The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:

Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:

It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.

It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.

The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:

not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial.  Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23).  A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.

For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number.  Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.

Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group.  The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.

The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:

1.  There are enormous and unexplained geographic disparities.
2.  Death sentences are not confined to the worst murders.
3.  There is gender bias in death sentencing.
4.  There is racial bias in capital outcomes.
5.  There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.

That sounds awfully like the State’s expert agrees with the defense expert.

The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.

So you’d think that the last person to do something stupid that could be caught on a dashcam would be the officer in whose car that same dashcam was mounted and operating. You’d be so, so wrong:

The video, obtained by Lance Goode and his attorney/public defender as part of discovery purports to show an officer dropping what looks like a bag filled with a white substance and then kicking it out of sight while Goode is inside his home entertaining other officers. Goode is then charged with possession of oxy:

Goode said he was not able to find a valid insurance card so he went looking for it in the residence while [Officer Timothy] Henderson followed. [K-9 Officer Roger] Newton, in the video, circles the car, waving a flashlight inside Goode’s car before returning to his cruiser.

Goode said the officers told him they would tow the vehicle and Goode gave an officer his key. The officers allowed Goode to take his possessions out of the car before they towed it, Goode said.

In the video, Goode opens the trunk and removes several items that he takes into a house, with Henderson following.

Newton, Goode said, can be seen in the video dropping a plastic bag filled with white pills. Newton looks around, Goode said, before kicking the bag behind two trash cans.

A minute or so later, a third cruiser pulls up, at which point Goode is arrested and put into the back of a cruiser.

It took a year, but Goode’s case was nolled and Newton has been placed on administrative leave pending an investigation.

the land of steady racism

Almost exactly one year ago, I wrote about the town of East Haven, CT hurtling towards “sundown town” status, caused largely by alleged institutional racism and bias towards minorities – lately specifically Latinos. In that post, I mentioned that there was a federal civil rights lawsuit pending and that the Civil Rights Division of the Department of Justice had opened an investigation into these alleged discriminatory practices of the East Haven Police Department. This past week, the DOJ issued its report in the form of a letter [PDF] sent to the East Haven mayor and boy is it damning (media coverage here).

Some of its key findings:

• The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
• However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).

In making these stops, the DOJ found that the EHPD targets Latino drivers and employs tactics not used against non-Latinos:

• Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
• Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
• Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

The DOJ further charges that the EHPD haphazardly employes immigration policies against Latino drivers and points out that the EHPD and East Haven have had a long standing problem with policing of minorities, citing a recently concluded federal lawsuit which alleged discrimination against African Americans (Jones v. Town of East Haven, et. al.).

The most shocking thing about all of this (or the least surprising, depending on how naive you are) is that the DOJ got all the above information from the EHPD itself: from 2 years’ worth of police reports and interviews with officers and community members.

The institutional coddling of these discriminatory practices is mind-blowing. From the news report:

East Haven may be unique, if only because of a tangle of politics and the close friendship between East Haven’s Republican mayor, Joseph Maturo Jr. and his chief of police, Leonard Gallo.

Maturo was originally mayor from 1997 to 2007 and he hired Gallo as chief in 1998. But Gallo was put on administrative leave by Maturo’s Democratic successor as mayor, April Capone, in 2010, a result of the allegations of racial profiling and excessive use of force by East Haven Police.

After Maturo won in the November elections, he almost immediately returned Gallo to full duty as chief — an astounding move given the ongoing civil rights and grand jury investigations into police actions during Gallo’s tenure.

And more:

The 23-page report released Monday by the U.S. Department of Justice Civil Rights Division cited top police officers for “creating and condoning a hostile and intimidating environment for anyone seeking to provide relevant information in this investigation.”

“We also learned that Chief Gallo had warned staff that the Department of Justice had agreed to provide him with the names of individuals who cooperated with the investigation,” according to the civil rights report. And that, federal officials insisted, was completely and utterly untrue.

How bizarre is this institutional protection? EHPD officers told DOJ officials (that’s the fucking Federal Department of Justice Civil Rights Division, in case we were unclear) that the DOJ officials’ safety could not be guaranteed by the EHPD when they went on ride-alongs. Ponder that for a second.

