Daily Archives: November 7, 2007

The impossible defense

2 Replies

dali_clock.jpg

One of the first things I learned (among several hundred others) in the criminal clinic at the law school was seeking a bill of particulars. The State files a short-form information, you ask for the long-form version. You make the State commit to its theory of the case and lay out, specifically, the exact nature of the charges. This seems only fair and serves to validate Due Process. The defendant must have notice of the charges against him and the statutes he is alleged to have violated (I’m not saying you do this in every case – you have to use your judgment, but that’s for another day).

Translated into real life, though, this almost never happens the way you want it to. Scott complains here of the government not wanting to provide particulars because it didn’t want to limit the basis for the charges. More than the moving target of the conduct, it is the moving target of time that I find to be impossible to defend against.

Consider the sexual assault case. The “victim” is sexually abused and a few months or even a year later reports it to the authorities. Or in child sex assault cases, several years later. The prosecutor files the information, alleging a violation of the child sex statutes. The particulars?

From 2002-2005, this defendant sexually assaulted this “victim”. Defend that. It’s impossible. The only way to win a case like that is to undermine the credibility of the “victim”. You cannot present an alibi defense, simply because you cannot provide an alibi for 3 straight years. Try it; it’s just not possible. If you say I was out of town on Monday, the State says it could have been Tuesday. Could have, would have, should have. Yet this is okay.

The state does not have to prove, and often does not even put on evidence of, when it is that this crime is said to have been committed. This allows them to paint with a very broad brush, increasing the pressure on a defendant to take a plea offer.

I don’t know what can be done about this other than to take a stand every time the state alleges something like this. Ask for a bill of particulars; argue that it’s impossible to defend against; that you don’t have notice. Because you don’t, really.

Three strikes law? Not in Connecticut!

2 Replies

Say two thirds of those polled in this latest Quinnipiac University poll. There you go legislators.

Only 35 percent of voters support a so-called “third strike” law where a person convicted of three violent felonies automatically is sentenced to life in prison, while 63 percent say sentences should be decided on a case-by-case basis.

Oh thank God.

There are some other interesting results in this poll. For example, only 27 percent say they feel less safe at home since Cheshire. On prison overcrowding:

48 percent of voters say build more prisons, while 39 percent say release inmates earlier. But only 47 percent of voters want to pay higher taxes for new prisons, while 50 percent are opposed.

Meanwhile, by a 62 – 32 percent margin, Connecticut voters are willing to pay higher taxes for more community supervision of offenders.

Interestingly, the Cheshire murders have not sparked a huge increase in support for the death penalty. Connecticut is in favor of the death penalty by a margin of 63-27, which is a slight increase from 60%, which was prior to Cheshire. However, when given the alternative of life in prison without parole, the state splits 47-44 in favor of the death penalty.

Skakel files federal habeas

2 Replies

After being denied a new trial in State court, Michael Skakel is now going straight to federal court. His attorneys filed a petition for writ of habeas corpus (not petition for new trial as the Courant first reported), raising essentially the same failed claims from his direct appeal to the Connecticut Supreme Court.

I’m not sure if this means that he is forgoing an appeal from the denial of petition for new trial, but it does almost certainly mean that no IAC claim will be raised in federal court. That will surely come in state court, but further down the line.

Again I am a little surprised as to why they chose to go this route, as with the petition for new trial. Perhaps his one year was almost up.

Either way, I think Skakel’s best bet is the IAC claim against “Mickey” Sherman.