Category Archives: criminal law principles

Not even wrong on individual voir dire

It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.

The propensity’s on the other foot

Prosecutors and judges – and law and order types in general – are always on about “once a criminal, always a criminal”, and frankly, given some of the recidivism rates of our clients, sometimes I tend to think there’s some truth to some of it before I come to my senses.

Which is why I really enjoyed this delicious bite of schadenfreude. Remember the three cops in this video beating the tasered man in a park in Bridgeport? (I mean, how could you not? It was three days ago.) Turns out two of them are the subject of a previous separate brutality complaint. Filed by a disabled man. Shame on you, officers.

On May 23, 2011, three days after the Beardsley Park beating reportedly took place, Officer Christina Arroyo stopped Ramon Sierra for questioning, Sierra claims in a letter that he wrote to Chief Joseph Gaudett Jr. seeking an investigation.

Another officer, Elson Morales — who is one of the officers identified in the Beardsley Park videotape — soon arrived at the scene at the corner of Boston and Noble avenues.

Sierra said that, without warning, Morales “put his hands on me, and I asked him what he was doing.”  ”The next thing I knew, Officer Morales and an officer later identified as Officer (Joseph) Lawlor both threw me violently to the ground, and on the way down, the left side of my face struck one of the police cars on the scene, causing a bad laceration,” the complaint states.  Lawlor is also identified in the Beardsley Park videotape.  Sierra said that one of the officers then told him to put his hands behind his back, but because he has limited use of his right arm, he was unable to do so. Sierra said that he is disabled and is partially paralyzed on the left side as well as having limited mobility on his right.  ”I told the officers this, but they continued to assault me violently, finally handcuffing my hands in front of my body,” Sierra wrote in his letter to Gaudett.

So what happened to Sierra? Exactly the same thing that happens to people who “force” officers to use “physical force”:

The defendant’s right to confront a mustache

statevmustache

So you’re reading the Constitution. And the Constitution says many things implicitly and a few things explicitly. And one of those things is that the accused shall have the right to confront witnesses against him face-to-face (Pennsylvania v. Ritchie). What the Supreme Court has never explained is just whose face that has to be.

Yes, that’s an odd statement, so let me explain: the Ninth Circuit ruled today [PDF] that it was okay for a confidential informant to testify in a trial wearing a ridiculous wig and mustache (I’m only assuming the wig was ridiculous; all wigs are ridiculous unless worn for medical purposes) to protect his identity because he was involved undercover with the dangerous Sinaloa Cartel.

Why, exactly, is it important for someone to be able to look at the person testifying against them square in the eye? Why is it even more important for the jury to be able to do that? Justice Scalia, writing in Coy v. Iowa, explains:

The Right to Counsel of Choice

Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.

State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.

Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.

But to get there, we have to start at another beginning.

Why we can’t just make stuff up as we go along, or: Due Process

What started out as a fairly fact specific hyper-technical statutory interpretation of the meaning of a phrase in an extremely narrow statute has ballooned into a general hue and cry about “rape culture” and a disregard for women’s rights.

I wrote last week about the Connecticut Supreme Court’s decision in State v. Richard Fourtin [PDF], which is only the former and has no shades of the latter. But that hasn’t stopped advocacy groups and pageview hungry tabloids like ThinkProgress and the HuffingtonPost from burying their heads in the sand about the boring reality of the opinion and instead pressing on with their fabricated quotes and blatant misrepresentation. Which is why it comes as no surprise that the Hartford Courant – never one to miss an opportunity to drum up page views and advertising revenue through the use of incendiary and sensationalist “opinion” pieces – published this “opinion” piece.

On the one hand, I’m incensed that allegedly reputable news organizations would publish pieces with a blatant disregard for truth and a fundamental – and frankly, frightening – misunderstanding of and disregard for our criminal justice system.

On the other, what better opportunity could there be to perhaps try and educate people and correct these pervasive misconceptions. So I’m going to give this another shot in the hope that maybe one person will walk away with a more accurate understanding of our core fundamental protections and rights.

The opinion piece is fortuitously titled in the form of a question – “He’s Not Guilty Because Disabled Woman Didn’t Fight Back?” – allowing me to respond appropriately: “No”. In order to make this post coherent, I’m going to reproduce her opinion and respond point-by-point.