The DOJ found an abject lack of any internal policing mechanisms and that the EHPD hadn’t ever bothered to compile the statistics to see if racial profiling existed with its department, something that’s required by C.G.S. 54-1m. In addition, the DOJ noted that a large number of entries into the EHPD’s database seemed to be missing ethnicity data or the data seemed to be misreported.

EHPD is at a crossroads: either admit that there are problems and work toward fixing them or deny it all and face lengthy and costly lawsuits brought not only by civilians, but also the Department of Justice. As a new year dawns, one can only hope that concern for the safety of officers and the constitutional rights of its residents rises above deep-seated racism and pride.

[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is  not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to  do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.

In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.

But we have done nothing. We have avoided the question.

And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.

It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.

Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and  society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing.  Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago  that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

versus:

We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty  Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the  death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.

Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and  morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling  support for abandoning our decisions in Ross and Webb.

The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.

Says Kitzhaber:

Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I  would make a different decision. That time has come.

The time has come. Who will have the courage to utter these words and take a different approach?

Consider the following scenario: defendant A is arrested for a burglary. Defendant A, in confessing to the crime, implicates defendant B. Defendant A is unable to afford counsel and is represented by the Lawyer A of the public defender’s office. Defendant B is also unable to afford private counsel. Which of the following is the correct step to take regarding the appointment of counsel for Defendant B:

1. Appoint a private attorney as a “special public defender/assigned counsel/conflict attorney”.
2. Appoint Lawyer B of the same public defender’s office as Lawyer A, and pray that they behave themselves and don’t share information.

If you have your head screwed on right, you’d choose 1. If you were two members of the public defender’s office and 3 judges of the appellate court, you’d choose B.

Don’t believe me? See for yourself. In Anderson v. Comm’r, the appellate court reversed a habeas court’s finding that the representation of two co-defendants by two public defenders of the same office violated the right to conflict-free counsel. That the public defender’s office didn’t see the need to assign one of the co-defendants to a lawyer outside their office is troubling enough, but the Appellate Court’s decision to condone this highly improper, if not unethical practice, is mind-boggling.

The Court writes:

The respondent contends that Babcock was not subject to imputation under rule 1.10 because she was a government employee, citing rule 1.10(d) and the commentary to rule 1.11. Rule 1.10(d) of the Rules of Professional Conduct provides: “The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.” Rule 1.11(d), in turn, subjects current government lawyers to rules 1.7 and 1.9, regarding personal conflicts of interest, but does not provide for the imputation of conflicts. Rather, the commentary to rule 1.11 emphasizes that “Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule” and explains that “[b]ecause of the special problems raised by imputation within a government agency, subsection (d) [of rule 1.11] does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers. . . .”

This is nothing but classic cherry-picking of words in that rule to reach the result the court wants (which is just absurd in of itself that the court wants to reach the result that there’s no conflict in this scenario). My plain reading of Rule 1.11 is that the rule doesn’t even apply to the situation in this case. Take a look [pdf]:

Subsection (a) starts: Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government;

Subsection (b) starts: When a lawyer is disqualified from representation under subsection (a);

Subsection (c) starts: Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent [...];

Subsection (d) seems to apply, so I’ll quote it in relevant part:

Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) Is subject to Rules 1.7 and 1.9; and
(2) Shall not:
(i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the  appropriate government agency gives its informed consent, confirmed in writing; or

(ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially; except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private  employment as permitted by Rule 1.12 (b) and subject to the conditions stated in Rule 1.12 (b).

Subsection (e) just defines “matter”. All of Rule 1.11 deals with current public employees and their dealings with former clients or former public employees and their dealings with current clients. There’s nothing about current public employees, who are part of the same firm, and current clients of that same firm.

The Court also relies on the commentary to Rule 1.11 (quoted above) to supports its conclusion, but a plain reading of the commentary also belies that. The commentary starts:

A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7.

Then there’s Rule 1.10, which deals with lawyers in the same firm:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7

So what does Rule 1.7 say?

(a) Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to  another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or the same proceeding before any tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Clearly, this Rule applies. There’s no way, in the scenario of the case, that the lawyers can escape b(3) above. The Court, however, ignores all of this with some handwavium and declares that Rule 1.11 governs this scenario and so there’s no imputed conflict of interest and so the lawyers did nothing wrong (although we sternly shake our finger at them). Ignoring precedent from our supreme court (okay, not so much ignoring as magically distinguishing) the court then reverses the habeas court and denies the petition. I’ve been told that the supreme court has granted cert., so they will, in the end, decide if sanity is to be restored.

