Archive for February, 2010
You can’t make me
Feb 23rd
A tremendous post from the exciting new kid on the PD block, PD Revolution, about refusing excessive caseloads and fighting back against a judge who forces you to trial when you’re not ready.
Further thoughts on ISVD
Feb 23rd
I don’t have time for a pithy title, so pardon me. I just wanted to add a few more thoughts to my post from last night on Norm Pattis’ call for the elimination of ISVD (by the way, Norm responds to my post here).
Here are a few things that still bother me, and this is perhaps at the root of it all. I have yet to see a reason for abandoning individual voir dire in favor of group voir dire other than “ISVD is time consuming and a waste of money”. Fine, reasonable and some not-so-reasonable minds can disagree on that (although I will note that I have seen references in studies to others that have concluded that the statement is not true; I just haven’t been able to locate such studies yet).
What bothers me about this, especially coming from a defense attorney, is this: it is not my job and not my function to point out ways to “speed up” the system. Clamoring that it needs to be done only furthers the perception that some percentage of the public has about the cumbersome (hah) nature of the criminal justice system. Those of us who practice in the criminal courts in Connecticut: prosecutors, judges, defense lawyers, even Norm, know that for the most part, that is simply not the case.
A year is really not a long time for a serious felony case to go to trial. And so to propose a change that may very well inure to the defendant’s detriment seems unseemly coming from a defense lawyer.
Perhaps we have all been at this too long; perhaps we are all jaded. Perhaps we begin to view trials from the lens of our own lives: “I’m on trial for the next month so I have to postpone my vacation”, or “I can’t start trial here, judge, because I’ll be stuck in Tolland for the next two months”.
But for those of us who are the only voice these defendants have against the might of the state to stand up and say, yes, the process that the State employs to accuse, try and convict my client is long and cumbersome is just plain ugly. If the State has chosen to prosecute my client, the cost of that prosecution is not my concern. Let the State pay as much as it takes to meet their burden. And if that involves selection of jurors one by one, then so be it.
If the State legislature, in its wisdom, chooses to abolish ISVD because of cost, then let it be so. I will go along, as I will have to. But I will not be complicit in its abolition for the reason of money.
Let us not forget that while these may be a few weeks out of our time that we feel may be better spent elsewhere, for most clients this is a once in a lifetime event, on the outcome of which hinges their very freedom and liberty. I am incapable of stating to my client, incarcerated awaiting trial, that we won’t be able to question jurors individually to determine if they harbor any biases that would make them unsuitable to judge his actions (or lack thereof) because it takes too long and costs too much. That is not, and cannot be, my function.
Norm says that I am wedded to the idea of ISVD because I have known no other. That I have no experience in Federal Court. I will neither confirm nor deny that, just because I don’t want to. But to reject my argument against group voir dire on the basis on one man’s personal experience in ISVD and group voir dire simply smacks of the pot calling the kettle black.
The framers of Connecticut’s Constitution saw it fit to make the right to question jurors individually inviolate. Perhaps that is because they recognized that the workings of the criminal justice system should not be constrained by questions of cost or time. After all, what is a few weeks when the potential penalties are decades of imprisonment.
No matter how many times you say it, or how many times you reference my mother, you will not change my opinion that individual voir dire, by its nature, can be a more effective tool of jury selection than group voir dire.
Give me a reason to change my mind. But make sure the reason isn’t that it’s too costly or time-consuming. As a criminal defense lawyer, I don’t care and neither should you.
Cumbersome bloviating misrepresents
Feb 22nd
Consider my gears ground. I’ve been resisting jumping in to counter the incessant stream of anti-individual voir dire noise emanating from Norm Pattis over the past month or so. I first saw a post on his blog, which was then reproduced in his column in the Connecticut Law Tribune and finally copied and pasted into this opinion piece in the Courant yesterday.
Norm, for some reason, has been crusading against the “cumbersome” and “wasteful” process of individual voir dire that we employ here in CT. What happens, simply, is this: a jury panel is brought into a courtroom, is read some preliminary instructions by a judge and then members are asked to identify if they have any hardships or other reasons why they cannot serve on a jury. Those who do not identify any such impediments are temporarily asked to retire to a room, while those that raised their hands and quickly individually questioned to determine the reason for their inability to serve. A large percentage of these people are quickly dispensed with and then people are brought out individually from the “able to serve” pool to be questioned to determine their suitability for serving on the particular case.
