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The question mark is because I can’t tell from this piece what the heck actually happened. Shoddy, shoddy writing.

Under pressure to respond after two deadly home invasions in the past nine months, the state Senate voted early this morning to strengthen the state’s criminal law and allocate $10 million for enhanced crime-fighting.

The bill passed by 32 to 3 at about 2:20 a.m. Thursday after the Senate Democrats withdrew a previous amendment that had prompted a sharply bitter debate with Republicans. The final version gained bipartisan support after lawmakers said the bill would authorize a judge to double the penalty following a second violent crime and triple the penalty after a third offense - up to a maximum of life in prison for a violent felon.

The debate on the three-strikes bill had the usual rhetoric from the Republicans that criminals are not being punished. The Dems responded with “bumper sticker politics”.

So what happened, exactly?

Earlier in the evening, the Republicans had verbally pummeled the original bill on the Senate floor, saying that it would actually weaken the state’s laws for violent crimes. Following that clash, Democrats — who hold the majority in the chamber — suddenly postponed the debate and called for a recess shortly before 11:30 p.m. The chamber reconvened later, and the “three strikes” debate pushed the vote past 2 a.m. Thursday.

“This is an extraordinary change in our public policy,” McDonald said, adding that criminals “will be punished in extraordinary ways.”

But Sen. John Kissel, an Enfield Republican, said the original bill was so badly written that it would not accomplish the legislature’s tough-on-crime goals and, in fact, would backfire.

“I guess I’m missing something,” Kissel said. “It actually is weaker addressing persistent dangerous felony offenders. … This amendment pushes us backward. How can this be tougher on criminals? It’s not.”

Out of 21 violent crimes mentioned in the original bill, the maximum prison sentence would actually be reduced for eight of them, Kissel said. That includes second-degree manslaughter with a firearm, among others.

Oh well, that’s interesting. Pray tell us, Courant, why these sentences would be reduced and what other crimes?

No? That’s not important to the narrative? Oh. Okay. Well, then tell us what the final version of the bill was.

Besides streamlining the law, the bill provides money for more prosecutors, public defenders and probation officers, along with expanding the state’s “cold case” unit and providing additional re-entry programs for criminals who are released from prison.

“So many people fail on probation,” said Senate Majority Leader Martin Looney, a New Haven Democrat. “So many people fail on parole.”

But McKinney said he was stunned when he read the original five-page bill. Currently, a criminal could receive 40 years in prison for compelling someone to have sex at gunpoint. The bill, crafted by Democrats, would reduce that penalty to 20 years, he said.

Wait. I’m confused. Is this the original version, the amendment that was scrapped or the final version? Don’t know? I don’t either. Good job there, Chris Keating, Capitol Bureau Chief. Now I know less than I did when I started reading your story.

Can you condense all of this into bullet points for stupid old me?

# $5,492,000 to improve supervision of sex offenders who are on probation, including upgraded lie-detector and global-positioning-system (GPS) technologies. The money also would be used for truancy prevention and helping officials serve warrants on probation violators.
# $2,147,000 to hire more parole officers and prison guards, along plus expanding the use of GPS technology to track criminals who are on parole.
# $910,000 for the state Department of Mental Health and Addiction Services to provide supportive housing and for improving the women’s jail-diversion program, among others.
# $681,000 to the Division of Criminal Justice for more prosecutors and better computers.
# $514,000 to hire more employees for the state police major crime squad.
# $252,000 to the Public Defender Service Commission for lawyers to handle more prosecutions and aide indigent criminals.

Yet nothing on penalties. Sigh.

Oh, by the way Chris Keating, Capitol Bureau Chief, the correct term would have been “indigent defendants“, not criminals. Unless, of course, this bill removed the presumption of innocence. Which I have no way of knowing whether it did or not, because I didn’t understand anything you wrote.

Anyone have a link to the actual bill that was passed?

Scott has shamed me into posting. Again. He has two posts on things that should always happen and things that should never happen. He asks us to think of it as a legal Rorschach test.

All people who believe that convicting innocent people is an acceptable necessity of an imperfect system should nominate one member of their family to go to prison “just to be safe.”

Government should never spend more on prisons than education.

