Category Archives: ct legal news

33 years in jail is a technicality

People always complain that “criminals” “get off” because of “technicalities”. It’s a great jab and like the best of them, it’s short, it’s catchy and it’s completely ass-backwards.

So in order to counter this, a cottage industry of sorts has sprung up, utilizing the phrase “The Constitution is Not a Technicality”. You can buy stickers and t-shirts and notepads and whatnot.

Because it really isn’t a technicality. What people mean when they say “he got off on a technicality” is that there was a rule of law that mandated a reversal. It means that there was an error made that undermined the fairness of the trial. It means that the Government did something it wasn’t supposed to and was punished for it.

Because if you really want to talk technicalities, you’d have to look in the opposite direction. Technicalities are what the Judicial Branch relies on to ignore constitutional violations. Technicalities are the tools of unjust verdicts and ways to keep Very Bad People in jail. Technicalities are what get people in jail, rather than out.

Just ask Jerry Hartfield. Hartfield was convicted in the late 1970s for a murder. Sometime in 1983, Texas’ highest court reversed that conviction and ordered a new trial. When that happens, a man is returned to pre-trial status. Like he’s innocent. Except that sometime in 1983, after he was no longer convicted of anything, the Governor of Texas reduced his “sentence” to life rather than death. A sentence that didn’t exist, you remember.

So, there he sat, Jerry Hartfield, for 33 long years, without a conviction or a trial or a charge or a sentence, until someone, somewhere realized the error [PDF opinion]. The technicality that caused him to spent 3 decades in jail.

Just ask Taylor and Gould (well, one of them is now dead, so ask the other), whose convictions were finally reversed by a trial court because they were actually innocent, only for that to be turned right back around by the Supreme Court, because it is not enough to prove that you are innocent, but you must also prove who did it. This is not a joke. That legal standard could be called a technicality. Technically you are innocent, but you haven’t met our impossibly high standard. So sit in jail and die in jail.

As any criminal defense lawyer here in CT or any appellate lawyer or anyone who does federal habeas practice.

Courts here at least have increasingly taken the tact of refusing to remedy Constitutional violations because a magic script wasn’t uttered.

You’re on trial for your life. The judge instructs the jury completely incorrectly on the law. You get convicted. On appeal, the courts says “yes, that was a terrible instruction. Yes that probably led the jury to convict you. But you know what? You’re fucked. We aren’t going to review this claim and we aren’t going to correct this Constitutional violation because your lawyer didn’t exactly object to this instruction being given in the manner that it was given.” This is not a joke.

Constitutional violations in Connecticut are falling by the wayside, unreviewed, ignored and forgotten because the Courts have created an impossible standard for defense attorneys. If we don’t object, in the heat of the battle, to the exact wording of the language that the jury is instructed on, or if we don’t object in the correct way, then the Court elevates form over substances and ignores the claims.

That’s a technicality.

In a recent, similarly mind-boggling opinion, the Connecticut Supreme Court once again refused to decide a claim of a Constitutional violation because the defense attorney didn’t object in the specific manner raised on appeal. In State v. Jorge P. [PDF], the issue was the testimony of an expert witness who would testify as to the injuries suffered by the complainant. Before that testimony, the defense attorney asked for a ruling precluding the witness from opining on the truthfulness of the allegations. The judge delayed that ruling until the witness actually testified. The defense attorney then renewed that objection later on. The prosecutor assured the court that the witness would do no such thing.

Of course, the witness did exactly that, stating in his medical opinion that the victim was indeed, abused.

Do you think that claim should be reviewed on appeal? That a court should decide whether that testimony was properly admitted?

You would think. The Connecticut Supreme Court didn’t think so. There used to be a rule of law, that once you objected to something, you didn’t have to keep objecting over and over. You “took an exception” and that was that for appeal purposes. Now, apparently, in their bid to made it monumentally difficult for any citizen of this state to obtain fair review of Constitutional violations, the Court has resorted to nitpicking on the most menial and mean kind.

It’s a technicality. Because a Constitutional violation is a Constitutional violation regardless of whether it’s been “preserved” in the right way or not.

But when you turn the criminal justice system into a game of “gotcha”, and you have the power to keep changing the rules at will, well, then, is it no surprise that we always lose?

A second chance for juveniles

Think about when you were 14, 15 or even 18 years old. You may have been the jock, the smartypants, the nerd, the weirdo, the hot chick, the best friend or home schooled. Think about the worst thing you did those years.

