criminal law principles
Is the “broken window” theory itself broken?
Mar 7th
The Boston Globe had a fascinating article a few weeks ago, that I just ran across (so my apologies if this has scorched its away across the blogosphere and I’ve missed it). Is the “broken window” theory a legitimate theory?
The broken windows theory first came to prominence in 1982, when criminologists George Kelling and James Q. Wilson published a lengthy article on the subject in The Atlantic Monthly. The theory, as they explained it, holds that people are more likely to commit crimes in neighborhoods that appear unwatched and uncared for by residents and local authorities.
The crux of Wilson and Kelling’s argument was that perceptions affect reality-that the appearance of disorder begets actual disorder-and that any visual cues that a neighborhood lacks social control can make a neighborhood a breeding ground for serious crime. As Kelling and Wilson put it in The Atlantic, ”one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”
The remedy for this, as proposed by Wilson and Kelling, was to get tough on the small crime. Small crime begets big crime, the theory posits. So if we nip crime in the bud, as it were, neighborhoods will be safer and more peaceful.
Recently, however, new critics have emerged and old ones have been emboldened by the rising crime rates in Boston and elsewhere. One widely read challenge comes from ”Freakonomics,” the best-selling book by University of Chicago economist Steven D. Levitt and journalist Stephen J. Dubner, which presents a controversial theory claiming that the legalization of abortion in the 1970s was the biggest factor in the crime drop of the 1990s. According to this hypothesis, the decline in the birth of unwanted, often poor and fatherless children in the ’70s, led to a decline in the number of juvenile delinquents in the ’80s and hardened criminals in the ’90s. As for broken windows, Levitt and Dubner write, ”There is frighteningly little evidence that [Bratton's] strategy was the crime panacea that he and the media deemed it.”
I could quote the whole article, but that would be wrong, so please take 5 minutes out of your day to read (if you haven’t already) and then come back to give me your thoughts (if you’d like).
Personally, I don’t think the broken window theory, by itself, is the cure for crime. It strikes me as rather simplistic and ignorant of the underlying rationale for crime: social and economic environment. Maybe this is the defense attorney in me speaking, but I believe (perhaps foolishly), that most tendencies to commit crime can be traced to a disadvantageous socio-economic background.
Let sleeping jurors lie?
Sep 7th
The New Jersey Public Defender’s Office has petitioned SCOTUS to hear a case involving sleeping jurors.
Several jurors allegedly dozed off during Roy Higinia’s October 1996 drug-possession trial in Essex County, N.J. The transcript shows that Assistant Deputy Public Defender Rafael Gomez, at a sidebar just prior to cross-examining a police detective, told the judge that four or five jurors were "deep asleep" and some were "falling asleep" during his opening.
Superior Court Judge Julius Feinberg said he had not noticed and the case would continue but he would "wake them up, if necessary." He then asked the jurors if the room was too hot and when one answered "a little bit," he had the windows opened.
The trial proceeded and Higinia was convicted and sentenced to five years in jail.
NJ’s appellate court rejected the argument and the Supreme Court did not grant certification.
In the petition for certiorari filed Aug. 23, Assistant Deputy Public Defender Lon Taylor said the appeals judges ignored state precedent that places an affirmative duty on the trial court to assure an attentive jury. Taylor asked the Court to rule that a sleeping juror is per se a structural error not amenable to harmless error review and so requires reversal.
The petition points out that Higinia, who admitted possessing cocaine, claimed that police fabricated the distribution charges and that jurors who slept through police testimony would miss the chance to assess credibility based on factors like body language and demeanor.
Unfortunately, sleeping jurors isn’t uncommon and needs to be addressed.
the waiver
Aug 14th
Sounds like a good name for a legal television show, doesn’t it? But I’m referring to the concept embedded in criminal jurisprudence (and other areas of the law, I’m sure) of the ability, perhaps the right, of a defendant to waive his Constitutional protections. A defendant can waive a jury trial, can waive the right to present witnesses, can waive a challenge to an unconstitutional s & s. Heck, with a guilty plea, a defendant waives all non-jurisdicitional defects! (See Tollett v. Henderson) But can a defendant waive effective assistance of counsel? A few cases from the Appellate Court would lead you to believe so.