So here are my contributions. Some may be repeats from his posts and it’s an incomplete list, mostly because I’m too busy soaking up the sun. But. Here goes:

Must happen:

1. Appellate Judges must spend three weeks a year practicing in the “real world”.
2. Defense lawyers must meet with clients at least twice before getting them to plead.
3. Prosecutors must spend two weeks in our chair.
4. Prosecutors must keep victims informed of progress in cases.
5. Identifications must be performed using the double-blind, sequential method.

Must not happens:

1. Harmless error must never be used as an excuse again.
2. Claims must not be deemed abandoned because you forgot to object for the 5th time.
3. Prosecutors must never hide exculpatory evidence and get away with it.
4. Defense lawyers must never forget that someone’s liberty depends on our efforts.
5. Prosecutors must never be afraid to challenge the police’s investigation (after all, they are after truth, not convictions).
6. People must not be tricked into confessing.
7. Police must never lie on affidavits.
8. Defense lawyers must never forget that it is all about the clients.
9. Defense lawyers must never forget that they can always do better.

Additions?

Doug at Not Guilty asks practitioners whether they’d prefer good facts or good law in a case. The answer, I think, is clear. Good facts (almost) always trump good law.

Putting aside the question of whether there actually is such a thing as “good law” for defendants, if the facts are not on your side, your options get severely limited. If you have a case with bad facts, you’re essentially looking to get the “least worst” resolution for your client.

If, on the other hand, you have good facts - such as DNA evidence that excludes your client - then not only can you argue to a jury (or a judge) that the verdict should be not guilty, but you can also try to create an exception in the “bad law” for your good facts.

Anyone disagree with this?

Grits is all over the story that the search warrant and accompanying affidavit used to enter and search the polygamist compound headed by the now convicted Warren Jeffs may be illegal.

For starters, the initial warrant named the wrong person. Dale Barlow, the 50-year old man who an anonymous phone call accused of marrying and assaulting an underage girl. Barlow is actually on probation living in Arizona, says he’s never met the girl in question, and has not been arrested.

Indeed, they can’t even find the 16 year old girl who’s phone call set off the whole chain of events. None of the information on which authorities based the raid appears to have panned out. The error regarding Barlow in the warrant could easily wind up creating a “fruit of the poisonous tree” situation where none of the evidence from the compound searches can be used in court.

So if the first warrant targeted the wrong person, and the second, expanded warrant was based on observations from the first, I don’t see how these warrants stand up in court, though maybe some attorneys in the crowd have additional thoughts. Several criminal defense lawyers interviewed on CNN also questioned the breathtaking scope of the warrants.

As a commenter correctly points out, the exact scope of the warrants will need to be seen to determine if they are indeed illegal. Grits also raises another interesting issue about whether some of the laws the sect has been accused of violating were passed specifically as a challenge to their religious beliefs.

This Texas mess just got a lot more interesting.

Update: The decision is a must read. It comes in at a whopping 236 pages. (Yes, you read that correctly. 236 pages.) Not only is there an extensive discussion of the history of 6th Amendment jurisprudence, but there is also an extremely fascinating discussion of the Constitutionality of the federal child porn statute and whether its requirement that possession be “knowing” rather than “willful” is sufficient and whether its lack of scienter permits it to survive Constitutional scrutiny. One of the most interesting decisions I have read in a very, very long time.

Original: From SL & P, via Volokh comes this story of a federal judge in New York who reversed [pdf] a conviction after polling the jurors.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.

This led Judge Weinstein to declare a mistrial.

Weinstein wrote that he “committed a constitutional error” by not telling the jury about the sentence.

That knowledge “might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity,” the judge wrote.

In most states, like in CT, juries aren’t told of the consequences of guilty verdicts: what the mandatory-minimum sentence is, what the maximum sentence is, whether the defendant will be sentence to probation, etc.

This ruling has sparked a very interesting discussion at SL & P. S.cotus writes:

I think that Judge Jack sets the issue up in a different way. Rather than say, “Should the jury be told” I think he is asking “Should the judge set aside the verdict based on a clear statement from the jurors, on the record that they would not have convicted if they had known the consequences.” Depending on how you look at it, this is a slightly (or very) different issue.

This isn’t the first time I’ve thought about this issue and it won’t be the last. I can’t decide. My reluctance to embrace juries knowing about sentences stems from tradition, I guess. It’s just what I’ve become used to. Resistance to change or something like that.