Now imagine that the worst thing you did – if it was legal – was deemed inappropriate by society. Inappropriate to the tune of 20 years in jail or 30 years or 40 or 60. Or just remember that time you bullied someone or you stole a lipstick or you made fun of a teacher or you took your dad’s car and went for a joyride or you made up stories about that girl because she wouldn’t make out with you.

Now, thinking about yourself, do you cringe? Have you spent time over the years wondering who that kid was and being glad that you’re not that anymore? Have you spent any time thinking “boy, I was a douche back then, but I’ve grown and changed?”

We all have. The only difference is that some of us are stuck in jail for extremely long sentences for things we did when we were barely out of middle school. CT mandates that all children above the age of fourteen, charged with serious felonies, are automatically treated as adults and exposed to adult sentences, ranging from maximums of 20 years to 60 years. And there are about 170 people who are currently serving such sentences for things they did between 14-17.

“A deliberate pattern of improper conduct”

The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

This month at the supreme court: May 2013

not an actual judge

not an actual judge

Compared to last month, May 2013 seems like a bit of a snoozefest at the Connecticut supreme court. Not that the cases aren’t important, but they aren’t the sort of blockbusters affecting Fourth Amendment law and the death penalty like last month.

Monday, May 13, 2013 @10:00am: State v. Christopher Shaw [the briefs aren’t online yet]. The issue in this case revolves around just what should be admissible under the rape shield statute to prove that the defendant isn’t guilty of a crime and that the complainant has a motive to fabricate the allegations. Usually, a complainant’s past sexual behavior isn’t admissible to show that the defendant didn’t do it, unless it fits one of the exceptions to the statute. There’s also this interesting argument:

Also on appeal, the defendant claims that the trial court improperly admitted, under the excited utterance exception to the hearsay doctrine, testimony from the police officer who responded to the home on the night of the arrest concerning the victim’s mother’s statement that the defendant had raped the victim.

It’ll be interesting to see if an excited utterance can be stretched to apply a statement made by someone other than the complainant not immediately at the time of the crime.

Tuesday, May 14, 2013 @ 10:00am: State v. Richard Taylor [briefs not available yet]. Whether, in order to find someone guilty of conspiracy, the State must have to prove that the parties intentionally engaged in a plan or just knowingly. The Appellate Court has previously upheld the conviction and rejected that argument.

Tuesday, May 14, 2013 @11:00am: State v. Luis Rodriguez [briefs not available yet]. A fascinating case where the victim was given immunity by the State in order to testify and then the victim’s lawyer was called to testify as to the extent of the immunity agreement. The defendant objected on the grounds that the only purpose of the lawyer’s testimony was to show how clueless and sympathetic the victim was, but the Appellate Court said it was okay.

And that’s it!


Image via. License details there.

An arraignment is a critical stage

It seems almost silly to me to have to blog about an opinion that declares that yes, an arraignment is a critical stage in a criminal proceeding. But this was apparently a matter of first impression in Connecticut courts and there is a dissent and the state has been pushing this issue for years, so it might be worthwhile as my civic duty. We’ll see.

But let’s start with basics, since basics are where things go wrong most of the time. In Connecticut, when you get arrested, you have to be arraigned. You’re brought before a judge, usually within 48 hours of your arrest, and either a finding of probable cause is made (if it’s an “on-site” arrest) or not if the arrest was made by warrant. That’s it. There’s no grand jury indictment, despite the State’s best efforts.

So what happens at arraignment? Several things:

1. If you have retained a private attorney, that attorney should enter an appearance on that behalf and actually appear there with you.

2. If you have not or cannot retain a private attorney you can make an application to be represented by the public defender, who will then stand with you when the judge calls your name.

3. Your bond is reviewed and set.

4. 3 above affects your liberty: do you stay in custody or do you bond out?

Now lets imagine that a bond is set, but you cannot post that bond, meaning that you remain in custody – in jail – throughout the entire time your case remains pending.

You have a due process liberty interest in pre-sentence confinement credit. Which means that all the days you spent in jail because you could not post bond, are counted as part of your sentence.

It has to be that way, otherwise there would be an equal protection violation and liberty would depend on how much money you have.

So while you sit in jail, waiting for your sentence, you’re “accumulating” “credit”. And then you get sentenced and that credit is applied to your sentence, that is, subtracted from it and viola! It’s as if you started serving your sentence on the day you first were held in lieu of bond.

And if it were only that easy, we wouldn’t be there.

Because what complicates things is multiple cases. Some more background: the only way DOC knows you’re in custody is if there’s a bond set on you. So you need to have bond set in every file that you’re in custody for. Where it gets a little hairy is if you post that bond on the first case, but then can’t on the second.

