Category Archives: ct legal news

LaPointe gets a new trial

Richard LaPointe’s quarter century quest to undo his conviction (my backgrounder post) finally has the stamp of approval of the State’s highest court. Yesterday, in a fractious 4-2 opinion [PDF], the court affirmed two findings: 1. That there was a Brady violation when the prosecution did not disclose a potentially exculpatory note, and; 2. His first post-conviction attorney was ineffective for not pursuing that avenue almost a decade ago.

The basis is this: there was a note that was not turned over in which a police officer wrote notes from conversations with fire marshals. The note said: “30-40 min. Poss.” This has been interpreted to mean that the fire started at most 30-40 minutes before the fire marshals arrived. This is significant, because, if believed, it would put the start of the fire at a time during which LaPointe had a rock solid alibi. The question then was simply whether this note and the accompanying alibi defense would have created a reasonable probability that, if presented to the jury, the verdict would have been different.

You won’t be able to tell, however, if you go and try to read the 82-page majority opinion, or the 57-page first dissent [PDF] or the 25-page second dissent [PDF].

The majority and the first dissent spend an awful amount of time on a particular legal nuance. The question was whether, in a true battle of experts, if the lower court judges believes one side over the other, not because of the witnesses themselves, but rather his or her opinion of the science and the impact of that on the verdict, can a higher court overturn that opinion or is that fact-finding, which a higher court is generally forbidden to do?

The dissent’s position is that it is never proper for an appellate court to reverse a lower court’s opinion on the impact of evidence on a trial and must always be taken as gospel, no matter how ridiculous it is.

I think it’s fairly common sense that a higher court should be able to evaluate a lower court’s opinion of science and its impact on a case. Otherwise a lower court could make all sorts of absurd findings – for example that the sun revolves around the earth, or gays can be cured – and then use those findings to uphold discriminatory laws and a higher court would be unable to do anything about it.

Frankly, the opposite is usually true: an appellate court upholds the finding that a withheld piece of evidence or a lawyer’s terrible performance or an improper jury instruction would have had no bearing on the outcome of a case.

The justices spend about 100 pages fighting about this. Most of it is a little tense, as is to be expected from divisive cases:

Justice Zarella contends that, in concluding that the third habeas court’s materiality determination is not entitled to deference, we have ‘‘summon[ed] down [our] deus ex machina’’ and decided an issue that the parties never raised, thereby ‘‘silencing’’ the respondent, inflicting ‘‘acute’’ harm on the state and ‘‘undermin[ing] the fairness of our judicial process.’’ Justice Zarella’s rhetoric may make for entertaining reading, but the facts categorically refute his accusations.

Some brief background is necessary in order to fully understand why Justice Zarella’s argument is both unfaithful to the record and baseless.

Clearly, Justice Zarella’s assertion that it is somehow unfair of us to decide the respondent’s claim against him fails because it is against all logic and common sense.

But the second dissent gets really nasty:

By advocating on behalf of the petitioner, the majority appears to abandon any pretense of impartiality. The rule of law has been damaged by today’s decision, which casts a cloud over the court, and it is reasonable to wonder if that cloud portends an approaching storm.

It is not necessary to engage in any ‘‘divination’’ to discern the impetus driving the majority’s decision

This sleight of hand is reminiscent of the Wizard of Oz exhorting Dorothy to ‘‘[p]ay no attention to that man behind the curtain!’’ At that point in the movie, no child was fooled, and the majority should not even try to convince itself that the reader will be fooled by its shell game.

The chilling aspect of the majority’s brazen maneuver, however, is that we should have seen this coming. This court has been on a discernible path toward precisely this type of abuse of judicial power, and it began down that course by lightly tossing aside the rule of law in a case in which no necessity compelled such extreme action.

From the outset, it is clear that the lens through which the majority focuses on the facts of the case is obscured by its apparent bias in favor of the petitioner

In a striking display of its utter loss of perspective regarding the role of this court and the functioning of our system of justice, the majority makes several statements that suggest it is willing to step beyond even the role of advocate, and take a thirteenth, oversized seat in the jury box.

