a public defender

Attachment 2: Survey of Neighboring States’ Penalties for Assaulting Public Safety Officers

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There's this fellow who's going to jail for beating up an intruder and then this awfully sad story.]

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

[I do acknowledge the apparent flaw in my logic that a normal individual would not normally be in the confrontational position that officers find themselves in when they're making arrests or conducting an investigation, but then again, nobody goes around shooting random people willy-nilly. If that is a flaw in my logic, then that's a flaw in Massameno's logic as well and his proposal should be altered accordingly.]

I’m also unsure of scenarios that this “change” in the law would leave criminalized. He suggests racial hatred, but how difficult is that to prove? Additionally, there’s nothing in a proposal that permits a jury to “improper motive” as a reason to reject self-defense. Massameno’s mention of that is a nod to jury nullification. So, in essence, he’s suggesting a modification to the law that would preclude prosecution of officers who shoot at citizens.

Frankly, I have no problem with this idea. Just expand it to all people, not just police officers. Why is my drug lord client also not in a unique position of working in a danger-laden profession? What about my clients that grew up in, and still reside in rough neighborhoods? They’re liable to be robbed and shot at any point.  Why shouldn’t this extend to them as well? After all, regular self-defense makes no distinction between those engaged in legal and illegal conduct.

Of course, I have no doubt that Massameno wouldn’t agree with me. [The rest of the post is a bit of a sidetrack, so skip to the comments if you don't care.]

Massameno seems to struggle mightily throughout this “opinion piece” with his advocacy for those that are, in every sense of the word, criminal defendants and those that he normally associates with that phrase. In essence, he’s making the “they’re one of us, not one of them” argument:

[This proposal] does recognize that, when police mistakenly kill or injure someone in the performance of their duties, they should not be treated as common criminals, unless, of course, they are.

I have absolutely no idea what that sentence means. It seems to be internally contradictory: either they made a mistake or not, in which case it shouldn’t matter if they’re a common criminal (whatever that means). Even if the dirtiest cop in the world mistakenly shoots someone in the performance of his duties, he should get the benefit of Massameno’s proposal. But I don’t think Massameno can bring himself to say it. He has to still hedge his bets on the off-chance that the cop is really, really bad. In which case, he’s “one of them”, or something.

Of course, Massameno seems to have forgotten that a successful self-defense claim doesn’t negate the fact that a crime was indeed committed, thus turning the actor into a “criminal”. It simply justifies that criminal act and permits the actor to be treated as if he committed no crime.

Ironically, in the early part of the “opinion piece”, Massameno goes on at length about an Officer Smith, who 10 years ago shot and killed some common thug, but someone had the nerve (the nerve!) to charge him with murder, “a Class A felony, punishable by up to 60 years in prison!” (Yes, that is a direct quote, exclamation and all.)

Although Smith was not convicted of murder, he was convicted of manslaughter and sentenced to six years in prison. The conviction was reversed on appeal. Just before his new trial, wanting to avoid prison, Smith felt compelled to accept a plea agreement that turned him into a convicted criminal.

Yet, what if Smith had lost his appeal? The original conviction would have been upheld and Smith’s life would have been destroyed. Given the publicity surrounding his trial, with civil rights advocates claiming that he shot Reid because he was black, Smith probably would have met a terrible end in prison at the hands of the type of criminals he had vowed to bring to justice.

But…but…I thought only guilty people pled guilty. What’s that? The Earth is not flat?

Anyway, as I said, I haven’t made up my mind either way on this proposal, or something like this. It’s just a discussion, after all. So what do you think, you-who-are-less-snarky-than-I? Should there be a special hazardous duty provision? Should it apply to everyone? Or is the law of self-defense fine just the way it is? If you like this post, you can bookmark it for later use.

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

It is absurd to impose mandatory minimum sentences for all “assaults” on police officers. For not all assaults are assaults. There is a distinct difference between an officer who trips in the chase and sprains his ankle and the officer who gets shot while wrestling with a suspect. The former most certainly does not deserve any punishment, while the latter most certainly does. But when laws are passed in the heat of the moment, on the back of some tragic event like the shooting of an officer, it invariably is a poorly thought out piece of legislation that is either too vague, overbroad, just plain stupid or some combination of the three.

