Archive for September, 2007
There are other reforms, too
Sep 30th
Forgotten in this Cheshire mess is the sentencing commission that started work in May, which was charged with looking at how to change the state’s sentencing laws for the better. Ah, back in May, when Komisarjevsky was still on GPS monitoring and the Petit women were alive.
Glad to hear that someone thought to ask them of their other business. Cheshire has overshadowed the fact that CT has draconian drug laws and there is a racial disparity in sentencing and even charging.
[New Haven Public Defender Tom] Ullmann and several other members suggested the task force may be missing a chance to make long-term changes in the justice system.
Others said the group will continue to discuss issues such as mandatory minimum drug sentences and racial disparity in sentencing even as it deals with parole system gaps exposed by the Cheshire case.
Some of the juicy things on their agenda:
The task force divided into four subcommittees that would discuss alternatives to incarceration, sentencing structure, the racial imbalance in prisons and how to classify some drug offenses and other crimes that carry a broad range of possible sentences.
These are all excellent areas of investigation and reform. Thankfully last year the legislature eliminated the disparity between crack and powder cocaine sentencing (I think…I may be imagining it).
Prison overcrowding is an immense problem and all of these avenues will help to reduce it and hopefully, get to the source of the problem for most drug offenders: addiction.
I wish there was some way to study racial disparities in charging, but it seems too daunting a task.
Of all the groups commenting on Cheshire, this task force has been oddly silent. Not all members agree:
Some members say the task force should lend its voice to the Cheshire debate so the state does not make any rash changes.
“I think it’s incumbent upon us to respond,” said Andrew Clark, a group member and the administrator of the Institute for the Study of Crime & Justice at Central Connecticut State University. “We have to ask tough questions and come up with real solutions.”
But there has been, at least for some members, a shift in focus.
The sentencing task force changed its focus at the same time. It studied tougher burglary laws and looked at the impact a tougher “three strikes and you’re out” law would have on prison overcrowding.
“It’s almost like members are bending over backward to join the throng of punitive measures,” said Jon Schoenhorn, a task force member and president of the Connecticut Criminal Defense Lawyers Association. “It violates the entire purpose of why this task force was created.”
“Three strikes laws” + prison overcrowding: Not gettin’ better any time soon.
Civility among the brethren
Sep 27th
There’s been a blogversation that I’ve missed about civility among lawyers. Matlock the Republican complained about the ego-trip of a prosecutor earlier this week and followed it up with the rudeness of a fellow defense attorney. Bennett the Zen Master responded with calmness while Greenfield the Bulldog replied with a middle finger by thumbing his nose.
So which is it? I agree with Scott that if another attorney acts in a way that interferes with my ability to represent my client or does something to harm my client, “it’s on”. But I also agree with Mark (Bennett) that most of the time, you’re just wasting your own time by giving in to the anger and letting yourself get involved.
I’m not here (in the legal arena) to show off my skills or assert my presence. I’m here to represent my client and represent him effectively and zealously. Everything else is a distant last. I will try my best to do that in as civil a manner as possible, because anything else just isn’t worth my time.
The trial tax or “Life takes Visa”
Sep 26th
“If you go to trial, you will get more time” is a common admonition to criminal defendants that are considering plea deals. We are used to it; it’s a part of practice. It is a natural consequence of the bargaining process. In plea bargaining, you’re negotiating a settlement and in that, both parties give a little. The State is spared the expense of a trial, the risk of an acquittal and one less case they have to prosecute. The defendant gets a lighter sentence and gives up his Constitutional rights.
But why the great disparity between rejected plea offers and sentences after trials? If a case was worth 5 years before trial, surely it can’t be worth 35 after? There does seem to be a desire to punish a defendant for going to trial, as opposed to simply including the value of the factors that would have been eliminated. I had a client a few years ago who was charged with 10 counts of a felony. Prior to trial, the offer was a sentence of 20 years, fully suspended. He exercised his right to go to trial, was acquitted on 9 of 10 charges and received a sentence of 20 years suspended after 9. That’s right, 10 cases were worth zero years, but one – after trial – is worth 9.
As a commenter to imbroglio’s post points out, we’re obsessed with judicial efficiency and so the punishment is punitive. It’s like that Visa commercial where everyone is using the card and the one guy with cash holds up the line and creates problems.
Upon watching that commercial again, it’s scary how similar it is to the criminal justice system. People filing in, one after the other, the deli representing the well-oiled criminal justice system, the repeat offenders whose orders are known to the chefs, people swiping in and being sent on their way, the “now serving” number ticking rapidly and then the protagonist, whipping out his wallet and offering cash, causing a meltdown – food going flying, things not landing in their place, people bumping into each other. I bet he’s not welcome back in that deli and our defendant is not welcome back in the criminal justice system, which is accomplished by locking him away for a long time.