But the mere idea that any court would tolerate this improper behavior from two attorneys is a little disconcerting. It is almost standard practice – and done without question – to assign private counsel to represent co-defendants in a case in every jurisdiction here. For good reason. Because everyone recognizes the pitfalls that come with the type of representation that Anderson and his co-defendant received in this case.

The habeas court makes a valid point: what if this case had gone to trial and not resulted in a plea? Would Lawyer A have cross-examined his next-door office occupier Lawyer B’s client? How could either Defendant A or Defendant B have any confidence that the two lawyers weren’t sharing notes and information. How are the two defendants’ interests not adverse?

Why is this even a discussion?

wait, does that count as Arson?

Look, I dislike guns. I dislike them a lot. I don’t believe that people kill people, rather that guns – the objects from which projectiles are discharged at a high rate of velocity, thereby permitting them to enter the bodies of individuals, causing fatal damage to bodily organs – kill people. I’d rather there weren’t any, or at the very least, we had stringent gun control laws.

But do you know what I dislike more? Stupid laws and even stupider interpretation of laws that criminalize perfectly legal conduct. Somehow, despite my strict personal opposition to guns, it is still legal to carry a licensed firearm in Connecticut. In public. Openly.

Yet, for some reason, the state’s “top criminal justice official” – a made up title if I ever heard one – wouldn’t recommend it. Why, you might logically ask, is it not a good idea? For the same reason that photographers across the country are being arrested for videotaping police encounters with civilians: because no one knows the law (see also this post by Balko on an issue similar to the one in the instant post).

I’m not making this shit up.

Mike Lawlor, already featured in one post today for his sage legal prognostications, offers up another:

“In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”

That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.

“Almost by definition”? Oh, really? Challenge Accepted! Here‘s the relevant Breach of Peace statute:

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

Openly carrying a licensed weapon into a public place doesn’t fit subsections (1), (2), (3), (4), (5) or (6). You know what that means? It’s not, by definition, a breach of peace. But maybe he was tired from all that prognostication and encountered a “slip of the tongue”. Maybe what he meant was “Creating a Public Disturbance”. Contrived Challenge Accepted! Here‘s the statute:

(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

I’m no legal scholar, but I see three strikes there. Yerrrrout! (I don’t…just…don’t ask.)

What Lawlor is essentially saying is that one shouldn’t legally carry a legal, licensed firearm in public, which one legally can do, because cops are stupid and don’t know that law and you’ll get falsely arrested for perfectly legal activity. So he’s doing you a public service, really. It’s like telling people not to walk around with large, brown plastic glasses and a 70s pornstar mustache because people may mistake you for a child molester and then you’ll get arrested and whatnot.

But, you might protest, it’s only Lawlor, a former legislator and now a bureaucrat. That’s not evidence of anyth-:

When asked in a phone interview last week if people are allowed to openly carry firearms with a permit, state police spokesman Lt. J. Paul Vance said, “Good question.”

“Does it frighten people? Yes,” he said. “There is no standard quick answer to this question.”

-Oh. Notice how he quickly answers the question “yes” and then says there’s no standard quick answer. This is dangerous because it’s indicative of a “winging it” style of policing. “Arrest first; find crime later” seems to be the motto. And we all know what happens once you get trapped in the quagmire that is the criminal justice system.

The simple solution, of course, is to make it illegal to openly carry a weapon in public:

Lawlor, a former lawmaker, said that personally he was no fan of guns but said he wasn’t inclined to have a discussion in the legislature over changing the law. It would be a difficult sell for gun rights activists, who he conceded raise some valid points. If taking out a gun is illegal under any circumstances, why would people carry them, he asked.

He said he prefers the way the law is written now, where it is on the gun owner to behave responsibly.

“You want to have a gun? Fine, but you have to accept the responsibility that goes with it.”

Funny that he exhorts gun owners to behave responsibly, but doesn’t care about the illegality of the arrests that ensue from that responsible, legal, behavior.

Michael P. Lawlor, Gov. Dannel P. Malloy’s undersecretary for criminal justice policy and planning, said the lab will be reinspected — the date is tentatively set for Sept. 12 — and he was confident that improvements would result in the lab’s reaccreditation. Lawlor said that the accreditation is voluntary, and that “there is no indication that this will affect pending cases between now and Sept. 12.”