But the benefits are obvious. With harsh sentencing and almost anything being a crime, this would be a way for the community - through the jury - to make a statement about what is and isn’t worthy of jail time and whether the sentences set out by the legislature are just and sufficient.

Sure, it reeks of jury nullification, but I don’t think nullification is illegal. It serves a purpose.

Someone at Volokh posted the following rationale:

But we’ve criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of “who is a bad guy.” So, until that changes, we ought to at least let the jury have a shot at letting some non-bad-guy defendants off lightly.

A tangent that bothers me is that a bunch of commenters are all for “full disclosure”. According to them, this would include permitting the jury to know whether the defendant has prior convictions. Seems like they’re seeking a trade-off. Something that might help a defendant for something that definitely hurt a defendant.

It’s an interesting discussion, for which I have no ready response. Thoughts from you guys?

PS: Look at the NY Post headline. Talk about tabloid…

What is it in Connecticut’s water that makes some people batty? Whatever it is, it seems to have some staying power. After Cheshire and more recently the killing in New Britain, Connecticut Congressman Chris Murphy has announced plans to introduce legislation making “home invasion” a Federal crime. From his press release, a copy of which is posted at CTLP:

Today, Congressman Chris Murphy (CT-5) announced a pair of legislative initiatives designed to make home invasion a federal crime and provide additional federal resources and technology to parole and probation officials. Connecticut residents have witnessed two heinous home invasions and murders in less than a year – one just this weekend in New Britain, and one in July in Cheshire.
Murphy’s proposal intends to:

• make home invasion a federal crime;
• improve the FBI’s tracking of home invasions across the country;
• improve federal resources for parole and probation activities, including federal funds for the use of GPS monitoring devices and the hiring of additional parole and probation officers;
• And create a national training center for parole and probation officials.

“Connecticut has been through enough this year. These senseless crimes have hurt so much more than our homes and families – they have shattered our sense of safety and security in our communities. It’s time for the federal government to provide more assistance to the states to keep us safe,” said Murphy.

Now, I’m no Constitutional scholar and I know less about Federalism, but this quote sums up the nutiness of his proposal (thanks to a post on a local listserve):

“The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.”

United States v. Morrison, 529 U.S. 598 (2000). So what’s the basis here for Federal legislation? I guess if there was a firearm that was used. But wouldn’t there have to be a showing that the firearm crossed state borders? So we would be talking about a very, very small subset of home invasions.

The real reason, I suspect, is to look good. Two of the districts he represents happen to be the scenes of horrific crimes.

However, is there no one advising him? It didn’t occur to him that this would not fall under Federal jurisdiction? Waste taxpayer money and others’ time to look good?

What’s that deficit at now?

The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.

State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.

But they just couldn’t leave it at that.

The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.

Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.

And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however - or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.

The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.

Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.

One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.

The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.

If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.

Previous, similar thoughts here.

Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.

What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.

In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.

So they disbelieved the eyewitness. Zero credibility. They acquitted.

Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)

So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.

Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.

The Statute of Limitations is a legislatively enacted section of the penal code that states:

(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, except within one year next after the offense has been committed.

The practice book also provides (Section 41-18):

The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:

(3) Statute of limitations

A Motion to Dismiss exists to test the court’s jurisdiction.

However, caselaw indicates the exact opposite:

Years ago, the United States Supreme Court indicated that “[t]he statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases. . . .” Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). Courts have cited Biddinger for the proposition that the statute is an affirmative defense waived unless asserted at trial.

We think that the more acceptable and better reasoned approach is not to treat the statute of limitations as jurisdictional and hence nonwaivable but as an affirmative defense and hence waivable. In doing so, we incline to the position that, although the protection is given to a criminal defendant by a statute, it is in the nature of a “substantive right,” extending, where timely asserted, immunity from prosecution. See United States v. Gulf Oil Corporation, 408 F. Sup. 450, 455 (W.D. Pa. 1975); United States v. Haramic, 125 F. Sup. 128 (W.D. Pa. 1954); 22 C.J.S., Criminal Law § 223, p. 574.

State v. Littlejohn, 199 Conn. 631, 640 (1986). The result of that holding is that the statute of limitations must be raised during trial, just like a normal affirmative defense, after the close of the state’s case-in-chief and if not done, is waived.

