Archive for January, 2008
James Tillman loose ends tied up
Jan 31st
James Tillman, who was exonerated in 06-07 after serving 18 years in prison for a crime he didn’t commit, can look at this news story and see the face of the man who should have been in his place.
Hartford police have obtained an arrest warrant for Duane Foster, 47, on charges of first-degree kidnapping.
Hartford police Detective Michael Sheldon, investigators at the chief state’s attorney’s cold case unit and state Department of Correction officials announced on Thursday that a DNA match links Foster to the Jan. 22, 1988, sexual assault on Charter Oak Avenue.
The rape victim identified Tillman, then 26, as the attacker. He and Foster are of similar height and build and have similar facial features.
You decide:
Lazale Ashby gets death
Jan 31st
CT’s death row might have inmate number 10 very soon. A jury today recommended that Lazale Ashby receive the death penalty. Judge Espinosa will decide on Monday whether to formally enter the verdict of death.
Interestingly, just two days ago, the jury said they were deadlocked.
Kentucky seems a bit confused
Jan 30th
Kentucky governor Steve Beshear’s proposed budget includes an increase in funding of $38.6million to pay for a new 816 bed facility to make room for the projected 6% increase in inmates over the coming years. In this age of overcriminalization and harsher penalties, it seems logical. You have to house them somewhere. What is not logical, however, is a corresponding cut in funding for prosecutors and public defenders.
The budget for public defenders would drop 3.6 percent from current spending, with declines of 2.6 percent for commonwealth’s attorneys and 1.7 percent for county attorneys.
Prosecutors and public defenders said yesterday that increasing room for inmates while decreasing budgets for those who represent and prosecute them makes little sense.
Ernie Lewis, head of the Department of Public Advocacy, said his lawyers are laboring under huge caseloads that far exceed national standards, and they couldn’t handle more cases if budget cuts force him to lay off staff. “Our belt is already so tight that we have no room for budget cutting,” he said.
Lewis said public defenders may have to decline to represent some poor people charged with crimes. “We can’t do more cases than we can ethically handle,” he said.
This just doesn’t make any sense. A decrease in funding with an increase in defendants will result in higher workloads and lower performance. Justice, it would seem, is not high on the agenda.
Yet another twist in the story, however, is a task force assembled to study the penal code and suggest alternatives to incarceration:
Beshear announced a proposal to create a Criminal Justice Task Force, comprising representatives from across the state and all areas of the justice system.
The group will review the state penal code and sentencing guidelines to look at more appropriate punishments and recommend ways to manage the judicial system, he said.
Beshear said he hopes the task force can have some recommendations by the legislature’s next budget session and perhaps find alternatives to incarceration for some defendants.
Shouldn’t they do that first, before they further damage the state of the criminal justice system?
Three degrees of YOU’RE A PREDATOR!
Jan 29th
This has to be filed under the “what the f*ck is wrong with people today” category.
It’s the digital age and more importantly, it is the social networking age. If you don’t have a MySpace or Facebook account, you’re nobody. Especially teens. Everyone has them and then some. So when middle school resource officer John Nohejl in Florida decided to set up a MySpace account so he could communicate with students in ways they do (with the blessing of the school), it seemed like a brilliant idea.
Too bad he didn’t know Julie Amero. Or remember that in the age of Chris Hansen, people are fucking idiots.
In the goofiest waste of law enforcement time we’ve seen in weeks, an on-campus police officer for a Florida middle school is facing a criminal investigation over his MySpace account. Why? It turns out one of the people on his friends list had a link on his or her profile to an internet porn site.
Or, as the St. Peterburg Times puts it, “kids could navigate from Officer John’s page on the social networking site to ‘Amateur Match Free Sex’ in just three clicks.”
You’re reading correctly. Gulf Middle School resource officer John Nohejl didn’t have porn on his MySpace profile, and he didn’t link to porn. But one of the 170-odd people on his friends list, which seems mostly populated by students at his school, had a link to a legal adult site. Now the New Port Richey Police Department and the Florida attorney general’s elite cyber crimes unit are investigating him for making adult content available to underage children.
