Category Archives: criminal law principles

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

Flash me: It takes two to conspire

When I read this Reason post yesterday about a Federal District Court judge who ruled [PDF] that flashing headlights to warn oncoming traffic of a speed trap is Constitutionally protected behavior, I thought it fairly straightforward.

Then I came across this WaPo/Volokh Conspiracy post by uber-First-Amendment-law-prof Eugene Volokh, which sought to throw a wrinkle into the issue in that oh-so-insufferable-everything-is-complex-only-if-you-were-smart-enough-to-understand-it-way that this most recent generation of lawprofs has seen it fit to model themselves after1

Before we get to how I’m wrong and Volokh is correct, let me give you the facts. It went thusly:

In 2012, Missouri resident Michael Elli was pulled over and handed a $1,000 ticket for passing along just such a warning to motorists about a speedtrap [by flashing his headlights after observing a police car lying in wait]. While the charges were dropped, he promptly sued Ellisville, Missouri, for its speech-discouraging ways.

In ruling in his favor, the District Court judge wrote:

Can Woody Allen still be prosecuted?

I’m sure everyone’s read and talked about Woody Allen recently, what with his award and then Dylan Farrow’s open letter in the NY Times reminding everyone that ‘hey, this guy sexually molested me’.

Allen has rejected these claims again and reminded the world that a Connecticut prosecutor investigated the allegations and declined to pursue charges.

It ain’t gonna happen. He’s not gonna get reprosecuted. But, for purely academic purposes, could he?

That depends on a few things: mainly the facts of the allegations and the dates of the allegations. Assuming that the incidents were alleged to have occurred in 1992, the statute of limitation in effect at the time was 5 years for a sexual assault. That means the SOL ran out in 1997 and Sexual Assault in the First Degree, a Class B felony, is no longer a viable option.

There’s a new statute of limitations (none) for sex assault crimes with DNA evidence, but that wouldn’t apply here, nor would the Supreme Court’s convoluted rules for “lapsed” and “non-lapsed” statutes of limitation in Connecticut1

UConn Law Criminal Clinic professor Todd Fernow agrees:

The passage of time has likely barred the possibility Allen could be prosecuted on sexual abuse charges, said Todd Fernow, a law professor at the University of Connecticut. Under Connecticut law, the statute of limitations for all but the most serious sexual crimes lasts for five years from when a police report is filed, which if applied to Dylan Farrow’s claim of having been abused in 1992 would have run until 1997, Fernow said.

So does the original prosecutor who declined to pursue the allegations:

Connecticut state prosecutor Frank Maco in 1993 declined to bring charges against Allen and retired in 2003. He declined to speculate on Sunday about whether a criminal case could be brought based on the allegations Dylan Farrow has outlined.  But he added that whether the statute of limitations had passed would depend on several factors including the nature of the evidence and changes in the law in the past decade.  Maco said that he examined the question before he retired and did not believe then a criminal case was still possible. “When I left office, I was satisfied that the statute of limitations had long run in that case,” he said.

But a friend posed the question just the other day: can Allen be prosecuted for something else? That something else being the Class A felony – for which there is no statute of limitations – of kidnapping in the first degree.

Specifically, kidnapping in the first degree provides that:

(a) A person is guilty of kidnapping in the first degree when he abducts another person and: (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony;

In order to convict someone of Kidnapping in the first degree, the prosecution must prove beyond a reasonable doubt that a person “abducted” another person2 and then further restrained the abducted person in order to rape the victim.

So the question is, could Allen be guilty of this? The answer, in my opinion, is it depends. It would depend specifically on the facts of the allegations: did Farrow allege that Allen shoved her in a car and drove her to an abandoned building on the outskirts of town and there touched her? Or is the allegation that when she was in his house, he would touch her sexually?

These factual distinctions are critical because in 2008, the Connecticut Supreme Court clarified the requirements of Kidnapping in the First Degree, ruling that restraint that is required for the commission of another felony and is merely incidental is not kidnapping. In other words, the restraint of liberty must be over and above and independent of any restraint that is required to commit sexual assault.

But this, of course, is a deeply factual scenario. Clients have been convicted of kidnapping for preventing the victim from leaving the room so as to enable them to sexually assault the victim and they have been convicted of dragging a victim to the back of an alley to perform a sexual assault.

As I said, I don’t think anything will come of it at this stage, but the possibility certainly exists, however academic, that a prosecution for kidnapping might be viable.

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I’d love to see them. Further, if you’re a legislator, request updated statistics from OLR – specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Unmuting Gideon’s trumpet

Pictured: a trumpet

Pictured: a trumpet

It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.

There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.

Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.

In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:

Who’s the people?

smbc-20131203

Did you hear the one about the woman who couldn’t fly to testify at a trial about the government’s “no-fly list” because the government put her on a “no-fly list”?

No? It happened this past weekend, when Raihan Mustafa Kamal, the daughter of the woman suing the Department of Homeland Security – and incidentally a U.S. citizen – tried to board a plane to San Francisco in Kuala Lumpur and was told by Malaysian Airways that the Department of Homeland Security had put her on a no-fly list.

Not an Onion article. I swear.

The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.

Just so you understand what’s happening: the Federal government is being sued. The Federal government, in defending that lawsuit, has apparently just blocked the opposite party from providing a witness. It’s as if the state charged you with murder, but you have a rock solid alibi of your family, so on the day your family was going to testify, they took your family and moved them to Guantanamo and then pretended like nothing happened and they didn’t know anything.

Can the prosecution prevent you from giving discovery to a defendant?

In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.

As I wrote in January 2010:

Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.

This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.

However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.

In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.

Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.

Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.

Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.

So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.

It is incredibly hard to explain to a person accused of serious crimes by the state that:

  1. You are in possession of witness statements that implicate him and police reports that tie it all together;
  2. But you cannot give it to him.
  3. He can read it in front of you, but he cannot take it with him.
  4. He must rely on his memory in a correctional institution to recall all the details and to become well-versed with his own case, because he is not allowed to have any participation in the defense of his liberty and freedom;
  5. Especially when his cell-mate has 3 boxes of legal materials.

As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.

There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.

If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.

Of course, the question – just as with this scenario – is whether anyone will make that stand or will there always be some compromise worked out?3

It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.