Last year, the App Ct decided a few cases in which petitioners pled guilty and then filed a Habeas petition, raising a claim of IAC. The respondent alleged cause and prejudice arising from failure to raise the constitutional claims in the trial court and on appeal.
This is where it gets interesting: Petitioners alleged that the procedural default was a result of ineffective assistance of counsel. The standard for C & P is as follows:
A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
Case law in CT holds that a claim of IAC is usually best raised in a Habeas petition. The App Ct points to the practice book section which says that a plea of guilty may be withdrawn on several grounds, one of which is IAC.
In essence, what the court was saying in both cases was that Petitioner should have filed a Motion to Withdraw the guily plea as per the practice book. The practice book provides (and I’m paraphrasing) that a defendant may withdraw a guilty plea until it has been accepted. After acceptance, a defendant may withdraw the plea on any one of the enumerated grounds. However, a defendant may not withdraw the plea after the conclusion of the proceeding at which the sentence was imposed. So, according to some cases, if a defendant does not attempt to withdraw in that intervening period, he has waived his right to raise a claim of ineffective assistance, since they would be precluded on appeal.
Does this not in essence mean that a defendant can waive his right to effective assistance? I could just be reading it all wrong. What do you think? Can it be waived?
trial by prejudice
Jul 5th
UPDATE: Clarification thanks to Tom here and more here.
Ken Lammers at CrimLaw writes today about an evidentiary procedure in Virginia, whereby evidence is admitted "subject to cross". What this means is that one party can introduce evidence and ask the witness questions on direct and the other party can challenge the evidence only on cross. If it is found to be in violation of any rules of evidence, then the judge will strike it from the record and magically wipe it out of the minds of the jury.
As you can see, I don’t like this much. The purpose behind this rule seems to be efficiency, in that evidence that isn’t hotly contested should be admitted without fuss and if something comes up later on, then we can deal with it. I’m not sure of the expanse of this rule and whether it applies to all physical evidence. It does, however, pose a great risk in those cases where the evidence is admitted, testimony proceeds for hours and then on cross, something troublesome is revealed. At that point, you have a jury who has heard hours of testimony pertaining to that evidence; it is already entrenched in their minds. Short of the nifty little device from "Men in Black", there is no way the jury is going to disregard it.
Why not just allow voire dire?
I’m pretty damn sure my state has no such rule… what about your states? Anyone else come across this?
Miller-El granted habeas relief!
Jun 13th
SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate’s Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El’s claims and the 5th Circuit had even refused to certify appealability. In 2002, SCOTUS reversed that (Miller-El v. Cockrell) and ordered that the 5th Circuit review the merits. Today, SCOTUS reversed the 5th Circuit (again) and ordered that Habeas relief be granted.
Writing for the majority [pdf], Justice Souter delves into the vast evidence collected by Miller-El regarding racial bias. The opinion itself is a fascinating read, especially because it details the disparate treatment of black and non-black jurors who gave extremely similar responses on their juror questionnaires and in voire-dire questioning. The gist, however, is best summed up by Justice Souter himself, when he writes:
In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.
At least two of the jury shuffles conductedby the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation.
Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non-blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus ——————explain a strike), and 100% of blacks but only 27% of non-blacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a
disqualifying answer.…
The StateÂ’s pretextual positions confirm Miller-ElÂ’’s claim, and the prosecutors own notes proclaim that the Sparling ManualÂ’s emphasis on race was on their minds when they considered every potential juror.
The state courtÂ’s conclusion that the prosecutorsÂ’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state courtÂ’s conclusion was unreasonable as well as erroneous. The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief.
