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.

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.

It’s important to be clear, though: the court’s holding is that it is not a violation of the statute to merely hang an object from the rear-view mirror, or from any place on a windshield. What is illegal is to be distracted by that object, and it doesn’t matter whether you were actually distracted, but that you could be distracted. In the instant case, there was no evidence as to any of the latter and so the dismissal was the right decision.

In doing so, the court rejected the dangerous rationale put forth by the State and the dissent, that the mere possibility that an object could distract itself serves as reasonable and articulable suspicion to pull someone over for a motor vehicle infraction. In essence the dissent, penned by now-retired Justice Vertefeuille (who also penned the shockingly bold State v. Snelgrove which abandoned all pretense that propensity evidence is allowed in sex assault cases), essentially seeks to do the same here, by jurisprudentially permitting pretextual stops (despite footnote 10 which claims to the contrary). Take a look at this language:

As a result, I would conclude that it was reasonable for Mattioli to suspect that the chain could swing into the defendant’s view, thereby causing an  obstruction to the defendant’s view, or distracting the defendant’s attention with its movement. Accordingly, I would conclude that Mattioli had a reasonable and articulable suspicion that the defendant possibly was violating § 14-99f (c) at the time when the trooper stopped the defendant’s vehicle  and that Mattioli could justifiably execute a Terry stop to investigate whether the object did, in fact, interfere with the defendant’s unobstructed view or distract his attention.

Saying that the possibility that an object could distract is saying that an object could distract. Which is saying that it is illegal to have an object hanging from the rear-view mirror or the windshield, which would be exactly contrary to the statute in question.

Anything could give rise to the suspicion that an object might be obstructing or distracting a driver. A GPS device, a handicapped sticker, a parking lot pass, an EZ pass device, an emissions sticker. Do any of these reasonably obstruct a person’s ability to drive? Possibly. But to give carte blanche to the police to pull over any car that has such an object is to condone pretextual stops. And no matter how many times the dissent protests or tries to make it look like it wouldn’t be a pretextual stop, it really would be.

If the dissent had its way, everyone would be stopped. But then again, if you are white haven’t done anything wrong, you don’t have to worry about being hassled by cops, right?

It may be cynical of me to say this, but I believe a major factor in the majority deciding the case the way they did was the relatability of the facts in question: from what I’ve heard of oral argument in this case, several justices joked about the fact that they’ve got objects hanging from their mirrors. It was this familiarity with the realities of driving and normal behavior among a class they could identify with (drivers) that perhaps helped put things in perspective for them. Compare that with the decisions that impact “high crime neighborhoods” and the disjunction between the removed ivory-tower existence of jurists and the realities of every day life are clear. Perhaps this is why we should have justices interpreting our laws who not only are brilliant, but also attuned to the realities of day-to-day life of those who may not be as privileged and fortunate as them.

But I digress. Go forth and hang that awful air-freshener from your rear view mirror. Just don’t look like you’re distracted. Oh, and leave the pot at home.

Some more pics, for the heck of it:

EZ Pass image courtesy.

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:

The defendant stated that he would not do anything until he called an attorney and had an attorney present. [Police officer] Gamache offered the defendant an opportunity  to contact his attorney and permitted the defendant to speak with his father by telephone while his father located an attorney’s telephone  number. The defendant repeatedly stated that he would not do anything without an attorney present. Because the defendant was ultimately unable to  contact his attorney by calling his office at 1:48 a.m., Sergeant Scott Sleeman of the University of Connecticut police department and Gamache witnessed the  defendant’s refusal to blow into the Breathalyzer machine. This was recorded on a form A-44, which Sleeman signed as required by law.

The  defendant later stated that he would take the test, but Gamache did not administer it, stating that it was too late. The defendant also wanted his willingness to blow into the Breathalyzer machine documented before he was released at 2:44 a.m. The defendant’s request to take the Breathalyzer was within two  hours of when the defendant operated his vehicle, and the test would have been valid if Gamache had then given the defendant the test.

