Daily Archives: July 25, 2007

Fabricating PC thread disappears

u-think-we-share-2-much-nah.jpg

Grits’ reporting of the fabricating probable cause thread on the Texas DA’s website caused such a stir in the blogosphere, that they have now taken down the thread and it is no longer available.

I never understood why they’d have these threads open to the public anyway. No good can come of it [well, except a chuckle here and there and a general affirmation of defense counsel’s mistrust of prosecutors].

The image above is a rip-off of Grits‘ rip-off of my earlier post.

Gadzooks! Appellate Court decisions

Two – count ‘em! – two reversals (among other denials) from the Appellate Court today. The first, State v. Phillips [pdf], revolved around whether the trial court erred in denying a motion for new trial following a hearing that revealed evidence of possible racial bias on the part of a juror.

Four of the jurors testified that they believed juror B to be racially prejudiced against the defendant, who is a black man. Juror H, a black man, testified that juror B, a white man, made racist remarks to him. Juror H also reported that juror B told him that ‘‘when he saw [the defendant] he made up his mind that [the defendant] was guilty because of his demeanor. . . . He said when he first saw [the defendant], he knew—he knew that he was guilty.’’

According to juror H, juror B made reference to the fact that a person alleged to be part of the crime was Puerto Rican and to the way that ‘‘those people treat their women,’’ and also made a comment to one of the jurors of Vietnamese origin. Juror B also asked juror H why he had big feet. Juror H stated that juror B was very difficult to interact with and that it reached the point where juror H did not want to attend court any longer. In response to the judge’s question whether juror B’s conduct influenced his verdict, juror H stated, ‘‘yes, trying to get him to see the other part of the case.’’ He also said that ‘‘it was a compromise on my behalf.’’

Juror K, another black member of the jury, testified that he believed that juror B was racist. He said, ‘‘you didn’t hear the word n**** in that room, but you could feel it.’’ Juror M, the jury foreperson, testified that juror B made inappropriate comments of a racial nature during deliberations, including asking the black jurors questions that did not belong in the jury room, questions that he did not ask of the other jurors. Juror M also testified that juror B’s particular racial bias against the defendant presented some confusion in the room that may have affected the jurors’ ability to deliberate openly and fairly. Juror M said, ‘‘I think that we came to the decision that we could no longer go forward [and that] was because of the . . . I believe and we all believe . . . the racial bias by [juror B] in the room.’’ Juror R confirmed that one of the jurors made racially motivated comments and that his conduct caused the other jury members to ask him whether ‘‘he had racial problems.’’

When he testified at the postverdict hearing, juror B acknowledged the racial overtones throughout the jury’s deliberations. He testified that two members of the jury called him a racist. He said that during deliberations, he commented about the defendant’s demeanor at a certain stage in the trial and that as a result, ‘‘I was told I was a racist because black people and people of minority are more apt to demonstrate with their hands and to say things like that.’’ Juror B also believed that indirect threats were made to him. Juror B testified that juror K at one point said ‘‘something along the lines [of], ‘Boy, if this was a basketball game, I’d beat the shit out of him,’ or something like that.’’

The trial court found that there was no evidence that Juror B’s conduct affected the deliberations or the verdict. The Appellate Court held that the trial court had applied the wrong standard. Instead of requiring actual prejudice, it should have limited its inquiry to objective evidence of racially related statements and behavior. The court should then have decided whether that evidence amounted to racial bias against the defendant on the part of one or more jurors, which would have automatically warranted a new trial.

The second reversal was in State v. Moore [pdf], where the conviction was overturned on the grounds that the trial court erred in not striking the re-direct testimony of a state witness. This state witness was a co-conspirator and after implicating the defendant on direct, changed course and absolved him of any involvement on cross. He stated that he was pressured by the State into fingering the defendant and did so for considerations in his own case.

The state attempted a rehabilitative re-direct, but the witness soon invoked his 5th Amendment privilege and refused to answer any more questions. Re-cross was not possible. The defense objected and argued that the testimony on re-direct should be stricken, because to let it stand without doing so would violate the defendant’s 6th Amendment confrontation right. The Appellate Court agreed.

Triple homicide behind calls for review of parole system. Or “Ugh.”

I resisted. I tried very hard. I clenched my fists. I got up and walked away from the computer. I let it be for a few days, thinking it would pass. Then I read this story.

