Category Archives: ct legal news

The investigative subpoena: because who needs probable cause?

big_brother

[This is the second in a two-parter today on the State pushing the boundaries of their power and seeking to perform their law enforcement function without the constraints of the Constitution. The first post, on their desire to be free from the Fourth Amendment, is here.]

Prosecutors want the power to subpoena witnesses under threat of contempt penalty to secret proceedings without probable cause.

For many years now – maybe over a decade – the prosecutors in Connecticut have asked every session of the state legislature to “reform” the grand jury process here. By “reform” they merely mean completely revamp and retool it, giving themselves vast powers to subpoena any manner of things with minimal judicial oversight.

But first, to understand the scope of this request, we must understand that Connecticut is not an indicting grand jury state; not typically, at least. Almost all of our charging is done via the information: the grand jury indictment was abolished in the 80s. This OLR report has all the background and information you’ll ever need on the grand jury in Connecticut.

What this means is that the decision to arrest people of crimes and to charge them with crimes is made based on probable cause – that requirement enshrined in both the United States and State constitutions. Either you get an arrest warrant signed by a neutral judge, based on probable cause, or you arrest someone and then a neutral judge makes a finding that there is probable cause to believe that the person arrested committed the crime.

Out of the 50 states, only half actually use grand juries and out of those, only 22 require their use. [Here is an informative ABA article on grand juries.] Most of these grand juries investigate the commission of crimes and are composed of lay people, but some states have other types of juries like civil grand juries, which aren’t involved in the criminal investigative process.

The indicting grand jury as you imagine it – held in secret, where a ham sandwich can get indicted – was abolished precisely because it was so secretive and its ex parte nature. Several amendments to the statutes and the State Constitution established our current system. The vast majority of criminal cases are brought by employing the method I’ve described above and a very, very small class of crimes are still via grand jury:

Argument Recap: Guilt by association because we’re all criminals

The_Matrix_Reloaded_Burly_Brawl

It didn’t occur to me until earlier today, but there is a pattern here. The State has been trying for years to get great police powers at the expense of individual rights. But two things that happened in the last two days have really crystallized the extent to which they’re willing to go: 1. The absurd and frightening position staked out by the State of Connecticut at oral arguments yesterday, and; 2. Their repeated requests for vast investigative subpoena powers. I will take them up in turn.

The State of Connecticut thinks that everyone on the street is a suspect and the police should be able to detain anyone they feel like.

I wrote two days ago about the stunning argument the State is making in State v. Jeremy Kelly, where they are seeking to justify the detention of Kelly where he was only known to police officers as the guy standing next to someone they were looking for. Briefly, the police were looking for Gomez. They saw Burgos and Kelly. They thought Burgos was Gomez. They had no idea who Kelly was and were not interested in him. They ordered both men to stop. Both questioned that authority. The police repeated their commands. They both did not acquiesce and ran off. Kelly was eventually apprehended and charged with possession of cocaine.

The State argued that it did not need to show that there was any reason whatsoever to stop Kelly before making him submit to the police power of the State. The U.S. Supreme Court has said that a “brief, investigatory” stop is permitted where there is reasonable suspicion to believe that the person you are stopping has committed or is committing a crime. If you cannot show that reasonable belief, the stop violates the Fourth Amendment.

The State, though, urged the Supreme Court to adopt a ‘bright-line’ rule called the “Automatic Companion” Rule. It means essentially what you think it means: that the police should have the authority to automatically stop whomever is with someone they may think is committing a crime.

The hierarchy of standards goes something like this, from highest to lowest: beyond a reasonable doubt -> clear and convincing evidence -> preponderance of the evidence -> probable cause -> reasonable and articulable suspicion -> nothing.

So, R&AS is just a small step above nothing. It is slightly, but only just, more than a hunch. It requires that police officers put into words why they chose to stop someone as it relates to that person.

But no, this, apparently, is too difficult for the police. They want the power to stop everyone.

The guilt by association exception to the Fourth Amendment

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now which one-a-youz ates that bone?

Tomorrow at 10:00am, the Connecticut Supreme Court will hear argument in one of the most important cases to come before them in a long time. The case involves the authority of the police to stop and detain individuals just because they happen to be on a public street alongside someone the police might be looking for. In other words, the authority to automatically detain the companion of someone who is a suspect. In fewer words: guilt by association.