Why? The legislature has established time-limits within which individuals must be prosecuted or the state forfeits the right to institute criminal actions against them. It would seem that if a defendant cannot be legally prosecuted after the expiration of the time period, then a court does not have jurisdiction to hear that matter. Why has it been turned into an affirmative defense that must be asserted by the defendant?

Any clue?

This very odd story today leads me to ask the question in the title of this post. Luke Stetson and his girlfriend stole his mother’s chihuahua from the mother’s house and held it for ransom. They demanded hundreds of dollars. Hundreds. Apparently the transfer was made, but they were arrested trying to flee. Details haven’t been released, but I wonder if they themselves took the dog back to the mother for the money exchange.

Anyway, this led me to wonder whether you can be convicted of burgling your own house or your mother’s house. The burglary statute provides that one is guilty of burglary “when he enters or remains unlawfully in a building with intent to commit a crime therein”. It’s the second clause that interests me. “Remains unlawfully”. Caselaw has defined that as a situation in which an individual has permission to enter the premises, but then that permission is subsequently withdrawn - either explicitly or implicitly. State v. Henry (”even if one is lawfully admitted into a premises, the consent of the occupant may be implicitly withdrawn if the entrant terrorizes the occupants”).

However, every case that has dealt with that portion of the statute (at least the ones that I found) involve an attack or assault on the home-owner. The theory is that while you invite someone over, that invitation is rescinded once they attack you or commit a crime. Now bear with me here.

If Stetson had permission to enter, stay and take whatever he wanted from his mother’s home, can he be convicted of burglary for taking the dog? The predicate crime being, of course, larceny. Larceny, in this context, would be defined as:

(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.

Clearly, it would have to be under sub (a). So let’s look further:

A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:

(5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime…

So there are questions aplenty. First, it would seem clear that he “wrongfully withheld”. But is it? Would a dog be “property”? Even if it is, did he “compel or induce another person to deliver such property”? Or is the “property” money? Because he clearly compelled the mother to “deliver money”. So he could “wrongfully obtain” this “money” by “instilling fear” that if it is not delivered, he will “cause damage to property”. Which property is that last “property”? Would that be the dog?

Now, getting back to burglary. The crime itself - the extortion - didn’t occur till after he left the mother’s premises. So did the crime occur while in the house? If not, can it be burglary?

I think the answer will be yes, but it’s not a decided question by any means. Thoughts?

PS: I love elements analyses.

A new paper asks the very question: Has Miranda become ineffective? Not because it’s not needed anymore, but because police departments are finding ways to get around it while achieving the same results. The conclusion is pretty bleak:

So how well do Miranda’s safeguards fare overall? I believe that we have a Miranda rule that is somewhat limited in reach, that sometimes locates warnings and waivers within the heart of a highly-structured interrogation process, that provides admonitions that many suspects do not understand, and that appears not to afford many suspects a meaningful way to assert their Fifth Amendment rights. As a prophylactic device to protect suspects’ privilege against self incrimination, I believe that Miranda is largely dead. I would welcome compelling evidence to the contrary (or proof that California is a complete outlier), but I do not believe such evidence exists.

This paper does an excellent analysis of the Court’s decision in Miranda and subsequent decisions that defined gutted its meaning and scope:

But a primary virtue of Miranda is, in theory, giving clear guidance and bright line rules to police, judges and prosecutors, thus avoiding difficult individualized assessments. Thus, it is not so much that the Court has retreated after Miranda but rather that the one-size-fits-all safeguards put in place by the Miranda Court could never have functioned as intended. Or perhaps it would be more accurate to say that a far higher proportion of defendants than the Court initially anticipated have been left uninformed and unempowered by form warnings.

So whither Miranda? Will it provide more benefit to abandon Miranda? The paper suggests legislative action:

One possible outcome might be legislation that directly regulates the police and affords greater protection to suspects than Miranda currently offers, perhaps in conjunction with a modified system of warnings. A legislature might, for example, require warnings in very simple language and instruct police to give them prior to any suspect interviews or interrogations. It could require that all interrogations be videotaped, a movement that is slowly gaining ground.

H/T: Appellate.

Update: I should have checked before posting. SimpleJustice also has some thoughts.