Let’s take a look at the Assault on a PO statute (53a-167c):

(a) A person is guilty of assault of public safety or emergency medical personnel when, with intent to prevent a reasonably identifiable peace officer, [blah, blah, blah] from performing his or her duties, and while such peace officer, [etc.] is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer, [etc.] or (4) such person throws or hurls, or causes to be thrown or hurled, any paint, dye or other like or similar staining, discoloring or coloring agent or any type of offensive or noxious liquid, agent or substance at such peace officer, [etc.]…

I’ve highlighted to subsections here. The first is that there need only be physical injury not serious physical injury. According to the “definitions” section, physical injury means impairment of physical condition or pain. That’s it. I cause you pain, I have cause physical injury. Minor causes of “physical injury” are: broken fingernail, stubbed toe, pulled hamstring, and so on.

I also mention subsection (4), partly because I didn’t know of its existence until now and partly because it’s just so damn silly. Throwing paint at an officer is assault on an officer? Was the legislature following my advice and taking a hit listening to the Dead when writing that subsection?

Now, if someone wants to propose a bill whereby a mandatory-minimum is enacted for any assault on an officer resulting in serious physical injury, I might be willing to give it more than a second’s thought. But then we get into the area of whether shooting at an officer, but missing, is a crime [hint: it is not. attempted assault on an officer cannot be a crime under our statutory scheme, but that's a post for a whole 'nother day]. So, moving on.

I’d also like to point out that there are several existing options: first, assault on an officer is already a Class C felony, carrying a maximum penalty of 10 years. Second, that’s not the only crime someone can be charged with when they assault an officer. There are others, such as, I don’t know…assault (20 years), attempted murder (also 20 years), murder (death penalty). If someone assaults an officer by shooting at him, you can be damned sure there isn’t going to be a 1 year offer.

So what would a mandatory-minimum do? It would ensure that anyone charged with assault on an officer, no matter how slight the “assault”, would serve a stiff sentence. That can mean only two things: there would be a hell of a lot of trials, or not very many pleas to assault on an officer, because the State would be forced to bargain away that charge if the “assault” doesn’t warrant the mandatory-minimum.

I don’t want to get into it here, partly because I couldn’t do it justice, but there’s a greater force at work here: the strained relationship between the police force and cities like Hartford. The Hartford police haven’t exactly had the best reputation over the years and it has resulted in a lot of friction between them and the residents of some parts of the city.

The police should continue doing the fine job that they do, while letting the criminal justice system with its already onerous penalties deal with those that show a blatant disregard and dangerous disrespect for the upstanding citizens that struggle to keep order.

Mandatory minimums are never a good idea and here they would be an especially bad one.

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

The court, in a subsequent case analyzing Jarzbek, engages in a thoughtful analysis of the Confrontation Clause and the need for the jury to be able to observe a witness:

Our law is well settled that it is a jury’s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude. See, e.g., State v. Morgan, 274 Conn. 790, 800 (2005). Some of our older cases indicate that fact finders properly may consider not only a witness’ demeanor during his testimony but also his spontaneous reactions in the courtroom, as a whole, provided these considerations are limited to assessing credibility. See Kovacs v. Szentes, 130 Conn. 229, 233 (1943); State v. McLaughlin, 126 Conn. 257, 264-65 (1939). A jury’s assessment of a witness’ credibility also naturally and rightly may include observations of his reaction to having to confront the defendant physically and to testify in an open and public forum. See State v. Jarzbek, supra, 204 Conn. 683, 692-93 (1987) (confrontation clause “finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process”), cert. denied, 484 U.S. 1061 (1988).  We have observed that the confrontation clause was conceived as a means of providing the accused with “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis added; internal quotation marks omitted.) Id., 692. Therefore, we conclude that, to the extent that the jurors formed opinions as to Ford’s credibility by observing his demeanor on the stand and his spontaneous reactions in the courtroom, they acted properly. Such observations and the rational inferences drawn therefrom are not prejudicial. See State v. Porter, 241 Conn. 57, 120 (1997) (“forming impressions and intuitions regarding witnesses is the quintessential jury function”), cert. denied, 523 U.S. 1058, (1998).

The court, however, has applied the rationale of permitting unmasked out-of-court testimony to cases of sexual abuse of minors and only on the rationale that the State has a compelling interest in protecting child victims and encouraging their participation in the criminal justice system. Even then, it is a determination to be made on a case-by-case basis. The New Hampshire Supreme Court in Hernandez seems to buy into a similar compelling need to protect the identity of undercover officers, but in my opinion, at the grave expense of the Confrontation Right. That court relies on Coy v. Iowa and Maryland v. Craig and crafts another case-by-case test for permitting witnesses to testify in disguise. But Coy dealt specifically with the defendant’s absence from the presence of the accuser and again in a child-sex case. The Supreme Court in Craig did hold that the right to face-to-face confrontation was not indispensable and that the requirements of the Confrontation Clause:

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

In doing so, according to the NH Supreme Court, the Craig court focused on four factors:

(1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the court, defendant and trier of fact.

