Category Archives: ct legal news

Yet another example of unsanctioned prosecutorial misconduct

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

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

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

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

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

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

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

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

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

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

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

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

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

A double standard in prosecutorial misconduct

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

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

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

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

Black men are exigent circumstances

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The horror of teachers making slasher films

bikin-zombies

The Twerking Undead

Hi America. There is a scourge in our nation today and that is sex. And gore. And children who might potentially be exposed to gore. And sex. and Violence. And bikinis. And those infernal zombies! They must be stopped! They must be eradicated from our puritanical nation and our children’s eyes scrubbed with caustic acid to remove all traces of heathen filth!

Wait, wait. Where are you going? Hollywood? Haha, no, no, there’s nothing wrong with Hollywood’s gratuitous nudity and glorification of violence. I’m talking about the bikini-slasher-horror-films written and produced by two Connecticut school administrators on their private time under fake names!

You see, my good friend Matthew Kaufman, long-time storied investigative journalist at the nation’s oldest flagging newspaper ran a tremendous expose the other week, doxxing a middle school principal and a guidance counselor as the shameful, sinful, pedophiles behind Moongoyle entertainment, which produces:

fairly typical bikini-and-blood slasher flick[s], featuring gratuitous nudity, sexually charged dialogue and a lead actress who “bares all as a kinky serial killer who loves to give her victims a satisfying but often morbid peep show.”

America, this cannot stand. I am outraged by the fact that these men – and remember, they are men, the worst kind of species God has made – are making pornographic movies with some nudity maybe I don’t know I haven’t watched it, but definitely some zombie devil nonsense and then they are going into our schools to touch our children(‘s hands and minds).

I am offended by this and if there is anything I know about the First Commandment it is that whatever offends me is illegal and must be stopped! This is America – the land of ME!

These creeps have no First Commandment rights because they are making movies with naked women in them while also teaching children! What can they be teaching our children?

Thank God they are now placed on paid leave. I cannot agree more with this letter to the editor in the Hartford Courant. This man had the prescience to write this letter three days before the story broke! Now there’s an American!

While they are on leave, the Obama government should investigate what else they do: do they drink? Do they have the sex? Someone should check their palms! Can you imagine, America, if they masturbate and their hairy palms come into contact with our children? The horror! These infidels should not be allowed in our schools! This is Catholic nation and any teachers who do not abide by catholic ideals should be fired immediately! This is how our country has given birth to the gays and pedos and blacks. But not lesbos, they’re fine with me.

Tolerance is the wrong message to send our children. We cannot make them weak and learn to accept other people’s viewpoints. We have to raise them to eradicate all filth that we disagree with. That is the only way that America will go back to its former glory. Remember Benjamin Franklin, the greatest man who ever lived, who said that “I do not agree with what you say and I will fight you to the death to prevent you from saying it!”

So go, America, to this terrorist sympathizer page and tell these horror loving, bikini ogling creeps that they aren’t welcome here. What is this, Japan?


See also.

Some lawyers in CT are also mandated reporters

That's your constitution in the middle, getting fucked over.

That’s your constitution in the middle, getting screwed over.

I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.

In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.

In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:

(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.

The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.

What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.

What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.

All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.

Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.

But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.

Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.

This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.

Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.

Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.


‘I’m a trial lawyer’ is a terrible attitude

[This is my latest at the CT Law Tribune]

A few weeks ago, I attended an oral argument before a panel of the Appellate Court, which was hearing a direct appeal from a conviction after trial. There were interesting issues before the panel and the defendant had been represented by a colleague, so I made it a point to attend and show support.

While the interesting issues were, indeed, discussed, an all too familiar refrain resonated throughout the argument: a discussion by the judges about the clarity of the facts in the record and what could – and could not – have been before the jury. There were assumptions made about the facts as presented to the jury and they were, of course, viewed in the light most favorable to sustaining the conviction.

As I left the courtroom, I was struck by several things: first, the absolute necessity of watching oral arguments; second, the unfairness of appointing judges who have no criminal law experience to the appellate court who then rule on issues stemming from criminal trials; and, most importantly, how the practice of law for the criminal defense attorney must be a comprehensive endeavor that encompasses not only pre-trial and trial ability, but also a recognition of the long-view.

I’ve written before about the willingness of appellate courts to avoid deciding issues of fact and law and turning their backs on Constitutional violations by requiring impossibly high standards of performance by defense attorneys. The precision required of defense attorneys in raising and preserving claims for them to be even considered on appeal leaves the precision required before finding someone guilty beyond a reasonable doubt obscured in its dust.

But today I turn to the faults of my fellow defense attorneys and a prevalent attitude that there are two types of defense lawyers: trial lawyers and appellate lawyers.

To those that may be a bit surprised at this fairly simple statement of fact, let me elaborate that the implication of the dichotomy is that trial lawyers are only trial lawyers and appellate lawyers are only appellate lawyers. In other words, trial lawyers see their job as trying – and hopefully winning – trials without regard to what happens on appeal. If you’re relying on an appellate reversal, goes the philosophy, you’ve already lost.

