a public defender

I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

1. The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
2. The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
3. The rules for exemption from registration are putrid and hollow.
4. The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
5. The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
6. The retroactive application of the registration requirements, which are already being successfully challenged.
7. The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:

The “does the AG have to be a lawyer” circus won’t end. SOTS Bysiewicz has followed through on her promise to seek a formal opinion from the current AG (and next Senator from CT) Blumenthal.

I don’t understand this. No one has challenged her qualifications – legally – yet. One candidate, George Jepsen, has said he isn’t going to ever.

The request for an opinion brings forth some very interesting facts regarding the AG statute:

Bysiewicz wants to know if that section adopted in 1897 is “constitutional,” since it wasn’t until 1970 that the constitution was amended to make the attorney general one of the state’s constitutional officers.

“The Constitution contains no requirement for the office of the Attorney General,” Bysiewicz writes.

Then in 1980 the constitution was amended again to say “Every elector who has attained the age of eighteen years shall be eligible to any office in the state.”

In light of the constitutional provisions Bysiewicz wondered if the statute that talks about active practice is still in effect “or is it superseded by the subsequent constitutional amendments?”

And when push comes to shove Bysiewicz wants to know who will make the determination of whether the requirement of 10 years of active practice has been satisfied.

So why do this now? Why create a problem when there isn’t one?

I think there’s only one answer. She wants to know now, so she can get out quickly if she has to. And so she can then jump back into the race for Governor.

What do you think?

Is Susan Byse-Byzie-Bysiewicz legally qualified to be Attorney General? Maybe. It depends on what “active” means. (The other candidate, George Jepsen, seems to be qualified.)

photo credit: MercurySpace

I think the weather needs a jumpstart. Someone wake me when the thermometer goes north of 50 degrees Fahrenheit. In the meantime, maybe these stories will get those neurons firing and generate some heat in you.

• A powerful piece in the NYTimes about a different approach to violations of probation and parole and how it reduces crime by a lot.
• Another horrifying NYT piece on officials obscuring the truth about immigrant deaths in jails.
• An interesting new book on representing clients with mental illnesses. (hint: someone should buy one for the office.)
• A 50-state survey of sex offender registration laws
• A good judge has passed too soon.
• Orin Kerr analyzes whether the 4th Amendment permits execution of warrants in a different state.
• Also from Volokh, an interesting new case on computer searches, encryption and plain view.
• A forensic psychologist in TX is accused of altering IQ scores of defendants to permit execution, including the infamous “sorry we don’t stay here past 5 so you can’t file your appeal and the man will be executed” case.
• The state’s judiciary committee will hold a hearing on January 19th to evaluate how well those “criminal justice reforms” of two years ago have worked out (if they’ve even been implemented).
• Tweets of defendant and murder victim will become a key focus in the murder trial.
• Is there a Constitutional right to knowingly reject a plea offer?
• The 2009 Lowering The Bar Awards, a collection of the nuttiest lawsuits and legal arguments of the last year.
• SCOTUS will hear arguments in a follow up to Melendez-Diaz today.
• A lengthy look at Cook County, IL prosecutor’s battle against journalism students working for an innocence group.
• This week’s Blawg Review is up. Next week’s edition will be hosted here by yours truly.

Okay, that’s enough.

Two years ago (and how time flies!) I wrote about the lack of any real residential inpatient options for high risk sex offenders in Connecticut. As of today, nothing has changed. The man whose case prompted the prior post is set to be released from custody on Christmas eve and – surprise, surprise! – he’s most likely going to end up in a shelter.

And even that’s not certain.

Instead, 52-year-old Ransome Lee Moody will be waiting in line for a bed at Immanuel Baptist Homeless Shelter in New Haven, a place where indigent offenders who have done their time often go for housing when there are no other options.

Now Moody is not a nice guy. Having spent 32 years of his 52 year life behind bars for various sexual and violent crimes, it’s clear that there’s a problem and he’s a danger either to himself or to society. So it would be appropriate if there were a place to house people like him, which would provide them the appropriate treatment and security and allow them to successfully integrate back into society, if possible.

Such a place was envisioned by the legislature – perhaps the only good thing to come out of the wholesale *cough*bullshit*cough* “reforms” to the criminal justice system in the wake of the Cheshire murders.

There are some very interesting discussions being generated as a result of the Robert Lawlor acquittal in Hartford last week: what does this say about the community, what does it mean for the future of the city, will the mistrust between residents of the city and the police ever subside, is Hartford really one city or does everyone view the North End as a cesspool? [Even I arose from my slumber to post.]