Don’t believe me? Watch it for yourself:
[youtube]http://www.youtube.com/watch?v=Xy_PxLw1B_c[/youtube]
Emergency hearing on parole ban and unconstitutionality of overcrowding
Sep 25th
The Judiciary Committee will hold an emergency hearing on Gov. Rell’s parole ban on Monday. Since she refused to testify, they’ve asked DOC commissioner Theresa Lantz to testify instead. Here [pdf] is the letter inviting her. The crux:
In particular, the committee would like to know whether you anticipate there will be a surge in inmate population. We also want to know what the contingency plans the Governor has to protect corrections staff and host communities in the event there is a population surge beyond what can be safely accommodated in Connecticut’s correctional institutions.
The Governor has implied that her ban on parole of violent offenders is temporary. On Friday, she stated: “This policy, which follows the arrest Friday of a Connecticut parolee accused in Hartford carjacking, will remain in place until reforms of the parole process are complete.”
We also need to know what reforms of the parole process the Governor believes must be enacted by legislation and which reforms can be done by the administration through regulations. Once we have the administration’s definitive enumeration of legislative proposals, we can include them on the agenda for the Committee’s upcoming hearing on criminal justice reforms.
A bit too nice for my liking, but this is politics.
I’d like to point to yesterday’s decision by a Federal Judge in California, holding that jail officials violated the prisoners’ constitutional rights when they had them sleep on concrete floors because of chronic overcrowding. The LATimes piece is here. Connecticut’s prisons are already overflowing and if you don’t think that inmates here are sleeping on floors then you’re lying to yourself.
Another thing that irks me is the continued misreporting of the Cheshire accused. During Colin McEnroe’s afternoon show on WTIC, the news included this statement: “Both accused had extensive criminal records”. No, they did not. Hayes did, Komisarjevsky did not. I guess I’ll keep repeating it till people get it right.
Early morning criminal justice roundup
Sep 25th
The most interesting story is this one about lawmakers considering a proposal to limit probation to a 2-year term, down from the current 5-years.
The goal is to focus supervision on offenders during their first two years of probation, when most violations occur, said William Carbone, executive director of the state Court Support Services Division.
Nearly 90 percent of probation violations in the state occurred during the first two years, according to statistics presented yesterday during a hearing in Hartford.
The option would give offenders an incentive to turn their lives around and would reduce the number of people who go back to prison, Carbone said.
Now this is sensible legislation, which comes from the sentencing task force, which has studies these issues over time.
Judge Patrick Clifford, chief administrative judge for criminal matters, said judges should have the right to order probation terms longer than two years.
Longer terms might be warranted in cases in which larceny offenders need time to repay victims, Clifford said. But he agreed most people on probation don’t need more than three years.
“If the person hasn’t violated within two or three years, it’s kind of just waiting for them to make a mistake,” Clifford said.
Okay, enough of the good stuff. On to the depressing stuff.
More stories this morning on Gov. Rell’s parole ban, but this time with more substance. First up is the prison population shift. As noted yesterday, more than 1,200 non-violent inmates are being fast-tracked for parole to make room for the violent offenders who have been denied parole.
The next one says simply: Parole Review Affects Hundreds.
Nearly 40 percent of all parolees were serving sentences for drug offenses, which are not classified as violent, according to state records. But there are also hundreds of parolees completing sentences for killings, rapes, robberies and kidnapping. Murderers are no longer eligible for parole, but 60 inmates who committed murders before a 1981 change in the law are on parole.
In recent years, the number of parole violators back in prison at any one time has hovered between 400 and 500, state records show. But that may rise considerably with Rell’s crackdown.
“If we identify anyone in this review who has failed to follow the terms of their release – or if anyone currently on parole fails to do so in the future – we will revoke their parole and return them to prison to serve the balance of their sentence,” Rell said last weeek.
Nutmeggers delinquent in jury duty
Sep 24th
We Nutmeggers are a proud lot (I guess), but it seems that one thing we don’t particularly care for is jury duty. To the tune of 77,800 people over the last three years. That’s mind-boggling. 77,800!
Court administrators say it is not known whether jury duty absences are deliberate, the result of somebody simply forgetting or cases where jury duty notices never make it to the person because they are not forwarded to a new address.
The penalty for a no-show is a fine of $121. If CT had collected from all no-shows, the State would have received $9.4 million. Instead, it has received exactly zero. That’s because it’s not really a priority.