The length of individual voir dire varies greatly: a simple misdemeanor or less-serious felony jury can picked within a day. Murder juries can take over a week or so. Capital juries naturally take longer.
I have long argued that individual voir dire is preferable to group voir dire. Human nature is such that we are more likely to be honest in our beliefs when we are not being compared to those “similarly situated” to us. Besides, really the only purpose for group voir dire is to indoctrinate jurors and educate the jury, a point which Norm claims is one of the abuses of individual voir dire.
But there are several other problems with his position. He starts with this paragraph:
In every other jurisdiction nationally, juries are selected in a group voir dire. Questions are put to potential panelists to see whether they can be fair and impartial in the case for which they may be selected. The group method permits folks to sit with their peers to answer questions about bias or prejudice. A jury can be picked by this method, even in a case of some complexity, in a matter of hours.
That’s just patently false.
12 really angry men
Feb 16th
Imagine you’re sitting at counsel’s table, ready to start trial. The jury walks in and is seated in the jury box. The judge shuffles his papers, looks over at them and opens his mouth his start instructing the jury.
Suddenly, one of the jurors leans forward and says: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” Another juror pipes in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that”.
The case was a suit for emotional distress in the workplace, but that’s irrelevant. What’s relevant – and a little disconcerting – is the anger, resentment and frustration displayed by the jurors. This outward display of vehemence isn’t necessarily caused by the facts of the case; in fact, under other circumstances, they may have made appropriate jurors.
The troublesome matter here is that these jurors made it through voir dire and were selected – over their own objections. Both those jurors above attempted to be excused based on hardship.
Equal justice for all
Feb 15th
On a cold day in January, 1963, 9 men sat atop a perch and listened, for hours, to three other men argue for and against the means to dispense equal justice for all citizens of these United States. A short two months later, in March, Gideon v. Wainwright was born, mandating that States were required to provide attorneys for those who could not afford them to assist with the defense of criminal accusations.
At the time of the decision, public defender systems and counsel for the indigent wasn’t a novel concept: almost 45 states already had either full-fledged public defender systems or court rules that provided for the appointment of counsel. Gideon just provided a Constitutional basis for the widespread notion that all defendants should have access to counsel, in spite of their financial abilities.
Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.
Without adequate funding, the reality of Gideon‘s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.
A new idea has been tossed around these parts (and by that I mean the blawgosphere) over the past few days: that perhaps the best way to ensure equal justice, and for defendants to stand on equal footing with the frightening power of the States, is to have a universal public defender system. “Lawyers for all” is the call, and at first blush it seems like a good idea.
State legislatures these days have criminalized all human actions but breathing. If they are so inclined, goes the argument, then they must also be forced to provide the resources to defend against the zealous overprosecutions. Why must the defendant be left to his own devices and his own resources, when the State has its entire treasury at its disposal? Even the footing, goes the argument, and more prosecutions will fall by the wayside. Perhaps, if they are forced to provide the same resources to both sides, the staggering costs along with the piling “losses” for the State will knock some sense into the “tough on crime” legislators and force a rethinking of the penal code.
An idle thought on the Boykin canvass
Feb 12th
Much as been written and said about Boykin v. Alabama since Justice Douglas wrote the decision in 1969. At best, it is a necessary safeguard to ensure that guily pleas, the bulk of the resolutions in the criminal justice system, are made voluntarily. At worst, it is a prophylactic.
A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 (1973).
State v. Groppi. The Boykin canvas is limited to three Constitutional aspects: First, is the privilege against compulsory self-incrimination.. . [s]econd, is the right to trial by jury… [t]hird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra].
In fact, the Boykin canvass is now part of most state statutes or rules of court. Here, in CT, it is codified in Conn. Prac. Bk. S. 39-19, which provides:
The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
- The nature of the charge to which the plea is offered;
- The mandatory minimum sentence, if any;
- The fact that the statute for the particular offense does not permit the sentence to be suspended;
- The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
- The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
But even there, strict compliance is not required:
Come with me…to jail for 20 years: an alien abduction
Feb 10th
It seems that the Supreme Court of the good state of Connecticut (SCOC, which you may pronounce S-Coc if you so please) is having fits. Specifically fits with our kidnapping statutes. Almost from the day they, in a moment of rare weakness, decided to bring some sanity back to the overbroad application of the statute, they’ve been backpedaling furiously, as if to atone for their one sin.