The AG apparently thinks inadvertently doing something is the same as intentionally doing something:
Cybersafety “is the attorney general’s highest priority,” said Sandy Copes, the attorney general’s spokeswoman. “I am sure the attorney general would be extremely concerned if a member of the trusted law enforcement community was either inadvertently or directly placing students at risk to being exposed to inappropriate content.”
Yep. You’re now responsible for other people. On the interweb.
So all of you reading out there. If I link to say, CollegeHumor, YOU’RE ALL PERVERTS AND PREDATORS AND ARE CORRUPTING TEH MORALS OF A CHILD !1!1one1!11!1!!!
(Seriously, if you’re at work or if kids are around, don’t Google CollegeHumor. You have been warned. It’s not porn, but there’s adult content.)
The kicker? The school’s website itself linked to some clipart websites which linked to g4y pr0n. Thank you, Chris Hansen, for making the world a crazier place.
Santa groper gets off
Jan 29th
lightly and rightly so. She applied for Accelerated Rehabilitation and if she successfully completes it, this won’t result in a record.
They muuuust’ve been high!?!! – ARO 1/28/08
Jan 28th
Lots of fun stuff from both courts today. Showing appropriate deference, I’ll start with the Supreme Court first.
In State v. Kalphat, the new CJ authors an opinion affirming the conviction of Mr. Kalphat (who was represented by the blawgosphere’s own Norm Pattis). The trial court had denied a mtn to suppress a warrantless search because the defendant didn’t have standing to challenge. A shipping company received some boxes addressed to a M. Patterson that were “unusually heavy and taped” because they were supposed to contain clothing. A nice employee called the cops, but her inquisitive supervisor couldn’t contain himself and cut a hole in one of the boxes and smelled fabric softener, which apparently is the masking smell of choice for pot smugglers (no, this isn’t what the title of this post is referring to, although that works too). The cops showed up and pot was found. They called the defendant, for reasons not disclosed by the record (huh?) to come pick up the boxes, which he dutifully did. He was nabbed.
As to the standing issue, he testified that he’d picked up boxes from that company before, but that he wasn’t M. Patterson (although at oral argument it seems that Norm said that he was M. Patterson – but that’s not in the record). Defendant’s claim for standing was that he was a “bailee” and thus had a R.E.O.P. Then, at oral argument, he argued that a person has a REOP in items shipped to an alias before he takes possession. Apparently, there is some support for this. The court distinguished the facts, however, by stating that there’s no REOP when shipped to another actual person, as opposed to an alias.
Heartbreakingly, the Court concludes that even if they agree that there is a REOP when shipped to an alias, defendant did not establish in the trial court that M. Patterson was his alias.
Moving on to the Appellate Court, we have the only reversal of the day. In State v. Angel T., the court concluded that there was prosecutorial misconduct impropriety when the prosecutor commented on the fact that the defendant obtained a lawyer and did not co-operate with the police.
In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview.
Next up, we have the very interesting State v. McCarthy. The defendant’s first claim was that the state’s case was so weak that the jury’s verdict could not be relied upon and that they must’ve been imbibing copious amounts of liquor while deliberation, which is the only explanation for how they returned a guilty verdict. Note, however, that this was not a legal insufficiency claim.
This trial was the shadiest of the shady. You had witnesses whose testimony was grossly inconsistent with the physical evidence, witnesses who changed their testimony and witnesses who were on PCP. Yet the Appellate Court manages to maneuver around it all to say that it was ultimately the jury’s job to determine credibility. There’s also the improper admission of an officer’s testimony that’s found to be harmless (!). There were also claims of improper jury instructions and remarks by the prosecutor, but they are too lengthy for me to get to here. Wait for New Case News to summarize it.
Finally, we have the habeas decisions. There are six that are memorandum decisions and one that might as well have been. That’s all you’ll get from me on those.
Monday Morning Jumpstart
Jan 28th
After a one-week hiatus, the Jumpstart is back to charge your batteries.
