Category Archives: ct legal news

On #PublicDefenseDay let’s talk about you

It’s the 53rd anniversary of my birth, the day when the unfunded mandate of state-provided lawyers for the poor was declared1. The decision was absolutely right and led to the creation of public defender offices across the country. Poor people, accused of crimes by the Government, facing incarceration, must have access to the tools to defend themselves just as much as those who are financially well off and can find counsel themselves.

The idea of Gideon is sound, but its execution has been anything but smooth sailing. States chronically and repeatedly underfund public defender offices, because public defenders “represent criminals” and get people off on “technicalities“. In fact, that’s precisely why prosecutors are often viewed as champions of the people and more frequently get nominated to appellate courts:

I’ll talk more about prosecutors in a later post, but it’s not something I haven’t said already, repeatedly.

Right now, I want to talk about you. You’re the reason we have this distrust of public defenders. You’re the reason Law and Order has been on the air for a thousand years. You’re the reason that tough on crime was so prevalent for decades, destroying lives and economies. You’re the reason that public defense is under appreciated and under funded.

Public defenders represent people accused of and convicted of crimes, sure. But public defenders also represent you. Public defenders represent the idea that each defendant is an individual and each individual circumstance is worthy of separate and unique consideration. Public defenders represent the idea that the treatment of one criminal defendant affects the treatment of all citizens.

Public defenders protect the rights of criminals. But more importantly, public defenders protect the rights of law abiding citizens too.

When the government argues that people walking on the streets can be stopped for no reason at all and questioned, who stands in their way?

When the government argues that people can be questioned and interrogated and subjected to the third degree, who fights back?

When the government hides information that shows a person is innocent, who brings it to light?

When the government argues that merely standing next to someone who is suspected of a crime means that you are also suspicious, who thinks that’s preposterous?

When the government argues that merely legally possessing a firearm in public is a crime, who points out the ridiculousness of it?

When the government wants free access to your phone, who says get a warrant?

So, you, the one who thinks we work only for criminals: we don’t expect a thank you. We don’t expect you to send accolades our way. That’s fine. It’s part of the job. We know that it’s a thankless job.

The one thing you can do, however, is start to understand that public defenders represent the rights and protections given to the entire public.

So when people ask: how do you represent the guilty? The most honest answer is: Easily, because I don’t care if they’re guilty or not. What I care about is that the Constitutional rights of every citizen are protected. And that includes you.

  1. I wrote a longer, more detailed post about the import of Gideon when the decision turned 50.

Everyone pays for prosecutorial impropriety except prosecutors

On January 12 this year, Lucas Betancourt, a felon convicted of various forms of kidnapping, burglary, robbery and attempts thereof received word that his request to a judge to have his convictions vacated and reversed had been granted [PDF]. The sole basis for the granting of his petition and the reversal of his convictions? Unsurprisingly: prosecutorial impropriety. Specifically that the prosecutor had violated her1 obligations pursuant to Brady v. Maryland, United States v. Bagley and Giglio v. United States. As summarized by The Open File:

One of the chief witnesses that [prosecutor Gail] Hardy used to obtain Betancourt’s conviction eleven years ago was an alleged co-conspirator, Felipe Buitrago. He was central to the case partly because the victim could not identify the perpetrators. Six months before Betancourt’s trial, Buitrago had pled guilty to his own role in the crime and been sentenced to five years in prison, followed by five years of probation. This much, Betancourt’s defense was aware of.

Of course, what the defense wasn’t told is that Hardy and Buitrago had “entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence,” after he testified at Betancourt’s trial.

In sum, here’s what happened:

  • On direct, Hardy did not elicit from Buitrago that they had a deal in place in exchange for his testimony.
  • On cross examination, Buitrago was extensively cross-examined regarding any incentives from Hardy, including sentence modification.
  • On cross examination, Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification.
  • Hardy did nothing to correct this false testimony.
  • In fact, Hardy argued during closing argument that Buitrago was reliable and there was no evidence established to doubt his testimony.
  • 9 months after Betancourt was sentenced to twenty-five years to serve,  Buitrago filed a sentence modification.
  • Hardy agreed to have the sentence modification heard.
  • Hardy agreed to the modification.
  • Hardy agreed to modify the sentence by 50%.
  • In order to effectuate such a massive modification, Hardy had to substitute the charges Buitrago had pled to, to ones that did not carry mandatory-minimums, which she did.
  • She stated during the modification hearing that Buitrago’s testimony had been crucial to Betancourt’s conviction.