In holding that permitting the police officer to testify in disguise constituted harmless error in this case, but may be permitted in other cases, the NH court seems to explicitly ignore (4) above. Who knows if the detective is smirking under that ski-mask, knowing that he’s lying through his teeth and the jury is unable to observe that. Again, it is important to note that Craig again dealt with the physical presence of a defendant and the impact and trauma that might have on a child victim. None of these cases speak to permitting a witness to testify, in court, with his or her face hidden.

Given my reading of Jarzbek, Coy and Craig, I think the Connecticut Supreme Court would be hard pressed to agree with New Hampshire’s august tribunal, but I’m usually wrong when it comes to things like this.

Two side notes: The newspaper story covering the NH decision includes the usual quotes from law enforcement about how the primary focus should be the safety of the officers, not the Constitutional rights of an accused. So make sure you read it if you want to get all indignant.

Second, the dissent by Scalia in Craig is certainly worth the time it would take to read it. Here’s a sampling:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

Sometimes, he’s so good that it hurts.

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In 2002, Elkins’ niece recanted her testimony about Elkins being the perpetrator. That same year, Elkins made a request for DNA testing, which was denied on the grounds that the results would not prove Elkins’ innocence.

Despite this ruling, Elkins managed to provide his own funding for Y-STR testing on evidence from the crime. Y-STR is a relatively new form of testing that isolates certain characteristics of the male chromosome suitable for comparison. In 2004, Elkins’ lawyers at the Ohio Innocence Project cooperated with the prosecutor’s office to send evidence to Orchid Cellmark, a nationally recognized forensic lab.

The results of this testing excluded Elkins as the possible perpetrator of the rape and murder. A male profile was found on male skin cells from both the grandmother’s vaginal swab and the young girl’s underwear. Elkins moved for a new trial. On July 14, 2005 the court denied Elkins’ motion.

The State, meanwhile, was not convinced. They claimed that because the DNA was from skin cells, it wasn’t conclusive that Elkins was excluded as the real perpetrator. Eventually, after some considerable risk to his own life in prison, Elkins and his wife were able to get the DNA of the man they believed committed the crime. But even that wasn’t enough for prosecutors. They wanted more.

Just today, the Hartford Courant has a front page story about two men, similarly claiming innocence:

The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn’t belong to either of the two men convicted of killing him.

Fingerprints found on the door handle of the store’s safe are not theirs, and the state’s main witness now admits in a taped interview that she lied when she testified at their trial.

But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.

The similarities between Taylor and Gould’s case and Elkin’s case are eerie: In both, there is a recanting eyewitness. In both, there are alibis. In both, there is a wife convinced of innocence fighting to prove it. In both, there is DNA evidence that excludes the defendants and for now, in the former, the prosecutors have refused to test the DNA of the man the defense believes is responsible. Finally, like in Elkins, the prosecutor in New Haven isn’t convinced:

“Having reviewed the file presented by Gerry O’Donnell, it wasn’t like in the Roman case, where there was clear-cut evidence,” Dearington said. “In this case it’s not clear that the inappropriate person or persons were convicted.”

Dearington said that although O’Donnell’s report raised questions about the original case, he wasn’t about to order the release of two convicted murderers based mostly on “pure conjecture and speculation.”

The prosecutor is more willing to leave it to a court to decide, with a hearing on the petition for The Great Writ scheduled for June. Will the similarities between Elkins’ case and Taylor and Gould’s case continue? It remains to be seen.

All of this makes one wonder: why are prosecutors so fiercely protective of their wins? Certainly, there is much to be said about the finality of convictions (and indeed courts around the country have written enough about it to replenish the rainforests) and the need for closure, but none of these cases present ordinary circumstances.

Both prosecutors, in Elkins and Taylor and Gould have shown or are showing caution in proceeding. The prosecutor in Elkins took a long time convincing herself that Elkins was indeed innocent – seeking voluminous DNA testing, and she took an even longer time to charge the man who actually commited the crime. The prosecutor in Taylor and Gould is taking the ultimate cautious approach: a hands off one. Leave it to the judge and let him take the rap.

