Monthly Archives: October 2007

Crack is not pot, dammit (Appellate Court ARO 10/31/07).


You’d think that this would be an easy one. However, 50% of the judges that looked at this case disagreed. Luckily one of those was the trial judge, so the 3-judge panel of the Appellate Court overturned the conviction.

In State v. Browne [pdf], the defendant argued that his conviction should be overturned because the search warrant was not valid. In the specificity portion of the warrant, the items sought were listed as “cocaine, crack cocaine”, but the cops seized marijuana and Browne was convicted of possession of marijuana.

The cop that prepared the warrant testified that the reason he entered cocaine instead of marijuana (which was the focus of the investigation all along) was that he cut and pasted from another warrant and left it in. Apparently, only the mouse was working on his computer.

The Court doesn’t buy this and says particularity means particularity:

This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’)

Obviously, since this is a reversal of a conviction, there has to be a dissent [pdf].

There’s also a pretty summary disposal of a habeas appeal, some constancy claims from a child sex assault conviction that are handily dismissed and this last one that holds that evidence of unemployment is admissible as motive for robbery (and then the usual: even if it was prejudicial, it was harmless. I really hate harmless error. Hate.)

Image license info here.

History must teach us something

Stan Simpson has this fine piece in the Courant today, urging legislators to learn from the State’s past and resist the urge to simply expand prisons as a solution to reforming the criminal justice system.

The last time the state went on a massive prison expansion escapade, it spent $1 billion to build 12 new prisons – the last in 1996. The overcrowding problem got worse, not better. Inmates were sent to out-of-state facilities.

Prison expansion was costly and largely ineffective. The state Department of Correction’s budget ballooned, from $92.4 million in 1985, with 5,379 inmates, to $605 million this year. In recent years, Connecticut got smarter and embraced prison-diversion alternatives for nonviolent offenders.

This recent enlightenment is what led to Connecticut being reported favorably in a private report released by the Pew Charitable Trusts back in February. Connecticut was one of two states, the other being Delaware, that was projected to have no increase in its prison population. That, obviously, no longer holds true. The policies that the State put in place and followed, however, are still valid.

“When an event as tragic as the Petits’ occurs, obviously, the first response is to identify why it happened and to do everything to prevent it from happening again,” said Ryan King, policy analyst for The Sentencing Project, a Washington, D.C.-based prison reform advocacy organization. “Unfortunately, that response has traditionally been longer sentences of some kind, restricting parole release, those sorts of things. And the fact of the matter is there’s been very little empirical evidence that any of them have had the advertised effect.”

“The conversation that can’t be lost in this dynamic is that at the end of the day, creating and maintaining comprehensive re-entry services for individuals is a better way of increasing safer communities,” said Maureen Price-Boreland, a member of the governor’s task force and executive director of Community Partners in Action, which runs re-entry programs for former offenders.

Stan suggests that legislators should not overreact, but instead invest in job training, drug counseling and housing assistance programs, reserving prison beds for the “true incorrigibles”.

Now, will legislators listen?

Meanwhile, there was a community meeting in Hartford last night, where ex-offenders and their families confronted Gov. Rell Commissioner Lantz about the negative effects of the parole ban.

The Clean Slate Committee also made demands of Lantz. They asked her to guarantee that by Nov. 30, every inmate released from incarceration would be given a state-issued identification document and that the state review of all parolees and inmates eligible for community release programs would be completed by Nov. 21. They also asked that the governor establish a commission – to include former inmates, their families, advocates, public officials and two members of Clean Slate – that would work on parole and community re-entry.

Lantz agreed to establish such a commission, but said she could not meet the deadlines on the other two demands.

Alex Kelly is no David Pollitt

One of the two crim justice stories of the day was the impending release of Alex Kelly, who is finally done serving his time for two 1986 rapes. He was in court today to find out whether he would be released despite the fact that he has not yet paid the $10,000 fine levied along with his prison sentence.

Mr. Kelly didn’t get that much needed promotion working in the commisary, so he didn’t have quite enough to pay the fine prior to release and being a 40-year old man, his parents weren’t going to pay it for him. Luckily, the Judge decided that he couldn’t be held past his maximum discharge date and that he would have to pay the fine as if it were restitution – on a weekly or monthly basis during his probationary period.

Alex Kelly is famous for several things, notable among them the 8 year period he spent on the lam in Europe, making wine while absconding from Connecticut. He is also famous for sitting somberly through his parole hearing a few years ago and upon hearing that parole was denied, losing it and yelling at the board members.

Meanwhile, the Governor’s phone has been silent. Maybe she passed the time watching that awful, awful movie about Kelly.

208 (FL) prompts calls for EyeID Reform

As the dust on the 208th DNA exoneree had barely begun to settle, Broward County public defender Howard Finkelstein sent a letter to law enforcement officials suggesting a change in identification procedures.