- My post on passwords and the 5th Amendment engaged both Bennett and Greenfield and there’s an interesting and lively discussion going on.
- ConcurringOpinions reminds us what not to do in court.
- A defendant chooses to represent himself, in a capital trial.
- Stephen Gustitis says that sometimes, let your clients take the damn polygraph.
- SL&P points us to an article that explores the religious undertones in sentencing and victims’ rights. You might be surprised.
- Mark Katz of Underdog gives us a primer on international extraditions.
- CDW links to a Toobin article in the upcoming New Yorker on the Nichols trial.
- Sanchovilla has uncovered yet another powerful social networking tool that any competent investigation must utilize.
- Ken at KrimLaw has a follow up to his posts on the 5th and domestic violence.
- The Windypundit has created this awesome Fear credit Card for politicians.
- The parole ban has been lifted [my post here].
Enjoy!
Sunday Stupidity: Trigger Happy edition
Jan 27th
Nothing’s caught my fancy yet today, so I give you a compilation of clips from one of my favorite shows: Trigger Happy TV.
[youtube]http://www.youtube.com/watch?v=nf8JtqAMZZk[/youtube]
Theme song
Jan 27th
If lawyers had intro songs as they entered a courtroom or walked around the well, this would be mine:
[youtube]http://www.youtube.com/watch?v=rL9ihXiFAko[/youtube]
What about you?
In which Gideon answers your questions
Jan 27th
I get some reader mail now and then and it’s usually about someone’s family member in jail or some conspiracy theory. Which is fine. But then I get the “are you really a lawyer?” “Have you tried any cases?” “Did you even attend law school?”
Since it’s a Sunday and I’m tired of scouring the web to bring you the stupidest stupidity, I’ll take a break to answer that second question.
(Okay, it wasn’t reader mail; it was the imbroglio who asked)
The question was posed thusly:
If you’re a PD and you’ve read this far, please tell me: How often do you go to trial in a year? Do you work mostly felony or misdemeanor cases? Inquiring minds want to know!
Okay, inquiring mind, I will tell you. On average I am on trial 5-6 times a year. They are only felony trials and some of them are even fun!
Others weigh in more informatively.
If you have a question for the Gideon, leave it in the comments.
Back to scouring.
Logging in to the 5th
Jan 25th
The 5th Amendment’s protection against self-incrimination certainly has been a hot topic in the blawgosphere. I’m going to bring it into the tech age, with this story about a man invoking the privilege and not giving up the password to his super-encrypted hard drive.
Boucher was crossing the border when he was pulled over for a secondary inspection. Of the 34,000 or so image files on Boucher’s computer, several appeared to have names suggesting explicit child pornography, so the agents wanted to see them. However, they were encrypted so they needed him to provide the password. They were stored on a partition of his hard drive, mysteriously called “Drive Z”. He entered the password himself and they saw some child porn, so he was duly arrested.
As per norm, they took the computer and created a mirror image of the drive. Unfortunately, they didn’t have the password to the encrypted files on “Drive Z” and now, a year later, they still don’t. Using all their high-tech skills, they haven’t been able to crack through the PGP encryption and now want him to fork over the password.
He invoked the 5th. On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling him to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.
The judge, one of the very few that have upheld an invocation of the 5th, used an analogy from Supreme Court precedent.
It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.
The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you.
It seems that legal scholars agree that there is a privilege in the password, but his using it at the border waived it.
“In a normal case,” [Orin] Kerr [who posts at Volokh] said in an interview, “there would be a privilege.” But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.
My question is: Why is it a waiver for him to use the password once? I don’t know enough about 5th Amendment waiver jurisprudence, but when a witness invokes the privilege, it is usually done on a question by question basis. What if Boucher here is telling the truth that these may have been inadvertently downloaded and “went along” to prove to the agents that he was “innocent”? Then when he discovered that he was looking guilty, he didn’t want to “help” them anymore.
Certainly, Miranda rights can be asserted even after a waiver. So why not this?
HT: SOI
Image by thelastminute. License info here.
