Monthly Archives: October 2010

If you didn’t resist, you must have wanted it

The meaning and parameters of consent in sexual assault has evolved over the yeas, from the common law requirement of resistance “to the utmost” to prove lack of consent, to a shift in focus to the individual will of the victim. Consent, as a legal concept, is not limited to sexual assault law. It rears its ugly head in another critically important area: Fourth Amendment jurisprudence.

While consent in rape law has evolved to adopt a more subjective view, consent in 4th amendment law has devolved, going backward to a more objective view. A new paper (pdf) (SSRN) examines this phenomenon and argues that courts should look to sexual assault consent in determining whether an individual “consented” in the 4th amendment context:

As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched.

It is a fascinating subject and something that I hadn’t given much thought to prior to reading this paper. Consider that in almost all 4th amendment cases, whether a defendant consented is usually decided in light of the force used by the police in conducting the search: if a squad of police cars surrounds the defendant, with guns drawn and then asks him for “consent”, a court is more likely to conclude that a reasonable person did not feel free to decline consent. Whereas if it is a single officer, who pulls over a car and then orders the defendant out and then asks for “consent”, a court is more likely to conclude that a reasonable person would have felt free to decline the search. 4th Amendment law turns a blind eye to the reality that is acknowledged in the sex assault area that the will to refuse is often overborne by a subtle show of force or authority.

Thursday Tourette’s

I was initially going to go with “Thursday is ‘I give you links so I don’t have to blog’ day”, but that was too long.

So here are some interesting stories that you might have missed or will miss or have already showed up in your feedreader:

And that’s it. Now get back to work.

G-hic G-hic G-hic G-uilty?

[I don’t want to hear anything about the title of this post. Deal with it.]

Remember hiccup girl? Even if you don’t, you can guess that she’s a girl who hiccups. She made national news two years ago as the girl who couldn’t stop hiccuping (video at the end of the post). She’s now in the news again, being charged with the murder of Shannon Griffin, a 22 year old male she met a week ago. According to police:

Griffin met [hiccup girl] Mee online just a week before his death, police said. They arranged to meet Saturday night at 511 Seventh St. N.

It was a trap. The three plotted to lure Griffin to the empty home and rob him, police said.

Griffin pulled up about 10 p.m. Mee led him to the back, where police said Newton and Raiford tried to rob him.

Mee kept on walking, but seconds later gunshots rang out. Griffin struggled with the men, police said, and was shot three times in the chest and once in the shoulder with a .38-caliber revolver.

No one reported the gunshots. Police found Griffin when a caller reported a sleeping transient about 11 p.m. Saturday.

Police found the gun and shoes left behind by a suspect.

Griffin had less than $60 on him when he was killed.

All three have been charged with first degree murder. Sentencing maven and lawprof Doug Berman exhorts:

I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens reaconcerning causing another’s death and may not be an effective was to deter underlying felonies).  But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains.

As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder.  I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge.  I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges.  But would this be truly a just outcome?  Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out br be facing first-degree murder for which the only available punishments are death and life without parole?

What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things:

Politicizing judicial elections (updated)

[Update: apropos of this post, I just stumbled across this Slate piece, chronicling the horrific partisan commercials in judicial election campaigns this year. A terrific, must-read entry. H/T. Radley Balko (will this get me a link now?)]

It’s election season, which means we’re all subjected to those horrible bipartisan attack ads, each side proclaiming that the other is a vicious child molester who eats babies for dinner while swimming on corporate money, stolen from the pockets of hard-working, salt of the Earth middle Americans.

That’s de rigueur and to some extent, we’re all immune to it. But what happens when that same poisonous tact starts to infiltrate the re-election of a Supreme Court justice? That’s exactly what’s occurring currently in Illinois, where the retention campaign of Supreme Court justice Thomas Kilbride has been met with some vicious attacks ads on the radio, leading him to fundraise millions of dollars to mount his own campaign. Oh, and he’s running unopposed. There. Is. No. Other. Candidate.

While listening to this story on NPR this morning, I was a little befuddled by this fact. The reporting did not explain it at all and only when I came across this website, did it become clear: in order to retain his seat on the Supreme Court, Kilbride must get 60% of the vote. The pro-business Illinois Civil Justice League is trying to ensure that he doesn’t.