He also goes on to opine (seems to be his favorite hobby these days, see this subsequent post) that the loss of accreditation and the problems at the lab don’t affect criminal cases. I respectfully beg to differ. When some of the problems with the lab involve validation techniques (among many, many other things), I’m pretty certain that there will be some impact on criminal prosecutions, at least in the short-term, bringing the validity of the results reported by the lab into question:

Auditors cited weaknesses in supervision, reporting of case results, evidence control, data security, quality assurance, adherence to standard operating procedures for DNA analyses, and validation techniques for DNA test results, among other issues.

What about that statement gives you confidence that there is nothing wrong with the results reported over the past two years?

If nothing else, this revelation that the accreditation was extended by 6 months will – and should – bring additional scrutiny on criminal cases that were resolved in that period. If such a problem was brewing at the lab, why weren’t the courts and defense counsel alerted to them? Why were convictions allowed to be entered based on DNA evidence that was subject to potential errors?

These are questions that will need to be asked – and answered – long after September 12.

making impropriety cool since 1974

It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.

This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.

Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:

The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.

To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:

The defendant next contends that the prosecutor violated State v. Singh, supra, 259 Conn. 693, when he argued that in order to acquit the defendant, the jury would have to find that every other witness ‘‘was wrong.’’ He argues that there is ‘‘no distinction between a prosecutor using the word ‘wrong’ or ‘mistaken’ instead of ‘lying’—all are equally improper.’’ The state argues that there is a distinction when such words are used during closing argument. We agree with the defendant.

To improper attempts to bolster the credibility of witnesses:

First, the defendant claims that the prosecutor improperly asked several of the state’s witnesses on direct examination and on redirect examination if they were telling the truth or if they were prepared to tell the truth. This, he argues, was an attempt by the prose-cutor to bolster or rehabilitate the credibility of these witnesses before the witnesses were impeached. The state argues that each of the witnesses had testified that they had pending criminal cases and that they did not want to testify in the present case. The questions posed relating to their truthfulness, it argues, merely were attempts to confirm that despite their reluctance to testify, they still were prepared to tell the truth. We conclude that the questions posed on direct examination were improper attempts at bolstering the witnesses.

and finally to finding that these instances were “central to the critical issues of the case”:

We next consider the fourth Williams factor, the centrality of the improprieties to the critical issues in the case. See id. The defendant argues that ‘‘the prosecutor attempted to obtain a conviction by having the jury consider not the evidence and the charge, but instead, by persistently characterizing [the] defendant’s actions as murder and Rivera as a victim, by bringing in sympathy for Rivera and [by] inflaming the jurors’ passions, by repeatedly emphasizing that his witnesses were credible, by denigrating defense counsel and by arguing that every single witness was lying if [the] defendant was innocent.’’ The state concedes that ‘‘the alleged improprieties affected the central issue in this case, which was whether the defendant murdered the victim or acted in self-defense, but not significantly so.’’ We conclude that the improprieties were central to the critical issues of the case.

And yet, these improprieties didn’t deprive the defendant of his right to a fair trial bec-ayyy! Of course, the Court doesn’t bother to name the offending prosecutor, nor does the Court either impose sanctions or refer the matter to the Grievance Committee for sanctions for this conduct it finds to be improper. The lesson here? Go ahead and do all this stuff we said was improper, because in the end, criminals are criminals and we aren’t going to do anything other than mildly chastise you in a way that will preclude anyone from ever connecting you to this behavior and really, you put a really bad guy away, so we should be giving you a damn award.

Ayyy!

http://www.youtube.com/watch?v=Q_Y0gT-ab90

I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.

But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.

But I digress.

As if this coddling and protection of prosecutors wasn’t infuriating enough, the laissez faire attitude toward such impropriety gets even worse with the complete failure of any entity to impose sanctions on that prosecutor. It is a common refrain heard around the criminal justice system that prosecutors are rarely – if ever – held accountable for their “extremely troubling” acts of misconduct. I mean, c’mon, if a court isn’t even going to name them, then do you think there’s ever be any sanctions imposed?

That’s the subject of a powerful article in the CT Law Tribune by former Chief Disciplinary Counsel Mark Dubois, who comments on Lenarz and the failure of courts to correct this misbehavior:

One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.

