Wishful Wednesday

In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

Sec. 4. (NEW) (Effective October 1, 2010) The Chief Public Defender, the Chief State’s Attorney and the Chief Court Administrator, or their designees, shall develop and implement a plan for the collection and maintenance of information on all homicide cases that could be charged and prosecuted as capital felonies, notwithstanding that any such homicide case is not charged, prosecuted or disposed of as a capital felony. Such information shall include, but not be limited to: (1) Information on the race, ethnicity, gender, religion, sexual orientation, age and socioeconomic status of the defendant or defendants and the victim or victims, (2) information on the geographic area where the offense occurred and where the offense was prosecuted, (3) the nature and circumstances of the offense, (4) the offense or offenses for which the defendant was charged, (5) the offense or offenses for which the defendant was prosecuted, (6) if the case was tried by a jury, the race, ethnicity and gender of the persons who served on the jury and the persons who were excused from serving on the jury, (7) the offense or offenses for which the defendant was convicted or acquitted, (8) the sentence sought by the prosecution, and (9) if the defendant was convicted, whether such conviction was the result of a trial or a plea, and the sentence imposed.

Sec. 5. (NEW) (Effective October 1, 2010) (a) No person shall be subject to a sentence of death or sentenced to death if such sentence was sought on the basis of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim.

(b) A defendant charged with the commission of a crime punishable by death may raise a claim that considerations of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim played a significant part in the decision to seek or impose a sentence of death in his or her case. The defendant shall raise such claim at the pretrial conference. The defendant shall state with particularity how the evidence supports such claim.

(c) The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties.

(d) At such hearing, the defendant has the burden of proving by clear and convincing evidence that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the death penalty. The state may offer evidence in rebuttal of the claims or evidence of the defendant.

(e) Evidence relevant to establish a finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may include statistical evidence or other evidence, or both, that sentences of death were sought significantly more frequently: (1) Upon persons of one race, ethnicity, gender, religion or sexual orientation than upon persons of another race, ethnicity, gender, religion or sexual orientation, or (2) as punishment for offenses punishable by death committed against persons of one race, ethnicity, gender, religion or sexual orientation than as punishment for offenses punishable by death committed against persons of another race, ethnicity, gender, religion or sexual orientation.

(f) A finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may be established if the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was a significant factor in decisions to seek the sentence of death in other cases in this state at the time the sentence of death was sought.

(g) If the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the sentence of death, the court shall order that a sentence of death shall not be sought.

McCleskey? What McCleskey? You thought I was done? How wrong you are. The bill further calls for the creation of a committee to which the state must make a request to seek the death penalty in a particular case, just like with the Federal system, grandly titled The Death Penalty Authorization Committee. The attorney for the defendant will have an opportunity to convince the Committee why the death penalty should not be sought in a particular case.

Sadly, these proposals weren’t pulled out of someone’s ass. They are, in fact, the very recommendations of the Connecticut Commission on the Death Penalty, submitted to the legislature a long 7 years ago. [The full report can be found here.]

Astute readers will have by now guessed that the chance any of these bills will become law is next to a negative billion. In fact, the death penalty bill may have the lowest chance of becoming law ever in the history of legislation in the entire world. But someone in the legislature is up to something and this will make the public hearing damn entertaining. Pity I won’t be able to attend, but if you are, use your mobile phones and leave comments tomorrow.