Bostic’s [the exoneree] accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

“These procedures will impact the human cost of misidentification,” he said. “This isn’t about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don’t get ensnared in our system.”

Currently, Florida uses the non-blind, non-sequential method of identification. Finkelstein called for them to use the double-blind, sequential method. Law enforcement’s response was curious, if not typical:

“If we had concerns about the procedure, we would have changed the procedure,” said Elliot Cohen, spokesman for the Broward Sheriff’s Office. “But new ideas and new proposals are always worth looking at, and we’ll take it in that spirit.”

At least eyeid reform seems to be gaining some momentum. 16 states have considered some legislation in this regard during the past year. Connecticut, although one of those sixteen, couldn’t get past simply funding a pilot program. I’m not even sure that the pilot program has gone into effect.

Monday Morning Jumpstart


Ugh. It’s almost winter. Here are stories to keep you warm on this cold, dark morning:

  • It’s not much, but at least the 18-year old West Hartford kid charged with having sex with his girlfriend is out on bail.
  • CDW’s weekly roundup is here.
  • GA isn’t the only state with capital defense payment problems.
  • Speaking of which, the Brian Nichols trial has turned into quite the spectacle. Now, Judge Fuller is being investigated by the legislature, which seems like an even further colossal waste of time and, more importantly, money.
  • Here‘s a really long (and quite strange) semi-biography of Komisarjevsky and Hayes. Curiously, it seems as though someone who wasn’t supposed to speak, did.
  • Who ever thought to challenge fingerprint science? You should have. One judge in Baltimore agrees that it might be junk.
  • Mark Bennett continues to explain himself and his no-snitch stance. Here‘s the text from his contract and here he discusses the ethics of snitching.
  • Even better than Jenna! Scott explains “law porn”.
  • The Confrontation Blog has this great post on child witnesses.
  • Norm Pattis offers his take on the latest Skakel development.
  • Blondie gives us another glimpse into the difference between being a pd and working as private counsel.
  • Prof. Berman points out a notable collateral consequence of eliminating parole.

As usual, if you find something worth sharing, leave a link in the comments. Enjoy the day!

My truth is no better than your truth


Scott’s post today about the “loser truth” reminded me of some wise words I heard last week, which I figure I’d share. We must always remember that our truth is not the same as our client’s truth, which may or may not be the same as the jury’s truth.

We are all a product of our experiences (yes, I know there’s a raging debate) and those experiences shape our perspective of the events around us. My experiences are different than yours and, let’s be honest, those of the majority of our clients.

It is incumbent upon us to investigate the truth according to the client, no matter how foreign it seems. Dismissing outright the client’s version of the truth leads only distrust. If we investigate and find that there is nothing to corroborate the client’s version, then we can lay that out in front of the client and say: “Look, we investigated what you told us and this is why it’s complete bullshit.” At that point, one of two things might happen. The client might relent (in part, I suspect, because he will start to trust you) or he might stick to his story, in which case, a competency eval might become an option.

Or what might happen is that some pieces of the client’s story start to fall in place. Just because your experience tells you that something isn’t possible, doesn’t mean it isn’t.

The same thing with juries. More often than not, your jury will not be packed with people that have had the same experiences as your client. They will not relate and will not understand. In their world, things such as the client’s version just don’t happen. That is where we come in. As Samuel L. Jackson’s character says to Matthew McConaughey’s, prior to closing argument, in “A Time to Kill“:

Jake Tyler Brigance: It’s not me, we’re not the same, Carl Lee. The jury has to identify with the defendant. They see you, they see a yardworker; they see me, they see an attorney. I live in town, you live in the hill.
Carl Lee Hailey: Well, you are white and I’m black. See Jake, you think just like them, that’s why I picked you; you are one of them , don’t you see?. Oh, you think you ain’t because you eat in Claude’s and you are out there trying to get me off on TV talking about black and white, but the fact is you are just like all the rest of them. When you look at me, you don’t see a man, you see a black man.
Jake Tyler Brigance: Carl Lee, I’m your friend.
Carl Lee Hailey: We ain’t no friends, Jake. We are on different sides of the line, I ain’t never seen you in my part of town. I bet you don’t even know where I live. Our daughters, Jake; they ain’t never gonna play together.
Jake Tyler Brigance: What are you talking about?
Carl Lee Hailey: America is a wall and you are on the other side. How’s a black man ever going to get a fair trial with the enemy on the bench and in the jury box?. My life in white hands? You Jake, that’s how. You are my secret weapon because you are one of the bad guys. You don’t mean to be but you are. It’s how you was raised. Nigger, negro, black, African-american, no matter how you see me, you see me different, you see me like that jury sees me, you are them. Now throw out your points of law Jake. If you was on that jury, what would it take to convince you to set me free? That’s how you save my ass. That’s how you save us both.

And that’s just it. What is it about the client’s story that would convince you that he was telling the truth? That’s how you convince the jury.