation performed upon any patient afflicted with hereditary forms of
insanity, imbecility, etc., on complying with the very careful
provisions by which the act protects the patients from possible abuse.We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call
upon those who already sap the strength of the State for these lesser
sacrifices, often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is better for all the
world, if instead of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can prevent those
who are manifestly unfit from continuing their kind.
Additionally, the argument still stands that castration as a punishment in cruel and unusual and in violation of the 8th Amnd; cruel and unusual having been defined as changing according to evolving moral standards in society, no?
Please correct me if I’m wrong. I’m going to think about it some more and maybe post later.
A Question of Culpability
Jul 23rd
On to other things… Remember Daryl Atkins? Well, he’s on retrial now, with his competency in question and the death penalty hanging in the balance. WaPo has this lengthy article on Atkins, the trial and his life. [Normally, WaPo requires registration - if you don't want to register, go here and get one.]
The Atkins case was part of that scrutiny in 2002, when the U.S.
Supreme Court ruled in Atkins’s favor with a ban on executions of the
mentally retarded. The court said the practice amounted to "cruel and
unusual punishment" for inmates such as Atkins, who experts said has an
IQ of 59 and a mental age between 9 and 12 years old.
He’s on retrial because the court never did address the issue of whether Atkins himself was retarded.
On his childhood:
At 18, Daryl Atkins had racked up a childhood of failures. He
flunked out of second grade, barely made it through fourth, and took
home a heavy load of D’s and F’s on his report cards. By high school, a
teacher decided to put the books aside to focus him on more practical
skills: reading menus, understanding road signs.
This
was around the time that Atkins failed driver’s education and did so
poorly at football practice that he was kicked off his high school team
in Hampton, Va. The teenager regularly confused his right with his left
and had trouble learning plays, according to a recent psychological
report.
Two juries have already returned a verdict of death in the past – let’s see how this turns out.
Off with their [family jewels]!
Jul 22nd
Update: Yes, there’s more! Prof. Berman provides this article, which quotes heavy rhetoric from the former Gov. of Alabama, Don Siegelman. A sampling:
"If it was up to me, I’d give them the death penalty on the first
offense," Siegelman said Friday. "The attorney general has the
Legislature in this special session. This is the perfect vehicle to do
this thing right. They need to quit being so namby-pamby and squeamish
about castration and put that back in the bill."
It’s final. We have now descended into the mystical, topsy-turvy, crazy and non-sensensical world of Alice and the Rabbit-Hole. The sex offender frenzy has reached impalatable and ridiculous heights. Prof. Berman reports that the Alabama House recently passed a bill calling for castration of sex offenders whose victims were under 12. I’m going to type that again, so you can absorb it…
CASTRATION.
Yep, that’s right.
CASTRATION.
This has got to stop. This is absurd, cruel, unusual and again, absurd.
The House passed a
bill Thursday that would require mandatory castration of persons
convicted of violent sex crimes against children under 12 and would
require them to wear electronic monitoring devices for the rest of
their lives after release from prison.The House, during more than three hours of debate, heavily amended
the legislation proposed by Gov. Bob Riley and Attorney General Troy
King. The House bill would prevent all convicted sex offenders from
working or loitering within 500 feet of a school, park or business that
educates or entertains children. The bill passed the House 96-0.
Some of the provisions are more normal: the 500 feet buffer zone, working near children and so on. But castration? Also what seems to be currying favor with legislators nationwide is the lifetime GPS monitoring requirement. I’d be willing to bet that there is a plausible ex-post facto claim there.
I have had a lot to say about this in the past and as long as this lunacy continues, I will have more to say. Again, for first-time readers, please don’t assume that I’m in favor of molesters, paedophiles and "the like". I’m just against sensationalist legislation that doesn’t take into account data-driven reality and logistics. Perhaps also the Constitution. Sadly, I’m in the minority. Tom might like this legislation.
For more of my rants on sex offenders, click here.
Romney’s “fool-ish” death penalty bill
Jul 22nd
Prof. Berman provides a link to this excellent article in the Boston Phoenix, which details the complete lack of support for MA Gov. Romney’s "foolproof" death penalty bill. Previous coverage here and here.