The court indicated to Seekins’ lawyer that it would instruct the jury that if it found that he refused the breathalyzer, they could draw whatever inference they wanted. His lawyer asked that the court then instruct them that they could also draw whatever inference they wanted from his willingness to take the breathalyzer. You already know which instruction was given and which wasn’t.

The defendant argues that the court’s failure to deliver the requested instruction deprived him of the opportunity to have the jury draw the inference that he knew he was innocent and was seeking to prove it by submitting to the test. This argument focuses on the issue of a defendant’s consciousness of  innocence in a jury charge regarding consciousness of guilt. Our Supreme Court has stated that a defendant must assert a recognized legal defense to be  entitled, as a matter of law, to a theory of defense instruction.

Accordingly, we conclude that the defendant was not entitled to the theory of defense instruction that he sought because he did not assert a recognized  legal defense at trial.

One side of the coin is tenuous conjecture a permissible inference, while the other (innocence) is not a recognized legal defense.

Bonus legal fiction: Of course, the court didn’t stop there. Not satisfied with so obviously tilting the balance in the State’s favor (yet another phrase!), the Court fell back on that venerable judicial invention, harmless error, which is just fancy talk for “yes, yes, we know you have rights and whatnot, but by Jove! you’re guilty as sin so we’ll be damned to hell before we let you go on a ‘technicality’ /sneer”:

In the present case, the court instructed the jury concerning inferences and circumstantial evidence as to a person’s state of mind. In doing so, as in Pinnock, the court told the jury it must consider all of the evidence. As in Pinnock, the instruction in the present case did not instruct the jury that it could not consider the defendant’s request to submit to the  test. Finally, the court’s instruction in this case did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.

…

We conclude with fair assurance that the failure to give the requested jury instruction did not substantially affect the verdict.

Well, how could it, when you’ve so conveniently lined up all the conviction ducks in a row (you may roll your eyes here). Look. I get it. Bad people get arrested. Convictions after arrest are a foregone conclusion. But is there need for such chicanery? Can’t we at least pretend to have a fair trial?

Click here for another legal fiction: the standard of proof

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.

The death penalty is but one type of sentence that is subject to this disparate effect. There is a strong argument to be made that all sentencings are inherently biased and that the data exists – if only one would look for it – that blacks and minorities are routinely sentenced more harshly than their white counterparts. Even controlling for variables like criminal history (which presents an interesting chicken-and-egg argument), there is ample anecdotal evidence to suggest that minorities are indeed treated more harshly than whites.

Yet, there is McCleskey. It is not the effect, but the purpose, we are told. So our conscience must be clear.

And so today, in a non-death penalty case, former Connecticut Supreme Court Justice David Borden, writing for an unanimous appellate court in Abdullah v. Commissioner, holds out his handcuffed hands and cites to McCleskey as often as is conscionable:

The short answer to this argument [that the Court should recognize McCleskey as an outlier and decline to apply it] is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard  to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237,  175 L. Ed. 2d 163 (2009).

But we must remember that there are always two Constitutions at play in criminal justice: the Federal and the State. Abdullah, for some reason, makes a complete muck out the State constitutional argument, failing to even raise it in his opening brief. Justice Borden, ever the brilliant jurist, seems somewhat disappointed with his inability to even attempt a bite at the apple:

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have  indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare  decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is  precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would  have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Maybe he’ll still get his chance with the death penalty racial disparity litigation that’s ongoing. State v. Geisler is a Connecticut Supreme Court case which lays out the rubric under which state constitutional claims are to be analyzed. Geisler, in the context of this post, also provides the perfect segue for a greater problem with cases like McCleskey and the 5-4 vote of most controversial decisions today. The majority opinion in Geisler was penned by Justice Berdon (not to be confused with Justice Borden), who is this blog’s favorite jurist ever in the history of the world.

And the problem is this: Justice Powell’s belated change of mind has left in place a terrible decision that continues, to this day, to block any and all attempts at legitimately explaining the injustices inflicted by the death penalty in its application. That the death penalty even exists in its current form in the United States can be traced back to one man. That the application of our laws and the erosion of our fundamental rights and protections and liberties are the product of the particular whims and fancies of one (or nine) individual is pretty potent food for thought.

