Archive for June 7, 2010
Racial ridicule in Connecticut
Jun 7th
is apparently a crime. C.G.S 53-37 provides:
Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.
Volokh notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but still troubling considering the First Amendment implications:
This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 convictions since 1995. Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race– or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.
UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action — Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.
Yes. So would I. I’d also add that the statute was enacted in 1949 and hasn’t been amended since. A quick Lexis search reveals only one hit for that statute, and that too in a footnote:
As noted, Section 53a-183 is directly relevant to the issue in this case and provides, in and of itself, a basis for determining that a clear, well-defined and dominant public policy exists prohibiting the kind of conduct which is at issue here. It is worth remembering that there are other state statutes which recognize the particular harm that racially motivated criminal conduct inflicts on society. These statutes include Section 46a-58, which criminalizes cross burning under specified circumstances; 53-37, which criminalizes holding persons up to ridicule on account of race, creed or color; 53-37a, which prohibits the wearing of a mask or hood under certain circumstances; 53a-40a, persistent offenders; and 53-181b, intimidation based on bigotry or bias. Related federal statutes exist as well.
State v. Local 387 of Council 4 AFSCME, 1999 Conn. Super. LEXIS 437 (1999) (which is an interesting case that involves the appeal of a decision to reinstate a corrections employee who was terminated after he called a state Senator and left a message calling him an n-word, after the Senator allegedly referred to corrections employees as criminals).
Anyone? Bueller?
The blind leading the blind?
Jun 7th
We are counselors, which is a term that is broader than attorney or lawyer. Counseling implies so much more than merely representing someone in court in a criminal or civil matter. It is our job to counsel, to advise. We are not cheerleaders and we are not enablers. I often tell clients that they may not like what they hear from me, but that I will not lie to them or blow smoke up their ass, because it is my responsibility to give them all the information so that they make the best decision for them.
Flowing from that duty – and particularly important in criminal cases – is the ability to accurately assess the strengths and weaknesses of the State’s case against the client and analyzing the risks and benefits of going to trial. Everything we do leads up to that. Some others have written (Bennett I can remember for sure, but I can’t find the post) that their focus from the first court date is preparing for trial. It is through that preparation for an eventual trial that we as counselors can fully understand the intricacies of the matter. Investigate fully and discover that there exist no defenses? Your advice to the client reflects that. Realize that their witnesses are shaky and the evidence questionable but the offer is good enough to hedge against any “wild card” eventuality? The advice varies accordingly.
But a new paper [pdf] suggests that perhaps we’re all a little full of ourselves and overestimate the strength of our case.
Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.
There’s no need for me to get into the paper in detail. You can read it for yourself; it isn’t very long. Striking is the fact that there wasn’t much of a difference between civil lawyers and criminal lawyers. Also notable is that attorneys were overconfident regardless of their experience. This sample tended to overestimate their chances of success at the same rate.
There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.
The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.
It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.
When relaying an offer, or advising a client to reject one, I ask myself: “would I do what I am recommending the client do?” Because if I can’t follow my own advice, I have no business suggesting it to someone else.
Of course, the client is free to do as he pleases. It’s his liberty on the line, after all.
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