Now, thanks to an “opinion piece” in today’s Courant, add one more conversation to the list: should there be a special “law enforcement self defense” provision in our law? The piece is authored by former prosecutor John Massameno (who, you might recall, was the prosecutor who oversaw the conviction of now exonerated Miguel Roman). Also, CT lawyers, stop the eye-rolling.

The piece is titled “Don’t charge police over errors”, so you would be right to believe that he is arguing for immunity from prosecution, not just a more expansive doctrine of self-defense. Indeed, most of his “opinion” piece reads like that:

Police officers need our help. They must make split-second but accurate decisions about using deadly force to protect themselves or others from harm. Occasionally, an officer makes a mistake. Absent some aggravating factor, such as an improper motive, the law should not criminalize officers’ good-faith mistakes in judgment. Otherwise, how can we expect them to take decisive action to protect lives when their own could be destroyed by doing so?

Yes, very good. But the crux of his “opinion” is an amendment to the self-defense statute, which would ask the jury to consider the dangers faced by police officers in their day-to-day business:

It gives an officer a defense to a homicide or assault charge when, in the line of duty, he “[makes] a mistake in judgment concerning the imminent use of force against him or a third person.” It requires the trial judge to tell jurors that “in assessing the reasonableness of the physical force used by [the] officer and … [his] belief that physical force would be used against him or a third person, [they must] consider the [officer's] unique status in the enforcement of the law, his background and training in the assessment of and response to the likelihood that physical force will be used against him, and the greater likelihood that physical force will be used against [an officer] than against a person not engaged in the enforcement of the law.”

The law wouldn’t require the jury to believe the defense, so when there’s evidence of some improper motive, such as racial hatred, a conviction for murder is still possible.

There was an odd confluence of events in Hartford Superior Court yesterday: an expert witness testified in the trial of police officer Robert Lawlor, who is accused of fatally shooting a suspect, while at the same time Dwayne Powell was in court for his second appearance in the shooting of a Hartford police officer.

And when the odd confluence combines with the full moon (did you look at the moon today? absolutely gorgeous), we get knee-jerk behavior. This time, the knee jerk behavior is calls for mandatory-minimum sentences for assault on an officer:

“We want the community to know that any comments and or actions that advocate the assaulting or the killing of a police officer should not and cannot be tolerated by the very society we serve,” [Officer Richard Rodriguez, president of the Hartford police union] said. An assault on a police officer is an attack on “the very fabric that holds society from falling into chaos,” Rodriguez said.

Robles and two other state legislators who attended Monday’s rally said they’d propose and work to pass legislation enhancing the penalties for those who assault police officers. The legislative session opens in February.

“Being assaulted is not, I repeat not, part of this job,” Rodriguez said, adding that police officers would like to see a minimum mandatory prison sentence for those who assault police officers.

Now, before you jump on my back and call me a commie sympathizer let me assure you that I do not condone violence, whether it be against a police officer or any other “normal” person. If I had my way, we’d all wear tie dye and listen to the Dead all day long. I think a majority of police officers are good, conscientious people trying their best to keep order in our hectic cities.

But let’s not get carried away either. [A look at an absurdity in the statute and more after the jump]

As expected, lame-duck Governor Rell announced plans today to close the almost-out-the-door Webster Correctional Institution (hey, news sites, look! It’s possible to link to websites besides your own!) for a savings of a whopping $3.4 million a year.

Actually, I have to be honest. I’m pretty ambivalent about this whole thing. It’s a low-level prison and per the reports would require the relocation of 220 inmates. That’s not a whole lot. So by itself it’s not a bad idea to close Webster. The question really is whether there is room at other facilities to house these inmates. Less space + more inmates = overcrowding. Overcrowding = bad idea. Despite the Governor trumpeting the “drop” in prison population from the record high of February 2008 (which, let us not forget, was her own fault), the fact is that CT’s prisons are still woefully overcrowded. 18,000 plus inmates are packed like sardines into a system that was built for 15,000. They’re still sleeping in the gym, they’re still sleeping on floors and there are still far too many per cell.

I have another idea: if you want to close the prison, fine. But instead of shoving them into an already full elevator, why not release the low-risk offenders? CT now has a full-time parole board (which they claim is working efficiently, but let’s remember this is still a government organization), so why not release the one that have no probable risk factors. There always will be the crazy ones that commit crimes that are unforeseeable. There’s no way to account for that or to correct for it. Sometimes, shit happens.

What do you folks feel? Closing the prison a good idea? Bad? Just want to hate on Rell?