Chief State’s Attorney Kevin Kane agrees that the office has not enforced the law against delinquent jurors.
“There have been other crimes that have taken precedence, such as the three strikes laws and mandatory sentences, Jessica’s Law and issues involving crime against children,” Kane said. “But delinquent jurors are certainly an issue worth pursuing.”
Kane says there was discussion among state’s attorneys several years ago about enforcing the law, but two obstacles remain.
Then there’s this asinine proposal:
Criminal defense attorney Gerald Klein said those who don’t show up for jury duty should have their driver’s licenses suspended.
Yeah, we really want jurors under the threat of license suspension. What’s the connection? What does this even mean? I just….nevermind.
The impact of the parole ban
Sep 24th
With much being said of Governor Rell’s ban on parole in the last few days (and most of it favorable), it must be pointed out what the impact of such a ban shall be. Here’s a story on just that. The highlights:
The Board of Pardons and Paroles is reviewing the cases of 400 to 600 inmates who were scheduled for release on parole.
These are inmates who were already granted parole (and some, it is safe to say, in the last few months), so now they have to be housed again and perhaps there is a legal challenge here. While there is no liberty interest in parole, there is a liberty interest in parole revocation. Canceling parole after granting it would be akin to a revocation of parole.
The Department of Correction is reviewing the files of 1,200 level one inmates to identify non-violent offenders to release to halfway houses to open bed space for violent offenders.
So now you have a number of inmates who will be rushed through parole to make room for those who have been granted it, but will not be released. Good for the 1,200, but is it really good for safety?
Rell said that there are no current or expected plans to build new or expand the state’s current prisons.
Ah, of course. Because Connecticut’s prisons are underpopulated and there are plenty of empty beds.
Lawlor said if violent offenders can’t receive parole, the state’s prison population will only grow more.
There are more than 19,000 inmates in Connecticut’s prisons, originally designed to house 17,000. Lawlor said that the federal courts could order a mass release.
Oh wait, so you mean there is a prison overcrowding problem? The best way to solve that is to ban parole for all violent offenders. No, it isn’t? Hmm.
East Haven Rep. Michael Lawlor, co-chairman of the Judiciary Committee, said the state’s prison population has grown by 280 inmates since the July 23 Cheshire home invasion, in which a mother and her two daughters were killed.
This number will only continue to grow. Estimates put the projected increase at 1,500 over the next year. I guess I can safely delete these posts.
Of course, there are the “in the trenches” consequences:
Judges are setting higher bond for burglars and other criminals; defendants are receiving longer sentences; and the Board of Pardons and Paroles is more conservative about who gets parole.
In case we’ve all forgotten, here’s a reminder from a previous post, quoting the Office of Policy and Management’s “Comprehensive Plan For the Connecticut Criminal Justice System 2007 [pdf]“:
- Not shockingly, inmates released from prison with no community supervision were most likely to be reconvicted and resentenced to prison for a new offense.
The Governor, not surprisingly, has declined to appear before the judiciary committee to discuss her “ban”.
While the calls for three-strikes laws and stricter sentences were questionably wrong, this ban on parole is unquestionably knee-jerk and almost certainly illegal.
Serenity now….serenity now.
Monday Morning Jumpstart
Sep 24th
Is it Monday already? Fear not, the jumpstart is here!
- Anne Reed’s Deliberations is hosting blawg review this week.
- This post at the blog “Friends of Justice” has the most detailed reporting of the trial of Mychal Bell. It is bad.
- Scott at Simple Justice looks on “Superlawyers” with disdain. Cheese, please!
- A closer look at the SanFran’s use of cameras in high-crime locations (via KrimLaw)
- Bennett discusses the delicate topic of how and when to quote fees. (I know, don’t! Become a PD
) - Here’s a piece in the Hamden Daily News saying what needs to be said about the capitol’s reaction to Cheshire.
- The Windypundit has the next installment in his series of Evil Lawmaking: Administrative Punishment.
As Bugs Bunny would say: “That’s all folks!”
Jena Six: Burden of proof and racial disparities in charging
Sep 22nd
One of the things I consistently see in stories about the Jena Six is this quote:
After being represented by a public defender who did not call witnesses in Bell’s defense, an all-white jury convicted him
Over time, details of the incidents have emerged, but none of the trial itself. The most fleshed out paragraph about the trial and representation by counsel is this:
Despite this, when Mychal Bell, the first youth to go to trial, refused to take a deal in exchange for testifying against his friends, he was quickly convicted by an all-white jury. Bell’s public defender Blane Williams, visibly angry at Bell and his parents because the youth did not take the deal, called no witnesses and gave no meaningful defense.