Example: You get arrested for getting into a bar brawl and are charged with Assault 3rd, a misdemeanor. The court sets bond in the amount of $1000, which you promptly pay, so you’re “out on bond” in the street, living at home. Let’s say three weeks later, the guy you got into a fight with passes you on the street, you lose your shit and you take a gun and shoot him. He’s not injured (we’re a family blog, after all) but you’re arrested and charged with attempted assault in the first degree – a Class B felony – and now a judge sets bond in the amount of $100,000 which you can’t post so you’re held in jail.

Remember, DOC thinks you have only one charge, but actually you have two. Lets say a 6 months go by and the victim in the attempted shooting relocates to Indonesia and the State is going to drop that case. But the barfight has other witnesses so they want you to plead guilty to a misdemeanor and a sentence of 6 months in jail.

Great, you think. I’ve got 6 months in the bank! I’ll plead, they’ll apply the credit and I’ll go home today. Done.

Errr. No. DOC never had you in jail for that case, so there’s no credit to apply to your sentence. You have to do 6 months in jail to satisfy that sentence.

Well, now what? You blame your lawyer, obviously! He should’ve known and if he’d done his job I wouldn’t be here!

That’s exactly what happened in Odilio Gonzalez v. Commissioner [PDF]. Gonzalez argued that if his lawyer had simply asked the court to raise his bond a nominal amount on the barfight charge when he got picked up on the shooting charge, DOC would’ve recognized the existence of that case and he would have started “earning” credit. Had that happened, he’d have been a free man 6 months earlier.

Simple, right? No. Because the State, in its infinite wisdom, has for years argued that there is no right to have a competent lawyer advise you in regards to bond matters. That your bond is not a critical stage in a criminal proceeding and that there is no Constitutional right to have proper advice.

Luckily the court didn’t buy that, instead arguing what I’ve just laid out above. It concluded:

In the present case, it is clear that ‘‘potential substantial prejudice to the [petitioner’s rights inhered]’’ to the arraignment proceedings and the petitioner’s counsel had ‘‘the ability . . . to help avoid that prejudice  . . . .’’ Jackson v. Miller, supra, 260 F.3d 775. Specifically, because the petitioner’s counsel failed to timely request that the petitioner’s bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required.

The petitioner was thus denied an essential liberty interest as the result of his counsel’s deficient  performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner’s bonds on the first two cases. The fact that counsel’s performance  affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel’s ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings.

Of course, we shouldn’t blame the state. Logic isn’t their strongest suit. Although I suspect they’d feel very differently if their liberty was on the line and their lawyer forgot to have their bond raised.

CT Supreme Court: To be a law firm you’d have to be a real lawyer


If you’ve ever had to respond to an opposing party’s filing in Court, you know that some are very good and make your job challenging. And you know that some are so bad that you don’t know where to start. You sit and stare at the pleading or brief or whatever it may be and you stare at a blank computer screen because the depths and lengths of the sheer absurdity of the filing that you are tasked with criticizing and rebutting is unimaginable and it is swallowing your brain whole because there is no possible way any human being can even begin to deconstruct the stupendously mindboggling arguments that have been made. And you stare and stare in the hopes that someone will rescue you by showing up in your office and saying “April Fool’s! That’s not the real thing” or “hey, never mind about that reply because they withdrew their filing out of sheer embarrassment when they realized how it’s not even wrong” and then you resign yourself to the fact that you can’t actually submit a response that consists entirely of the Picard facepalm, because, while funny, it’s not very professional and so you write several different opening sentences only to delete them all and try again while swimming in the despair and futility of it all.

This is how I feel right now – and have felt since 11:30am yesterday morning, when the Connecticut Supreme Court issued its opinion in Anderson v. Commissioner [PDF].

Anderson is an appeal of an Appellate Court decision that I wrote about in October 2011. It was a post-conviction appeal in which Mr. Anderson argued that his conviction was illegal because his lawyer represented him in a way that violated the Sixth Amendment because the lawyer was operating under a conflict of interest.

This is a big deal, because everyone has the Constitutional right to have a lawyer whose only interest is the interest of that client and no one else. See Cuyler v. Sullivan. You can easily imagine why this is paramount. The client hires the attorney with the intention that the attorney will represent the client and only the client in his case and that the attorney is working for the client and what the client wants and thus the attorney’s loyalties cannot be divided.

There are very strict Rules of Professional Conduct that govern this matter and whether lawyers in the same law firm can represent two parties whose interests are at odds with one another. The rules are pretty clear, stating that you cannot do that, unless you get waivers from both clients. Unless, of course, you’re not a “real lawyer”. By which I mean you’re a public defender.

A shortcut through your rights

The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]