Archive for April, 2007
Should defendant’s level of maturity be an objective factor in determining duress?
Apr 30th
This is the question posed to the CT Supreme Court in State v. Heinemann [pdf]. Curiously, the Court holds that
The flaw with the defendant’s proposal, however, is that, carried to its logical conclusion, it essentially would require this court to rewrite the entire Penal Code, crimes and defenses, to necessitate consideration of the age of young offenders for the ultimate purpose of defining heir culpability based on their vulnerability and susceptibility to negative influences and outside pressures
The gist of the defendant’s claim was that a jury instruction should have been issued stating
that his age also was a factor to determine how he would have perceived the threat. Specifically, he contends that this court should recognize the differences between a juvenile and an adult in maturity, sense of responsibility, vulnerability and personality traits, which make it more difficult for adolescents to resist pressures because of their limited decision-making capacity and their susceptibility to outside influences. Essentially, the defendant seeks an instruction that would have allowed the jury to factor his age into the defense, independent and regardless of how it relates to the age of his coercers, with an eye toward accounting for the differences in how adolescents evaluate risks
The Court recognizes that this certainly may be true, but states that it should be up to the legislature to make the determination. In a footnote, the Court sums up the position of amicus curae:
‘‘Recent research on brain development demonstrates that structural distinctions between the adult and adolescent brain account for differences in how adolescents evaluate risks and rewards. [N.] Chernoff & [M.] Levick, ‘Beyond the Death Penalty: Implications of Adolescent Development Research for the Prosecution, Defense and Sanctioning of Youthful Offenders,’ Clearinghouse Rev., J. of Poverty L. & [Policy] 209, 210 (2005) . . . . Specifically, the prefrontal cortex which manages long-term planning, selfregulation, and the assessment of risk ‘continues to develop and change through the course of adolescence.’ Id., 210. Adolescent decision making is therefore distinguished by not only cognitive and psychosocial, but also neurological deficits. Id. ‘‘These developmentally normal impairments in making decisions can be exacerbated when adolescents are under stress. Because adolescents have less experience with stressful situations than adults, they have a lesser capacity to respond adeptly to such situations. See [L.] Steinberg & [R.] Schwartz, ‘Developmental Psychology Goes to Court’ in Youth on Trial [A Developmental Perspective on Juvenile Justice, supra, 26]
This is a very interesting and fascinating new area of the law and one that is sure to come up in the future, especially in light of the fact that the Connecticut legislature is currently considering including 16 and 17 year olds in the category of juveniles.
What do you guys think? Should the mental proclivity of an adolescent be given its own independent factor?
Technorati Tags: connecticut supreme court, juveniles, duress, mental capacity
Life does not mean sixty
Apr 30th
The Supreme Court released an interesting opinion today in Mead v. Commissioner [pdf], where the central issue was the retroactive application of a statute defining life as sixty years to inmates serving life sentences under a prior statutory scheme. At the time Petitioner committed his offense, life meant “natural life”. Subsequently it was changed to mean “not less than 10 to 25 years and not more than life”. Finally, it was changed to its current form, meaning “sixty years”. The Habeas Court rejected petitioner’s argument on the grounds that statutes affecting substantive rights are meant to apply prospectively only. The Supreme Court held that:
We conclude that § 53a-35b affects substantive rights and, in the absence of any clear and unequivocal expression by the legislature rebutting the presumption of prospective application, that the statute does not apply retroactively to persons sentenced prior to its enactment.
The Court does make an interesting observation, however. Petitioner’s counsel, in his reply brief, makes the argument that if the statute is not retroactive, then Respondent’s classification of the sentence as an indeterminate sentence is wrong. The Court seems to agree with this position, but then goes on to state:
We conclude, however, that we need not decide this issue which, as we noted previously, the petitioner raised for the first time in his supplemental brief and to which the commissioner has had no opportunity to respond.14 The petitioner makes no claim that, if we were to conclude that § 53a-35b is not retroactive, then the commissioner’s treatment of his sentence as an indeterminate sentence of twentyfive years to life imprisonment under § 53a-35 instead of a definite sentence of life imprisonment under § 53-11 would have some deleterious effect on him.
Accordingly, even if we were to assume that the commissioner improperly applied § 53a-35 to the petitioner, any such impropriety necessarily would be deemed harmless because the petitioner has not claimed that he will suffer any deleterious effect as a result of serving a sentence in accordance with § 53a-35 when § 53a-35b is not given retroactive application.
Interesting…..
Monday morning jumpstart
Apr 30th
Here are some interesting stories from this past weekend to get your juices flowing.
