Daily Archives: February 21, 2007

Fabricatore and waiver

The Connecticut Supreme Court released an opinion in State v. Fabricatore [.pdf file] yesterday, furthering the maddening jurisprudence that attorneys can “waive” constitutional rights of defendants. In Fabricatore, the defendant was challenging the trial court’s instruction to the jury that the “duty to retreat” applied in cases where deadly force was not an issue. The claim was unpreserved and the Appellate Court review the claim under State v. Golding, because it was of constitutional magnitude.

The Supreme Court granted cert but affirmed the conviction on the grounds that the defendant had “waived” any challenge to the instruction by expressing “his” satisfaction with the instruction given.

After the jury had left the courtroom, the prosecutor requested the court add to the self-defense instruction language indicating that, if the jury found the defendant was the initial aggressor, the defense of self-defense would no longer be available to the defendant pursuant to § 53a-19 (c). When the court asked defense counsel if he had any objections to that addition to the charge, defense counsel objected, stating twice that the selfdefense instruction already had been given as he had requested, and once that he was ‘‘satisfied’’ with the self-defense instruction.

The Court then proceeds to engage in the Golding analysis of whether the claim should be reviewed. After reviewing the first two prongs, it decides that it is reviewable. The Court then says that if we were to review the merits of the claim, it still fails,

In the present case, defense counsel not only failed to object to the instruction as given or to the state’s original request to charge the jury with the duty to retreat, but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the instruction as given was proper.Indeed, defense counsel himself addressed the duty to retreat in his own summation.Thus, the defendant accepted the duty to retreat theory presented by the prosecutor, and openly acquiesced at trial, thereby waiving his right to challenge the instruction on appeal. Under this factual situation, we simply cannot conclude that ‘‘injustice [has been] done to either party’’; (internal quotation marks omitted) State v. Whitford, supra, 260 Conn. 620; or that ‘‘the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .’’State v. Golding, supra, 213 Conn. 240. Moreover, our decision in the present case, concluding that unpreserved, waived claims, fail under the third prong of Golding, is consistent with our decisions declining to review claims of induced error. In State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), we quoted Cooper in concluding that Golding review is inapplicable to an unpreserved claim of induced error18 because ‘‘[t]o allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.’’

So while recognizing that the instruction was improper, the defendant could not get relief because his attorney had acquiesced in the instruction.

I’m pretty sure the defendant knew exactly what the outcome of his attorney’s actions were and he agreed too.

What this does, which is infinitely more interesting, is that it sets up an odd discrepancy in the law of Golding review. If trial counsel is quiet at trial and makes an error of Constitutional magnitude, review (and most likely relief) will be granted. However, if trial counsel affirmatively makes an error of Constitutional magnitude, the defendant gets nothing.

Mr. Fabricatore, of course, can file a Petition for Writ of Habeas Corpus (and I’m pretty sure he will), but the chances of succeeding are close to zero and good luck proving prejudice.

Mr. Fabricatore was represented by Todd Bussert, who I think browses the blawgosphere, so if you’re out there, leave your impressions of the case!

New blogs

I have recently discovered lots of new wonderful blogs, so I will be adding them to the blog roll and re-organizing the roll. If there are suggestions for criminal law related blogs that I have missed, please let me know.

Here are the new ones:

Prosecutor Post-Script
Sex Crimes
SexCrimeDefender
The Connecticut Practice Blog
Connecticut Voices for Civil Justice (the blog of the CT Trial Lawyers’ Association)
CT Judicial Branch Law Library Newslog
Windypundit

Some say Gov. Rell’s budget shortchanges juvenile system

Several officials, including Chief Court Administrator Judge William Lavery, met with lawmakers to discuss what they believe to be severe short-comings in the new budget in regards to the juvenile justice system.

A $5 million request to increase pay for public service attorneys representing children and parents in juvenile court was reduced to about $850,000 over two years, hindering efforts to hire and retain more experienced attorneys, officials said.

A $2 million request to hire nine court-based clinicians to conduct mental health evaluations for juveniles and 11 education advocates to help families and children with educational issues was not funded.

The approximately 166 juvenile court lawyers working for the state currently make $500 for the first 30 hours of work or about $16.66 per hour. By comparison, special public defenders who work on felony and appeals cases in adult criminal court are paid about $65 an hour.

"In order to address the issue, we need to attract and retain competent attorneys and at $16.66 an hour that’s not possible," said Carolyn A. Signorelli, the state’s new chief child protection attorney, who wants to do away with the initial flat $500 payment and pay lawyers an hourly fee to better monitor and improve the quality of their work.

Sex between student-teacher not unconsitutional

The CT Supreme Court ruled yesterday that sex between consenting adults who happen to also be students and teachers is a per-se crime.

Richard Emanuel, the lawyer representing teacher Van Clifton McKenzie-Adams, who was sentenced in 2004 to seven years in prison for having sex with two New Haven high school students, argued before the Supreme Court last year that state law prohibiting school employees from having sexual relations with students was overly broad.

The reason, he argued, is that the law does not require prosecutors to show that a student was coerced by a teacher’s power or authority, or that a student had any professional contact with the teacher in question.

Both the students in question were above the age of consent in this case. You can read the opinion here [.pdf file]