Category Archives: criminal law principles

A Fully Informed Jury: Two tales

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We here in the United States are particularly proud of our jury system of dispensing justice, touting it as “the best in the world” at every given opportunity: and yet think we are all acutely aware of the significant flaws that show no sign of ameliorating. Take, for instance, the role of the jury itself. A jury is supposed to be a representative cross-section of the defendant’s peers, chosen from those in his community or neighborhood, so that they may be able to relate to and understand the defendant’s actions, thus giving greater legitimacy to their finding of guilt or not-guilt. When’s the last time that really happened in your practice?

Juries also have another important role, as we so love to remind them during jury selection: they are the weighers of evidence. It is their job to determine if the State has met its burden of proof. They are to decide if a prosecution is successful beyond a reasonable doubt and whether the State has firmly convinced them that the individual accused has indeed committed the crime.

But juries are often kept in the dark. They are directly told that they are not to bother themselves with consequences – in fact, barring a few outliers, juries aren’t even told of what the consequences might be. Their job is simply to decide the facts and then blindly apply the law. They’ve become accountants, adding up the numbers and deciding if you’ve got a surplus or deficit. That’s not how it always used to be, though. In 1794, Supreme Court Chief Justice John Jay informed a jury as follows:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

John Adams said the following: Continue reading →

He fled and took all logic with him

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State v. Ward [PDF], issued by the CT Supreme Court yesterday, presents the ubiquitous problem of how to contort the law and the plain meaning of words to ensure that an obviously guilty person stays convicted. Showing their abhorrence for “technicalities”, the court does the astonishing: it re-imagines itself as a lexicographer and unilaterally changes the definition of a simple four-letter word.

The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.

This brings us to the intersection of the notions of justice and due process. For justice requires that someone who commits a crime like this shouldn’t go unpunished, no matter how long it takes to find and prosecute them. Victimization remains forever and the penalty must be paid. Due process, on the other hand, demands that prosecutions be brought in a timely manner and that individuals not be required to answer for crimes allegedly committed decades earlier due to the inherent problems of missing witnesses, eroded memories and evanescent evidence.

This is why the law provides not only for a statute of limitations in almost all felony cases, but also for an “out clause”: a tolling of that statute under certain restrictive circumstances. For the uninitiated, the statute of limitations states:

(b) No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section, 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.

The tolling provision states:

(d) If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against such person at any time within such period, during which such person resides in this state, after the commission of the offense.

Clearly, in the matter of Ward, the prosecution was not initiated within 5 years of the commission of the offense. So the only question that remains is whether the limitations period has been tolled. To answer that question we need to ask if Ward “fled” the state.

The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution. The alternative – that every individual who has committed, or thinks he has committed, a crime is required to stay at the scene of that crime and await the inevitable arrival of Constable Fife with open arms is absurd and illogi-I’m sorry, hang on. The Supreme Court wants to say something:

The defendant contends that the trial court improperly determined that he ‘‘fled from and resided out of this state’’; General Statutes (Rev. to 1987) § 54-193 (c); because the state did not present any evidence to show that he was aware of a criminal investigation against him and that he fled in order to avoid prosecution. In response, the state contends that the term fled does not require an intent to avoid arrest or prosecution and that any absence from the jurisdiction, regardless of intent, tolls the statute of limitations. We agree with the state that the plain language of § 54-193 (c) does not require a defendant to leave the state with the intent of avoiding prosecution.

…

Section 54-193 (c) contains no mention of a requirement that the defendant must have fled for the purpose of avoiding prosecution. Thus, the plain language of § 54-193 (c) supports the conclusion that it does not require that a defendant has fled with the intent to avoid prosecution.

[(c) is now (d)] Oh. I see. So you are saying that all perpetrators must stand vigil at their crime scenes until police arrive to arrest them. Are they required to provide confessions too? Maybe we should make it a law for all criminals to videotape their criminal activity and then mail the aforementioned tape to the nearest police department and turn themselves in within 24 hours.