Parole ban may be lifted soon
Jan 25th
Now that stricter home invasion laws have been enacted, Governor Rell indicated at a press conference today that she will be considering whether to lift the parole ban this weekend. This will certainly be good news for a correctional system that is barely hanging on by a thread and is bursting at the seams (hah! TWO in a row!).
At a ceremony Friday, in which Mrs. Rell signed into law the new criminal justice reforms passed earlier this week by the legislature, she said she needs to make sure a few more things are in place before she lifts the ban. However, “I hope to have that decision over the weekend,” she said.
Cathy Osten, a lieutenant and president of CSEA/SEIU Local 2001’s correctional supervisors, said Friday morning that all the state’s correctional facilities are overcrowded. She said she’s been with the department more than 18 years and it’s been overcrowded almost half of that time. She said the current population increase is a result of the governor’s ban on parole.
Ironically, her new bill might get its first test on the first day! The wife of the Assistant Deputy House Speaker walked in on two robbers in her home today (Morons). Will it matter what time she actually signed the bill into law?
Gov. Rell also indicated that she would try and raise a three-strikes bill again, because the people of CT want it or some such nonsense. Except that the most recent QU poll showed that they don’t. I guess she’s the American Idol Governor only when it suits her ideas.
This month at the Supreme Court
Jan 23rd
Starting…well…today, I am introducing a new feature for my CT friends who are too busy to follow the latest goings on in criminal law in the State. This Month at the Supreme Court! (trademark pending) will summarize the criminal cases scheduled for oral argument with a date and time, if you’re so inclined. Why am I doing this? Because I’m that nice.
So, without further ado (but with a drumroll, please!), here’s the docket for February 2008:
February 5 – Washington v. Commissioner: In Washington, the petitioner seems to challenge the DOC’s retroactive application of those wonderful Harris, Cox and Hunter decisions, which said that jail credit can be applied only once, even though earned on several different sentences. The blurb says there’s a due process claim and I bet it’s got to do with Bouie. Interesting, but not much general appeal.
February 7 – State v. Melendez: This is an interesting one. The state task force and DEA conducted an undercover operation. Part of that was getting an informant suited up with a video cam. The cam caught the informant and Melendez. When the tape was turned over as part of discovery, it was of really poor quality. So Melendez rejected whatever offer was on the table and chose to go to trial. At trial, however, the State engaged in some sorcery and produced a clear copy of the tape. On seeing this enhanced tape, the defendant said that the disclosure was untimely and demanded specific performance of the plea. He claims that the late disclosure deprives him of a meaningful plea bargaining process and that he should be given specific performance, among other evidentiary issues.
February 11 – State v. Griggs: The defendant was charged with assaulting a 77-yr old man that he knew and then leaving him on the floor, struggling, taking the man’s cellphone with him. The claims is whether his failure to help constitutes a substantial step sufficient to convict him of attempt. He sought to have the bill of particulars amended to omit that fact, which the judge denied. Curiously, during jury instruction, the court explained that the defendant’s failure to render assistance to the victim, in and of itself, did not constitute a substantial step planned to culminate in the commission of murder. So, who knows.
February 11 – State v. Simpson: This is a case that implicates the confrontation clause and Crawford. The accuser is a young girl who, at the time of trial, cannot remember any details. State used that to designate her “unavailable” and enter into evidence a videotaped interview with an evaluator at a guidance clinic – for substantive purposes under Whelan. The defendant claims that she had not recanted her earlier statements, her testimony was not inconsistent with her statements (requirements under Whelan), that the videotaped statement was not under circumstances assuring its reliability. He further claims that even if permissible under Whelan, it should be barred under Crawford, because it was made as part of an investigation and since she can’t remember now, she’s unavailable for cross-examination. I’m intrigued by this one.
February 14 – State v. Winer: This is another interesting case. The issue revolves around who requested a continuance that placed the case on a trial list for 3 1/2 years without any action. The trial court found that because the defendant rejected the offer and wanted to go to trial, it was placed there at his request and so it could not be dismissed due to inaction for 13 months (the requirement of the statute). The Appellate Court reversed, finding that it was the prosecutor who wanted it placed on the trial list and so reversed the trial court. The Supreme Court reversed will decide what to do.