- Noticing the disappearing jury trial [SL & P]
- Monday Musings: PDs & Parity [PD Stuff]
- E-mail edition from Cap. Def. Weekly
- Innocence posts from EyeID (for those that missed it – highly recommended)
- NPR’s debating the value of victim’s rights
- Norm Pattis vs. Prosecutor
- Bartender beating cop in serious trouble [Windypundit]
Enjoy!
Minorities fare worse after being pulled over
Apr 29th
Who knew? A federal study [pdf] found that while drivers of all races were equally likely to be pulled over, minorities (African-American and Hispanic) were more likely to be searched and arrested.
Police were much more likely to threaten or use force against blacks and Hispanics than against whites in any encounter, whether at a traffic stop or elsewhere, according to the Justice Department.
“The numbers are very consistent” with those found in a similar study of police-public contacts in 2002, bureau statistician Matthew R. Durose, the report’s co-author, said in an interview. “There’s some stability in the findings over these three years.”
Traffic stops have become a politically volatile issue. Minority groups have complained that many stops and searches are based on race rather than on legitimate suspicions. Blacks in particular have complained of being pulled over for simply “driving while black.”
What I’m interested in, is the age-old myth that women go scot-free more often than men. Us men can’t bat our eyelids or appear weepy and appeal to the sympathies of the officer. Do the statistics back this up?
Male drivers were more likely than female drivers to experience more serious police actions following a traffic stop. Males (3.2%) were nearly 3 times more likely than females (1.1%) to be arrested (table 8). Males (59.2%) were also more likely than females (54.4%) to be ticketed.
So I guess men are more likely to be arrested, but not ticketed. Aww shucks. Can’t complain anymore. Well, back to the racial disparities:
The racial disparities showed up after that point:Blacks (9.5 percent) and Hispanics (8.8 percent) were much more likely to be searched than whites (3.6 percent). There were slight but statistically insignificant declines compared with the 2002 report in the percentages of blacks and Hispanics searched.
Blacks (4.5 percent) were more than twice as likely as whites (2.1 percent) to be arrested. Hispanic drivers were arrested 3.1 percent of the time.Among all police-public contacts, force was used 1.6 percent of the time. But blacks (4.4 percent) and Hispanics (2.3 percent) were more likely than whites (1.2 percent) to be subjected to force or the threat of force by police officers.
Make of this what you will. What I am particularly interested in, rather than disparities in traffic stops, are disparities in sentencing. Anyone have any stats on that?
Technorati Tags: racial disparity, traffic stops, sentencing
testing new design
Apr 29th
Since I have a theme-happy trigger finger, I’m testing out a new theme and any input would be appreciated. You can view it here [it will open in a new window, so you can compare both side by side]. Vote in the poll below to let me know which one you prefer or leave a comment if you’d like to see any changes in either design.
[poll=6]
Inmates’ calls not paying for much
Apr 28th
Costs of calls to inmates are high – up to $17 for 15 minutes – but the money earned by the state through this feature does not pay for much of anything in the Department of Correction itself.
Nearly five years after The Courant reported that little or no revenue generated by high-priced prison pay-phone calls has been funneled back to the prisons, Connecticut has continued the practice by spending much of it on state telecommunications, including computer tracking systems for law enforcement. Prisoner advocates say that in doing so, the state is balancing its budget on the backs of the inmates’ families, who tend to be among the poor and vulnerable.
Senator McDonald, the co-chair of the Judiciary Committee called it “a state-sponsored scam” and said it was “an outrageous intrusion on the rights of families with people in prison”. He thinks the money is better spent on re-entry programs.
Given that there is no more gate pay in Connecticut and re-entry and re-assimilation programs are…well…not very good, I agree that the State needs to spend more money on ensuring that released inmates have skills necessary to lead the good life and the support that is needed to achieve that. Whether that money comes from the “phone call fund” or some other source, I don’t really care.
Here are some of the stats:
Since 2001, the state has reaped $32.7 million from a contract the state Department of Information Technology holds with MCI, now Verizon Business. As part of the contract, the state keeps 45 percent of the profits the calls generate; MCI keeps the rest.Ninety-three percent of the state’s $4.5 million take in 2006 was spent on the non-prison functions – state e-mail, websites for towns and cities, computer tracking systems for law enforcement, information technology department staff costs and other computer and telecommunications programs.
Just $350,000 went to the state Department of Correction for inmate education and re-entry programs. And since 2001, the correction department saw none of the money during certain fiscal years. The practice goes on in several other states, advocates say.
There is another option: a lower pre-paid system that is only available at 2 facilities (out of 20) in the state. The costs of phone calls via these pre-paid systems are significantly lower.