State Senator Marc Pacheco (D-Taunton), normally a slam-dunk vote for any death-penalty proposal, tells the Phoenix that
he is "increasingly getting frustrated with this piece of legislation
being used for purely political purposes." Even assuming Pacheco and
other pro-death-penalty Democrats ultimately vote for the bill, it will
lose by roughly 40 votes in the House and 15 in the Senate, according
to anti-death-penalty lobbyists. If Pacheco and others like him vote
no, the loss could end up as a massacre.
It gets worse. Gov. Romney’s office could not find a single family member of a victim to stand next to him for a photo-op. In fact, the few family members that did show up, spoke up in opposition to the bill!
About the bill:
Romney’s plan can best be described as a right-wing parody of a
liberal’s perfect death-penalty bill: an expensive and complicated new
bureaucracy that would execute nobody. The bill calls for layers and
layers of new processes and legal requirements, while restricting
death-penalty eligibility so narrowly that it’s hard to find any real
case to which it would ever apply. Whether this was bad work by
Romney’s staff or the inevitable result of a quixotic endeavor, it’s
not likely to appeal to many people on either side of the debate.
When faced with the reality that this "foolproof" statute would almost never be triggered, Gov. Romney then retroactively unveiled a new justification:
They now claim that the threat of execution would prompt many killers
to plea bargain and accept a first-degree-murder conviction in exchange
for a death-penalty waiver. In fact, Romney testified that this would
happen so frequently, the savings from those trials might outweigh the
potential cost of the new death-penalty system.
I wonder if anyone has investigated the economics of having the death
penalty, yet never using it and the corresponding cost savings (based
on the deterrent factor, inducing defendants to take pleas instead of
going to trial).
Here’s more to make you scratch your head:
An even bigger whopper came when State Senator Steven Baddour
(D-Methuen) asked about the historic injustice that African-Americans
receive the death penalty in vastly disproportionate numbers. Romney
bizarrely claimed that not only did his plan safeguard against that
concern, but that the death penalty would apply specifically to crimes
that minorities don’t commit. "I can’t think of a case involving an
African-American where this provision might apply," he said, apparently
forgetting Jeffrey Bly, the man convicted of killing prosecutor
McLaughlin. In fact, he opined, all cases of mass murder he could think
of were perpetrated by people "of the majority race" — an interesting
new theory of terrorism, not to mention the DC sniper killings.
Honestly, there’s so much more in this article, you should read it.
I can talk street too
Jul 22nd
TxPD ain’t da only one dat can speak street.
One of my previous posts:
What’s more, her proposal calls fo` tha offenda themselves
ta pay fo` tha GPS straight trippin’. Oh, n Governor, there is already
a statute fo` failure ta crazy ass n**** or ta maintain registrizzles
so sit back relax new jacks get smacked.The last one is all tha more sippin’ – n is somewhat akin ta
Sensenbrenna’s Family Snitch law . Ya f#*! with us, we gots to f@$# you
up. What does mackin’ mean? Is she mackin’ T-H-to-tha-izzat if person A
knows thiznat person B is a sex drug deala n thizzay person B has not
registizzles tizzy person A is liable? Or wizzle it be even brotha n
encompass all those messin’ shelta ta a sex motherf&@%? (which, by tha
wizzy is mobbin’ more n more difficult) straight from long beach n****.
I’ve edited out the profanities – if you want to see the full page, click here.
Sex-offender mania spreads to CT
Jul 21st
It seems that the wave of panic and corresponding reactionary legislation gripping the nation in regards to sex offenders has finally reached our liberal shores. Gov. Rell proposed new legislation yesterday, in an effort to toughen up CT’s sex offender laws. Among the highlights of this proposed legislation for the next term:
- A new classification of "sexual predator"; defined as one who "preys on young children and the elderly".
- Lifetime registration for sexual predators.
- Lifetime GPS monitoring for all sex offenders.
- Maintaining registration as a condition of parole, and penalties for failing to maintain registration.
- Penalties for anyone "harboring a sex offender".
I don’t even know where to begin. Lifetime registration for all? (Atleast that’s what the news report implies). Even those who were convicted of statutory rape and are therefore, "sex offenders"?
What’s more, her proposal calls for the offenders themselves to pay for the GPS monitoring. Oh, and Governor, there is already a statute for failure to register or to maintain registration. It’s called "Failure to Register" and is a D felony.