First, Cindy Luo (the author of the opinion piece) opines:

The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression — including biting, kicking and scratching — and by making screeching and groaning sounds,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

She means ‘complainant’ when she says ‘defendant’, but other than that it’s accurate. Moving on:

Fourtin was sentenced in 2008 to six years in prison for attempted second-degree sexual assault and fourth-degree sexual assault involving the woman, who was then 25 and who has cerebral palsy, mental retardation and hydrocephalus, and cannot talk or walk. The Appellate Court reversed the convictions in 2009 and ordered the lower court to acquit Fourtin because the prosecution didn’t prove the woman was “physically helpless.”

Still correct. Next:

However, physical helplessness is not a requirement for rape.

And this is where it begins to fall apart. Because, you see, Ms. Luo, it is a requirement for “rape” under the subsection he was charged with. In case you were unable to find the pertinent subsection and read it, I’ll reproduce it for you here:

To pick or not to pick: learning the unlearnable

While lawyers may debate the effectiveness of jury selection, none will doubt the importance of it. The problem is, no one knows how to do it well. Some may think they do, but really, they’re just getting lucky. For the task is an incomprehensible one: to get 40-60 complete strangers to open up to you about their personal feelings and beliefs, to somehow get a sense of whether they’re in your favor or against all without mentioning the specific facts of the case at hand. As Mark Bennett says in his lecture on jury selection (more on that in a second), what we really want to do, as lawyers, is to take each juror aside and say “Psst, here are the facts. For me or against me?” and obviously we can’t. So we have to dance a dance in which we ask general questions in order to boil this stranger down to some stereotypes and make a best guess. It’s a pretty hopeless practice, made worse in jurisdictions where judges are the only ones asking questions or where there is no individual voir dire.

[To be sure, as currently practiced, jury selection is easier for prosecutors. They're not interested in learning about the person or getting them to open up; they merely want to reinforce the strong desire in people to follow the lead of authority and affirm the bias that most jurors have toward conviction. But, it can be argued, that practice is divergent from the prosecutor's true charge: which is to seek justice, not obtain a conviction. Sure, you can pick a jury by stating a general proposition of law and then asking if the juror can follow the court's instruction, but there's nothing functionally different between that and picking the first 12 jurors that walk in the door, something that I've suggested to prosecutors over the years, but for some reason they never take me seriously.]

Supreme Court hates disabled people and eats children for lunch. Probably.

[Update 3: See follow-up post here.]

[Update 2: see the end of the post for the TL;DR version.]

That’s the general feeling you’d come away with if you’d read any of the media coverage of State v. Fourtin [PDF], a recent decision in which the court reversed the conviction of Fourtin for allegedly sexually abusing a woman with cerebral palsy1[yes, there's no denying that what Fourtin did is skeevy as hell].

Never one for actually reading the damn opinions in detail, much less understanding what they mean, the press has unequivocally taken to proclaiming [we made ThinkProgress and HuffPo!] that the court has ruled that the victim must prove that she physically resisted to prove lack of consent. Just look at the headlines: “Court Requires Disabled Rape Victim To Prove She Resisted, Calls For Evidence Of ‘Biting, Kicking, Scratching’2” and “Richard Fourtin Case: Connecticut Court Sets Accused Rapist Free, Says Handicapped Victim Did Not Resist”. [Hello, search engine optimization keywords!]

Well, putting aside that whole burden of proof thing being on the State, the short answer is yes and no. The court didn’t rule that victims in general must physically resist in order for there to be lack of consent. This is not some regression back to 1950s misogynist court decisions. To imply this is idiotic and an intentional lie.

But what the court did say is that under the statute that the prosecutor decided to charge Fourtin with violating, yes, if in fact the victim was capable of physically making her lack of consent known, then a person cannot be found guilty. A more accurate headline would be “Court Requires Prosecutor To Prove That Victim Is Physically Unable to Communicate Unwillingness to Consent Because That’s What The Prosecutor Alleged A Man Did’. If you’ve got more than a 2nd grade reading comprehension level, you will already have noticed that that’s not the same as “victim must prove resistance otherwise can be raped”.

So let’s break this down. Here’s the relevant statute that the prosecutor chose to prosecute:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless;

So what does physically helpless mean? Let’s go to another statute!