Justice Souter relies mainly on venirepersons Fields and Warren, both of whom had responses similar to white panel members who were accepted by the prosecution, and yet were struck via peremptories. In fact, as the quote above indicates, Fields was quite in favor of the death penalty and was all too willing to impose it.
Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall’s position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a nice post on this concurrence.
I’ll get to the dissent soon.
Justice Souter’s majority opinion here [pdf], Justice Breyer’s concurrence suggesting prohibiting peremptory challenges altogether here [pdf] and Justice Thomas’ dissent here.
to lay a dead horse to rest (final word on the 6th and 14th debate)
Jun 2nd
Enough is enough, you say. Stop with the right to appointed counsel posts and debates. Done. I listen to my faithful. Not without one final word. This one coming from the inimitable Ken Lammers. He puts the finishing touches by saying:
Let me first say
that I think Tom is right. There is absolutely no requirement that the
State provide a lawyer for the defendant. Tom states what is probably
the correct "original intent" of this section: "the concern of the 6th
Amendment was to depart from the common law by ensuring
that counsel would be permitted in all criminal cases." That said, the
founders didn’t write that into the Constitution. It doesn’t say "an
accused may have counsel in any criminal prosecution", it sets out a
"right" to counsel.…
However, falling back on historical tradition in which the words of the
Amendment were ignored doesn’t work either. Refusing to provide a
remedy for a right is a sham; it means there is no right. This doesn’t
mean that a different type of guarantee of this right might not have
worked as well or better. I just can’t think of another solution that
would work as well.
There you go. Dead and buried. I’ll move on to something else, I promise.
Runaway Bride jurisdiction
May 26th
They lie, do they testify?
May 26th
UPDATE: Seth responds thoughtfully to my questions here and in the comments to this post here.
Seth opines on Bill O’Spineilly’s view that clients that admit their guilt should not, in essence, receive a zealous defense.
"[I]f an attorney knows for certain that his or her client is guilty,
then that attorney must advise the client to enter a guilty
plea….once the lawyer knows the client is guilty, then any attempt to
deny that fact to the jury is deception,"
says O’Farty. But then, later on in the same article he says:
"[a] good defense attorney never asks an accused criminal about guilt."
So Seth wonders
So, if a person’s guilty of a crime, and they lie to their attorney
about committing the act, they "deserve…the best" defense possible
from that self-same attorney.If a person’s guilty of a crime, and they tell their attorney the truth
about their guilt, they deserve no defense at all, and should either
"enter a guilty plea" or (presumably) proceed without the benefit of
the self-same attorney to which they spoke the truth, and represent
themselves at trial.That is, the Sixth Amendment applies only to liars; honest men are ineligible for the protections of the Constitution.
I do not like Bill O’Wiley, so I’m not going to waste my time talking about him. What I do want to talk about is the ethical implications raised by this scenario.
Say a client "tells" you, or you "discover" that he has, indeed, committed the crime with which he has been charged. Very obviously, then, you cannot put him on the stand. Allowing perjury = no-no. So that takes care of that. What if, however, the client "tells" you that he did it, but the girlfriend provides an alibi for the offense date. Do you put her on the stand? Do you investigate further?
The distinction is that in one case you know and in one case you have doubts. If a client "lies" to you and tells you that he didn’t do it – but you merely suspect it – you still have to put him on the stand if he so wishes. Because you don’t have absolute proof.
What if you know for sure. What sort of defense case-in-chief are we obligated to put on then? Any witness that would tend to provide an alibi, would ofcourse be perjuring him/herself (or maybe not, correct me if I’m wrong). What, besides doing your best to create reasonable doubt in the state’s case, can you do?
So in that case – what would be so wrong with actively pursuing a favorable plea agreement? Ofcourse, it isn’t mandated, as Billy O suggests, but perhaps it might be the prudent route to pursue (driven by individual circumstances, ofcourse). I don’t think B.O.R is suggesting that if a client informs his attorney of his guilt, the attorney automatically recuse himself and that individual be afforded no representation whatsoever (again, I could be wrong – feel free to tell me I’m an idiot). What I think he’s suggesting is that in cases where an attorney knows of his client’s guilt, it is not advisable for the attorney to present affirmative defenses. I’m with him (take a deep breath) only as far as presenting alibi evidence is concerned.
