Archive for September, 2005
Re-revisiting indigence
Sep 26th
A long time ago, I was engaged in a "blog-iscussion" about the meaning of indigence and the guidelines for determining indigence. I remember it, because this morning I read this story out of North Carolina.
Apparently, in N.C., there are no specific guidelines for determining indigence (and access to PD services), other than saying "I am unable to afford an attorney".
For example, when Larry D. Lintner, 56, of Raleigh was charged with embezzling money from the chemical company BASF, he swore he was too poor to afford a lawyer. He has two cars worth $4,000, an $8,000 checking account balance, nearly $100,000 of equity in his $250,000 house and $60,000 in a retirement account.
Still, a district court judge agreed to appoint Durham’s public defender to represent Lintner.
The state of NC spent 85.5 million last year for indigent defense. The money covered about 270,000 cases. By contrast, in CT (with an established PD system and guidelines for indigency), the state spent 34 million. Interestingly, in NC, the pd’s office does not receive or review the affidavits filed by defendants claiming to be indigent. They might want to rethink that one. Here, the pd’s office conducts an indigency evaluation and if found indigent, they represent the individual. Perhaps taking people at their word leads to spending 50 million more per year.
For more on indigency and guidelines, click on "pd system" below.
Full faith and credit clause upheld in CT
Sep 21st
Attorney General Blumenthal announced yesterday [formal opinion here] that Connecticut would give full faith and credit to civil unions entered into in other states. The question posed to AG Blumenthal was:
whether Connecticut courts will recognize out-of-state civil unions, same-sex marriages and same-sex domestic partnerships after Connecticut’s Act Concerning Civil Unions, 2005 Conn. Pub. Act No. 05-10 (the "Act" or "P.A. 05-10"), takes effect on October 1, 2005. In particular, [ ] whether, after October 1st, a couple that has entered into a civil union, same-sex marriage, or domestic partnership out-of-state may legally enter into a civil union in Connecticut with the same partner.
Since CT recently passed a civil unions bill, recognizing out-of-state civil unions fits with public policy and therefore will be recognized. The AG concluded as follows:
- The Connecticut General Assembly in Public Act No. 05-10 specifically approved civil unions for same-sex couples. Since this law expressly articulates our State’s public policy, civil unions performed under the laws of other States are valid in Connecticut under the Full Faith and Credit Clause of the United States Constitution.
- At present, our courts will conclude that Connecticut law and the Full Faith and Credit Clause of the United States Constitution require Connecticut to recognize Vermont civil unions and California same-sex domestic partnerships. Other out-of-state, legally authorized same-sex domestic partnerships may be recognized as civil unions in Connecticut depending on how specific provisions of other States’ laws compare to ours.
- Same-sex couples whose civil unions and domestic partnerships are performed in other States and recognized in Connecticut already have a valid civil union in Connecticut that need not and cannot be repeated in Connecticut.
- The Connecticut General Assembly has specifically determined that same-sex marriages are contrary to Connecticut law. Because the legislature has determined that marriages in Connecticut may only be between a man and a woman, same-sex marriages performed under laws of any other State violate Connecticut’s expressly articulated public policy and are not required by the Full Faith and Credit Clause of the United States Constitution to be recognized here.
- Because same-sex marriages performed under the laws of another State are not valid marriages or civil unions in Connecticut, same-sex couples married under the laws of another State are allowed by Connecticut law to obtain a Connecticut civil union.
So, civil unions – yes. Same-sex marriages – no, but can get civil unions. If my memory serves me correctly, a lawsuit has already been filed challenging the law defining marriage as between a man and a woman. As of now, however, AG Blumenthal has rendered, in my opinion, a pretty accurate reading of the law. Read the whole formal opinion to see a discussion of the FF&C clause in CT.
Senator pleads guilty in bribery scandal
Sep 21st
As reported earlier, Senator Newton was facing allegations of bribery and had announced his resignation. In a swift adjudication, he pled guilty yesterday to three felonies: accepting a bribe, tax evasion and mail fraud.
