While doing an updated analysis of this post, I came across this “concurrence” [PDF] by the Chief Justice of the CT Supreme Court that perfectly encapsulates everything that is wrong with our “justice” system. Here it is, in its entirety:
ROGERS, C. J., concurring. I agree with the majority’s conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court’s decision in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.
Those 6 lines make me want to throw up.
The defendant claims that the jury was not told that the State had to prove an essential element of a crime. Imagine, for example, the scenario that in order to find a person guilty of stabbing someone else, the judge doesn’t tell the jury that they have to find that the victim actually got stabbed. That’s an “essential element of the crime”.
That’s what the defendant is arguing the jury wasn’t told about. But no. We (the Appellate Courts) don’t care, because we elevate form over substance. We are a bureaucracy first and a judiciary second.
Kitchens is a case that says if a defense lawyer doesn’t specifically request X or Y – even if the absence of X or Y would be a gross Constitutional violation – we don’t care and the person can rot in jail. Too bad.
The second part of that paragraph is even worse.
Courts are – we would hope – entrusted with the administration of justice. They are – or should be – charged with, in the end, doing what is right and what is just and fair. They should be zealously and jealously guarding our rights and our protections, not running roughshod over them in an attempt to adhere religiously to some overwrought ideal of being an umpire first and an inspiring jurist never.
Plain error. Error that is plain to see. Error that is apparent to everyone. A mistake that has so infected the trial that it cannot have been fair.
Except now it is not available unless you “request” it. The defense attorney has to fill out a form in triplicate, signed by your mother, asking permission, pretty please, could you acknowledge the existence of the manifest error that you clearly know is there but pretend not to. And then, maybe then, we will deem it worthy of our review. Until that time, we are quite okay with a conviction obtained by a trial infected with Constitutional error.
This is what “justice” has come to.
The error of their ways should be plain for everyone to see.