The last one is all the more troubling – and is somewhat akin to Sensenbrenner’s Family Snitch law. What does harboring mean? Is she proposing that if person A knows that person B is a sex offender and that person B has not registered, then person A is liable? Or will it be even broader and encompass all those giving shelter to a sex offender? (which, by the way, is becoming more and more difficult).
So you have zoning laws that say sex offenders can’t live within certain areas – and we’re constantly expanding these areas, shelters have strict rules about sex offenders because of the presence of children, landlords won’t allow sex offenders if there are children on the premises or else they’ll get into trouble with the DCF.
Why don’t we do what we all want to do? Pass a NATIONWIDE ordinance/law/statute banning sex offenders. Create an island in the pacific and ship them all off there. Isn’t that what it’s going to come to at some point?
Rationally speaking, why not increase penalties and actually care about rehabilitation in jails? That would seem to be the best way to deal with this "growing" problem, without imposing ridiculous demands.
This is a topic that is deeply important and provocative in society today. Unfortunately, passion overrules the mind and we’re not thinking about the most effective and efficient ways to deal with this, just the most sensationalist.
For more on my (generally unpopular) views on Megan’s Law, click here.
FL county bans sex offenders from Hurricane shelters
Jul 19th
When will this madness end? It now seems that Hillsborough County in Florida is banning sex offenders from their Hurrican shelters. Hurricane shelters!
Sheriff David Gee, Hillsborough County:
"My advice (for sex offenders) is to make arrangements in advance and go somewhere else because I think it’s going to be a problem."
What do you think they’re going to do with weathering a Hurricane? Molest somebody? This insanity has to stop! How reactionary (and absurd) is society becoming?
Fighting back, Howard Sluss and his wife Heather challenged the new policy at a town hall meeting hosted by the sheriff. The couple says the new policy puts their family, which includes 4 kids, at risk.
Heather Sluss, Howard’s Wife:
"As a mother of 4, I understand completely the need to keep your children safe. But what happens to those youthful offenders in those situations who have families, where are they supposed to go?"
Damn straight. This new policy affects 1200 people and yet nearby Manatee county is considering it as well.
False illusions
Jul 19th
Bump and Update: Mark astutely points out this quote from the firm’s website:
Prior to joining Marquis & Aurbach, Ms. Kuzemka, practiced criminal defense law at the Clark County Public Defender’s Office.
Update: TxPD provides her insight.
So I thought I was learning something each time I stepped into a courtroom over the last few years. Standing in front of a judge, putting witnesses on the stand, cross-examining others, writing briefs, motions and memoranda surely have made me a better lawyer! After all, isn’t practical experience what it’s all about? Apparently, I’m failing horribly at achieving the standard of being a good lawyer: billing hours. Skelly is rightly skeptical. I’m a little more than skeptical. I’m incensed.
Let’s look at this quote from "the well tailored lawyer":
Law students also need to realize that there is a vast difference
between a starting job at the public defender’s office or district
attorney’s office, as compared to starting at his firm of choice. It
takes a thick skin and a strong constitution to work with hardened,
penniless criminals day in and day out at the public defender’s office.
At the district attorney’s office, you will at least be on the opposing
side of such individuals, but you must still interact with them, and
you seldom get the opportunity to handle a large, complex case. Some
law students are under the impression that they will gain valuable
trial experience as a public defender or a deputy district attorney,
enabling them to later land a good job with a law firm. While it is
true that they have gained valuable trial experience, a young attorney
who has worked for the government has learned nothing about dealing
with individual clients, quoting fees, keeping clients advised, and
grasping the many complex issues that are presented by business clients
on a day-to-day basis. And while it may also be true that government
attorneys learn to think on their feet (often opening a file for the
first time while they are in court standing in front of the judge),
this is not good training for handling complex business cases where
preparation is the number one priority. Just as important, a government
attorney has had no experience billing 40+ hours per week or even
keeping track of their time. Thus, working for the government right out
of law school often disqualifies young attorneys from ever landing a
job at a prestigious law firm.