From the NYTimes comes this heartwarming story of one of the nation’s elite universities privately funding an educational program in one of CT’s toughest prisons. Starting this year, Wesleyan brings its excellent curriculum and stringent admission requirements to prison, in an effort to educate and rehabilitate inmates, something the State of Connecticut and the DOC  have long given up.

For 19 spots, there were 120 applications, and rightly so. This program presents an unique opportunity: to get a high-level education and to attempt to rebuild one’s life and prepare for an eventual release into a world that won’t acknowledge their existence (for some).  There are several remarkable things about this program. One of them is that the crime of conviction is not a factor in who gets accepted into the program. So whether you’re a murderer or someone who was selling drugs, you have an equal shot at getting accepted. The second feature that struck me was that while there is no guarantee that graduates of this program will get a degree from Wesleyan, they will be entitled to access to career services upon release.

Imagine that! Inmates will have somewhere to go, armed with an education and the possibility of a degree and get assistance in finding a job. The State should be ashamed of itself.

Reading this article, I learned some things about Wesleyan and its tradition and history:

But the university has a long history of civic engagement that traces back to its Methodist roots. It is named after John Wesley, an 18th-century minister who championed prison reform and helping the downtrodden. Two students, Russell Perkins and Molly Birnbaum, who had volunteered in prisons as students, revived the idea last year when they were seniors and figured out a way to finance it.

What’s even more stunning is that this proposal was scheduled for a vote the very same day that a student at Wesleyan was gunned down in a bookstore. The school merely postponed the vote 2 weeks and during that subsequent vote, it was approved. Goes to show you that to recognize that not all “criminals” are the same, you merely have to have your head screwed on straight.

Of course, this brings the usual din of dissent and cries of “wah, you’re helping those scum criminals” from the usual suspects. I don’t have very many good things to say about the State’s victim’s advocate (none, really), so I’ll just quote her and let it speak for itself:

[Alternate post titles: So long and thanks for all the blog fodder; This just in: The Law now has a weak pulse]

So, it’s probably unnatural and unhealthy to be so giddy upon learning that Gov. Rell has decided not to seek re-election, but as most of you know, I can’t stand the woman. And that’s putting it mildly. I let out an audible yell yesterday when Ann Nyberg tweeted that she wasn’t going to run. My colleagues looked at me, much like they always do, like I had three heads. So maybe my disdain of the American Idol Governor knows no bounds.

But there’s good reason. After all, she has singlehandedly done so much to create such a disregard for the law and the rule of law, that sometimes I wonder who is worse: the law-breaking “criminals” she sought to protect our white community from or the law-ignoring bureaucrat.

She was the most dangerous of the “tough on crime” pols: sweet, nurturing, grandmotherly. She would lull everyone into sleep with her gentle affect and then decree the most outrageous acts of lawlessness this State has seen this decade.

First, there was Cheshire. Oh boy was there Cheshire. The brutal crimes in a white suburban neighborhood served not only to rouse the Governor from her mid-term siesta, but also had the side-effect of completely blinding her to common sense, and well, the rule of law. So the first thing she decided to do (well, sort of) was ban parole. That lasted for 4 months and resulted in severe overcrowding and a tremendous burden on state resources. That’s when Colin McEnroe coined the moniker “The American Idol Governor“. I still can’t get enough of that. She then proposed some truly scary and not very well thought out “reforms” of the criminal justice system, some of which unfortunately made it into law. Then she wanted CT to have a three-strikes law, in the face of all scientific research on its uselessness. Then came the unhinging, aka, “The David Pollitt Project“. I’m not even going to touch that. And finally, the veto of the death penalty abolition bill.

I write all of this, not to disparage her, but to remind myself and you  – voters all – of the absolute effing nonsense we’ve had to put up with these past few years. Will any of the people who’ve announced they’re running for Governor be any better? They almost have to, don’t they, because it can’t get much worse than this.

So while I wish her well in her personal life and hope that her health remains strong, I will not be sad to see her become former Governor Rell. I’m not sure there was a person less equipped to take on that job.

And now, on to the big question. What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.

After years of hearing cases in panels, the CT Supreme Court announced today that it would start acting like a Supreme Court and have all 7 justices decide each case. Instead of only a panel of 5 hearing oral argument, all 7 will be present during argument and vote on cases.

The policy, authorized as an internal court policy, keeps a purely Supreme Court panel without substitutions, even when one or two justices have to disqualify themselves. When one justice is recused, the high court said in its Sept. 2 announcement, “the Court will sit as a panel of six. If there are two disqualifications, the Court will sit as a panel of five.”

