Category Archives: aro

It’s criminal!: An (updated) analysis of CT Supreme Ct opinions

not an actual judge

not an actual judge1

The last time I did this superficial analysis2 was three years ago. Let’s see what the Court has been up to since then, shall we?

First, some ground rules:

I may have missed one or two cases. Further, if you add up all the various numbers they might be off by one. It was difficult to figure out how to categorize partial “wins”. In a few cases I didn’t count them entirely, while in others I counted them. The percentages, however, should be unaffected by this. I’ve also ignored one which was deemed “moot”, so while I counted that in the stats for certification granted, I haven’t counted it in the verdict column. I also ignored the capital cases.

Further, I’ve compiled the number of times a Justice wrote a majority opinion or a dissenting opinion. I have not included, in each justice’s tally, every time they signed on to a majority, but I have counted each time they signed onto a dissent.

So, the stats from April 2010 till today:

In that time period, the Supreme Court decided approximately 137 cases dealing with criminal law.

Of those 137 cases, 81 were direct appeals to the Supreme Court. This is either a direct appeal by statute (few) or a transfer to the Supreme Court before the Appellate Court got to decide it (many, many more than in years past).

Of those 81 direct appeals, 68 were affirmances of convictions. That’s a remarkable 84% success rate for the Government’s position.

Of the 56 cases that went through the Appellate Court, the State was given permission to appeal in 24 cases, the defendant in 32 (this is a change from three years ago, when the State was given permission to appeal in more cases than the defendant. Does this mean that the State had less occasion to appeal? I don’t know).

Of all the cases that came from the Appellate Court, the breakdown is as follows:

  • When the State appealed a reversal of a conviction (25 times in all), the Appellate Court was affirmed 8 times, meaning the State was the loser in only 32% of the cases it chose to appeal.
  • When the defendant appealed an affirmance of a conviction (which he did 32 times), the Appellate Court was affirmed 25 times, meaning the defendant was the loser in 78% of the cases he chose to appeal.
  • When the defendant appealed an affirmance of a conviction (32), the Appellate Court was reversed a paltry 6 times, meaning the defendant “won” in only 22% of the cases he chose to appeal, and the big kahuna:
  • When the State appealed a reversal of a conviction, the Appellate Court was reversed 16 times.

So, in 24 cases where there was an appeal from the Appellate Court’s reversal of a conviction, the State won 16 times, which is 66%.

The Appellate Court was reversed by the Supreme Court in 22 cases out of 56, which is a 40% failure rate, down slightly from the 50% failure rate in 2010.

But there were far more affirmances of convictions being appealed by defendants than 3 years so, so that might account for the drop in percentages.

Of the reversals, the defendant “lost” 72.2% of the time. A conviction upheld by the Appellate Court was upheld by the Supreme Court 76% of the time.

A defendant was successful in the Supreme Court in only 14 out of 56 cases, which is a paltry 25% success rate. [Keep in mind that I have included partial wins as wins.]

Overall, out of the 137 criminal-ish cases considered by the Supreme Court, the defendant was ultimately successful in getting either an acquittal or new trial in 27 cases, which is a 19% rate of success. By contrast, the State “won” in 81% of all cases considered by the Supreme Court.

So, in the end, the overall “win” and “loss” numbers are pretty identical to those three years ago. What that means is that appeals are rarely successful.

Here are the stats on which justice wrote a majority or dissenting opinion, and how many times:

Justices Writing to Affirm Conviction:

Norcott: 20
Palmer: 14
Zarella: 13
Rogers: 13
Eveleigh: 10
Harper: 10
McLachlan: 8
Vertefeuille: 7
Katz: 6
McDonald: 2
Espinosa: 2

Justices Writing to Reverse Conviction:

Palmer: 6
Eveleigh: 5
Rogers: 4
Norcott: 3
Harper: 3
McLachlan: 2
Vertefeuille: 1
Katz: 2

Dissents to affirming conviction:

Palmer: 8
Eveleigh: 4
Katz: 2
Vertefeuille: 1
Harper: 1

Dissents to reversing conviction:

Zarella: 6
Palmer: 5
Rogers: 3
Eveleigh: 3
Vertefeuille: 3
Norcott: 2
McLachlan: 1
Harper: 1

Footnotes:

Narcotics field tests subject to Daubert and other tales of scientific evidence

In an opinion released two days ago in State v. Anthony Martinez [PDF], the CT Appellate Court held – in what was apparently an issue of first impression – that those narcotics field tests that officers do to determine whether the “powdery white substance” was indeed cocaine and not talcum powder are subject to the standards “enumerated” in Daubert v. Merrell Dow Pharmaceuticals. In CT, that standard was adopted in State v. Porter and challenges under Daubert are called “Porter challenges” or “Porter hearings”.