February 15 – State v. Jenkins: I guess this is interesting to some. On nine occasions between December, 2002, and May, 2006, the court found that the defendant was not competent but that he was restorable to competency. The defendant received inpatient treatment for three periods that totaled twenty-one months. Subsequently, the defendant moved to dismiss the charges, claiming, among other things, that his twenty-one month placement for treatment exceeded the maximum period that he could be confined because it would exceed the period of the maximum sentence which he could receive on conviction, or eighteen months, whichever is less. The court disagreed, concluding that the period of placement referred to in the statute is not a cumulative period, as the defendant argued, but rather a consecutive period. It is also an interlocutory appeal.
Well, there you go. This has been your guide to the Supreme Court this month!
Image by hyku. License details here.
The superduperawesome megacriminaljusticereform bill
Jan 22nd
is here. I’m going to go join the legislators and stick my head in the sand. (From CTLP)
Update: It seems that a “three-strikes” provision has been defeated.
Second Update: Home invasion is now a crime, not requiring proof of knowledge of persons present; three-strikes is not on the books. However, the persistent offender law has been re-written to make it easier for prosecutors to seek harsher penalties.
Prosecutors seeking to convict someone as a “persistent offender” will no longer have to prove that an offender has “a history and character that … indicate that extended incarceration will best serve the public interest.” Instead, prosecutors will simply have to show that the defendant has the requisite number of previous convictions necessary to apply a longer sentence.
This, however, still leaves them with the discretion of whether to charge someone as a persistent offender.
Some of the other provisions that were passed:
•Expanding global positioning system monitoring of 300 more criminals out on parole and believed to be the most likely to commit more crimes. The state would have to hire 10 new parole officers to monitor the parolees.
•Providing more residential treatment beds for sex offenders.
•Creating an automated system to notify victims of court hearings and make it easier to allow state agencies to share information about victims.
•Requiring a state-of-the-art computer system.
•Adding a forensic psychologist and two victim advocates to work full-time for the parole board.
•Providing a video link between each prison and the parole board, costing about $250,000 overall, for parole hearings.
•Requiring the courts to provide often-secret juvenile and youthful-offender records to the parole board and Department of Correction.
No measure concerning building prisons or improving rehabilitation were taken up. Those might be addressed in the general session next month.
Why justice has nothing to do with a conviction
Jan 21st
Data recently released by the GHSSS* shows that 60% of you would choose to plead guilty to an offense you did not commit if you could avoid jail time.
This past week, a special prosecutor recommended that Tim Masters be released, after DNA exonerated him of the crime for which he’d been in jail for 9 1/2 years.
What does this tell us? I think it means that a conviction doesn’t mean an individual is guilty. It coud be that the jury found the defendant guilty under a version of the truth as presented to it, or simply that some people decided it would be better to just admit to something you didn’t do and avoid spending years incarcerated.
But what I’m really curious about is the folks that said “no” to the question asked in the poll. It occurs to me that the answer to the question might depend on whether you are a lawyer or not. Lawyers, especially criminal defense lawyers, see the system up close. We have clients who we believe are innocent and yet are convicted. We know how easy it is for the State to obtain a conviction in child sex cases (or even rape cases). Balancing the interests, the prospect of avoiding jail time for sure is too appealing to pass up.
On the other hand, if you’re not a lawyer, the principles of truth and justice might shine brighter. You may actually still believe in the fairness of the system and put faith in the notion that it is a truth seeking enterprise and that you will be vindicated because “you didn’t do it”.
So, I invite those of you who selected “no”, or would select “no” to share your reasons. Are you a lawyer? Why did you choose no? What would make you change your mind? Would you ever plead guilty to a crime you didn’t commit?
Anyone else with any other thoughts is also invited to jump in.
*not a real organization. Kudos to you if you figure out what it stands for.
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