Not only is this standard of review new, it is an outlandish distortion of basic principles of appellate procedure and is pretextual in nature. The Chief Justice cites to no authority in support of the rule, forthe simple reason that none exists. This is a made up rule that benefits one person—Richard Lapointe. Although the majority and concurring opinions contort both logic and the law in order to justify their departure from hitherto unquestioned rules of appellate procedure…

She then goes on to suggest that LaPointe, a man with some significant neurological shortcomings has been playing everyone for a fool for the last 25 years and that he is far more intelligent than he lets on.

The irony, of course, in all of this is known to those who watch oral arguments and read opinions. I suspect a majority of them would relate that Justice Espinosa is herself prone to these very failings she assigns to the majority. Her remarks, in this dissent, prompt this response from the majority, including the usually measured and moderate Chief Justice:

69 Justice Espinosa also has issued a dissenting opinion. To the extent that her opinion purports to raise any relevant points of law, they are identical to those raised by Justice Zarella, whose dissenting opinion we already have addressed. Thus, no substantive response to Justice Espinosa is called for.

We are constrained, however, to make the following brief observation. It often has been repeated and long understood that the principal purpose of the ‘‘great writ’’ of habeas corpus, which traces its origins to the Magna Carta, is ‘‘to serve as a bulwark against convictions that violate fundamental fairness.’’ (Internal quotation marks omitted.) Luurtsema v. Commissioner of Correction, 299 Conn. 740, 757, 758, 12 A.3d 817 (2011). ‘‘Because the writ is intended to safeguard individual freedom against arbitrary and lawless state action, it must be administered with the initiative and flexibility essential to [e]nsure that miscarriages of justice within its reach are surfaced and corrected.’’ (Internal quotation marks omitted.) Id., 757–58.

Today, a majority of this court, applying those venerable legal principles following a scrupulous and objective review of the trial record, upholds the decision of a unanimous panel of the Appellate Court in concluding simply that the state’s Brady violation, and the failure of the petitioner’s habeas counsel to recognize that violation, entitles the petitioner to a new trial.

Justice Espinosa reaches a different conclusion, which, of course, is her right. Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state’s highest court.

Perhaps worse, her interest lies only in launching groundless ad hominem attacks and claiming to be able to divine the (allegedly improper) personal motivations of the majority. We will not respond in kind to Justice Espinosa’s offensive accusations; we are content, instead, to rely on the merits of our analysis of the issues presented by this appeal. Unfortunately, in taking a different path, Justice Espinosa dishonors this court.

Wow.

 

Hold prosecutors accountable to restore faith in the justice system

“Her license remains active and in good standing.” The words rang out at me as I stared at a newspaper article in the Indianapolis Star. It was about the conduct – or misconduct – of a woman named Gillian DePrez Keiffner who is a Deputy Prosecutor there. During trial, she had vouched for the credibility of the complaining witness in a sexual assault case, demeaned and insulted the defense attorney and asked the defendant which of the two 14 year old girls he liked touching better. A few weeks ago, the Indiana Supreme Court reversed the man’s conviction finding that her conduct was improper and deprived him of a fair trial.

Her license remains active and in good standing. It reminded me of Willie Jerome Manning, who this past month, received a new trial thanks to the Mississippi Supreme Court, finding that exculpatory information was not turned over to the defense.

Her license remains active and in good standing. It reminded me of Linda Carty, who is on death row and just a few weeks ago won the right to have a hearing to investigate claims of prosecutorial misconduct. Both a former DEA agent and the only eyewitness to the crime claim that prosecutors threatened them into testifying against Carty.

Her license remains active and in good standing. It reminded me of former federal prosecutor and now Orange County Superior Court Judge Terri Flynn-Peister, who ordered a sheriff’s deputy to only turn over four out of 196 pages of notes about an informant.

Her license remains active and in good standing. It reminded me of Darryl Gumm and codefendant Michael Bies, whose 1992 murder convictions were overturned at the end of January by the Sixth Circuit Court of Appeals because of “flagrant” and “severe” prosecutorial misconduct. Both Gumm and Bies used to be on death row.