In times such as these, I turn once again to Justice Berdon:

[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.

Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.

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.

This is a difficult case, not because of the applicable law, but because it involves allegations of sexual assault and abuse of J, a four year old child, allegedly perpetrated by the defendant, Juan V., her grandfather, the  thought of which would arouse the emotions of anyone. But we are a nation of laws, and a jury must decide the guilt or innocence of a defendant on the basis of legally admissible evidence. In such cases, it is the duty of this court to rule on claimed errors even when its decision would result in a new trial. In the present case, I believe that the trial court committed error, that the defendant’s conviction of sexual assault in the first degree and risk of injury to a child should be reversed and that a new trial should be ordered on both counts.

and:

I am bewildered by the majority’s footnote six. First, Berrien referred clearly to ‘‘the interview.’’ He did not state ‘‘in an interview.’’ I hope that we can all agree that J was interviewed only once at the advocacy center and that this interview was conducted by Agudelo. Second, it is clearly indicated to the reader that I added ‘‘with Agudelo’’ by placing that phrase in brackets. No matter how the phrase is read, Berrien was in essence writing that J’s statement in the interview was credible. By doing so, Berrien overstepped the limits imposed on expert testimony and invaded the factfinding province of the jury.

Goldmine.

First up, from the Supreme Court, State v. T.D.M.. This was a 5-2, after an en banc hearing. On appeal, the defendant claimed that he was not adequately canvassed during his waiver for counsel, the judge improperly charged the jury, he was deprived of due process when the police failed to take adequate steps to locate him and the prosecutor engaged in impropriety during trial.

The Court reversed the conviction on the first claim, addressed the next two (denying them) and did not address the fourth. The thrust of the inadequate canvass claim was that at no point was he told of the consequences of his conviction, i.e., the maximum penalty he could be subject to.

In the present case, as in Diaz, there is simply no evidence present in the record from which we could infer that the defendant had any meaningful appreciation of the period of incarceration he faced if convicted of the charges he faced. ‘‘In such circumstances, it cannot be said that the defendant ‘received a realistic picture from [the court] regarding the magnitude of his decision [to proceed to trial without counsel].’ United States v. Fore, 169 F.3d 104, 108 (2d Cir.), cert. denied, 527 U.S. 1028, 119 S. Ct. 2380, 144 L. Ed. 2d 783 (1999). In other words, the record does not establish that the defendant ‘knew what he [was] doing and [that] his choice [was] made with eyes open,’ as the constitution requires. . . . State v. Day, 233 Conn. 813, 828, 661 A.2d 539 (1995), quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).’’ State v. Diaz, supra, 274 Conn. 833–34.

There is a dissent.

Moving to the Appellate Court, another reversal in State v. Wade. The defendant was convicted of manslaughter in the first degree (evincing extreme indifference to life) for being unbelievably high and consuming some really, really dangerous drugs and providing them to the victim, who was also unbelievably high and consuming really, really dangerous drugs. (I mean, some of this stuff is NUTS.)

The court, however, found that the State could not prove that the actions of the defendant were knowingly reckless:

The state claims that it is common knowledge that prescription medication has inherent risks and that its administration, therefore, must be overseen by a physician. The state also argues that it is common knowledge that taking certain medications in combination is inherently dangerous. The state, therefore, concludes that a reasonable person would not give another person either a combination of medications or multiple dosages of them over a short period of time because doing so creates a substantial risk of death.We are not persuaded that the average person knows the potentially toxic effects of Methadose and fentanyl taken individually or in combination. Moreover, the circumstance in which the defendant gave the victim the medications was one in which the participants voluntarily sought and took medications and illegal substances in large quantities.

The Court reverses the conviction and orders entry of a judgment of conviction of manslaughter in the second degree, as an LIO.

The third, and final, reversal comes in State v. Martinez. The claim raised on appeal was that the trial court improperly declined to hold an evidentiary hearing on the admissibility of prior sexual conduct of the victim. The court holds that the defendant produced sufficient evidence for the trial court to be able to determine whether the prior sexual conduct was relevant to the issues at trial and fit within one of the exceptions to the rape shield law.