While there is a certain superficial appeal to this thinking, it is fundamentally flawed and dangerous. How, exactly, is one to “practice law” if one does not know or understand the law. Knowing and understanding the law is – or must be – a broader concept than knowing the elements of, say, murder. Practicing law must mean knowing what the law is and what the law isn’t. It must mean knowing how the law has changed, or where it is bending and whether those are issues to raise in the representation of the current client. Practicing law must also mean knowing that is required of oneself as a criminal defense attorney in order to protect a client’s rights.

The “I’m a trial attorney” attitude shows a complete disregard for a client’s Constitutional rights. A client is owed due process: which means not only that the State has to prove its allegations beyond a reasonable doubt, but also that the manner in which it does so cannot offend the Constitution.

This may take many forms: the obvious like a lack of probable cause for a search, or a clearly inflammatory argument by the prosecutor during closing, to the more nuanced: a failure to file a defense request to charge the jury or to object to specific instructions, or to ensure that the reasons for objecting to certain testimony are clearly and succinctly stated on the record.

When the lawyer doesn’t explicitly state an objection on the record or make a clear and precise request, appellate courts are left to interpret the resultant vagueness in any way they choose and that usually doesn’t benefit the individual defendant. Further, a lawyer who doesn’t follow the strict rules set up by appellate courts to preserve claims of error simply provides those courts an easy way to dodge tackling difficult issues in unsympathetic cases.

The causes for these failures by defense attorneys are the subject of some debate. To be certain, it is unrealistic to expect attorneys to remember to do everything perfectly in the frenetic heat of the battle. A trial is a rush of days, with little sleep and tremendous stress. Even the most prepared often miss things and even the most prolific often overlook the obvious.

Unfortunately those who populate our courts of review don’t have that same experience and thus cannot relate to the pressures of being in a contested trial that lasts weeks. The luxury of hindsight, years on, combined with the obliviousness of the demands of that job allow courts to lament the missed punctuations in the preservation of issues and to hedge facts because it may be somewhat ambiguous upon a reading of the transcript what was abundantly clear to everyone present in the courtroom.

But that is a ship that the defense attorney cannot steer. No matter how many times I wish to invite appellate judges to second chair my trials to see what it’s really like in a courtroom, I know that they will not come.

So it falls upon us, the trial lawyers, to ensure that we do everything we can to make the record as clear as it can be. As lawyers who prepare for trial, we become intimately familiar with the facts of the case, the testimony of witnesses, their prior statements, our theories and strategies. As trials progress, the presiding judge and prosecutor also share that familiarity and a sort of shorthand descends upon it all.

I’ve read appellate decisions which held that I had not properly preserved an issue, been shocked because that conclusion conflicted directly with my recollection of the event and been miffed when I had to grudgingly admit that the appellate court’s reading of the statement in question was a plausible one.

We must put aside our ego and our hubris and realize that the system is engineered to defeat our clients. Most trial lawyers recognize the obstacles in the pre-trial and trial arena, but become surprisingly unconcerned by the existence of the very same obstacles in post-conviction review. This makes no sense.

Back in the old days, trial lawyers would handle their own appeals. Perhaps it is time for a return to that era, at least once, so trial lawyers can realize that everything that they do – and don’t do – impacts the ability of their clients to get vindication.

Otherwise, they might as well sleep through the trial.

More than 3.5 million reasons why the death penalty should be abolished

The death penalty is crazy. It’s barbaric. It’s sanctioned murder.

urkel-gifWe should end it.

inmate-downvote

Here are more than 3.5 million reasons why:

1-3.5 million: $3.5 million is how much the defense expert billed the public defender services for his work in the racial disparity hearings. Of course, the Courant when writing about it, misses the mark entirely (again) in its description of the need for this sort of work:

For many taxpayers, it’s an unwelcome fact of life that they bear the cost of preserving the legal rights of convicted killers. The counter to that is that it’s the price of being civilized. And if an exclamation point is needed to punctuate either statement, it could be the story of the recent payment to Donohue.

The most obvious explanation, completely glossed over, is that it’s the price we have to pay for having a death penalty. It’s not the rights of convicted killers, it’s the cost of a death sentence. If the state wants to prosecute people and kill them for those crimes, it shares the responsibility and burden of making sure those convictions are legal. Why is there no blame on the prosecution for this cost?

And it’s a cost incurred to ensure that the death penalty isn’t racist. Which, you know:

thats-racist

3,500,001-????: We actually don’t know how much the prosecution spends on the defense of murde the death penalty, but it stands to reason that they too spend a lot.

There are still plenty of death penalty appeals pending, perhaps with some retrials to come. There is decades worth of work to be done fighting against the death penalty. That means lots more money.

It’s not the defense’s fault. The state is trying to kill someone. We’re trying to prevent further murder.

Channel your outrage accordingly.