No, I would not tell my clients goodbye if they ever told me they actually committed a crime. Heh. All my clients are already convicted. Cutting through Bill O’s BS, though, points to a valid ethical concern.
Just how and what do we do?
Opinions, comments are being actively solicited for this post.
No rides for you!
May 23rd
Blondie comments on this WaPo article that Six Flags is now attempting to exclude sex offenders from their parks by including the following language on the back of their tickets:
the amusement park reserves the right to refuse entry to anyone
convicted of a sex crime or required to register as a sex offender.
What? After Miami’s asinine ordinances and Florida’s proposed legislation, this shouldn’t strike anyone as surprising, but it is just plain ridiculous. Blondie explores Six Flag’s idea in detail. She writes:
This brings so many thoughts to mind. First, how to they plan to
enforce this ban? It is unlikely that Six Flags will be conducting
background checks at the gates. Most likely, the only guests that Six
Flags will be check are season ticket applicants (since these
applicants have to supply their name and it may be possible to do a
background check in the time it takes to complete the season pass
application process, which typically includes a photograph and other
identity verification). But, would it be possible to do background
checks at the gates? Possibly. This would require asking every guest
for identification, and using their name (and possibly other
identifying information such as address or social security number) to
log onto the state’s sex offender registry or call into the registry.
This would still allow some people who have been convicted of sex
offenses or sex offenders entry since (1) the person may be registered
in another state or not currently registered or (2) the person may have
been convicted of a "sex crime" but not required to register or not
required to register at a level that makes his or her name available on
the internet or by phone.
So who else should do this? Who else should ban sex offenders?
In the meantime, who else could (or should) ban sex offenders ban? The
most obvious idea that comes to mind is internet service providers.
They’d have the means to do a check because subscribers give their
names and credit info, they could easily add language to their terms of
service that makes it a violation to allow a sex offender to use your
account, and I cannot think of a better advertisement for an ISP than
"Now Sex Offender Free!" But, who else? Let’s think of the non-obvious.
What about car dealerships selling vans? Shouldn’t they ban the sale of
vans to sex offenders (since, according to the nightly news, this is
what sex offenders so often use to pick up their victims)? Come to
think of it, that might also be a good defendant to add for all of
those victims’ parents filing lawsuits against the police and their
city…
I will refrain from writing anything myself, because it will only descend into cursing, name-calling and general destructive mayhem.
Suffice it to say that I am extremely annoyed and generally frustrated at these lame efforts made at the wrong end of the problem.
Is the use of the term victim prejudicial?
May 19th
In this post over at Injustice Anywhere, TXpd considers a new policy of referring to suspects as "persons of interest".
This got me thinking. What of the use of the word "victim" during the trial to refer to a complainant? Is that prejudicial? Does that usurp the role of the jury in a trial where the victimization is, in fact, in dispute? I remember reading a case about it last year, so I did a little LEXIS research. State v. Robinson [pdf] and State v. Cortes [pdf] address the issue.
In Robinson, the defendant raised the issue that the trial court’s use of the word "victim" to refer to the complainant in a sexual assault case deprived him of his right to a fair trial. However, after being objected to by defense counsel, the Court offered to give a curative instruction, which was refused. In this case, the ACOTSOCT held that since the claim was not preserved, in fact since a curative instruction was refused, it was not reviewable under the Evans-Golding doctrine.
Cortes is more interesting, because the SCOTSOCT granted cert. and has not issued an opinion yet. In Cortes, the defendant was convicted of unlawful restraint and assault in the second. On appeal, he claimed that the trial court improperly
violated his due process right to a fair trial during its jury charge by referring to the complainant as ‘‘the victim,’’
The facts basically describe a "he said, she said" scenario, where the complainant alleged that her ex-boyfriend, the defendant, was obsessive and when she wouldn’t talk to him, kidnapped her and took her to New Hampshire. He related that she was emotionally unstable and he felt responsible for her state, so he offered to take her to New Hampshire to visit his family, so she could be with him.