So we know that the jury was all white and the defense called no witnesses. What is only now being revealed is that the jury pool was all white. Which included a friend of the victim’s father.
But let us turn to the matter of this attorney. I find it extremely difficult to believe that his attorney would not call any witnesses because he was angry. For one, if there were witnesses whom the defense could have called independently and the attorney made it clear that he wasn’t going to call them, my experience tells me that the defendant would have said something (maybe not, but so little is known at this point…). Surely there’s a transcript out there somewhere.
But a defendant doesn’t always have to call witnesses. The State bears the burden of proof and the defendant can choose to leave the State to its burden. This is a frequent jury instruction and almost always a question during voir dire in a criminal case.
It is counter-intuitive, for sure. You have been accused of doing something, you tell your side of the story. If you have a defense, an alibi, you will present it. Prospective jurors, upon question, usually state that they understand why the defendant can choose not to present a defense. But do they believe it? I think the Jena Six coverage has a hint of that. He didn’t call any witnesses!?! is the incredulous tone.
Now, it’s possible that Bell’s attorney should have called witnesses – I don’t know what the evidence presented was – but it disturbs me a little that people automatically look at it unfavorably. It is a dilution of the burden of proof and we must believe that.
The second thing I wanted to say (I guess as a response to this question by Prof. Berman) is that we should study this case for the racial disparity in the charging process, keeping in mind that this is not a one-off thing. Racial disparities in charging and sentencing are wide spread and are being documented more and more. As this CSM piece points out:
Nationally, black youths are significantly more likely to be tried as adults than are white youths, according to a January report from the National Council on Crime and Delinquency. The same report states that while black youths make up 16 percent of the general adolescent population, they make up 38 percent of the approximately 100,000 youths being held in local and state detention facilities.
The irony, some say, is that mass outpouring of support in cases like the Jena 6 may, in fact, obscure the real issues, where many criminal-defense lawyers can point to examples of prosecutorial zeal when dealing with black defendants.
“The public at large basically thinks that these cases are aberrations, and that’s one reason why so much attention is paid to them,” says Professor Nunn. “It’s the idea that it’s the redneck sheriff doing this and not the way we sort of stack the odds against black criminal defendants. We can point to a few bad apples, say, ‘See, it’s them,’ and the rest of us feel great because we’re demonstrating how we disagree with racism.”
Wow. This post has reached Greenfield-esque proportions, so I’ll stop now.
Breaking News: Gov. Rell bans parole for all violent offenders
Sep 21st
Wow. Well, so much for an event free weekend. Governor Rell announced a ban on parole for all violent offenders late Friday. How long will this ban remain in effect? Until lawmakers fix the state’s sentencing laws. Note that this will cover not only those that are convicted of violent offenses, but those that the parole board deems violent, despite not having a violent conviction in the last ten years.
So, basically, the Governor has superceded statute by this announcement. Might this not be a separation of powers problem?
The governor has also directed the Board of Pardons and Paroles to conduct an immediate review of all current parolees who were sentenced for a violent offense.
It may just be me, but the bit about the ban remaining in effect until lawmakers fix the state’s sentencing laws seems like a bit of a threat.
Judiciary Committee co-chair Mike Lawlor responded to this announcement via a press release in which he says:
“I understand why the Governor did what she did today and I support her decision. In light of today’s revelations, it’s clear that the parole system has become overwhelmed by new obligations in the last few months and cases started falling through the cracks, including this one.
Sorry, Meriden. That new prison is coming up in your town.
More as it is available.
Note: Given the sensitive nature of this topic, I want to reiterate (for those who might not have read the disclaimer), that whatever I write is my opinion only and is not a reflection of the views of my employer. For all I know, the public defender’s office might officially be okay with this. Please do not misunderstand this to be an endorsement of my views. I am a public defender who happens to practice in CT. I am not writing on behalf of the CT Public Defender’s Office, nor have I ever, nor will I.
This should also not be construed as any lobbying effort or any attempt to influence the legislators. It is merely my opinion on topical issues.
Just wanted to make that clear. Thanks for reading.
I don’t hate you, I just like it when you’re not around
Sep 21st
How essential is it to like your client? Is it important, even a consideration? Is it possible to like your clients? Mark Bennett wrote a few days ago about this topic. He noted the differences between civil practice and criminal practice:
Unlike Dan, most criminal lawyers are a) not representing companies; and b) not forming longterm attorney-client relationships. Our clients are people, and if all goes well they will never be in trouble again.
…
It’s nice to like our clients, but I don’t think it’s crucial. What do you think?