The defendant’s brief is here [PDF], the state’s brief is here [PDF] and the reply brief is here [PDF].

First, some setup. The Constitutional provision at play here is the Fourth Amendment, which protects against “unreasonable searches and seizures”. Normally, in order to enter a home or to arrest someone, the police need a warrant based on probable cause. In rare circumstances, a warrantless arrest or seizure can also be made, but it also must be justified by probable cause.

“[A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.”

State v. Clark; see also Terry v. Ohio. What that means is that even if an officer is making a brief investigatory stop, he has to be able to articulate a reasonable suspicion as to why he believes that particular person is engaged in criminal activity.

The facts. Got it? Okay. So, in State v. Kelly, police officers were looking for a guy named Gomez. They had the most generic of descriptions of Gomez before they set out that day: 20-22 year old Hispanic male. 5’5-5’7, 130-150lbs, medium complexion and very short hair. Everyone whom that description fits, raise your hands. They wanted to serve a warrant on him for violating his probation. They didn’t know how he had violated his probation or what he was on probation for. Despite their considerable resources, they hadn’t even bothered to look at a photo of Gomez before setting out.

They got a tip from one of their informants that Gomez might reside in the area of Brown Street in Wethersfield. So off they went, with only the most generic of descriptions. They come upon two men, Burgos and Kelly. While Burgos is Hispanic, he apparently had very lengthy hair. Kelly is African-American. So, in no way could Kelly be mistaken for Gomez.

Yet, the two officers decide to stop the two men and displaying their badges, motion for them to come over. [Under Connecticut state law, a broader definition of seizure applies than under the Federal Constitution - meaning we have greater protections. So a person is seized when a reasonable person would not feel free to leave a police encounter. State v. Oquendo.] Burgos asked “what for?” and Kelly said “I live here”. The police continued to order the men to come to them at which point they both took off running. For some reason, the police abandoned their chase of Burgos-who-they-thought-was-Gomez and focused on Kelly. They say him drop a baggie of something and he was eventually apprehended and charged with possession of cocaine.

The argument Kelly raises on appeal is essentially this: if, as described above, the police need particularized and individualized suspicion to infringe on someone’s Fourth Amendment right and the only reason they stopped him was because they were looking for Gomez, then his seizure and detention is in violation of the Constitution. The police admitted during the suppression hearing that they did not suspect Kelly of committing any crime when they stopped him and that they stopped him merely because he was walking next to the guy they thought they were looking for.

The State argues, however, that this violation of a Constitutional right is permitted because of the so-called “automatic companion” rule: that any time the police suspect that a person on the street is someone they are looking for or want to investigate, they have the authority to stop whomever else that person is with, in the name of officer safety.

The Appellate Court likened this situation to the line of motor vehicle stop cases in the United States Supreme Court, which has held that it is Constitutional for an officer to order a passenger out of the car during such a stop. Maryland v. Wilson. SCOTUS has also said it’s okay to detain passengers while the car is searched for contraband pursuant to a warrant. Michigan v. Summers.

Those cases, in my opinion, are quite different:

  • First, SCOTUS has carved out a very specific exception to the Fourth Amendment for motor vehicles due to their distinct nature. The automatic companion rule is not just an extension of the motor vehicle exception, but is another new comparable exception.
  • Second, passengers in a car are different than two people walking on a street. Passengers in a car are, by definition in some sort of companionship relationship together and, more importantly, it is physically impossible to stop a car and detain only one person inside while letting the others go on their way. That is not the case with two people walking on the street. It is far easier for officers to approach one individual – the one for whom they have reasonable and articulable suspicion or probable cause – while asking the others to step aside or go on their way. They are severable in a way that passengers in a car aren’t.
  • Finally, the motor vehicle cases presuppose that the entire car has been legally detained and then say that, once legally seized, to ask a passenger to step outside is a de minimis intrusion that is justified by officer safety. Here, that first step is at issue: is Kelly legally detained to begin with? The answer, of course, is no, unless you adopt the view that you do not need a specific particular individualized reason to stop him as long as he is with someone else whom you do have reason to stop.