Prior to Daubert, the generally accepted standard was the “Frye” standard and it was that the examination or procedure had to be generally accepted in the scientific community. Daubert then altered that standard – and lowered it – to whether the scientific evidence would assist the trier of fact and whether it was scientifically “valid” as opposed to generally accepted by that scientific community.

The irony is that in CT, the defendant wanted the Court to adopt the lower Daubert standard in Porter so as to let in polygraph evidence. The defendant won on Daubert, but lost on polygraph, thus not completely fucking every criminal defendant over for eternity, but only slightly.

What the Supreme Court didn’t do in either Daubert or Porter is define just what the hell “scientific evidence” is, thus opening a gaping door for all sorts of pseudo-scientific testimony (more on that in a bit).

But clearly, dipping a stick into some chemical and then applying a drop of that chemical to a “powdery white substance” to determine if that substance changes color, thus revealing the presence of a narcotic, seems “scientific” enough.

But just because it’s scientific, doesn’t mean a court has to conduct a hearing to determine if it’s valid. Some scientific evidence is so scientifically accepted that it’s a foregone conclusion:

In one line of cases, ‘‘we have concluded that certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary  . . . .’’ Id., 170; see State v. Porter, supra, 241 Conn. 85  n.30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d  1171 (1996) (ordinary fingerprint identification evidence); see also Hayes v. Decker, 263 Conn. 677,687–89,  822 A.2d 228 (2003) (effects of discontinuation of blood pressure medication); State v. Kirsch, 263 Conn. 390, 405, 820 A.2d 236 (2003) (reliability of alcohol blood testing done at hospital well established); State v. Legnani, supra, 109 Conn. App. 418–21 (matching of fired cartridges to magazines on basis of magazine marks).

This, the Appellate Court notes, is not one of them. While the argument the state makes, that these tests have been admitted into evidence in CT Courts for a very long time, is appealing as to their validity, that doesn’t close the inquiry, nor should it. Just because something has been admitted forever doesn’t make it scientifically valid. It just means we defense lawyers have been terrible about objecting to it.

In this case, there was no evidence presented – and indeed the trial court did not allow it – of the scientific method used in these field tests, nor their acceptance in the community or their validity. So the Appellate Court did hold that there was error in this case. But don’t be fooled. It wasn’t that bad. The guy was still guilty as sin, so we don’t care that there was a mistake in his trial. It was found to be harmless error.

In the second line of cases ‘‘we have concluded that  certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not ‘scientific’ for the purposes of our admissibility standard for scientific evidence, either before or after Porter.’’ Maher v. Quest  Diagnostics, Inc., supra, 170 n.22; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000) (testimony of criminologist regarding visible characteristics of and  similarities between strands of hair not ‘‘scientific evidence’’ for Porter purposes); State v. Hasan, supra, 205  Conn. 490 (testimony of podiatrist as to likelihood that certain pair of sneakers would fit on defendant’s feet was not ‘‘scientific’’ evidence under Frye).

When evidence is “not scientific” it doesn’t mean that an expert is not permitted to testify about their “expert conclusions”; but just the opposite: that the expert opinion is not subject to a gatekeeping function by the court to determine if that “expert” is an expert or an “expert”.

The big unmentioned area where the State has driven a truck through this hole is the testimony of “child sexual abuse experts” whose job it is to take the facts of a case and opine, based on their training and experience that such behavior is consistent with being sexually abused.

If a complainant does poorly in school, that’s consistent. If a complainant does well in school, that’s consistent. If a complainant discloses abuse immediately after it happens, that’s consistent. If a complainant discloses 5 years later, that’s consistent. If a complainant is left-handed, that’s consistent. If a complainant is right-handed, that’s consistent. You get the picture. And this is permitted, routinely, without limit or caution, because it’s not “scientific” evidence:

We first consider whether the trial court abused its discretion in declining to subject Lanning’s testimony to a Porter hearing. On appeal, the defendant concedes that Lanning’s testimony was not “scientific” but argues that the testimony nevertheless required the trial court to conduct a Porter hearing because it was “other specialized knowledge” within the meaning of § 7-2 of the Connecticut Code of Evidence. The state argues that no Porter hearing was required because Lanning’s testimony was not based on any scientific theory but, rather, on his training and experience in the field of child victimization. We agree with the state that, because Lanning’s testimony was not based on scientific knowledge, the trial court properly determined that a threshold admissibility hearing under Porter was not necessary.