In that original decision, they decided – rightly in my opinion – that kidnapping is more than just mere restraint required for the commission of another felony. So if I held you down and forced you to read this post, I’d be guilty of torture, but not kidnapping.
Then they tinkered with the remedy, because how could one justify letting defendants go? Of course you can’t.
And now, this past week, comes the granddaddy of them all: State v. Winot (leave the why not? jokes for later, please).
This is a case that has been two years in the making. It was argued in January of 2008. Yes, that’s TWO-THOUSAND-EIGHT. And what perplexed them so? Judging by the decision, the vexing question was how to uphold this conviction with a straight face. 730 days later, I don’t think they’ve managed it.
The facts
She began to walk faster, but the defendant forcibly took her right arm. When she asked him to let go, he refused, yelling, ‘[n]o, it’s too wet out here; you’re getting in my car today.’ He tried to pull her toward his car, but she resisted, pulling back in the opposite direction. To get him to release her, the victim then leaned over to bite the defendant, at which point he quickly let go and rushed back to his car. In doing so, the defendant was almost hit by a maroon car. Upon being released, the victim ran home and told her mother what had transpired. The entire incident lasted only a few seconds.
That’s less time than it took you to read that first sentence. He took her right arm, she pretended to bite him, he let go. A matter of seconds. Got that?
The challenge
The Adam Walsh fearmongering and bleeding money Act
Feb 10th
I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.
I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).
I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.
There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:
- The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
- The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
- The rules for exemption from registration are putrid and hollow.
- The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
- The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
- The retroactive application of the registration requirements, which are already being successfully challenged.
- The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.
The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:
To have the Assistance of Counsel for his defence
Feb 2nd
Clarence Earl Gideon, we salute you. On the first go around, sans counsel:
and after the landmark decision:
HT: Tannebaum
Bysiewicz as AG: I hate to say it
Feb 2nd
but I told you so. Leaving aside the “does she have 10 years’ active practice” kerfuffle for a moment, I just want to give you all this moment to recognize that, well, I was right (or at the very least that the current AG agrees with me).
The long-awaited “formal opinion” from our soon to be Senator Blumenthal was issued today at 1pm. You can read it here or view the pdf here.
The opinion hits all the usual points in construing the constitutionality of a statute:
“[l]egislation is presumed to be constitutional, and a litigant challenging its validity has the heavy burden to establish its unconstitutionality beyond a reasonable doubt.” Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 299 n. 12 (2007); see also Honulik v. Greenwich, 293 Conn. 641, 647 (2009). “The court will indulge every presumption in favor of the statute’s constitutionality.” State v. Long, 268 Conn. 508, 521 (2004). “Therefore, ‘when a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’” Id. at 521, quoting State v. McCahill, 261 Conn. 492, 504 (2002). Thus, a court faced with the question whether Conn. Gen. Stat. § 3-124 is constitutional will start with the presumption that it is. “In case of real doubt a law must be sustained.” Honulik, 293 Conn. at 647.
Does the fact that the AG statute existed for close to 70 years prior to the Constitutional amendment have any bearing on it’s constitutionality? Uh, yeah:
Similarly, in 1970, when the 1965 constitution was amended to add the Attorney General as a constitutional officer, the amendment was not adopted in a vacuum, but rather built upon an extensive and long-standing statutory scheme governing the Office of Attorney General. As noted above, the Office of Attorney General was created by statute in 1897.
…
Over the next seventy years, the statutory qualifications for the Office of Attorney General as “an elector of this State, and an attorney at law of at least ten years’ active practice at the bar of this state” remained unchanged, while the duties of the office grew substantially.4 In 1969, recognizing the heightened importance of the office, the General Assembly introduced House Joint Resolution No. 95, which amended the state constitution to add the Attorney General as a constitutional officer.
And what of that pesky Constitutional Amendment with its sparse language? Well, I cautioned people way back when that the Amendment merely spoke to the age at which a person could hold statewide office and did nothing to change the requirement that someone who was AG had to be a lawyer. I made the point that had the General Assembly wished to remove the requirement that the AG be a lawyer, it could very easily have done so:
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