Archive for October, 2007
Crack is not pot, dammit (Appellate Court ARO 10/31/07).
Oct 31st
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.
Halloween edition
Oct 31st
As you can see, part of the blog has turned orange in honor of Halloween. Don’t worry, it won’t last long.
History must teach us something
Oct 31st
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
Oct 30th
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
Oct 30th
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
Oct 29th
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
Oct 28th
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.
Thoughts on the Genarlow Wilson decision
Oct 26th
In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.
Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.
What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.
The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?
The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.
It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.
Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :
Skakel petition denied; should he have gone straight to habeas?
Oct 25th
Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.
Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.
Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.
“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”
“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”
He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.
Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:
Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”
Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.
But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.
So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious. An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.
On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.
I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.
This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.
Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.
All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.
Timing is everything
Oct 25th
Woman in Black writes of one of her least favorite conversations to have with clients:
the “I know you say you did not do it, I believe you, the evidence against you is not overwhelming, but you really cannot trust a jury to free you and maybe you need to think about taking this deal instead of risking the rest of your life” conversation.
She gives several reasons for not liking this conversation and first on the list is client distrust. If you tell the client that they have a decent case, then why are you telling them to plead guilty.
That’s why timing is everything. You need to have this conversation at the appropriate moment and precede it with several other conversations: the “this is the burden on proof” conversation, the “these are the elements of the charge” conversation, the “this is the evidence the state has” conversation and the “this is what you’re facing after trial” conversation.
You need to establish a relationship with the client before you have the “I think this deal might be best for you” talk. Don’t be like those lawyers that talk to clients on the phone for the first time with an accept or reject deal on the table. The client will not trust you. Then don’t act surprised when the client calls you a public pretender or says that you work for the State.
You also don’t want to go overboard and say that there’s no way the client can get convicted and then a month later counsel them on taking a plea deal. It doesn’t work that way.
You need to explain to the client the pros and cons of taking a plea deal (remember, it is their decision) and the best way to get the client to understand what is in their best interests is if the client trusts you. It takes time to build trust, especially for clients that have been in and out of the system.
So some simple rules: Be honest with the client, don’t overstate anything, never promise anything, create a relationship, visit the client and take some time explaining the case to the client. If you do that, more often than not, the client will trust you and trust your recommendation.
Second Circuit on Crawford
Oct 25th
The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:
In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.
Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.
This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right – although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.
I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.
Appellate Court ARO 10/24/07
Oct 24th
The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.
Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.
No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.
There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!
Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.
I hate when they do that.
On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se – raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.
By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.
Image license info here
Warrants released
Oct 24th
For those of you interested, the search warrants in the Cheshire case have been made public. The Bristol Press (of all things) has made them available on their website here.
There’s really nothing remarkable in any of them (and certainly not anything new), except for one bit that I found a little laughable.
The police sought permission to examine Komisarjevsky’s family laptop because it is their experience that
the world wide web contains web sites that include information that provide detailed directions on how to restrain people, how to conceal, destruct and alter evidence as well as detailed accounts of criminal activities such as burglary, kidnapping, robbery and arson.
It certainly is curious that they didn’t include murder or even felony murder.
Reform proposals submitted, public hearing scheduled
Oct 23rd
The Judiciary Committee announced yesterday that it would hold a public hearing on submitted proposals to reform the criminal justice system. The hearing is currently to be held on November 27 at 1pm.
From the press release:
One of the fifteen proposals that will be heard at the hearing has been submitted by Sen. McDonald and Rep. Lawlor. Some of the major points of reform included in the chairmen’s proposal are: establishing a new crime of “home invasion” and designating it as a violent offense; re-writing and strengthening the state’s “three-strikes” laws; providing more resources to the state’s criminal justice agencies including corrections, the parole board, probation, victim services, and prosecutors; and requiring the development of a new state-of-the-art communications system that will allow all criminal justice agencies to easily, rapidly, and securely exchange information electronically.
The chairmen expect that full drafting of the fifteen proposals, fiscal estimates and summaries will be completed by the non-partisan legislative staff by the end of next week. Upon their completion, all of the proposals will be made available online. Members of the public will be able to testify at the committee’s hearing.
Oh boy. This is going to be interesting. Once the proposals are up, I’ll link to them.
Full text of the release after the jump, if you’re interested.
Censorship from the 2nd Circuit
Oct 23rd
Strange goings on in the 2nd Circuit these past few days. On Thursday, it posted a decision in Higazy v. Templeton. The case involved an Egyptian Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal. Unfortunately, by that point, some readers had downloaded it and one sent it to Howard Bashman who posted the original decision.
So the clerk called Bashman and asked him to take it down. He refused. He explains why. Patterico compares the two versions:
First, let’s look at the passage as it reads in the Second Circuit’s amended opinion:
[Plaintiff] Higazy alleges that during the polygraph, [FBI Agent] Templeton told him that he should cooperate . . . .
This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.
Higazy then gave Templeton a series of explanations as to how he obtained the radio.
Here is the full passage, including the redacted information. As you read it, ask yourself why it was submitted under seal:
Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.” Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”
Worthy of redaction?
S.Cotus is all over this and wonders why Volokh hasn’t jumped in.
recent comments