The court announcement on its web site stated that the change is designed to “strengthen the precedential value of each opinion.”

The legal community and the public will not be left to wonder whether the case would have turned out differently if the full Supreme Court had considered the matter. [Connecticut's most famous appellate lawyer Wesley] Horton said one or two justices can make all the difference in how the argument proceeds and how the case is ultimately decided. “It seems to me that if you’re a justice on the top court, you want to be involved in all the cases in which you’re qualified to sit,” he said.

I agree with this policy change: I’ve long wondered why we use panels. If there are 7 members, they should all hear the case and decide it on its merits (or not).

The court is required to sit en banc by statute in death penalty cases, with a provision for adding a member of the Appellate Court if one of the 7 has to be recused. This policy was continue to remain in effect, but it seems curious to me that the court decided not to extend this policy to all cases. They seem ready to go ahead and hear cases with only 6 and only if the bench is split 3-3, will they add a member from the Appellate Court and then rehear the case. What’s the point there? Doesn’t that create additional, unnecessary pressure on the justices not to split?

The easier route seems to be adding an Appellate Court justice in advance on cases where they know one of the Justices has to be recused. That way, a bench of 7 hears the case and there’s no possibility of a split. But that’s just me and that’s why I’m an anonymous blogger and not a Justice of the CT Supreme Court (yet. heh. heh. heh.).

How someone gets convicted of anything based on these facts:

On March 19, 2005, the victim had fallen asleep on the living room couch in her mother’s home. Her mother awoke her and instructed her to go upstairs to bed so that the defendant could sleep on the couch. The victim went upstairs but later went to the basement to smoke a cigarette. The defendant came to the basement, sat beside the victim on a couch and also smoked a cigarette. The victim and the defendant played a card game, and the defendant offered the victim a glass of beer, which she refused. The defendant also asked the victim if she wanted to take the drug ecstasy, which the defendant did not have in his possession, but attempted unsuccessfully to get via the telephone.

The defendant noticed a ‘‘hickey’’ on the victim’s neck and asked how she got it. The victim responded that her boyfriend had given it to her. The defendant touched the ‘‘hickey’’ and looked at the victim in a manner that she considered weird. The defendant kissed the ‘‘hickey,’’ released the victim’s bra, touched her breasts and placed his mouth on them. The defendant talked to the victim about her being his wife, marriage, children and getting a place together. The defendant also removed the victim’s pants and asked the victim for a condom, which she did not have and refused to get from upstairs. The victim asked the defendant what he was doing. The defendant assured her that it was all right, as she was his wife. The defendant removed a tampon from the victim and performed cunnilingus.

Although the victim resisted the defendant’s advances, she did not fight or try her hardest to stop him. She did not call for her mother, who was upstairs sleeping. The defendant’s sexual assault lasted approximately one-half hour. The victim then put on her clothing, went upstairs to her older sister’s bedroom and fell asleep.

Story or truth?

It seems as though Connecticut’s problems with its probate courts have been solved and they’re running all hunky-dory. How else can one explain the unsolicited comments by two probate judges (remember, these aren’t actual judges. In fact, they aren’t even lawyers. So I can’t dust off that old “what do you call a lawyer with an IQ of 50″ chestnut) that sex offenders are entering their building.

Except, um, their building also hosts a damn probation office where they are reporting.

Probate Judges Frank Forgione and John Keyes say sex offenders are among the clients visiting the Adult Probation Office at the State Street building.

Forgione says probation officials told him they’re making every effort to ensure children are not in danger. But the New Haven Register reports there were no guards at the probation office door or the front lobby of the building Friday afternoon.

So here’s a new rule, in this age of unbelievably stupid hysteria surrounding sex offenders: they should be banned from all places a child may conceivably go, no matter how ridiculous or far-fetched it may sound. This way, sex offenders will be banned from everywhere, including courts, jails, a street and your mind.

Don’t even go there.

Dear Governor Rell,

Hi, it’s me, Gideon. This is my second attempt at a letter to you. The last one was somewhat trivial by comparision. I hope you take the time to read this, though, as I’m sure the last one ended up quickly at the bottom of your rubbish bin.

Governor, there is a piece of paper on your desk. A piece of paper that has the power to restore humanity and dignity to our State. A piece of paper that will say to the world: “We are no longer barbaric, we are no longer uncivilized, we are no longer cruel”. A piece of paper that has the chance to shape your legacy and the legacy of our Constitution State. A piece of paper that will close an ugly chapter that is the death penalty in our State.