Once again, a conviction – usually touted as a victory for justice – had been obtained by unsavory and unfair means; by cheating. So who’s going to pay for this? Certainly Betancourt because he served many years in prison for something he may not have done. But who else? Not Buitrago. He got his 5 year sentence cut in half. Certainly not Gail Hardy, who was in Waterbury when this happened2 and who has since gone on to become the chief prosecutor in Hartford. If there have been no sanctions or repercussions for Terrance Mariani or Sharmese Hodge then why would there be any for Ms. Hardy? If Andrew Benson can mock the defense during his closing argument and pretend to be asleep and go on to become a judge in Maine, why do you think anything would happen to Ms. Hardy for allowing her witness to lie on the stand?

Almost one whole year ago, I wrote a series of posts about the lack of accountability for prosecutorial impropriety in our system and the fact that it was a conversation we desperately needed to have. The first post was inspired by a string of reversals because of impropriety that resulted in no sanctions for the offending prosecutors. The second was an attempt to explore options for holding prosecutors accountable.

A full year has gone and we are no closer to finding a viable solution. But that doesn’t mean that misconduct has disappeared. Quite the opposite. It has continued unabated but we know who pays for it: we do.

We pay for it in the form of tax money that is used to fund compensation accounts for the wrongly convicted. Just this month, the claims commissioner J. Paul Vance Jr. has made two sizeable awards to 5 different people who were wrongly convicted: $4.2 million each to Carlos Ashe, Darcus Henry, Sean Adams and Johnny Johnson and $6 million to Miguel Roman, totaling in excess of $23million this year. This money comes out of our pockets. Of course, I don’t mind paying, because I think this is just compensation and then some for spending 18 years in prison. You couldn’t give me $4million if the condition was to spend a year in prison, let alone 18.

Yet the first award by Vance has given rise to a controversy and been the subject of criticism, because he didn’t find that they were actually innocent, merely that the charges were dismissed on grounds consistent with innocence. To some – notably agents of the state – that’s not enough:

Senate Minority Leader Len Fasano, R-North Haven, who has been in contact with the murder victim’s family, said Vance’s decision was an outrage.

“It is clear they need to be found innocent for damages. I think Paul Vance is absolutely wrong. I think he has no justification for it legally,” said Fasano, a lawyer whose district abuts New Haven. “I think what we should do in the event we have a claims commissioner who apparently has misread the statute, we should allow an appeals procedure.”


“Here, there is absolutely no evidence as yet in the record to show that these claimants are innocent,” wrote Assistant Attorney General Terrence M. O’Neill, whose office readily concedes the men deserved a new trial. “While there can be no doubt that a significant prosecutorial error constituted a significant defect in their prosecutions, that defect does not, in and of itself, establish innocence.”

So, clearly, the solution is to fault the commissioner and the system for allowing him to conclude that their dismissals were consistent with innocence:

Without commenting on the appropriateness of Vance’s decision, Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee, said he expects the law to be reviewed this session with an eye toward creating a venue for the state to appeal.

Certainly no one is asking: what of the prosecutor? What is to be done about the misconduct that leads to these unfair convictions? Why do we not have a system in place to review prosecutors whose conduct has been held to be improper and determine whether they need some sort of remedial training or suspension? Do we continue to pay the compensation of men who have had their liberty wrongly snatched away by an overzealous or unethical prosecutor?

Or do we say the American justice system is much more than the results that it spits out. That we care as much about fairness as we do about guilt or innocence? That it is not enough that for every instance of impropriety we reverse a conviction and then ignore it, pretending it never existed, leaving those that committed the injustice free to do so again.

It’s time to give process its due.