Last year, some organization somewhere surveyed judges and lawyers from all states and determined that CT’s jury selection process took the longest: on average 10 hours for a criminal trial and 16 for civil. It then determined that S. Carolina had the fastest process: 30 minutes on average for criminal trials. I took this to be a good thing. There wasn’t much hullabaloo in the State, either. Everyone understood that getting it right takes time. We question jurors individually and, I think, rightly so (I do not want to start the blawgospheric conversation again, so Bennett and Greenfield - you have been warned. DO NOT link to this post and raise the same issues again.)

However, it seems that the American Idol disease is spreading on from the Governor. Judiciary Committee co-chair Andrew McDonald apparently heard that some jury selections in Stamford (his district) took a combined 13 weeks. They were two med mal cases and a friggin’ murder trial. The hammer hit the knee and now we have a reaction:

“It’s extraordinary,” state Sen. Andrew McDonald, D-Stamford, said of the slow system and the cost to defendants who pay their attorneys by the hour. “We need to look at ways of making our jury selection process more efficient.”

Ah, he has revealed the secret of private practice: Drag on jury selection indefinitely, so you make gobs of money. It has nothing to do with seating unbiased jurors, but everything to do with money.

But McDonald said there are ways to tweak the rule without violating the constitution or amending it again. He is not ready to offer proposals, but other attorneys and national experts did so.

Some suggest giving jury candidates more detailed questionnaires about their backgrounds or having judges take more control. Judges in Connecticut do not sit in on jury selection in civil cases. They rarely interfere with an attorney’s questioning in criminal cases, the National Association for State Courts study found last year.

More active judges might cut off attorneys who drift off topic, experts said.

“The attorneys in Connecticut may not know how to rein in their questioning,” said Paula Hannaford-Agor, director of the association’s Center for Jury Studies and an author of the recent study.

Yes. Lawyers in Connecticut are incompetent; judges are hands-off and everyone has a party when you go to jury selection. Lawyers here accept probably one juror a day.

It has absolutely nothing to do with the fact that sometimes these potential jurors say things like: “I always believe the cop” or “I think if you’re innocent of something, you should take the stand and say it”. No. That never happens.

Here’s another thing: This “10 hours to pick a jury” is an average. Not every trial takes that long; some are quick, some take a while. But the plus side is that unsuitable jurors are very rarely seated. You’d think it was something to be proud of.

National experts said Connecticut’s approach has value, though they support McDonald’s move to speed it up.

A judge in the Superior Court system in Washington, D.C., began questioning jury candidates individually in the late 1990s and found that about a third failed to volunteer important information during group questioning, Hannaford-Agor said. The judge disqualified about a quarter of that group because of an obvious prejudice, she said.

“In group settings, people just slip into a socially acceptable means of responding,” said Andrew Sheldon, a nationally known expert on jurors who heads SheldonSinrich Trial Consultants in Atlanta.

Then there’s the matter of the State Constitution, which while not having an explicit Ex Post Facto or Double Jeopardy Clause, does state (in Article 1, Section 19, for those who are interested) that “[t]he right to question each juror individually by counsel shall be inviolate.”

So it takes a little longer in our state to pick a jury. Who gives a sh*t.

SCOTUS issued its much-awaited (by me, atleast) decision in Danforth v. Minnesota [pdf] today, ruling 7-2 that Teague’s retroactivity prohibition applied to Federal courts on federal habeas corpus review. State courts are hence free to apply decisions articulating violations to cases on direct and/or collateral review.

As Justice Stevens makes clear, what the Court does, in say Crawford, for example, is state that a particular act or omission violates the Constitution. It is then left to the states to decide how to remedy that violation.

Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.

…

Our subsequent cases, which characterize the Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas.

He wraps it up very succinctly:

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts.

Whatever this means for federal habeas corpus practice, it is pretty clear that us state practitioners can now argue - with a stamp of approval - that our state courts should provide remedies for constitutional violations recently articulated.

It makes much sense, too, if you think about it in the context of the Fourth, Fifth and Sixth Amendments applied to the states through the Fourteenth. The Court has maintained that States are free to provide greater protections than afforded by the Federal Constitution. This falls in line with that quite well.

