33 years in jail is a technicality

People always complain that “criminals” “get off” because of “technicalities”. It’s a great jab and like the best of them, it’s short, it’s catchy and it’s completely ass-backwards.

So in order to counter this, a cottage industry of sorts has sprung up, utilizing the phrase “The Constitution is Not a Technicality”. You can buy stickers and t-shirts and notepads and whatnot.

Because it really isn’t a technicality. What people mean when they say “he got off on a technicality” is that there was a rule of law that mandated a reversal. It means that there was an error made that undermined the fairness of the trial. It means that the Government did something it wasn’t supposed to and was punished for it.

Because if you really want to talk technicalities, you’d have to look in the opposite direction. Technicalities are what the Judicial Branch relies on to ignore constitutional violations. Technicalities are the tools of unjust verdicts and ways to keep Very Bad People in jail. Technicalities are what get people in jail, rather than out.

Just ask Jerry Hartfield. Hartfield was convicted in the late 1970s for a murder. Sometime in 1983, Texas’ highest court reversed that conviction and ordered a new trial. When that happens, a man is returned to pre-trial status. Like he’s innocent. Except that sometime in 1983, after he was no longer convicted of anything, the Governor of Texas reduced his “sentence” to life rather than death. A sentence that didn’t exist, you remember.

So, there he sat, Jerry Hartfield, for 33 long years, without a conviction or a trial or a charge or a sentence, until someone, somewhere realized the error [PDF opinion]. The technicality that caused him to spent 3 decades in jail.

Just ask Taylor and Gould (well, one of them is now dead, so ask the other), whose convictions were finally reversed by a trial court because they were actually innocent, only for that to be turned right back around by the Supreme Court, because it is not enough to prove that you are innocent, but you must also prove who did it. This is not a joke. That legal standard could be called a technicality. Technically you are innocent, but you haven’t met our impossibly high standard. So sit in jail and die in jail.

As any criminal defense lawyer here in CT or any appellate lawyer or anyone who does federal habeas practice.

Courts here at least have increasingly taken the tact of refusing to remedy Constitutional violations because a magic script wasn’t uttered.

You’re on trial for your life. The judge instructs the jury completely incorrectly on the law. You get convicted. On appeal, the courts says “yes, that was a terrible instruction. Yes that probably led the jury to convict you. But you know what? You’re fucked. We aren’t going to review this claim and we aren’t going to correct this Constitutional violation because your lawyer didn’t exactly object to this instruction being given in the manner that it was given.” This is not a joke.

Constitutional violations in Connecticut are falling by the wayside, unreviewed, ignored and forgotten because the Courts have created an impossible standard for defense attorneys. If we don’t object, in the heat of the battle, to the exact wording of the language that the jury is instructed on, or if we don’t object in the correct way, then the Court elevates form over substances and ignores the claims.

That’s a technicality.

In a recent, similarly mind-boggling opinion, the Connecticut Supreme Court once again refused to decide a claim of a Constitutional violation because the defense attorney didn’t object in the specific manner raised on appeal. In State v. Jorge P. [PDF], the issue was the testimony of an expert witness who would testify as to the injuries suffered by the complainant. Before that testimony, the defense attorney asked for a ruling precluding the witness from opining on the truthfulness of the allegations. The judge delayed that ruling until the witness actually testified. The defense attorney then renewed that objection later on. The prosecutor assured the court that the witness would do no such thing.

Of course, the witness did exactly that, stating in his medical opinion that the victim was indeed, abused.

Do you think that claim should be reviewed on appeal? That a court should decide whether that testimony was properly admitted?

You would think. The Connecticut Supreme Court didn’t think so. There used to be a rule of law, that once you objected to something, you didn’t have to keep objecting over and over. You “took an exception” and that was that for appeal purposes. Now, apparently, in their bid to made it monumentally difficult for any citizen of this state to obtain fair review of Constitutional violations, the Court has resorted to nitpicking on the most menial and mean kind.

It’s a technicality. Because a Constitutional violation is a Constitutional violation regardless of whether it’s been “preserved” in the right way or not.

But when you turn the criminal justice system into a game of “gotcha”, and you have the power to keep changing the rules at will, well, then, is it no surprise that we always lose?