State v. Sorabella. So these “experts” show up in court, talk about the 2000 children they’ve interviewed and in their (anecdotal) experience, what the characteristics are of those that have been abused, which incidentally happen to be every single child they’ve ever examined.

So, clearly, it’s not scientific. More like junk, but whatever.

But that’s not the end of the road. There’s this decision called Kumho Tire Ltd. v. Carmichael, which essentially applies Daubert to “non-scientific” evidence.

In Kumho Tire Co., Ltd., the United States Supreme Court held that a trial court’s gatekeeping function under Daubert applies not only to expert scientific testimony but also to expert testimony based on technical or other specialized knowledge. Id., at 149, 119 S.Ct. 1167. We decline to consider the defendant’s claim, however, because the defendant failed to raise it in the trial court.

That’s from Sorabella again, a shining example of what the CT Supreme Court does best. Surprisingly, in the 7 years since Sorabella has been decided, not one single appeal has challenged the admissibility of this type of “expert” testimony under Kumho Tire.

That should be next.

 

 

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.

Objects in mirror are as pretextual as they appear

turn left and go directly to jail

Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”

Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”

A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.

Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:

The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted  to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated,  and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected  that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis  for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging  object.

Legal fictions: a one-way street

The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.

Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to  breathalyzer until his spoke to his lawyer? Consciousness of guilt.

As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.

Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.

So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.

So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:

One man’s regret is another man’s disparity

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

It’s criminal!: an analysis of CT Supreme Ct opinions

Two long years ago, on a bored Saturday afternoon, spurred by my (now AWOL) muse Miranda, I wrote this post which superficially analyzed Connecticut Supreme Court decisions. The analysis was pretty limited: how many times did the State win and how many times did the defendant win.

Well. I’ve done it again. Here is my updated count, from February 2008 to today.

In that time period, the Supreme Court decided approximately 110 cases dealing with criminal law (I’ve left out the habeas corpus cases because…well, this was fucking depressing enough. If I include habeas cases, the numbers are sure to get worse for defendants).

Of those 110 cases, an astounding 64 were direct appeals to the Supreme Court. This is either a direct appeal by statute (few) or a transfer to the Supreme Court before the Appellate Court got to decide it (many, many more than in years past).

Of those 64 direct appeals, 52 were affirmances of convictions.

Of the 46 cases that went through the Appellate Court, the State was granted cert in 28 cases, the defendant in 18 (the numbers may be off by one or two, because there were a couple of “cross-appeals”. I don’t remember how I counted them).

Of all the cases that came from the Appellate Court, the breakdown is as follows:

  • When the State appealed a reversal of a conviction, the Appellate Court was affirmed 8 times.
  • When the defendant appealed an affirmance of a conviction, the Appellate Court was affirmed 14 times.
  • When the defendant appealed an affirmance of a conviction, the Appellate Court was reversed only twice (!).

and the big kahuna:

  • When the State appealed a reversal of a conviction, the Appellate Court was reversed 21 times.

So, in 29 cases where the State appealed from the Appellate Court’s reversal of a conviction, they won 21 times, which is 75%.

The Appellate Court was reversed by the Supreme Court in 23 cases out of 46, which is a 50% failure rate.

Of the reversals, the defendant “lost” 91.3% of the time.

A conviction upheld by the Appellate Court was upheld by the Supreme Court 87.5% of the time.

A defendant was successful in the Supreme Court in only 10 out of 46 cases, which is a paltry 21% success rate.

[Keep in mind that I have included partial wins as wins.]

Overall, out of the 110 criminal-ish cases considered by the Supreme Court, the defendant was ultimately successful in getting either an acquittal or new trial in 22 cases, which is a 20% rate of success. By contrast, the State “won” in 80% of all cases considered by the Supreme Court.

Also keep in mind that over the course of the last two plus years, the Supreme Court has issued some very, very bad decisions and one or two good decisions, which they promptly started to roll back.

Liberal, defendant-loving judges indeed. Welcome to Connecticut, the Texas of the Northeast.

http://apublicdefender.com/2008/02/02/superficial-analysis-of-ct-supreme-court-decisions/