Ed Murnane leads the pro-business Illinois Civil Justice League, Kilbride’s leading critic. Murnane rallied the business community after Kilbride voted this year against limits on medical malpractice claims.

“It became obvious that Thomas Kilbride not only had the worst record on civil issues,” Murnane said, “he also had a terrible record on criminal issues, and we thought the voters of Illinois who are being asked to send him back to the Supreme Court for 10 more years needed to know about his record.”

Those radio ads? Incendiary fear-mongering of the worst kind: the misleading kind

Does Martha Dean have a point?

If I’d never heard the words “attorney general” and “lawsuit” and “active practice” in the same sentence again, ever, I’d have been a happy man. Today, I am sad.

As Rick Green reports, professional whackjob Attorney General candidate Martha Dean tweeted today that she’s filed suit seeking a declaratory judgment that her opponent, George Jepsen, doesn’t qualify to be AG of CT. Yeah, this shit again:

Just filed court challenge to Jepsen’s qualifications under Supreme Court standard: trying cases & 10 yrs of active litigation experience.

It seems, though, that her suit is sparked in part by the Court’s decision in the Bysiewicz case from earlier this year. As you will remember, the supreme court issued its ruling from the bench, holding that Bysiewicz was not qualified to be AG of the state. Last week, they issued the actual decision. Here’s the crux of that decision:

We next address the intervening defendant’s claim that the trial court improperly determined that the plaintiff’s performance of her duties as the secretary  of the state constituted the active practice of law under § 3- 124. Specifically, the intervening defendant claims that, to be eligible to serve as the attorney  general under  § 3-124, a candidate must have ten years experience in litigating cases in court. The intervening defendant further claims that, even if  litigation experience is not required, the plaintiff did not have ‘‘ten years’ active practice at the bar of this state’’ because she has not, on behalf of clients  and as her primary means of livelihood, engaged in conduct that required a high degree of legal skill for ten years. We agree with both claims.

There’s further clarification on that, and that’s where the problem lies:

We conclude, therefore, that, as used in § 3-124, the phrase ‘‘attorney at law of at least ten years’ active practice at the bar of this state’’ means an attorney with at least some experience litigating cases in court.  Although the presumption of eligibility might require this court to conclude that an attorney who has  not practiced exclusively or even primarily as a litigator for at least ten years is qualified to hold the office of attorney general under § 3-124, the presumption does not authorize us to ignore the clear intent of the legislature that the attorney general must have some measure of experience in trying cases. Because it is undisputed that the plaintiff has no experience representing persons in court, we must conclude that she does not meet the eligibility  requirements of § 3-124.

Do you have your brain turned on tonight? Good. Then you’ve already seen the problem here. The court has established, in essence, a case-by-case standard. They have taken it upon themselves to add an element of minimum practice to the statute, without defining what that minimum is.

Because restrict does not mean disseminate

Everyone knows that a sex offender registry exists. Almost everyone knows where to find it online. People use it routinely, even if just for fun. You log on and you search for your town and you see all the creepy people living around you. You may know some of them.

And almost everyone knows that there’s a second “secret” registry. A registry of a much smaller number of individuals, who are permitted to have their names removed from the aforementioned “public” registry (I put public in quotes because all conviction information, whether on the regular list or on the secret list, is still public and you can walk to your local courthouse or police department and get that information) for a variety of reasons – primarily to protect the identity of the victim. There are about 40 people on this “secret” registry. There are thousands on the “public” one.

In an important decision today, the CT Supreme Court reaffirmed that the “secret” registry must remain secret. In Dep’t of Public Safety v. FOI Commission (concurrence), a unanimous court held that “duh! do not disseminate means do not disseminate!” Of course, this all started not because Nosy Neighbor sought this information, but because a reporter did*.

A reporter for the Manchester Journal Inquirer wrote to the department of public safety and asked not for the name and address of the defendant, but basically everything else: the court of conviction, the name of the judge, the name of the prosecutor and the defense attorney. The department refused, the FOI commission ordered the department to turn it over and a trial court supported the commission’s ruling. Until the Supreme Court ruled. The question, boringly enough, turns on the meaning of the phrase “registration information”. Does that mean only the name and address of the registrant, as the newspaper argued, or everything that the department of public safety is required to catalog and maintain, as they argued?

There is no language in Megan’s Law that restricts the meaning of ‘‘registration information’’ to only some of the information in the registry.