I’ve highlighted some troublesome sentences in that passage. First off, and my pet peeve, is the use of the phrase "hardened, penniless criminals" and the word "them". As I’ve said time and again, "them" can just as easily be "us". Let’s stop this condescension and realize that each one of us, in our lifetimes, has done something that could very easily have made us into them. Anyone driven home after one or more drinks? Smoked pot? Shoplifted a candy bar? Thought so.
The writer is probably correct in stating that working for the state’s attorney’s office will not train a lawyer in dealing with clients and keeping them advised. However, it is ludicrous to suggest that prosecutors are unable to grasp complex issues (business or not), or are unable to prepare. Ask any prosecutor (or pd) who has tried a lengthy felony case. We all prepare. No one goes into trial just "winging it". That just shows either ignorance of the practice of criminal law or disdain for it.
The other notable thing is that while berating the value of the job of a state’s attorney, the writer does not make these allegations about a public defender – how could he? We spend a large portion of our time dealing with clients – visiting them, talking to them on the phone, writing to them, sitting next to them. All PD’s prepare (or should) their clients prior to trial, advise them on the best course of action (otherwise they go straight to habeasville) and constantly guide them. So we are teriffically prepared for "dealing with clients". We often try cases with little or no evidence, leaving the state to it’s burden. If that isn’t valuable trial experience, I don’t know what is.
Oh that’s right – I forgot to take the class or the seminar that teaches me how to bill.
As far as being disqualified from working at "biglaw", I don’t want it anyway. I’d rather worry about how I’m going to avoid the tricky evidentiary issue during direct tomorrow than worry about "making my billables".
Important Habeas denials
Jul 19th
The Supreme Court yesterday released some pretty important habeas decisions and atleast one high profile crim decision. I’ll go into the Habeas decisions at the same time, as they address basically the same issue.
The Court released Lebron v. Comm’r, McCarthy v. Comm’r, Hickey v. Comm’r and Oliphant v. Comm’r. The basic issue was whether, in all the cases, the Appellate Court had properly dismissed the habeas petitions for lack of jurisdiction, because in each case the petitioner was not "in the custody" of the Department of Corrections. Each petitioner had discharged his sentence.
In Oliphant, the petitioner was incarcerated under two sentences; one imposed in April and the other in September. By the time he filed his Habeas petition, he had discharged the shorter April sentence, but was still held under the longer September sentence. The Habeas court dismissed the petition because he was no longer "in custody" under the April sentence, which had been the basis for his petition (even though he was actually being held in jail).
The Court first considered whether the petition should be broadly construed to include an attack on his September conviction as well, even though it wasn’t explicitly mentioned in the pro-se petition.
The Court writes:
The modern trend . . .is to construe pleadings broadly and realistically, rather than narrowly and technically.’’ (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655–56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their ‘‘lack of legal education and experience . . . .’’ Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). This rule of construction has limits, however. ‘‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.’’ (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).
Additionally, the Petitioner had already raised a separate Habeas petition in connection with his September conviction, so the Court denied this claim.
Next, Petitioner raised the following two claims: (1) That Connecticut’s "in custody" statute should be read more expansively than the Federal Statute and (2) the Petition is not moot because collateral consequences flow from his illegal conviction.
The Court addressed these claims in Lebron, so let’s turn there.
In Lebron, the facts were reasonably similar. Petitioner’s 1992 sentence was being used to enhance his 1999 sentence, even though he had discharged the 1992 sentence. The Habeas Court dismissed the petition because Petitioner was not being held "in custody" on his 1992 sentence.
Challenges to expired convictions under Federal law are governed by Maleng v. Cook, 490 U.S. 488 (1989). In Maleng, the Court held
‘‘once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.’’
However,
[t]he majority carved out one exception to this general rule—it concluded that a habeas petitioner could challenge an expired conviction if the petitioner attacked his ‘‘enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the [s]ixth [a]mendment, as set forth in Gideon v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)].’’ Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001).
Applying all of this caselaw, the Court found that the Habeas (and Appellate) Court correctly construed his 1999 petition as an attack on his 1992 conviction.
The Petitioner then alleged that the Appellate Court improperly dismissed his petition for lack of subject matter jurisdiction, because the custody requirement in C.G.S. (stating that a Habeas petition is to be filed by someone in the custody of the DOC) related to venue and not jurisdiction. The Court, after an analysis of the jurisprudence of Habeas Corpus, found that there was no doubt that the custody issue was jurisdictional and denied that claim.