Professor (I took one of his classes once, so he’ll always be “Professor” to me) Dubois then points out something that I was unaware of, that’s rather surprising:

Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.

Here’s the relevant Practice Book section:

(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:

(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:

(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;

Prof. Dubois interprets that to mean that once a court has found misconduct and imposed no sanction, the Grievance Committee must not take further action against the prosecutor. But I don’t see where in the rule it says that the Committee cannot proceed with disciplinary proceedings against the prosecutor based on the record created by the appellate decision. I’m assuming the professor knows more than I do in this area, so I invite him to correct my mistake.

Even if that is the case, it certainly does not divest the court of its authority to refer the matter to the Grievance Committee for disciplinary proceedings. And we all know that never happens:

A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.

This indifference approach to ethical violations in the most grievous of settings is another symptom of a system that places finality above all else, that condones the erosion of individual rights and liberties in favor of a more authoritarian society. With the legislature unable to act, it will be up to the Courts – well populated with former prosecutors – to bring accountability in an impartial way. If the Chief Justice is indeed serious about restoring faith and integrity in our justice system, she might want to go further than characterizing the conduct as “extremely troubl[ing]” and actually hold those people who undermine that same integrity responsible.

Don’t hold your breath.

But this is much worse. Apparently there’s a 160 page report of the audit done by the NIJ which criticizes several aspects of the lab’s operations, including the qualifications of the supervisors and the ability to adequately and accurately process and examine the evidence:

The audits focused on the sections of the lab that deal with convicted-offender databases and DNA testing. State crime labs must adhere to federal standards for DNA testing.

The DNA audit team raised questions about supervision, reporting of case results, evidence control, data security, quality assurance, adherence to standard operating procedures for DNA analyses, and validation techniques for DNA test results, among other issues.

These are significant questions that undermine the reliability of DNA results, which are often used by juries as the be-all and end-all of proof beyond a reasonable doubt. DNA evidence is the gold standard, considered fool-proof and error proof, in the minds of the layperson. To have a report that calls into question basic things like evidence control, quality assurance and even SOP for analyses is troubling, to say the least.

How accurate are the results reported by the lab over the last few years? How many cases did this affect? How many convictions were obtained on the strength of these criticized standards and procedures? The implications are staggering.

The state lab didn’t provide the Courant a copy of the report of the NIJ, but every criminal defense lawyer must send a letter to the lab requesting that unedited copy. What exactly does it say? We need to know that, unfiltered, without the alterations and suggestions of the state.

I know several of the people who work at the state lab and I like most of them. I don’t envy them right now, because it seems that a lot of these problems are brought about by severe underfunding. But whatever the reason, the credibility of the lab and its results is now in question and that’s not a good thing – either for the lab itself – or for the people who have been convicted or are awaiting trial as a result of the lab’s testing.

And if you’re waiting for DNA results in your case, you may have to wait a long, long time. From this graphic in today’s paper edition of the Courant, the backlog for DNA testing and analysis is now 4 years!

Last March, a state police official briefed the Criminal Justice Policy Advisory Board, made up of police, prosecutors and a cross-section of members of the public.

The facts were alarming, [chief of criminal justice planning for Gov. Dannel P. Malloy, Mike] Lawlor said: 3,900 “unstarted” forensic cases; 1,800 backlogged firearms cases as of March, up from fewer than 800 in January 2009; statutory deadlines looming in more than 160 felony cases.

“There have been outrageous backlogs with the processing of evidence – DNA, fingerprints, computer hard drives, everything,” Lawlor said. “Police in some cases have had to wait months, sometimes a year or more, for results, and that has affected decisions on arrest and identifying suspects. It’s also delayed trials. It’s been a problem for police and prosecutors statewide.”

Lawlor, ever the prosecutor, forgets one important demographic: the criminal defendant. He who is innocent until proven guilty, but more often than not cannot afford to post bail and thus sits in pre-trial incarceration for months and years pending the outcome of DNA testing. This is as much about solving cold cases and identifying suspects through DNA analysis as it is about the speedy resolution of those cases where people are deprived of their liberty based on questionable policies and procedures at the state lab. If nothing else, we should all start filing motions for bond reduction in cases where DNA analysis is outstanding and will take forever.