The opinion makes the compelling point that for the “public” registry, all “registration information” is available to the public. One cannot then turn around and say that the same word, when applied to the “secret” registry means something different:

General Statutes § 54-258 (a) (1) provides in relevant part that ‘‘the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. . . .’’ There is no limiting language suggesting that only some of the information in the  registry shall be accessible to the public. Correspondingly, General Statutes § 54-258 (a) (4) provides that, ‘‘[n]otwithstanding the provisions of subdivisions  (1) and (2) of this subsection, registration information the dissemination of which has been restricted by court order pursuant to section 54- 255 and which  is not otherwise subject to disclosure, shall not be a public record . . . .’’

Because the boldface title of § 54-258 refers to the ‘‘[a]vailability of registration information,’’ we must assume that all of its subsections and subdivisions refer to the same information. Thus, we must conclude that, just as the statute provides that all of the information in the registry is accessible to the public with respect to the overwhelming majority of offenders, none of the information in the registry is accessible to the public in the very few cases in which the court determines that the information should be restricted pursuant to § 54-258  (a) (4).

Judiciary Committee co-chair Mike Lawlor, whose remark (no, that’s not a typo) during the debate on the bill is heavily relied upon by the newspaper in support of its argument, is quoted in this Courant report:

State Rep. Michal Lawlor, co-chairman of the judiciary committee and one of the architects of the online registry, said the restricted list is intended to protect victims from further trauma.

He recalled a case in which a child, under the age of 6, was molested by her father. The man went to prison; the child grew up. When the man got out, he rejoined the family and was receiving counseling. In 1998, when the Internet sex-offender registry was created, the man’s name was posted. The daughter was in high school. She was shunned from events for fear that the father would show up. His name was eventually removed from the public list.

Lawlor noted that conviction information remains available through other channels, “but our concern was to keep it off the Internet registry, where it is obviously more visible.”

(*By the way, given the amount of grief I give newspaper reports and their coverage of legal issues, it is only fair to point out that this Courant piece by Josh Kovner is concise, precise and accurate. Well done, Josh!)

It seems that the Court got the legislature’s intent right. And so the “secret” registry lives on, protecting the identities of 40 victims and allowing them and their families a fair chance at reintegrating into society and living productive lives. Now if we could only do something about those thousands others whose names and pictures are readily available at the click of a button.

Thank goodness she was awake

So, I was watching legal show the other day and in it, a defendant was charged with breaking into the home of a woman and violently assaulting her. An anonymous caller informed police that this was occurring, but when the police arrived, he hid with her in the bathroom and kept her silent. When the police left, he resumed his beating until she somehow managed to call relatives who called 911.

The man was on trial – a jury was summarily selected in an afternoon and opening statements were delivered the next day. During the defense attorney’s opening statement – as these things go – a juror unexpectedly blurted out that she couldn’t sit on this case because – wait for it –  she was the anonymous caller!

Dun dun dun.

Oh wait, this wasn’t a TV show, this actually happened. In real life.

“She said, ‘I was the (anonymous) person who made the 911 call,'” the assistant prosecutor said.

“She said, ‘It woke me up out of my bed and I saw him beating on her. I thought she must be dead.'”

Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, [Judge] Ruehlman declared a mistrial.

The new trial begins Wednesday – and [juror-turned-witness] Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.

The article tries to explain away this amazing turn of events by stating that during jury selection, prospective jurors aren’t given the detailed facts of the case. That may be true, but in every damn case I’ve ever tried (and by now that number is well over a thousand), the judge not only reads the charging document which lists the date, time and location of the offense, but every single juror is asked whether they have any familiarity with the location or the people involved. Another question that’s typically asked is whether the prospective juror knows anyone who’s been a victim of a crime. If nothing else, that question should have triggered her memory.

So what happened here? Did they forget to ask? Did they ask and she wasn’t paying attention? Or did they ask and she lied? Or was it a case of group voir dire not providing an adequate opportunity to properly examine potential jurors? (Yeah, you knew I was going there.)

Whatever the cause, the lesson is clear: people are mercurial and what may seem to be a straightforward question to you and me, may be vague and obscure to another. One can’t rely on a script to weed out the undesirable jurors. You have to assess the juror, analyze him or her and then tailor your questions to fit that juror’s personality.

Of course, it would be a lot easier if you had 20 minutes one-on-one with the juror…