Finally, the Petitioner claimed that the Appellate Court improperly found that the collateral consequences of his 1992 conviction were insufficent to find him "in custody" under Maleng and Lackawanna.
On that matter, the Court held,
We conclude that a petitioner whose conviction has expired fully prior to the filing of a habeas petition is not in ‘‘custody’’ on that conviction within the meaning of § 52-466, despite the alleged existence of collateral consequences flowing from that conviction.
So, in accordance with this decision in Lebron, the Court denied all four Habeas appeals. The Crim decisions to follow. For more, see this Courant article.
Just like crack
Jul 18th
As this past weekend approached, I was facing a dilemma. Having to take a trip via train, I needed suitable reading material. Something absorbing, yet light, but yet riveting enough that time would pass quickly. I knew it was out there. I knew it was the talk of the town, yet I was experiencing much trepidation. Why start now, having ignored the 5 previous installments. I dislike things that have mass appeal and popularity and this was no different. Yet, it was there. I’d seen the last movie (the perils of having HBO) and was somewhat intrigued, but not convinced.
That’s when the better half said to me: "If you like Star Wars, how can you not like this?" Mind you, I’m not a Tolkien fan. The Star Wars comment resonated, though, so I trudged over to the local Wal-Mart and bought a copy. Three shades of green on the cover, with two sketches looking into a pillar, obviously with magic seer-esque powers, it boldly proclaimed: Harry Potter and the Half-Blood Prince.
I’ve spent the last two days getting caught up on Muggles, dementors, death eaters, hogwarts and Harry. I’m only 250 pages deep and I must say, I had a hard time putting it down last night. Not that I’m raving about it – it is a bit slow in places and a third of the way through, storylines are just beginning to take robust shape. That’s a minor detraction, though, from the story that has been woven.
Honestly, I can’t remember the last time I read so voraciously. Perhaps when I finished Crome Yellow in one sitting a few months ago. I look forward to reading more of Part VI tonight. As the BH described it:
"Just like crack".
habeas decisions
Jul 14th
Am experiencing a little down time at work, so I figured I’d post quick updates on the latest criminal cases from the appellate court. This post summarizes the habeas decisions and the next one will be about the criminal decisions. The Court released Frank v. Comm’r, Diaz v. Comm’r and Kelley v. Comm’r [all files .pdf]. Both Frank and Diaz were cursory Simms and Lozada dismissals with the following paragraph:
We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.
That takes care of that. The third, Kelley, is actually discussed on the merits. But when the Court describes petitioner’s claims as
(1) not conducting an adequate pretrial investigation and (2) failing to act in a variety of ways during the trial.
you know you’re in trouble. These are two of the vaguest claims you could have. Nothing specific at all here – what is "variety of ways", for instance? Let’s read on. As to the first count – the Petitioner claimed that his trial counsel failed to investigate the existence of one alibi witness. The Habeas court found that trial counsel did indeed try to locate this one person and talk to his mother, who stonewalled. Deferring to the Habeas court, the Appellate Court rejected the first count. In the second count, petitioner claimed
(1) failing to object to and to request rulings on certain aspects of the prosecutor’s cross-examination of alibi witnesses, (2) failing to object to the prosecutor’s reliance in opening and closing arguments on, what the petitioner classifies as, an ‘‘improper inference of recent fabrication of the alibi defense,’’ (3) failing to cross-examine the victim about prior accusations of sexual assault by others against her, (4) failing to request that the court allow an examination of the victim outside the presence of the jury and (5) failing to except to the court’s refusal to allow the petitioner to cross-examine the victim about alleged prior sexual attacks.
The Habeas Court addressed only allegation (3) above, finding that trial counsel had attempted to cross-examine the witness, but was shut down by the trial judge. The Appellate Court affirmed that ruling and declined to address any of the other allegations, writing
we note that none, not even those appearing in the petitioner’s amended petition, is accompanied by supporting facts, law and reasoned analysis. The petitioner addresses those alleged failures in a cursory manner at best. They constitute nothing more than bare assertions unsupported by fact, reason or analysis.
Ouch. The appeal was denied. It seems that either the attorney did a bad job, or more likely, was hamstrung by a client forcing him to raise barely colorable issues.
recent comments