Heinous, depraved, disgusting crimes no doubt. Do they warrant a review of the parole system? Absolutely not. [That’s not to say that the parole system doesn’t warrant reviewing, but my point is that this should not be the sole cause. There are plenty of things wrong with the parole system here.] Both men had lengthy criminal records, but the crimes were non-violent. In Connecticut, there are two eligibility classes: 50% (non-violent) and 85% (violent).

Here’s the thing, though: Even if you’re convicted of a non-violent offense, parole has the authority to (and frequently does) classify you as violent based on history, facts of the case, even nolled or dismissed charges. In some cases, the history stretches back 10 years. Their “unofficial” policy is that if an individual has two violent felony convictions in the last 10 years, then even if the current conviction is non-violent, they are automatically classified at 85%. I have previously written about CT’s parole system here.

One of these guys had served almost 4 years of a 5 year sentence and the other had served half of a nine year sentence. By all accounts, they were model inmates and not a hint of violence in their backgrounds.

Bob Farr, Chairman of the Board of Pardons and Paroles said:

“Both offenders were deemed to be appropriate candidates for supervised parole based on their criminal history, which involved the minimum level of violence.”

“The board took a look at the history. They took a look at crimes and whether they were violent offenses, and under most standards, the individuals had no history of violent crimes they have now been charged with.

A Department of Correction spokesperson had this to say:

“Both were on a weekly reporting schedule with their parole officers and had been in full compliance with the requirements of their release, including being employed on a full-time basis.”

Yet state lawmakers are calling for a “review of parole procedures”. I hate to say it and I feel awful doing so, given the tragedies, but sometimes, these things happen. You cannot control it. As much as I dislike parole policies in Connecticut, I cannot blame them here. They are not soothsayers; they cannot see into the future.

“How do we review candidates for parole? Even though violence is not in their past record, but it shows what they can do in the future. We have to ask that question,” [State Rep.] Caligiuri said.

Read that again. Tell me if that makes any sense. Violence is not in their past, but it (what is it?) shows what they can do in the future. What shows what?

He also said

“…these men seem to have conspired to commit even more heinous crimes, instead of being rehabilitated in the state system.”

Ah, there you have it. Although he doesn’t realize he’s saying it, the question is truly: Do prisons rehabilitate and do our prisons rehabilitate? What is being done in correctional facilities in Connecticut to ensure that inmates re-enter society as productive, responsible members? Frankly, given the state of overcrowding in facilities, how much can they do?

Which is what makes this State Rep’s suggestion mind boggling:

State Sen. John Kissel, R-Enfield, said Wednesday that in light of the Cheshire home invasion, the state needs to reassess the penalties for those convicted of burglary.

Kissel, who serves as a member of the legislature’s Judiciary Committee as well as chairman of the Connecticut Sentencing Task Forece’s subcommittee on racial and ethnic disparity, said that the current law considers burglaries to be a non-violent crime. He suggested that the law be changed to require mandatory prison sentences.

Again, instead of focusing on the real problem, let’s give out harsher sentences across the board.

I’m not even going to touch the death penalty issue.

Having said all this, I would not want to be the guy who has a parole hearing scheduled in the near future.

Residency restrictions map

This [pdf] is a map of Tippecanoe County, IN, where “John Doe” is asking to be found not to be a sex offender anymore and also challenging the legality of residency restrictions [previous coverage here].

I know next to nothing about the geography of Indiana and even less about Tippecanoe County, but doesn’t it look like most of the inhabitable urban area of the county is covered by the restrictions?

KY: Residency restrictions not retroactive

A judge in Kentucky has ruled that residency restrictions cannot be applied to sex offenders that were convicted before the law went into effect.

Jefferson District Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged with living too close to schools and a youth treatment center, ruling that the law is unconstitutional because it adds punishment to their initial convictions.But Michael Goodwin, an attorney for one of the men, said Armstrong “has recognized that when an individual is punished by a judge and jury, the legislators can’t, many years later, adopt a second punishment for the same person.”

This was a Superior Court decision (Supreme Court for you New Yorkers), so this isn’t the end. In fact, a different Superior Court judge ruled that the restrictions were constitutional. KY’s Supreme Court will have to decide this sooner or later.

Under the old law, offenders had to live at least 1,000 feet — a fifth of a mile — from locations including a school building or licensed day-care center. The new law measures the 1,000-foot distance from the property line.The new law applies to all offenders, even if they are no longer on probation or parole, or under any type of judicial supervision.