Daily Archives: December 5, 2007

0 for 11: Appellate Court ARO 12/5/07


More opinions than you can shake a stick at and yet not a single win. Not one good thing for defendants. Well that’s not true. There’s one nice footnote. Let’s get to that first.

In State v. Carmona, the Court denied an appeal from (stay with me here) the trial court’s denial of a Motion to Correct. A Mtn to Correct is CT’s procedural vehicle for raising certain claims before bringing them via a petition for writ of habeas corpus. Mr. Carmona claimed that the State breached his plea agreement and that the DOC’s application of jail credit violated double jeopardy. The trial court (and the State) both said that the habeas court was the appropriate place to raise those claims.

What brings joy, however, is that apparently the State, in the habeas court, claimed procedural default for not raising these claims in the trial court! The State’s position, essentially, was: Can’t go to the trial court because you should go to the habeas court and you can’t go to habeas court because you should go to the trial court, where you can’t go because you….well, you get it. The Appellate Court dropped this gem:

Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.

Next comes State v. Hannah, in which the defendant claimed that the court erred in not admitting two recorded phone conversations that proved his innocence. The court found that the defendant did not create an adequate record by not transcribing the phone conversations, so it could not review the claim. It is notable because some of the participants have nicknames like “Too Cool” and “Wheatie”.

The next loss is State v. David O, in which the defendant claimed prosecutorial misconduct impropriety. The claim was that the prosecutor talked about the law and appealed to the jury’s emotions. You know how this ends.

In the first of the habeas cases (and the summary dismissals), Bowens v. Comm’r, the court found that the habeas court’s decision to deny cert. to appeal was not an abuse of discretion. That’s when I stopped reading. That’s when you should, too.

In another habeas case, Madagoski v. Comm’r, the petitioner claimed that he was denied his right to Due Process because the state didn’t preserve the evidence, namely a van, indefinitely. The Court couldn’t even find that the habeas court abused its discretion in denying cert. to appeal.

Back to the direct appeals. In State v. Ruben T, the defendant was tried before a three-judge panel. He claimed that the panel incorrectly found that he had not proven EED and also erroneously admitted testimony under the state of mind exception to hearsay. The panel found (and was affirmed) that the defendant’s loss of self-control was not caused by ‘‘an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.’’

Back to habeas. In Wooten v. Comm’r, the petitioner raised ex-post facto, equal protection and separation of powers challenges to the retroactive application of a judicial decision interpreting a jail credit statute. Quite summarily denied. Which is disappointing, because there are about 5600 inmates affected by this retroactive application.

Finally, in State v. Valentin, the claim was that the judge inadequately charged the jury on self-defense and on reasonable doubt. The claim was rejected because it was not preserved and it did not rise to one of Constitutional magnitude.

But that’s only 8, you say! That is correct. The other three were disposed of with Memorandum Decisions. Which basically means an opinion wouldn’t have been worth the paper it was written on. Or that they didn’t want to spend the time it would have taken to print the opinion discussing it.

By the way, if you’re a public defender in CT, you need to check out the revitalized New Case News. The powers that be (you know who I’m talking about) have done a terrific job with it.

Not my thing

Last week, I tagged along to some local lawyers’ gathering. From the fancy locale, to the expensive suits, to the talk of depositions and summary judgment, I felt like a fish out of water. I didn’t recognize anyone and I didn’t see any criminal law types. There was a smattering of civil judges, corporate lawyers, solos and first or second year associates.

When informing someone that I was a public defender, I even got an “Oh that’s great!”.

I should stop going to these things and start going to some CCDLA events, so I can mingle with brethren.  Or perhaps that NY Blawgers get-together.

Racial disparities in sentencing for drug offenses

Via SL & P, the Justice Policy Institute has released this new report, which finally gets close what I’ve been looking for for quite a while now. A study that examines incarceration rates to see whether there is a racial bias in who gets sent to jail and who doesn’t.

The study found that counties with higher poverty rates, larger African-American populations and larger police or judicial budgets imprison people for drug offenses at higher rates than counties without these characteristics. These relationships were found to be independent of whether the county actually had a higher rate of crime. (The findings for the 198 counties.)

Among some of the findings:

  • In 2002, there were 19.5 million illicit drug users, 1.5 million drug arrests, and 175,000 people admitted to prison for a drug offense. While African Americans and whites use and sell drugs at similar rates, African Americans are ten times more likely than whites to be imprisoned for drug offenses.
  • Of the 175,000 admitted to prison nationwide in 2002, over half were African American, despite the fact that African Americans make up less than 13 percent of the U.S. population.

There is an interactive map by county here and the full report can be accessed here.