During the trial, numerous witnesses referred to the complainant as "the victim". At one point, defense counsel object and the trial court overruled. It stated,
This [objection] has been raised on the ninth witness in this trial. I just wanted for consistency sake, the court felt it appropriate to maintain what has been presented to the jury rather than change with the ninth witness during the course of this trial.
The prosecutor also used the term victim and so did the judge in his charge. After another objection, the trial court specifically noted that it would not issue a curative instruction. Considering the whole charge, the Appellate Court stated that
Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.
To determine whether the complainant was indeed the "victim" of any crime was the province of the jury in this case. The court distinguished cases in which fact that a crime had been committed was not in issue, merely the identity of the perpetrator. However, in cases where the dispute is whether a crime has been committed, "a court’s use of the term may constitute reversible error".
The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.
The Court also considered whether any prejudicial effect would have been negated by the Court’s other instructions, citing Robinson above (where the court held that the "presumption of innocence" instruction negated the use of the word "victim"). The Court held
We are confident that the court’s other instructions could not have negated such effect under these circumstances, in which the jury faced two conflicting versions of events and had to credit one witness’ word over that of another witness.
The court’s use of the term ‘‘victim’’ in reference to the complainant, under the particular circumstances of this case, may have invaded the fact-finding function of the jury concerning the issue of whether a crime had been committed…
The Court reversed.
The Supreme Court granted cert. limited to the following issue (in relevant part):
- Did the Appellate Court properly conclude that the trial court’s
instructional references to the complainant as ‘the victim’ deprived
the defendant of his right to a fair trial?
I haven’t done a Federal Constitutional search on this issue, but if someone knows of cases that address this, please send me an e-mail or post a comment.
NY proposes 24 hour “charge or release” bill
May 17th
TalkLeft reports that in the wake of the arrests of protesters at the RNC, NY is proposing a "Charge or Release" bill, which would ensure that people who are arrested would be brought before a Judge within 24 hours.
This is not new for other states and I’m surprised NY did not have such a requirement. As one commenter notes, California has 48 hours to arraign.
What’s the law in CT, you ask? Well, I have the answer! C.G.S. 54-1g provides for "prompt presentment". I’d link to the statute but it takes forever to load, so here it is. The statute provides, in relevant part,
(a) Any arrested person who is not released sooner or who is charged
with a family violence crime as defined in section 46b-38a or a
violation of section 53a-181c, 53a-181d or 53a-181e shall be promptly
presented before the superior court sitting next regularly for the
geographical area where the offense is alleged to have been committed.
Although it doesn’t specify a time limit, that has been explained by the Courts. The Appellate Court, in State v. Piorkowski, 43 Conn. App. 209 (1996) cites three SCOTSOCT cases and explains:
For the purposes of the Connecticut prompt arraignment statute, Conn. Gen. Stat. § 54-1c,
the "next session" of the circuit court means the regular session next
to be held, excluding any session held on the day of the arrest.Although the legislature inserted the word "promptly" in Conn. Gen. Stat. § 54-1g,
§ 54-1g still requires presentment before the superior court sitting
next regularly for the geographical area where the offense is alleged
to have been committed. The use of the word "promptly" does not change
the essential meaning of § 54-1g, specifically, that a defendant must
be brought before the next session of the superior court, excluding any
session held on the day of his arrest.
So essentially, within 24 hours – unless the arrest is on a Friday/Sat/Sun, in which case it would be the next Monday. I want to add more to this, specifically regarding dismissal of informations for failure to arraign, but I don’t have time right now. I’ll do it tonight.
