Category Archives: ct legal news

CT: Miller applies to non-mandatory LWOP

In a long awaited decision, the CT Supreme Court last Friday ruled that Miller v. Alabama applies to all youth sentenced to the functional equivalent of life without parole, even though such a sentence was not required to be imposed by the trial judge.

In State v. Riley [PDF], Ackeem Riley – 17 at the time of the offense – was sentenced to 100 years in jail, without the possibility of parole1. He argued that Miller prohibits the imposition of such a sentence without a hearing on the particularized vagaries of youth and his attendant circumstances. He also argued that any functional life without parole sentence violates Graham v. Florida and he must be permitted to show that he has been rehabilitated and earn a chance at release. The Court, in typical Land-Of-Whoa-Whoa-Lets-Slow-This-Down fashion, ruled on the first claim and not on the second:

We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offender is subject to a potential life sentence.

We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller.

Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.

We’ve been down this legislative road before: twice in two years has the legislature considered Miller/Graham bills and twice the legislature has failed to vote on it. This year, however, will be different. We promise. Two bills are on the public hearing agenda, scheduled to be heard on Wednesday. They’re good bills, as the last two were. They’ve got support, as the last two had. But this is a legislature and soft on crime still is a phrase that no one wants to hear. Will it pass this time? Will the CT Supreme Court have to take this up again in 2 or 3 years because the legislature doesn’t have the will to do the right thing? I hope not, but this is CT. We don’t like to be on the forefront of social justice.

Good news, everyone

A couple of updates to some pretty awful stories of the last week, both of which involved the arrest of God’s Lawyers™ by police officers.

First, in Allegheny County, PA, the charges against Andrew Capone, who misled the court about whether he had seen his client on the day the client fled from court, were dismissed. Prosecutors, not being used to cases being dismissed over their objection, are still fuming and vowing further action.

Secondly, the completely idiotic arrest of public defender Tillotson by some moronic San Francisco cop that was caught on tape, will also lead to no charges, because sanity finally prevails. In a departure from the above case, while there will be further investigation here, it will be of the police department and their policies and procedures.

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]

Yet another example of unsanctioned prosecutorial misconduct

I wrote last week about the double standard in sanctioning defense attorneys while scores of prosecutors nationwide engage in deliberate and willful misconduct that deprives individuals of their Constitutional rights without any consequences whatsoever.

A helpful reader sent me a link to this CT Supreme Court opinion from 2012 that I’d missed, as a further example. In this case, the defense argued that in order to convict him of aggravated sexual assault and aggravated kidnapping (both require the use of a firearm), the jury must be instructed that he actually possessed such firearm. The operative language of both statutes is similar and it is this:

(1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon

The reason for this argument is that it is an affirmative defense that the weapon was inoperable. Thus, it would make no sense for the affirmative defense to be applied to someone who had an inoperable gun, but unavailable to someone who had no gun at all.

The Court agreed with the prosecution that the defense had not preserved this argument and thus declined to consider it. And then it dropped this footnote:

[W]e feel compelled to note that in the section of her appellate brief addressing this issue the state’s appellate counsel, Assistant State’s Attorney Melissa L. Streeto, purported to provide quotations of §§ 53a-70a (a)(1) and 53a-92a but inserted commas supporting her statutory construction without any indication that alterations had been made.

In response to questions at oral argument regarding the accuracy of these quotations, she explained, in justification of the improper insertions, that “I put those there because that is how the statute should be read.

No matter how a statute should be read, it is for the legislature—and not counsel—to determine how the statute should be written. We strongly disapprove of the tactic employed here, which was at the very least misleading, and we remind counsel that they are obligated to indicate, through the use of brackets or explanatory parentheticals or otherwise, any modification to quoted materials.

Contrary to Assistant State’s Attorney Streeto’s suggestion at oral argument, and notwithstanding her apology for misleading the court, this obligation is not met by including unmodified copies of the relevant texts in an appendix.

A prosecutor, in reproducing something as basic as the text of a statute – something that everyone has free access to – which she must’ve known the parties would be familiar with, decided to pass off as accurate her own interpretation of the statute.

Then, upon being questioned, had the hubris to state “that’s how the statute should be read”.