Her license remains active and in good standing. It reminded me of R. David Favata, a prosecutor in Delaware whose unprofessional and insulting behavior toward a pro-se defendant and improper vouching for a witness led the Delaware Supreme Court, at the end of January, to reverse a murder conviction and death sentence.

Her license remains active and in good standing. It reminded me of Jennifer Darby, a prosecutor in Colorado Springs. Her “pattern and history of prosecutorial misconduct” including providing false information about a defendant at sentencing, led a trial court judge to enter a dismissal in a third case involving her in the last 6 months.

Her license remains active and in good standing. It reminded me of prosecutors Robert Spira and Paul Vinegrad, the latest objects of Judge Kozinski’s affections. A video of his lambasting of the CA prosecutor trying desperately to salvage the conviction Johnny Baca has gone viral and caused quite an uproar. Kozinski is no stranger to demanding prosecutorial accountability, as I mentioned in my first column for the Law Tribune exactly one year ago. Kozinski’s threats of prosecution for lying prosecutors resulted in California dropping the appeal against Baca, but the viral video cannot be unseen.

Her license remains active and in good standing. Finally, it reminded me of Victor Santiago, who had his conviction reversed because of a “deliberate pattern of improper conduct” by prosecutor Terrance Mariani.

The common theme here seems to be repeated misconduct by select prosecutors with no repercussions beyond new trials for the accused. While that, in of itself, is a just solution, that does nothing to ensure justice across the board. The concerns expressed by Judge Kozinksi and others seem quite valid: without any personal consequences to individual prosecutors, there is no barrier to them repeating their improper conduct in court.

Prosecutors are not the same as defense attorneys. Defense attorneys have one responsibility – and that is to zealous represent the interests of their individual clients. Prosecutors have no individual client and represent the people of the state as a whole. Their responsibility is to ensure justice, whatever that may be. It is not for them to adopt a “win at all costs” mentality. The prosecutorial power should never be a game, with the winner being the one who gets the most convictions. Yet it is precisely that mentality that leads to these unfortunate instances of misconduct which results in injustices in several ways: either innocent individuals get convicted by hook or crook, or guilty individuals go free when courts reverse convictions for due process violations.

Disciplining of prosecutors by ethics boards or internal review committees remains infrequent and elusive. While defense attorneys are routinely “grieved” by disgruntled clients, it is unknown if prosecutors ever are – by anybody – despite demonstrated misconduct. The grievance committee does not see it as their responsibility to initiate an investigation; appellate courts will find prosecutorial impropriety but not refer the individual to the grievance committee and whether the Division of Criminal Justice has an internal review mechanism is known only to them.

I want to make it clear that I am not suggesting that all prosecutors are unethical or engage in misconduct or are caught up in winning rather than ensuring justice. Far from it. Most are honest, hard-working, ethical and reasonable. But there are those who are not, unfortunately, in this State and elsewhere. Whether they are motivated by zeal or a desire to win or a plain dislike for defendants, I do not know.

But justice is not served – the community is not served – when prosecutors are permitted to repeatedly engage in misconduct without any consequences whatsoever. There is a national discussion brewing on how best to ensure that prosecutorial improprieties are minimized and eliminated. I do not subscribe to Judge Kozinski’s view of prosecuting prosecutors, but I do think there needs to be accountability when there has been a finding of impropriety. Every incidence of misconduct – particularly when it results in a reversal of a conviction – undermines confidence in the criminal justice system itself. The system needs to police itself and hold accountable errant prosecutors so we can respect the authority of the system itself. One need look no further than Ferguson and its aftermath to see how dangerous it is when when our faith in figures of authority is lost.

The Judiciary Committee of the state legislature has before it a bill or a proposal for oversight of the Division of Criminal Justice. From what I can tell the bill seems to be nothing more than a title – an idea or a concept. There is no language attached to it and I cannot think of what language might be suitable.

But it is the prompt for a discussion. A discussion that everyone needs to have, however unpleasant and difficult it might be: what is to be done, if anything, to prosecutors who repeatedly violate the law and engage in misconduct?

Here’s the video in case you haven’t seen it:

[This is my latest column for the CT Law Tribune.]

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.