Meet force with force: FL’s new self-defense statute – II
Apr 28th
Update: Jeff Spivack has provided a link to a great website that has an excellent analysis of this law. Here is an excerpt:
Another interesting facet of the law is that persons who appear to be validly relying on the law, are supposedly "immune" from criminal prosecution and arrest unless and until "probable cause" exists to believe that the use of force was not legal. How that provision will work out in reality is anyone’s guess. It will probably be an issue litigated in the courts for years to come. The final benefit, which is really an empty shell: It allegedly awards attorney fees, lost income, and all expenses of defending any civil action to any person sued because of their use of defensive force who is found to be "immune" in the civil case. As a practical matter, this provision will be useless. I’ll explain why later in this article.
As to the other areas of the bill, it’s hard to say how much value they’ll have because the Legislature didn’t really think them through. Let’s do a little analysis on that:
The presumption that the person breaking in the residence/vehicle is doing merely an "unlawful act" involving "force or violence" falls far short of the required legal standard of a "forcible felony" as a predicate to any use of deadly force. A forcible felony allows deadly force as a response where the defender "reasonably believes" the force was "necessary" to stop the forcible felony – an "unlawful act with force" can merely be a misdemeanor such as battery or trespass, and the Legislature really screwed up on choosing this language.
The alleged "immunity" against arrest is probably an illusion. Although the law says law enforcement "may use standard procedures for investigating the use of force", and shall not arrest unless they first determine that probable cause for the unlawful use of force exists – the problem is that there are no "standard procedures" for investigation, and more importantly, there is no requirement that a reasonable investigation of the lawful use of force "shall first be made before any determination of probable cause is valid". Furthermore, the phrase "may use" means law enforcement can still ignore standard procedures, and do only a bare bones job of investigation – which, unfortunately, many departments follow. The law also leaves in place other easier methods of arrest under Florida Statute 901.15, which only require probable cause of a lesser crime. Thus, the "immunity" section of the law will likely have no enforcement value before the courts, and get little respect from the police.
Original post: After my post on Florida’s new self-defense statute, I have received a number of extremely interesting and well thought out comments. These comments provide a different point of view, one from a Florida law enforcement officer, and worth a read. Commenter "Jeff Spivak" helpfully lists "non-forcible felonies" in Florida:
In Florida, non-forcible felonies include, but are certainly not limited to: Perjury; Bigamy; Fraud; Procuring person under age of 18 for prostitution; Deriving support from the proceeds of prostitution; Sale, manufacture, delivery or possession with intent of controlled substances or counterfeit controlled substances; Making or having instruments and material for counterfeiting driver’s licenses or identification cards; Dealing in stolen property; Forgery, Counterfeiting, and related crimes; Grand Theft (without the use or threat of violence). And many, many others. Note: the prostitution related crimes CAN be forcible under conditions when violence or threats of violence are used.
So I’m assuming all others are forcible. I agree that the example I used (purse-snatcher) is not really conducive to a discussion of the "prevent a forcible felony" prong of this new self-defense statute. But it does point out the inherent problem – subjectivity. For long, the determination of reasonable subjectivity has been the realm of the jury. This statute – and this is my biggest problem with the bill – takes that away and leaves it up to …. no one. Despite the thoughtful comments, I still don’t have an answer to the immunity problem. Who decides immunity – or rather, who grants it? If there is someone who makes that determination, how do they do it? Is there an arrest first? Clearly not – since the statute prohibits that. Then what? Is the police officer on the scene the one to make a determination of immunity? The statute doesn’t grant that authority – and I’d have serious constitutional problems with that as well.
But again, please read those comments.
Miami toughens up sex offender laws
Apr 27th
Ok, here’s the disclaimer, front and center: I’m probably going to say things in this post that most may not agree with, so if you’re not in the mood for a disagreement, don’t read.
Ok? Still here? You’ve been warned.
At PrawsBlawg (& Crimprof), I saw reports of a story that Miami is considering changing it’s sex offender laws (via zoning restrictions) that would basically drive all "sex offenders" out of the city. These restrictions are prompted by the slayings of two young girls.