  1. Gaily Hardy, current State’s Attorney for Hartford, whose name is missing from the decision reversing the convictions but was uncovered by The Open File.
  2. For those who don’t know, Waterbury’s chief was John Connelly, who is now deceased. Waterbury has sent the most people to death row in CT by a LOT ( There were some noises about him and there was a federal probe ( and he resigned his post right before the Criminal Justice Commission was getting ready to take some action ( When Hardy came to Hartford, as an outsider, there was a lot of outrage ( Waterbury is also where weird stuff like state police wanting an arrest warrant for a judge who refuses to issue another arrest warrant happens (

Implicit biases, subtle racism and privilege: a West Hartford tale

Two days ago, a Hartford Courant Communities reporter Kristin Stoller posted an article, which was essentially a police puff piece, touting the decrease in DUI arrests in the suburban town of West Hartford, despite an increase in patronage of West Hartford’s restaurants.

What seemingly was an unobtrusive, nothing sort of article in fact serves as a lesson to us all about our inherent biases and a shocking reminder of the level of racism that still permeates our society and a sad story of the state of journalism today. First, some background. West Hartford:

The racial makeup of the town was 79.6% White, 6.3% African American, 0.2% Native American, 7.4% Asian, 0.03% Pacific Islander, 3.8% from other races, and 2.7% from two or more races. Hispanic or Latino of any race were 9.8% of the population.

The median income for a household in the town was $80,061, and the median income for a family was $106,089 as of a 2011 estimate.[24] Males had a median income of $69,888 versus $56,162 for females. The per capita income for the town was $45,453.

West Hartford abuts Hartford, with the border running in the middle of Prospect Avenue. Regarding Hartford:

The racial makeup of the city was 29.8% white, 38.7% African American or black, 0.6% Native American, 2.8% Asian, 0% Pacific Islander, 23.9% from other races, and 4.2% from two or more races. 43.4% of the population were Hispanic or Latino, chiefly of Puerto Rican origin. Whites not of Latino background were 15.8% of the population in 2010, down from 63.9% in 1970.

The median income for a household in the city was $20,820, and the median income for a family was $22,051. Males had a median income of $28,444 versus $26,131 for females. The per capita income for the city was $13,428.

West Hartford is a far more racially homogenous town and it is far more affluent than Hartford. This has been a source of conflict for many years, with the residents of WH aggrieved that they have to live adjacent to the poor, minority city of Hartford1.

Which is why some of the comments in Stoller’s column by the Assistant Police Chief of West Hartford Daniel Coppinger were troublesome. For instance, he said:

“Patrons like West Hartford because they feel safe. It’s safer, it’s cleaner.”

Okay. Well. I get that people like that it’s cleaner. And safer too, I suppose. I like safe places. But safer than what?

“Cab drivers like it because of the same reasons. The people that they are picking up and bringing places aren’t stiffing them on cab fares. They are a nicer cliente to transport around.”

If the coded language hasn’t hit you in the face, let me spell it out for you. He’s referring to people from Hartford and probably referring to racial minorities. I can’t be sure, of course, because Stoller didn’t ask him what he meant by any of that. Instead, she moves on to an example of the type of problems the town does have: a drunk, probably white woman, who was adamant that she drive, who got into her car and rammed two other cars, who was then successfully detained.

There are other bizarre quotes in there too, about how they’ve used local town ordinances to strictly control the types of establishments that are allowed to serve alcohol and some “friction with folks who wanted to be nightclubs, do bottle service and be 21 and over” according to another Assistant Police Chief Bob McCue. He also said: “If folks are interested in that nightclub feel with bottle service and cover charges, go to the city, or go to a casino.”

West Hartford clearly doesn’t want dirty clients, or unsafe people, or people who aren’t nice to cab drivers, or who stiff cab drivers or who want bottle service, or nightclubs, or be 21 and over, or pay a cover charge.

If all of that seems like offensive coded language then you’re not the only one. Because a bunch of local Hartford people started questioning the language used by Coppinger and McCue, challenging Stoller and the Hartford Courant to explain just why the use of this language hadn’t been questioned when writing this article.

Then the unthinkable happened. The first quote by Coppinger disappeared. It’s not there; check the article. It’s disappeared by magic, as if it never existed. There isn’t a mention that the article has been edited, there isn’t an explanation for why it was taken down and there has been no response to repeated attempts to find out who edited it and why.

This poses so many questions: the most obvious is, why was this nefariously edited? Who decided this? Clearly, ethics in journalism mean nothing if this is permitted to stand unexamined.