The fact that the Court agrees with the State that the verb “to flee” as used in the statute has no intent requirement renders the phrase meaningless. They might as well take it out of the statute and simply say “if the person has left the state…” because the existence or possibility of a prosecution is irrelevant.

We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.

Okay, hang on. I’m confused. What? You just got done saying that it didn’t matter why the person left the state. Then you use the wishy-washy word “may” in the next paragraph to include that scenario that you just dismissed as irrelevant1. WHAT ARE YOU SMOKING AND WHERE CAN I GET SOME?

Certainly, the defendant herein, as a result of his conduct in the victim’s home, had reason to believe that an investigation would ensue.

Ay, there’s the rub. He’s a Very Bad Guy and he’s Obviously Guilty so he should’ve known that a prosecution would naturally ensue from his actions.

Granted, a man who rapes a woman at knifepoint in her home, deposits his DNA everywhere and just saunters off cannot plausibly claim that he “just went home” and so the court, in an “ends justify the means” sort of way can reasonably be forgiven for calling bullshit on his claim that the statute had run.

But this doesn’t – and shouldn’t – give the Court license to rewrite the meaning of the word in the statute that affects not only Ward, but every other criminal defendant in the state. The court has added a judicial gloss to the meaning of the statute in a way that was completely unnecessary and unfortunately served to eviscerate the protections offered by it, despite its fervent protestations to the contrary:

We reject the defendant’s argument that construing § 54-193 (c) in a manner that does not require an intent to avoid prosecution renders the term fled meaningless. As we have explained previously herein, a defendant must absent himself from the jurisdiction with reason to believe that an investigation will ensue as the result of his actions in order for there to be an application of the tolling provision. There may, indeed, be situations in which a person is traveling through Connecticut and leaves the jurisdiction without reason to believe that an investigation would ensue as a result of his or her actions. For instance, if a motorist was driving on a dark road at night and hit what he reasonably believed to be a bump in the road without stopping, only later to learn that he had left the scene of an accident, he may not have fled the jurisdiction within the meaning of § 54-193 (c). We are confident that our interpretation of the statute does not render the term fled meaningless.

God this court is schizophrenic. From the earlier “may” we now come to a “must”, thereby cementing that a reasonable belief that an investigation will ensue is an integral part of the determination of whether the defendant “fled”. The court then provides the most laughably absurd example of how that requirement would serve to protect an “innocent” person, but still cannot bring itself to say that its own fictional defendant, in its fictional example of the application of the statute that they have just defined “must” get the protection it confers. All it can say is “he may not have fled the jurisdiction”, because logic.

For this judicial determination of “he should have known because, look, he’s really guilty” is a prior judicial determination of guilt before the fact-finder is called upon to make that very same determination. Through what lens are we to make this determination of a “reasonable” belief? From the perspective of the defendant at the time of the commission of the alleged offense? At the time of arrest?

This “interpretation” may not have rendered the term “fled” meaningless, but it sure has made it completely incomprehensible and useless.

There’s a lesson to be learned here, kids: bad cases make bad law, always.

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1Unless, of course, you’re using the word “may” in the sense of “is permitted to”. As in “you may serve me my coffee now”. In which case, I suggest the use of the more direct and precise “shall” or “will”.

This is the song I first thought of when I read this case. There are some obvious similarities, but I’ll leave it to you to figure them out:

General intent, specifically

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The Connecticut Appellate Court, in what is sure to be a short-lived decision, reversed the conviction of a man accused of conspiring to commit Robbery in the Second Degree. In State v. Pond [PDF], the court held that while Robbery in the Second Degree is a general intent crime, conspiracy is a specific intent crime, so the trial judge improperly instructed the jury on the elements required to be proven beyond a reasonable doubt.