New proposed laws in Florida include lifetime monitoring of some sex offenders by global satellite
positioning systems, mandatory 25-year prison terms for sex offenses
against children younger than 12, and automatic jailing of sex
offenders who violate probation until a judge can determine whether
they represent a threat.
I’ll address those proposed laws a little later. The Mayor’s measure
would more than double the buffer zone required between the homes of
registered sex offenders and schools, parks, school bus stops or any
”place where children regularly congregate."
I have some serious, serious reservations about this. It is one thing to impose lengthy sentences on "sex offenders" and then require them to register for life with their information available on a public website (which, unfortunately, the Supreme Court has held constitutional), but it is quite another to effectively bar them from a whole city. Not only does this proposed legislation raise equal protection concerns, it is exactly the kind of knee-jerk reaction that has effectively removed all notion of "correction" and "rehabilitation" from the criminal justice system.
Look, I know what you’re thinking: What the hell is wrong with this guy? I understand the importance of sex offender laws and the need to protect children. I am all for it. So, if sentences for certain sexual offenses need to be increased to keep "offenders" locked up longer and out of society longer – I’m all for it. But when we start getting to the point that "offenders" cannot live within a city then we really need to stop and think about what we’re doing.
Analogizing (and yes, you can analogize this situation to other crimes – because there is always a victim) this to say, robbery, why are we not passing ordinances, zoning laws and legislation that bars people convicted of two or more robberies from being within 1500 feet of a store? Experience in the criminal defense field will tell you that the most recidivist "criminals" are those with robberies, burglaries and assaults on their record. So let’s keep people convicted of assaults from within 1500 feet of any store where they can purchase a knife/gun/sharp instrument. In fact, let’s not even let them near kitchens!
See how absurd this is getting? If you want to effectively "ban" them from cities, just increase jail terms. That serves the same purpose.
The other problem is that not all sex offenders are convicted of Class A or Class B felonies. There are a large number of "sex offenders" who are convicted of offenses that involve nothing more than public indecency or, heck, don’t even involve children! Do we banish them too?
So we banish them. Then what? They go live in another city, or the countryside, or some small town. And that small town passes the same law and so they move elsewhere and so on and so on. What happens then? All the sex offenders in the country congregate in some remote vast open space in the middle of nowhere in, say, Montana? You think the residents of Montana will have nothing to say about that? That’s not a risk?
What about people that were convicted of a sexual offense 20 years ago and have not a blemish on their record since? What about those that are now working and hold jobs and have families? Do we banish the families too?
Again, I’m not belittling the horrific murders of the two young girls. But banishing all sex offenders is not the answer.
Let’s talk a little about this global positioning system tracking that’s been proposed. Do we need to know where "sex offenders" are every single minute of the rest of their lives? If we’re that concerned about where they are – leave them in jail!
All right. Here’s the deal: All I’m saying is that the "remedy" here is excessive and we really need to stop and think before we take such drastic measures. Is there a better alternative? One that is selective and targets only those that pose a real risk to the community and the safety of little children.
I told you my rant would piss you off.
Evidence of prior attack by victim admissible in self-defense claim
Apr 14th
The Appellate Court recently released an opinion in State v. Abney [pdf]. Latoya Abney was tried for murder and manslaughter. She was acquitted of murder and convicted of manslaughter. She appealed claiming that the trial court had incorrectly excluded evidence supporting her claim of self-defense and that exclusion was not harmless.
Facts:
Abney’s former boyfriend, McLeod, came over to her house to gather his belongings. As she lay on her couch, he slapped her. Subsequently, while he was in the bedroom packing, she went into the kitchen and picked up a steak knife. She went into the bedroom and an argument ensued. Jones, a friend of McLeod’s, was sitting outside watching TV and heard Abney ask McLeod to get off of her. McLeod noticed that Abney had a knife and like all sensible people would do, hit her. The altercation progressed and eventually Abney struck him in the chest with the kinfe and he later died.