After months scoffing at what he called "rumors" concerning a criminal probe, Newton also admitted to tax evasion and mail fraud. Prosecutors said he took more than $40,000 in campaign and other funds for his personal use, and failed to pay taxes on that amount. Newton, who resigned his Senate seat last week, owes more than $12,000 in back taxes, plus interest and penalties, prosecutors said.
He is one of five high-profile politicians in CT who have been convicted of corruption related charges in the recent past. He joins the elite company of former Gov. Rowland, Mayors Joseph Ganim and Philip Giordano and former State Treasurer Paul Silvester.
"We have a real problem here in Connecticut," U.S. Attorney Kevin O’Connor said outside the Bridgeport courthouse. "We hope cases like this send out the message that it’s just not worth it. … In this case, when you have somebody who is treating their campaign account like their personal piggybank, you’re going to jail. To the extent others are doing that, they better be careful that we could be watching."
…
While O’Connor said he expects Newton to be sent to prison, prosecutors did not offer any recommendations and O’Connor said sentencing Dec. 19 will be up to the judge. O’Connor would not say whether he believes that Newton will receive less than Rowland’s sentence of one year and one day in prison. He did say, however, he did not believe Newton would receive the maximum sentence of 35 years in prison and $600,000 in fines. The prosecution and the defense both may appeal the court’s sentence.
There’s lots more in the Courant article.
Senator Newton resigns
Sep 16th
In the face of an ongoing FBI investigation, Senator Newton resigned yesterday.
In a rambling speech in which he quoted the Rev. Martin Luther King Jr. and compared himself to Moses, a defiant state Sen. Ernest E. Newton announced his resignation Thursday, blaming the media and racial injustice for driving him from office.
Standing in the pouring rain outside city hall in his hometown, Newton ended his 17-year career as a state legislator with scant mention of the ongoing FBI investigation into allegations that he took bribes to steer money to a Bridgeport nonprofit agency.
Newton is believed to be the unnamed public official whom Warren Godbolt, executive director of a Bridgeport training agency gave a $5000 bribe to. Godbolt pled guilty last month. Some believe that he being targeted because of race, not corruption.
Carolyn Nah, president of the Greater Bridgeport NAACP, said that Newton was being singled out because of his race – an assessment that other Newton supporters shared.
"Why is Ernie Newton being targeted?" Nah asked. "If the FBI would look close enough, they would find other people. And they’re not people of color."
Others don’t agree:
But the Bridgeport Republican Town Committee issued a statement that rejected all of Newton’s claims.
"He blamed everyone and everything for his demise," the statement said. "He said the media is judge, jury, and executioner. He charged the inherent racism in America as a reason for targeting him. … Mr. Newton is simply an example of a self-serving politician cheating Bridgeport again."
To my mind, the only question is: will he have a lawyer or a public defender?
culpability vs deterrent
Sep 14th
There was this news item a while back, where a man failed to tell his extramarital partner (and previously, his wife) that he had contracted H.I.V. back in 1991. He was recently arrested and charged with some crime.
Now, indulge me as I depart a little. A few days ago, I came across this article in CNN by a law prof. from Rutgers discussing this very case. She writes:
The case first asks us to consider the culpability of one who spreads HIV to unwitting sexual partners.
Second, it asks us to decide how best to protect potential victims from the spread of the virus.
Finally, it forces us to confront the question whether the criminal law is primarily about the condemnation of wrongful behavior or the prevention of further harm, when the fulfillment of these two goals point in different directions.
The article is fairly correct in analysis when discussing the first two points. When it gets to the third point, however, it gets a little interesting. She argues that the law serves two purposes: to punish and to deter. It will encourage people like the defendant here to make others aware of their status and not to engage in sex with someone without telling them – or not at all. So far, so good. But then she introduces this wrinkle:
HIV testing — though recommended — is generally not mandatory. Accordingly, a necessary condition for criminal liability for exposing others to the virus — the knowledge that one is HIV-positive — is something over which the potential culprit has control.