Read the whole decision - it’s very interesting. Justice Stevens conducts an in-depth analysis of Justice O’Connor’s plurality in Teague and cites Justice Scalia heavily. Then there’s this odd footnote; perhaps someone can explain:

13. That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify.

A much better in-depth analysis from Scotusblog here. More from SL & P.

H/T: SL & P.

I’ll spare you the “a person who represents himself has a fool for a lawyer” line, but someone probably should have told Daniel Riles that. After vowing to take on the legal community by himself (whatever that means), he proceeded to represent himself at trial. Not to be outdone by the twinkie defense, he decided to invoke jurors’ emotions by comparing himself to the New York Football Giants and the State as the Patriots. The trial was in Bridgeport, so he had a good shot at getting Giants fans. Didn’t work, though, as the jury convicted him of attempted bank robbery.

That’s a pretty serious charge, isn’t it? So what would possess a man to do something like this? The following might give a clue:

Riles said that he has taken on a number of cases for individuals at the Bridgeport Correctional Center.

Ah, now it all makes sense. He’s a jailhouse lawyer. I’m pretty sure those individuals are now writing to the Court asking to get their public defender back. [As Scott reminds me, he might just be trying to disprove the Dunning-Kruger effect. More on this here.]

Jailhouse lawyers are a good thing, to an extent. They help other clueless inmates file petitions, write motions and keep their legal affairs in some semblance of an order. It’s a business, a commodity in prison, and those that can do it passably should. But not when it comes to a trial. Certainly not a criminal trial where you’re facing a lot of time.

I wonder what the waiver canvass was like and if the judge had felt any pangs of doubt when this happened:

He started by asking prospective jurors what they thought of bank robberies. All said they do not support them. “Well, how about attempted bank robberies?” he asked.

Yikes. Mr. Riles, please let a public defender represent you on appeal.

This fantastic piece in New York Magazine explores studies analyzing the lies that children tell, the reasons behind them and the frequency with which they are offered. The results are interesting, but the reasons behind the lies are fascinating.

It starts very young. Indeed, bright kids—those who do better on other academic indicators—are able to start lying at 2 or 3. “Lying is related to intelligence,” explains Dr. Victoria Talwar, an assistant professor at Montreal’s McGill University and a leading expert on children’s lying behavior.

By their 4th birthday, almost all kids will start experimenting with lying in order to avoid punishment. Because of that, they lie indiscriminately—whenever punishment seems to be a possibility. A 3-year-old will say, “I didn’t hit my sister,” even if a parent witnessed the child’s hitting her sibling.

So why do kids lie and do so unabashedly?

By the time a child reaches school age, the reasons for lying become more complex. Avoiding punishment is still a primary catalyst for lying, but lying also becomes a way to increase a child’s power and sense of control—by manipulating friends with teasing, by bragging to assert status, and by learning he can fool his parents.

Thrown into elementary school, many kids begin lying to their peers as a coping mechanism, as a way to vent frustration or get attention. Any sudden spate of lying, or dramatic increase in lying, is a danger sign: Something has changed in that child’s life, in a way that troubles him. “Lying is a symptom—often of a bigger problem behavior,” explains Talwar. “It’s a strategy to keep themselves afloat.”

This resembles a typical defense in which the victim/accuser is a child. Defense attorneys will seek to discover a motive; strife in the child’s life might give a clue as to whether the child is fabricating an injury. But for the most part, this investigation has been based on anecdotal evidence and just plain common sense. Find a motive, unravel the lie.

Given, however, the increasing role of science in the courtroom, I wonder if studies such as this have a place in any defense. Surely a study such as this to back up the defense’s claim that a child is lying would seek to legitimize what might otherwise be viewed by the jury as a vile effort to push blame onto a small child, who we view as pure and honest.

[One] experiment was not just a test to see if children cheat and lie under temptation. It was also designed to test a child’s ability to extend a lie, offering plausible explanations and avoiding what the scientists call “leakage”—inconsistencies that reveal the lie for what it is. [The child]’s whiffs at covering up his lie would be scored later by coders who watched the videotape. So [the tester] accepted without question the fact that soccer balls play Beethoven when they’re kicked and gave [the child] his prize. He was thrilled.

Seventy-six percent of kids Nick’s age take the chance to peek during the game, and when asked if they peeked, 95 percent lie about it.

Either way, make sure you read the entire story. It’s a fantastic read.

Image by Solar Ikon. License info here.