If only they’d been this cautious or skeptical of evidence the first time around. Which brings me to my last story, via David Tarrell. Prosecutors in Omaha have announced that they will no longer be accepting plea bargains from adult defendants. In any case. At all. [In other news, Omaha's criminal justice system shot itself in the head.]

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn’t think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

“This prevents overcharging,” Ritnour said. “You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We’re going to see what we should charge people with and stick with it.”

I, for one, am not buying it. This will be a short-lived experiment, during which a whole bunch of defendants will get screwed. This stance places a lot of faith in prosecutors’ ability to see their case for what it is and not for what it might be. It also raises some questions: what charges is he talking about? I don’t know how it works in NE, but here, the charges can be changed at any time via a substitute information. So if the cops charge Assault 1st at the arrest and the prosecutor, either at arraignment or at some point further down the line, say after an extensive defense investigation, is of the opinion that Assault 1st is no longer viable or is risky, will offer a plea to Assault 3rd. That doesn’t mean that the prosecutor thinks it’s unprovable, just that it’s unlikely. Is that what Ritnour is saying? Because if it is, then I don’t know the difference between what he’s saying and plea bargaining. Or is he saying that they won’t file charges until they’re absolutely sure of what they can prove, regardless of what any further investigation turns up? Because that’s a hollow policy.

He’s also implying that there will be no guilty pleas whatsoever. That’s a ridiculous assertion, even if there is no right to plead guilty. The volume would be crushing. What of the defendant, who agrees that he commited Assault in the Third Degree and the prosecutor is of the same mind. Why waste everyone’s time and money and go to trial? Would a plea not suffice in that situation?

Anyway, let us assume that he means he won’t charge someone with crimes he doesn’t think he can prove. How sure does he have to be? The two innocence stories above are examples of shoddy investigation. I’m sure prosecutors in both cases thought (and still think) that they could prove their cases. It raises an interesting question: do the two innocence cases serve to bolster Ritnour’s new policy or do they inform us that no matter what, defending a win seems to be of prime importance.

See more from the Viscount of the blawgosphere.

As always on this blog, there are no answers. Only (stupid) questions.

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.

However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.

SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.

In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:

Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.

I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.

It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:

Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence;  the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the  use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State  v. Shifflett, [199 Conn. 718, 728 (1986)].

So, um…torture?

Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.

Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.

An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.

So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.

Merry Christmas!

« Hide It

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In Cyrus, the defendant was arrested after the police received an anonymous tip that he was driving drunk. The cop didn’t observe anything improper about the operation of the vehicle and the motion to suppress was granted on the ground that the police didn’t have reasonable and articulable suspicion to detain the driver. In a motion to reconsider, the State alleged that the “chain or crucifix” hanging from the rear-view mirror was a second justifiable basis for stopping the car.

The state, apparently confused by the sheer tenuousness of its own argument, couldn’t make up its mind:

In its principal brief, the state took the position that the statute does not require any proof that the view of the operator actually be obstructed or that his attention actually be distracted. It relied on cases in other jurisdictions that have held that even relatively small objects hanging from a rearview mirror justify the minimal intrusion engendered by a motor vehicle stop. In its reply brief, however, the state concedes that our statute does not proscribe ‘‘all items hanging from a rearview mirror’’ but instead requires a showing that the item or object be hung in such a manner as to ‘‘interfere’’ with the unobstructed view of the highway or to ‘‘distract the operator.’’ In its reply brief, the state effectively agrees with the defendant that, on its face, § 14-99f (c) does not make the hanging of an object from a rearview mirror a per se infraction.

This leaves very little for the Appellate Court to do. Given that the State concedes that the legislature did not intend to make an infraction the mere hanging of an object from the rearview mirror, but rather the actual distraction caused by such an object, the Appellate Court has no trouble upholding the verdict.

The Court, however, has laid the groundwork for future appeals in this area:

We leave for another day, on another record, the question of how much of a distraction or impairment of an operator’s vision the state must establish to prove a violation of § 14-99f (c).

Specifically, we need not and do not decide in this case whether a violation of § 14-99f (c) can be  established merely by evidence that an object attached to a car’s rearview mirror was moving back and forth.

Indeed that will be the $1,000,000 question in future cases. What does the State specifically have to prove and, more importantly, how much evidence is sufficient? I would bet that the State would argue that the testimony of an officer that an object was moving back and forth and thus obstructed the view is sufficient. The defense, on the other hand, might be more inclined to move in a more scientific direction. How would you counter this?

« Hide It