But there are greater issues to think about here, issues that impact the current state of society in America: the issue of inherent or implicit bias in the way we see the world, the privilege we experience depending on the color of our skin and our social class and the subtle aggression and racism toward people of color that is a feature of every American institution.

Why did Stoller not raise an eyebrow when faced with these quotes? Is it because she, just like Coppinger, views the world in the same way? Is it because it is an unspoken code among racial or class majorities? Did she instinctively know what he meant, agreed with it and saw no reason to question it? Because that’s the world in her view? In other words, was this a product of her implicit biases?

Also known as implicit social cognition, implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.  These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.  Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.  Rather, implicit biases are not accessible through introspection.

The implicit associations we harbor in our subconscious cause us to have feelings and attitudes about other people based on characteristics such as race, ethnicity, age, and appearance.  These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages.  In addition to early life experiences, the media and news programming are often-cited origins of implicit associations.

It’s critical to understand that the biases exist subconsciously. I have no doubt that if asked, Stoller and Coppinger will strongly attest that they are not racists, believe that to be true and act in accordance with that truly held belief. I am certainly not saying that Stoller and Coppinger are racist. I believe they are not.

But we all have biases. I do, you do2 and by extension so do Stoller and Coppinger. That’s what makes biases so insidious. We don’t know they exist and we don’t know that they affect and alter our behaviors and interactions.

Think about the impact of implicit biases in the educational system or in politics or in the criminal justice system. Policing has increasingly been viewed as racist or biased against racial minorities, yet most police officers would not be called racists by their friends or family. However, our policies are such that they affect the way we arrest and prosecute individuals, the way we offer plea deals or sentence defendants after trial. It affects the way we view claims of racism by others or we evaluate the life experiences of others.

To someone who has grown up with privilege – as the term is used today – combined with an implicit bias reinforced by one’s immediate society and the media that one chooses to watch – again influenced by that subconscious bias – there is absolutely nothing wrong with a town not wanting people who aren’t nice clientel to cab drivers.

But it affects everything. For a police officer, it affects the way they conduct stops and whom they stop and whom they cite. For a reporter, it affects the way they reproduce quotes and whom they turn a critical eye toward.

If we truly want to make society a more progressive place, a more inclusive and tolerant place, we must learn to recognize these biases when we are alerted to them, try and correct for them and gain an understanding that these are not flaws in our character, but a negative side effect of the environment of our existence.

What’s offensive about the article isn’t the quote – that would have served as an interesting study of the biases and subtle racism that exist, but rather its clandestine removal. The worst thing one can do is to ignore the existence of the bias or even give in to it, because that serves only to reinforce it.

  1. This problem is not exclusive to Hartford/West Hartford and exists as a part of CT’s identity.
  2. Take this test to find out yours.

From this day forward, [we] no longer shall tinker with the machinery of death

Three years and four months ago, Connecticut abolished the imposition of the harshest penalty – death – for any offense, no matter how severe. There was one caveat, however. Those who already were sentenced to death remained so. In what was pretty blatantly an attempt to assuage those who felt uncomfortable voting to give life to two of Connecticut’s most notorious killers, the abolition was prospective only, with the fight for full repeal left to the courts.

Two years after a full panel of the state Supreme Court heard oral arguments on whether every person on death row should be spared death, it issued a contentious ruling [pdf] declaring, in the words of Justice Blackmun, that this State would no longer tinker with the machinery of death.

Everything that I can say about repeal I’ve said before. I have no flowery words, no eloquent statements about our humanity, no odes to civilized existence. The horrible deed of murder in cold blood that we’ve been engaging in for 400 years is done. There is a grim memory of those who have been executed, right or wrongly, and those who have been killed at the hands of the executed.

But that is not to say that we must not remind ourselves that this was the correct decision – the only decision – to be made as we enter the middle half of the second decade of this century. For that, I turn to Justice Blackmun’s infamous dissent in Callins v. Collins, from which the title of this post comes:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.

We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant.

We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished.

In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow.

Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well.

Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U. S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

and thus

From this day forward, I no longer shall tinker with the machinery of death.

So say we all.

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.



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.

  1. Or at the very least, parole after 94 years.