The lesson that a sexually active individual might take from the prosecution of a man like Boyd is, therefore, that he should keep himself ignorant of his own HIV status.
…
Add to this the potential for criminal prosecution, and the people most in need of HIV counseling might avoid testing even more studiously than before.
What good would it do to motivate a person who has unprotected sex to get tested?
She concludes that such prosecutions may prevent people from getting tested. They don’t want to face reality and don’t want to be prosecuted – yet continue having sex. The only problem with this article is that she doesn’t provide a solution.
So how does one resolve this seeming conflict? What methods, policies would you recommend that would allow for prosecution, yet not deterr others from getting much needed testing?
I know Blondie used to be intrigued by these crimes, so perhaps she has some ideas. Anyone else?
CA Assembly passes same-sex marriage bill
Sep 8th
UPDATE: Well, no one can really be surprised. Gov. Schwarzenegger has announced that he will veto this bill to honor the voters who approved an initiative 5 years ago to keep marriages between women and men. I still don’t get what some people have against gay marriages. I just don’t.
Hello again. As you’ve noticed – blogging has been horrible on my part. I’ve been occupied with work and family. One story did catch my eye this morning, though. Updating an earlier report, Jurist and the NYTimes are now reporting that California’s Assembly has also narrowly passed a same-sex marriage bill. The bill now goes to Gov. Arnold S for his approval, although whether he will grant that is not yet clear.
Let sleeping jurors lie?
Sep 7th
The New Jersey Public Defender’s Office has petitioned SCOTUS to hear a case involving sleeping jurors.
Several jurors allegedly dozed off during Roy Higinia’s October 1996 drug-possession trial in Essex County, N.J. The transcript shows that Assistant Deputy Public Defender Rafael Gomez, at a sidebar just prior to cross-examining a police detective, told the judge that four or five jurors were "deep asleep" and some were "falling asleep" during his opening.
Superior Court Judge Julius Feinberg said he had not noticed and the case would continue but he would "wake them up, if necessary." He then asked the jurors if the room was too hot and when one answered "a little bit," he had the windows opened.
The trial proceeded and Higinia was convicted and sentenced to five years in jail.
NJ’s appellate court rejected the argument and the Supreme Court did not grant certification.
In the petition for certiorari filed Aug. 23, Assistant Deputy Public Defender Lon Taylor said the appeals judges ignored state precedent that places an affirmative duty on the trial court to assure an attentive jury. Taylor asked the Court to rule that a sleeping juror is per se a structural error not amenable to harmless error review and so requires reversal.
The petition points out that Higinia, who admitted possessing cocaine, claimed that police fabricated the distribution charges and that jurors who slept through police testimony would miss the chance to assess credibility based on factors like body language and demeanor.
Unfortunately, sleeping jurors isn’t uncommon and needs to be addressed.
CA senate passes same-sex marriage bill
Sep 2nd
Hello everyone! I’ve been extremely busy this week, which is why there hasn’t been any posting. I’m terribly sorry and I’m sure I’ve missed some interesting legal developments. I also received a decision in a case which went to trial 5 months ago, and unfortunately, as is the case with most Habeas claims, we lost.
On a slightly brighter note (want to know why it’s not all bright? Read this), California’s Senate passed a measure that would legalize same-sex marriages by a vote of 21-15. It will now go to the Assembly, which has rejected similar measures in the past.
Gov. Arnold Schwarzenegger, who supports the state’s domestic-partner laws and has signed several related bills, has said he believes that legalization of same-sex marriage should come from either the voters or the courts. His administration points out that voters passed an initiative in 2000 that says that California recognizes marriages only between a man and a woman.
Backers of the measure suggested that the Senate vote would give them enough momentum to win in the Assembly, where proponents fell four votes short of getting the 41 votes needed for approval. The Assembly is expected to vote before the Legislature wraps up its business for the year next week.
A San Fransisco judge has already ruled that the Constitution mandates same-sex marriages, but it is being appealed. There’s much more in the news article than I have reproduced here, so please read it.
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