After an examination of the record, we conclude that the police reports provided sufficient proof for the court to be able to determine that J’s prior sexual conduct was relevant to whether the defendant had used force in sexually assaulting J. If the defendant had been able to establish that J’s brother did not use force, he might have been able to cast reasonable doubt as to whether the defendant had used force in having sex with J. Because we conclude that J’s prior sexual conduct was relevant to whether the defendant used force in committing the sexual assault, we do not need to address whether it was relevant to J’s credibility, as the defendant argues.

There is a very lengthy dissent. I expect cert to be granted in this case.

Moving to the losses, first we have State v. Kimble. Here, the Court affirmed the trial court’s denial of a motion to suppress, reasoning that gun that was found in a rental car was in plain sight and that the defendant had no standing to challenge any search, because he had no reasonable expectation of privacy. The defendant also claimed that the gun was the illegal fruit of an illegal detention. This claim was analyzed under the State Constitution, which has been held to provide greater protection. Even then, the claim failed. The defendant claimed that the detention started when the officers approached him and his co-d sitting in the car (I’m simplifying it here). The State claimed that the detention commenced when the defendant fled from the car and the officer pursued him, because at that time, the officer had R & AS that criminal activity was afoot. The Court agrees with the State.

Then there’s State v. Betancourt, which is a sufficiency of evidence and prosecutorial misconduct claim. It is really boring. Read it if you want.

In State v. Devivo, the defendant finished his sentence and probation and then moved to vacate his guilty plea. Since there is no statutory or common law authority for the trial court to entertain such a motion at that stage, the court rightly dismissed it. He then asked the Appellate Court to exercise its supervisory authority to review the claim. The court tried hard not to laugh.

In the lone habeas appeal, Dawson v. Comm’r, the defendant claims that the habeas court incorrectly found that he’d violated the terms of his plea agreement, among other things.  The defendant had pled under what is known as a Garvin plea in CT. Basically, the defendant agrees to a sentence, postpones sentencing on the condition that he shows up for sentencing and if he does, he gets that deal (another frequent condition is to avoid arrest). If he does not show up or gets arrested, the judge may impose up to the statutory maximum.  Here, the defendant didn’t show up at 10, but rather at some point between 10:55 and 2:00pm. The trial court found that he had violated the terms of the Garvin plea and thus imposed a stricter sentence. The Appellate Court affirmed.

That took way too long.

The Supreme Court issued State v. John M., in which the defendant claimed that the trial court abused its discretion in not permitting the defendant to question the victim about her motive in testifying. His theory was that the victim’s account of the abuse was starkly similar to the victim’s mother’s own abuse as a child and that it would tend to show that the victim’s story was “coached”. The defendant was also precluded from testifying about the victim’s mother’s abuse. The court pulled out the oldest trick in the book, saying that even if the trial court had abused its discretion, because it was a bench trial and the trial court didn’t seem too impressed with that theory, the error would be harmless. The Court also upheld the exclusion of testimony regarding the victim’s mother’s animus toward the defendant, because apparently that is irrelevant to the claim that the defendant abused the victim. What’s that you say? It goes to bias? Well, it seems there was plenty of other evidence from which the trial court could infer animus.

Moving to the Appellate Court, first up is State v. Gonzalez. Basically everybody screwed up. Issues weren’t properly preserved, they weren’t briefed, what seems like a viable motion for new trial based on newly discovered evidence wasn’t properly presented. Clusterf*ck. Habeas coming.

Next, in State v. Abreu, the defendant wanted to introduce evidence of the victim’s “job” as a drug dealer to infer that he was armed and about to attack him or the victim’s BAC or the victim’s status as a fugitive or the victim’s criminal record to support his theory of self-defense. The Court emphatically says “NO”.

This is where I fall asleep. The rest are unremarkable. Read for yourself.

(a) A person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.

46b-21 provides:

No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.