The majority opinion and the concurrence [PDF] go to great lengths to plead that their decision here is “constrained” and “required” by the anomaly in the jurisprudence brought about by our supreme court’s decision in State v. Padua. In fact, almost the entirety of the concurrence is devoted to explaining this anomaly and how it basically fucks it up for the State, which has to prove more to prove a conspiracy and then ends with the blatantly transparent “but I’m just an appellate court, so I can’t do anything about it….HINT! HINT! ARE YOU GETTING MY HINT YET!?!!?”

Reading these opinions on specific and general intent and what is and isn’t not only made my head throb violently, but it also re-ignited a conversation I was having with myself last week: what is the difference between general and specific intent and why do we even bother to differentiate?

Thankfully we have State v. Gonzalez to clearly explain all of this to us (via the concurrence in Pond): Continue reading →

Forfeit what?

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Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here's the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”: Continue reading →

The new criminal justice experts: the public

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The criminal justice system is made up of several, mostly unequal parts. At the top of the food chain sit the prosecutors, lording over all that they survey, with supreme control over the futures of thousands of individuals. Then come the judges, who are increasingly former prosecutors who echo the demands of the current prosecutors. Lagging behind – a long way behind – are criminal defense attorneys, whose roles have been sidelined to bleating and begging for a break here and a break there. We, the CDLs, are fast becoming used car salesmen. The defendant is somewhere there, in the mix, usually an unseen and amorphous blip on the radar on the horizon, hardly ever a thought in the negotiating process.

But there are two others who, from behind the scenes, feed into and subconsciously manipulate a once well-regarded (even if only by those who were a part of and beholden to it) justice system: the ill-informed general public and the media who control their puppet strings by refusing to provide any measure of nuance and education in their sensationalist stories about every case that happens to cross the docket (my previous media diatribe here).

(Former) Judge Nancy Gertner, writing for WBUR, makes a compelling argument that the media irresponsibility is much to blame for the current state of affairs in the justice system:

A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We’ve all seen it: there is almost a formulaic nature to the reporting of criminal cases in the “news”: a massive headline when someone is arrested for a crime with information taken mainly from the arrest warrants, with little to no mention of the range of sentences or a critical view of the facts as presented by police.

[This, on the other hand, sets up an interesting conflict: people seem increasingly suspicious of police activity as a whole and are cognizant of the creeping police state in general, yet blindly buy and accept whatever accusations are reported in individual, specific cases. I'm sure there's a term for it, I just can't seem to remember it.] Continue reading →

Should dead women tell some tales?

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Having had my egg for lunch, I spent the better part of the day attempting to untangle the evidentiary web that seems to have ensnared many following and participating in the Drew Peterson saga. Drew Peterson, for those of you who don’t know, was a sort of Black Widower: a man who left a trail of dead wives. A jury just found him guilty of murdering his third (?) ex-wife, while wearing matching outfits. The jurors were wearing matching outfits, not Peterson and his wife. Lacking physical evidence, the prosecution relied on statements made by both his third ex-wife (the decedent in the trial) and his fourth (who is also missing) to friends, family and clerics.

And this is where, as they say, the plot thickens. With help from these two fantastic posts at EvidenceProf and this equally detailed post by anonymous public defender “S”, the issue has become somewhat clear less murky.

So, let’s start at the very beginning:

The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay. Continue reading →

In which I make some uninvited retorts to specious arguments against abolition

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With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.

I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.

Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?

A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.

Q: “Bluster?” What ever can you mean?

A: It was never a serious proposition, just a useful piece of propaganda.

He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.

 Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.

A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!

This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.

It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.

So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.

Q: Another argument was that the penalty once applied was irreversible.

A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.

I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.

Q: But the appeals!

A: A means of postponing punishment, a judicial means of jury nullification.

…

[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.

You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.

First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.

This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.

But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.

Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.

These are the appellate review options available to any defendant:

1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).

2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

3. A Petition for Writ of Habeas Corpus in State Court.

4. An Appeal to the Connecticut Supreme Court from that decision.

5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

6. A Petition for Writ of Habeas Corpus in Federal District Court.

7. A Discretionary Appeal to the Second Circuit Court of Appeals.

8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).

Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]

To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.

To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.

In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.

[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]