At her trial, she testified that McLeod had attacked her on a previous ocassion McLeod had struck and kicked her in the stomach while she was pregnant, and that he had bitten her on the shoulder, causing injuries for which she required emergency medical attention. She sought to introduce medical reports regarding this previous incident. The state sought to have them excluded on hearsay grounds, but the court excluded them because they weren’t the "best evidence". During closing argument to the jury, the prosecutor suggested that the defendant had fabricated the claim of self-defense. The prosecutor also put at issue whether the prior incident of abuse ever occurred. The defendant appealed after her conviction.
Argument:
The defendant argued that the medical records should have been admitted at trial to show (1) her subjective perception that McLeod’s physical aggression was likely to cause her grievous bodily harm and (2) her state of mind at the time of the stabbing, thereby satisfying the subjective/objective standard of self-defense.
The Appellate Court concluded that the trial court had incorrectly applied the "best evidence" rule to the medical records because the authenticity of the documents was not in question. The proferred evidence was, however, relevant to the defendant’s claim of self-defense. The Court also held that the evidence was not cumulative when offered to corroborate the defendant’s testimony. The Court writes,
A cursory review of the law regarding self-defenseamply demonstrates the relevance of the proffered evidence. ‘‘Under our Penal Code, self-defense, as defined in [General Statutes] § 53a-19 (a) . . . is a defense,rather than an affirmative defense. . . . That is, [thedefendant] merely is required to introduce sufficientevidence to warrant presenting his claim of self-defenseto the jury. . . . Once the defendant has done so, it becomes the state’s burden to disprove the defensebeyond a reasonable doubt. . . . As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.
‘‘It is well settled that under § 53a-19 (a), a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack. . . . [Our Supreme Court] repeatedly [has] indicated that the test a jury must apply in analyzing the second requirement, i.e., that the defendant reasonably believed that deadly force, as opposed to somelesser degree of force, was necessary to repel the victim’s alleged attack, is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however,that the defendant’s belief ultimately must be found to be reasonable. . . .
‘‘The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . . If . . . the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Clark, 264 Conn. 723, 730–32, 826 A.2d 128 (2003).
(bold emphasis mine).
The Court went on to hold that the exclusion of this evidence did not constitute harmless error. The Court reversed and remanded for a new trial.
All in all, a well reasoned decision by the Appellate Court. It is has a quick, but concise explanation of the basics of self-defense law in CT.
Meet force with force: FL’s new self-defense statute
Apr 6th
Update: 4 years later, an update.
Jurist reports that Florida’s legislature has passed a new self-defense statute [bill text]. The bill replaces the old “castle” doctrine – you guessed it – that a person’s home is his or her castle.
The first provision is that a person is “presumed” to have a reasonable fear of imminent bodily harm or death if certain conditions are met. Traditionally, this imminent danger was left to the jury to decide. The most controversial part of this bill is
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
So basically, it does away with the “duty to retreat” which says that if you can avoid physical harm by retreating, unless you are in your home or place of work, then you must make reasonable attempts to do so.
I’m not quite sure I understand the last part “or to prevent the commission of a forcible felony”. What is a forcible felony? Aren’t all felonies (atleast the regular ones – robbery, assault, larceny) forcible? So one can use deadly force to prevent a purse-snatcher from getting away? That could be a forcible felony if a person is shoved to the ground, and their purse/wallet taken which contains $2000 in cash. It’s a little troublesome.
It is good to see that FL’s lawmakers haven’t extended the right to use deadly force in self-defense against “regular” force – force that doesn’t present an imminent risk of death or serious bodily injury.
By comparision, CT’s self-defense statute requires the duty to retreat.
(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
The duty to retreat, although it might sound rather ridiculous, is rooted in good intentions. The purpose of that duty is to prevent people from assaulting each other, when the situation could easily have been prevented. It may very well be impossible to do in a lot of situations, but the statute provides for that as well. It requires that a person retreat “if he knows that he can avoid the necessity of force with complete safety”. Maybe it is an ideological fantasy, but it’s better to have it than to permit people to start shooting one another in the middle of a street.
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