So you can’t have sex with any of those people either.  John F.M. first raised a sufficiency challenge – that based on the defendant’s testimony, the jury could not conclude that there did, indeed, exist such a relationship (the girl in question was the defendant’s step-daughter) and that the sex assault statute violates the equal protection clause because it prohibits only heterosexual conduct.

The defendant relied, in his first claim, on an 1827 decision of the CT Supreme Court – State v. Roswell, which held that the relationship between the two must be proven by the state other than by the testimony of the defendant. The Court engages in an analysis and discussion of Connecticut caselaw from 1827 onwards that erodes Roswell and overrules it.

Indeed, since Schweitzer was decided, this court repeatedly has reaffirmed the principle that, “cohabitation as husband and wife is [admissible] evidence, and often sufficient evidence, that the parties have been validly married, but does not in itself constitute a marriage.”

The Court also recaps the law on admission of a party:

[S]tatements made out of court by a party-opponent are universally deemed admissible when offered against him . . . so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.

The Court also found that the Appellate Court improperly extended the (overruled) Roswell rule of marital relationships to evidence of parentage.

The Court then turns to the equal protection argument. This, too, it resolves in favor of the state, but in my opinion, their argument is strained and it seems like they are reaching. Result oriented is what these opinions are called.

The claim was that the sex assault statute, which prohibits intercourse between people related in the manner defined in 46b-21, violates equal protection, because the “degrees of kinship” are defined in heterosexual terms.

The Court engages in some statutory construction:

To resolve the state’s claim, we must determine whether the phrase ‘‘degrees of kindred’’ in § 53a-72a (a) (2) incorporates by reference the precise male-female unions enumerated in § 46b-21.

For some reason, it looks at what “degrees” and “kindred” mean and determine that:

Accordingly, § 53a-72a (a) (2) plainly does not incorporate the precise male-female unions enumerated in § 46b-21 but, rather, incorporates only the proximity of relation specified therein, namely, parent-child, grandparent-grandchild, sibling-sibling, aunt/uncle-niece/nephew and stepparent-stepchild. Because § 53a-72a (a) (2) applies equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21, it does not create the allegedly unconstitutional classification and, therefore, does not violate the equal protection clause of the federal constitution.

It does seem absurd that the Statute would prohibit heterosexual relationships and not same-sex relationships, but that statute was likely written before same-sex relationships were much accepted as they are today. To that extent, is it the Court’s job to rewrite the intent of the statute as it is written? The legislature surely could have amended the statute at any point in the past so many years – especially since civil unions have been on their mind – and they did not.

Anyway, it’s interesting.  It takes a statute that is pretty darn specific and broadens its application. I think I got most of it. If I missed something, feel free to leave a comment, Marty.

There’s actually a reversal in the Appellate Court (amongst some affirmances), but I think this post has gone on long enough, so I’ll leave you with a quote. At least there isn’t much chance it will get reversed.

Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial.

This is what I found:

The Supreme Court granted certification to appeal from the judgment of the Appellate Court 27 times. Of those 27 cases, it affirmed the Appellate Court 19 times and reversed 8 times.

Of the 8 reversals, all 8 were against the defendant (meaning, convictions were re-instated).

Of the 19 affirmances, 6 were in favor of the defendant (meaning they upheld 6 reversal of convictions) and 13 were against the defendant (meaning they upheld 13 affirmances of the conviction). [Out of those 19, 3 were companion cases.]

The State was granted certification to appeal 14 times.

There were 22 direct appeals to the Supreme Court (either pursuant to statute, or by transfer).

Of those 22 direct appeals, the conviction was affirmed 18 times and reversed only 4 times.

Overall, after 49 appeals to the Supreme Court in criminal or habeas cases, the conviction was affirmed 39 times and 10 were reversed.

I did not analyze the types of cases or the voting split or who wrote the most decisions. What might be really interesting, however, is the percentage of times the state is granted certification as opposed to the defendant. I suspect one number is rather high and the other quite low. I’m not going to do that, however, because that’s just too tedious.

I set out to prove myself correct and I did so.