Look, it’s pretty simple. We want inmates to have contact with family, to keep in touch with the real world so as not to lose a sense of self and belonging. This leads to happier inmates and easier re-integration upon release. This is a good thing. We want this. But it isn’t right to charge exorbitant sums (I mean, $17 for 15 minutes! Which one of us would keep a provider that charged that much?) from the families of those incarcerated and then siphon off those funds to do something else. If you’re going to charge that much, then keep those funds within the DOC and use them to improve the education and re-entry programs. Inmates families should not have to pay for new computers and law enforcement.
Technorati Tags: connecticut, prisons
A brief history of skepticism
Apr 27th
EyeID has a fantastic follow-up post to the post discussing the Judge Hoffman editorial, entitled “Stages of denial: The numbers are on our side too“. You must read it. It traces the history of skepticism of wrongful convictions and the shifting arguments employed to counter the growing evidence that wrongful convictions do occur. Here’s a brief glimpse:
In the pre-DNA era, they disdainfully dismissed works like the Radelet study — a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years — pointing to its supposed flaws such as its reliance on “one-sided” materials like newspaper articles.Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem — by, for example, reforming demonstrable problems in eyewitness identification procedures — the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.
Read the whole post. Absolutely terrific! Bravo! What a blog!
Previous coverage:
Technorati Tags: innocence, wrongful conviction
The Innocence Myth
Apr 27th
Judge Morris B. Hoffman has another editorial. After publishing the results of a study in January that showed that defendants with private attorneys got better results than those represented by public defenders, today he publishes an editorial in the WSJ that calls innocence a myth. He opens with:
You must also have somehow managed to avoid the increasingly shrill polemics issuing, daily it seems, from our nation’s law schools and their “innocence projects,” which have spent the last 20 years trying to paint a picture of our criminal justice system so dismal that a rightful conviction seems the exception and not the rule.
Notice the use of quotes around innocence projects. Soon thereafter, he cuts to the chase. He asks about the error rate! ERROR RATE!. He even quotes Blackstone’s Ratio. EyeID tackles this wonderfully:
But back to this WSJ article. Hoffman goes on to inquire about the actual rate of innocence. Maybe, after all, these “innocence advocates” and the “liturgies that have grown up around them” (!) are worshipping a false idol, the WSJ author/judge implies. Apparently out to get these pesky innocence proselytizers, who “are strangely silent when it comes to that question” of the actual innocence rate, Hoffman tries to redirect the dialogue to a question of the error rate, which is what really matters “in imperfect complex systems.” Hoffman appears to imply that if the “error rate” — that is, the rate at which innocent people are incarcerated and in some cases, possibly executed — is within an acceptable range, then the innocence projects — which he belittles as both “mythmakers” and “innocence merchants” — are in a tizzy over nothing.But this brings us back to the Blackstone ratio, and a fundamental clash of worldviews that I think is at the heart of this disagreement. 200 innocent people incarcerated for a combined total of 2,475 years in prison is not an “acceptable error rate,” no matter the ratio of wrongfully convicted to “rightfully” convicted. And obviously the work of the Cardozo Innocence Project, and the battalions of others committed to the same cause, do not represent the entirety of the problem. Other innocents remain in prison, and new innocents continue to be put in prison.
The “mythmakers” are silent on the question of the “actual innocence rate” because the problem of innocent people being deprived of their liberty is not a statistical problem; it is a moral problem. This is exactly what Ben Franklin meant when he said that “it is better 100 guilty Persons should escape than that one innocent Person should suffer”: human liberty is not reducible to a mundane statistical formulation. Innocence advocates are silent on the question of the actual innocence rate not because they fear the answer, but because it is fundamentally the wrong question.
Sacre bleu!
Technorati Tags: innocence, wrongful conviction
Defense expert busted for possession of p-rn in course of duty
Apr 27th
Corey Yung at SexCrimes points out an interesting Ohio opinion, where the defendant’s Motion to Dismiss the indictment was upheld by an appellate court. The defendant had been charged with various counts of possession of child p-rnography. The court appointed a digital imaging expert to assist in his defense. The court ordered that the expert be immunized from any prosecution for possession of these materials (which were to be obtained from the prosecutor’s office) and be allowed to re-produce these materials and analyze them.
All well and good. Unfortunately, shortly thereafter (and it is really curious as to how or why this happened),
On June 24, 2005, the Federal Bureau of Investigation (“FBIâ€) executed a search warrant on [expert]’s residence. The FBI seized [expert]’s computer and several compact discs. Included in the seized material was computer equipment containing potential exhibits [expert] had created for trial and the compact disc containing the images at issue in this matter. An affidavit submitted in support of the search warrant alleged [expert] violated Section 2252A, Title 18, U.S.Code. This federal statute does not contain the exemption for a “proper person†using the material for a bona fide purpose similar to the exemptions contained in the Ohio statutes.