I’d like to point out a further distinction: public defender and private practitioner. The private practitioner can actually choose his clients. He gets to meet with them, listen to their story, decide if he wants to take the case. Involved in that decision is an evaluation of the client’s personality. However minimal the impact a client’s personality has on the decision to represent him, I suspect it plays some role.
We public defenders have no choice. If it’s my arraignment day, you’re my client. I get whatever comes to me in the rotation.
Having said all that, I agree with his conclusion. It would be nice to like the client, but it’s not necessary. Our responsibility is to the client, his liberty and his Constitutional rights. Nowhere does it say that we have to like them. I would be lying, however, if I didn’t say that having a good relationship with a client makes my job easier.
It’s not that I wouldn’t work as hard for a client that yelled at me, called me a “public pretender” or accused me of being in cahoots with the State, it just wouldn’t be as much fun as working with the client that is nice, understanding and appreciative. It is human nature and as much as some don’t want to believe it, we are human too.
Crime reform gets politicized
Sep 21st
It had to happen. With the legislature convening for a special session yesterday, state Republicans attempted to introduce criminal justice reform bills in the wake of the Cheshire killings. Democrats steadfastly refused.
The Republican push for votes in both chambers is an early effort to brand the GOP as the force behind any Cheshire reforms and the Democrats as culpable if nothing happens.
“No question about it, we’re saying it is our issue,” said Sen. David Cappiello, R-Danbury.
As opposed to, you know, the citizens of the state.
“Banned words” accuser sues judge
Sep 20th
The accuser in the “banned words” trial [previous coverage here and here] has sued the state court judge who ruled that the words “rape”, “sexual assault” and “victim”, among others, couldn’t be used during the trial. She filed suit in Federal Court and things aren’t looking up.
“I have serious reservations about whether this action was commenced for the improper purpose of forcing Judge Cheuvront to recuse himself … or for the improper purpose of generating pretrial publicity,” U.S. District Judge Richard Kopf of Lincoln wrote in his order.
Kopf warned the 24-year-old Bowen and her attorneys that “sanctions may be imposed for failure to show cause.” The sanctions could include dismissal of the case, fines or “such other sanctions as the court deems proper.”
Kopf said in his order, “There is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job, particularly when that state judge is presumably trying to do nothing more than protect the rights of a citizen who may have been wrongly accused of rape.”
Kopf also expressed his doubts about whether the lawsuit “has any legal basis whatsoever.”
“For example,” he said, “I cannot find any precedent for a suit of this kind.”
As I’ve stated before, I don’t think it’s that big a problem to ban the use of the word “rape”. The same act can easily be conveyed with the use of the words “sex”, “without”, “consent”, “against” and “will”.
The very reason that the accuser wants to use the word “rape” is why the judge banned its use. Because it is loaded, it is a powerful accusation and it does inflame passions. Besides the fact that it is a legal conclusion.
The Alford Doctrine: Why do judges care?
Sep 19th
The Alford Doctrine is pretty simple. Based on North Carolina v. Alford, it simply states that a defendant may plead guilty while disputing some of the facts that form the basis for that plea. You can easily see how this is possible. The police report claims that the defendant did X, Y and Z, but the defendant is adamant that he did only Y. Y, unfortunately, is sufficient to get him convicted. So his attorney requests that the plea be an Alford plea. In 99% of cases where I’ve dealt with Alford pleas, the judge doesn’t care – he says, pretty much, “Ok, whatever”, then goes on to canvass the defendant, including a bit about the Alford plea.
Not so in other jurisdictions, apparently. Blondie writes of her own experience:
Frankly, the judges I practice in front of just don’t allow Alford pleas or No Contest pleas. Judges really want to hear a client say “I did it.” And, again and again, judges say, “If you can’t tell me what you did, you should just go to trial.”
I can think of only one time when a judge not only allowed me to enter an Alford plea, he encouraged it.
This is, frankly, quite shocking. Why do judges care whether the plea is a straight guilty plea or an Alford plea? The defendant is admitting that had he gone to trial he would have been convicted. Is that not good enough? Do we need an admission of guilt to the facts as the state claims they are? What if there are facts in there that can be legitimately disputed that will be detrimental to the defendant beyond the punishment itself? Is there a perverse desire to screw the defendant beyond whatever the jail sentence is? [For example, see this previous post]
There is a conviction; that should be good enough. It is a Supreme Court sanctioned practice. Why do trial judges care that much? What is your experience?
Note: She lumps nolo pleas in the same category. That is not usually how it is here. A nolo plea is entered with the express intent to appeal a legal ruling, such as a motion to suppress.
Constitution Day
Sep 17th
Today is Constitution Day. Don’t forget to hug your public defender 
All right, here’s a poll, just for fun:
[poll=14]
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