This is what happens when prosecutors are allowed to run rampant without any oversight. Once again, I’m fairly certain, despite the Supreme Court’s concern and strong disapproval of this “tactic” that was “at the very least misleading”, she was not punished or reprimanded, let alone referred to the grievance committee.

When prosecutors apologize, everything is okay, because they didn’t really mean to deprive you of your Constitutional rights. After all, they’re in it for justice.

A double standard in prosecutorial misconduct

Last week, in a Connecticut courtroom, something unprecedented happened: after a jury returned a guilty verdict in a trial, the judge, from the bench, suspended the defense lawyer for 20 days from the practice of law, for twice-violating a court order.

The lawyer is long-time New Haven attorney John Williams, who is a former law partner of Norm Pattis, so I’ll refer you to Norm for a defense of Attorney Williams.

Apparently, Williams’ client was tried in Federal court for the same offense and acquitted and then returned to State court for another trial. The judge ruled that the acquittal could not be entered into evidence and the jury could not be told about it.

Twice, Williams slipped up and mentioned the acquittal – once during cross-examination and once during closing arguments. After the verdict the judge announced his: a suspension for 20 days1.

Black men are exigent circumstances

Pursuant to the protections of the Fourth Amendment granted to every resident of this country, police cannot enter a residence or a closed bedroom without a warrant. This would violate the Fourth Amendment. There are certain exceptions to that warrant requirement, such as the existence of “exigent circumstances”.

[t]he term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.

There are three categories of circumstances that are exigent: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect.

The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search.

So, when one day police officers knocked on the door of the third floor apartment at 239 Knickerbocker Avenue, Stamford, CT, the following was known to them:

  1. GPS data from a third-party’s cell phone, which was believed to be in the suspect’s possession, suggested that the suspect had been in the general vicinity of that address (not that apartment) for some unknown period of time in the past 41 hours, and

  2. That the resident of the third floor apartment had recently been keeping company with two black men in her apartment. The suspect, naturally, was black.

Since the police were searching for a murder suspect from New Jersey, who they believed to be armed and dangerous, they thought it permissible to enter the bedroom without obtaining a warrant, because of “exigent circumstances”. But that’s just sophistry.

As Justice McDonald’s blistering dissent [PDF] states:

Thus, at the time the police knocked on Valvo’s apartment door, all they reasonably believed was that [the murder suspect] Singer possibly was in possession of a cell phone, that this cell phone had been in the vicinity of 239 Knickerbocker Avenue at some moment in the preceding forty-one hours, and that a man who has the same skin color as Singer had been staying in the third  floor apartment of 239 Knickerbocker Avenue for an unspecified period of time.

You’d think, now, that the name of the case is State v. Singer. It isn’t. It is State v. Kendrick [PDF]. Mr. Kendrick is one of those unfortunate black men who happened to be in the apartment at that time and in whose possession a gun was found after this warrantless search.

Mr. Singer was arrested in New Jersey, where the crime of murder had been committed. Further, the cell phone used to ping the general vicinity of Knickerbocker Avenue in Stamford? Never found in Stamford.

But this is all the information relied upon by the prosecution to convince a judge that exigent circumstances existed: the possibility that a black suspect had been in the vicinity of an apartment building and the knowledge that one of the apartments therein had a few black men in them.

That, the majority opinion states, is enough to lead officers to believe that there exists “a risk of danger to human life”.

Can you every imagine any court saying that about white people? The suspect is white, and armed, and that apartment building there has white people in it, so go ahead and burst into any room you want because officer safety!

Of course not. This stands only because being black carries with it the subtext of being a criminal. And, as this Court is wont to do, the result justifies the means: there was a gun, after all. So he was a criminal and he was dangerous.

The dissent makes the point that the police and prosecution may have had further evidence to tie those residents in that apartment to the cell-phone and the murder suspect, but chose not to present it. If that’s the case, this opinion is even more troubling.

What this signals, in that event, is that all the police and prosecution have to proffer to a trial judge in order to circumvent the Constitution is that the suspects are black. That, alone, is sufficient to justify an officer’s fear that the suspect is a danger.

We already know that in Connecticut minorities cannot freely walk the streets anymore without being suspected of criminal activity. Now minorities can’t sleep in their apartments at night without fear of cops busting in without any probable cause. Because our Court has affirmed that being black is the same as being armed and dangerous.