Absolutely bizarre. A quick Lexis search shows that Connecticut does have an “exemption”, if you will. The statute (53a-196g) actually creates a category of affirmative defenses.
In any prosecution for a violation of section 53a-196d, 53a-196e or 53a-196f, it shall be an affirmative defense that (2) the defendant possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.
I have never heard of anyone in Connecticut being prosecuted for something similar. However, I was unable to find a similar exemption in the drug statutes. What about other states? Do you have similar exemptions?
And then there were four…
Apr 26th
The death row hunger strike continues, but with one less participant. One of the five has started accepting meals again (names were not released). The others continue to fast. Nothing else has changed.
Previous coverage:
Technorati Tags: connecticut, death row, hunger strike
Preparing a witness to testify
Apr 25th
Most of us, at some point or another, will be conducting a trial. The most essential aspect, of course, is the testimony. Without testimony, there is little evidence, especially in criminal trials. So how do you do it? How do you prepare your witness to testify? Scouring the web, I found two nice articles.
So what are the salient features?
Practice – practice the direct testimony over and over again. I usually do this in four steps:
- First, I go over a general outline of the legal standard with the witness and what evidence I need from the witness.
- Second, I go over the general outline of the questions I will be asking. Now this is an area where personal preferences come in. Sometimes it may be prudent to give the witness a written list of questions and sometimes just a general sense of where the questioning will go. I prefer the latter.
- Then I conduct a lengthy, in-depth direct examination, usually with another attorney playing opposing counsel (for objections and such). This takes time, but is worth the effort.
- Finally, a few weeks after step 3, I go over the direct again, just to cement things.
Attentiveness on the stand – This is a must. We’ve all had runaway witnesses that will say more than they should. I always emphasize that it is very important to listen to the question asked and answer only the question asked.
Truthfulness – Obviously, we all know that this is the most important aspect of any witnesses testimony. Absolute and complete truth at any point. Hammer it home. Doesn’t matter what the question is; always the truth. The truth may be that the witness cannot remember, which is perfectly acceptable.
There are several other minor things, but for me, the above “rules” are essential. What about you, O Criminal Defense Bar? Any particular quirks you like to employ? Any techniques you have found useful?
Alert and alive
Apr 25th
Here’s a fantastic old school video about proper arrest procedures. Watch and enjoy.
Iowa: It’s like you’re always stuck in second gear*
Apr 25th
Iowa was supposed to be on the forefront of the “revisit residency restrictions” movement. Iowa was supposed to be the vanguard of the sensible restrictions movement. Iowa was supposed to show the rest of the country that these draconian laws don’t work and here’s how to do it.
Unfortunately, not so fast. It seems that – as all hot button political issues go – this has become politicized and stuck in a quagmire (For those keeping track, that’s two sitcom references).
Iowa sheriffs and prosecutors on Monday blasted lawmakers for failing to roll back a controversial and politically charged law restricting where sex offenders can live.
“They’re just afraid to take action, and the people of Iowa should be ashamed,” said Story County Sheriff Paul Fitzgerald. “It’s absolutely politics at its worst.”
Earlier this year, the bipartisan panel heard during a series of public meetings from a number of groups – sex offender experts, statewide law enforcement associations, prevention experts and victims – who uniformly criticized the state law banning sex offenders from living within 2,000 feet of schools or child care centers.
However, those on the other side of the aisle are firm in their belief that this is not what the residents of Iowa want.
But Senate Minority Leader Mary Lundby of Marion said Republicans would resist any attempt to repeal the 2,000-foot law, which went into effect in 2005. Lundby said her belief is that people do not support such a move.
“My message hasn’t changed since the beginning of the session,” she said. “We will support additional spending for monitoring (sex offenders) and additional assessment, but people across the aisle don’t want them in their neighborhoods, period.”
It will be very interesting to see how this all plays out – with the end of session on Friday.
See also: SexCrimes and Corrections Sentencing
Previous coverage:
*My sincerest apologies to those that had repressed any memory of that song and that show.
Victim’s rights movement – penultimate thought
Apr 25th
All this discussion about victim’s rights and the push for greater involvement leaves me with one conclusion: This is a product of the unhappiness on the part of victims brought about by a lack of communication from prosecutors.
Julie Amero’s sentencing postponed…..yet again
Apr 24th
Julie Amero’s sentencing has been continued to May 18. Karoli wonders why. The real reason is that I’m away the rest of the week, so I wouldn’t be around to cover the sentencing.
Okay, yes, bad joke. No one knows why. We know that it was at the request of the state. Some people believe there to be a conspiracy. I don’t.
Although, it is getting curioser and curioser.
Technorati Tags: julie amero
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