The implications of permitting a rule whereby police can stop every person for whom they may or may not have reasonable suspicion and every companion in their immediate radius are frightening. One need only look at the allegations of racial profiling that have landed East Haven in trouble or the trial of the stop and frisk policies of New York City Police to know that permitting wholesale detention and seizure of people on inner city streets based on nothing more than “guilt by association” would result in, well…just look at these stats:

In 2010, New Yorkers were stopped by the police 601,285 times.
518,849 were totally innocent (86 percent).
315,083 were black (54 percent).
189,326 were Latino (33 percent).
54,810 were white (9 percent).
295,902 were aged 14-24 (49 percent).

In 2011, New Yorkers were stopped by the police 685,724 times.
605,328 were totally innocent (88 percent).
350,743 were black (53 percent).
223,740 were Latino (34 percent).
61,805 were white (9 percent).
341,581 were aged 14-24 (51 percent).

In 2012, New Yorkers were stopped by the police 533,042 times
473,300 were totally innocent (89 percent).
286,684 were black (55 percent).
166,212 were Latino (32 percent).
50,615 were white (10 percent).

If you think that’s a NYPD specific problem, look at these Philly PD allegations.

But it’s about more than all of that. It’s about the strength of our rights and the Constitution. Do we want an America where we can walk down the street and talk to whomever we want, without fear of being stopped by the police just because of the person next to us, even if they don’t suspect us of doing anything wrong?

Should we not require that bare minimum? If the police want to stop a person – any person – they should be required to say why they stopped that person that’s not “because he was talking to a drug dealer”? Talking to a dealer isn’t a crime. Our police forces shouldn’t have license to stop anyone they feel like without a suspicion that they are committing or have committed a crime. And, let’s be honest, that standard is absurdly low. Just look at their inept efforts to apprehend “Gomez” and how they bumbled into Burgos and Kelly instead. Was the stop of Burgos legal? How can we permit what happened to Kelly? And if this is permitted, what else will be?

 

This month at the Supreme Court: blockbuster session

not an actual judge

not an actual judge

I’m reviving a series I briefly dabbled in, back in 2008, called ‘This Month‘, which serves to preview the cases assigned for oral argument in the CT Supreme Court in the upcoming month. I may also include cases of special interest in SCOTUS, depending on whether I’m in the mood. I’ve also added a permanent link to this post in the sidebar, alongside the above picture, so you can find it at any time. The link will be updated every month to the most current ‘this month’ post.

The reason for reviving this is this upcoming April term, in which the court is scheduled to hear at least four cases that can have significant and profound impacts on the state of individual rights in Connecticut: State v. Kelly; State v. Brown, Brown v. Commissioner and State v. Santiago, impacting, in turn, the Fourth, Fifth, Sixth and Eighth Amendments.

The following is the listing of criminal cases scheduled for oral argument in the CT Supreme Court by date.

Monday, April 15 @ 10:00am: State v. Richard Annulli. [Briefs available here.] The defendant was charged with several sex related crimes. During the trial, he wanted to cross-examine the complaining witness to show that she was lying by questioning her about another separate instance in which she allegedly lied to the police in order to get someone else arrested. The trial judge, after hearing what that evidence would be, disagreed with the defendant’s characterization that she “lied” and thus did not permit the defendant to question her about that. The Appellate Court affirmed the conviction and the Supreme Court will review whether his Sixth Amendment right to confront one’s accuser was violated by the trial court. There is also a claim that the evidence was insufficient, but that’s going nowhere.

Tuesday, April 16 @ 10:00am: State v. Jeremy Kelly. The link to the left is to a separate post for this case. I don’t often engage in hyperbole but it is my opinion that this is one of the most important cases the CT Supreme Court will have to deal with for a while (except that other case coming up on April 23). This case involves the ability of the police to seize or detain groups of people when they have a reasonable suspicion to stop only one person out of that group. The implications of permitting such an “automatic companion” rule are staggering, especially for policing in minority neighborhoods, given the dubious “stop and frisk” tactics that are already employed there.

Wednesday, April 17 @ 10:00am: State v. Brown. [Briefs available here.] One of the fundamental concepts of the privilege against self-incrimination is that you have the right to remain silent. The police, pursuant to Miranda v. Arizona, generally advise a suspect of his rights. So, if a person chooses to invoke his rights and remain silent, that fact cannot be used to show that he is guilty. See Doyle v. Ohio. The question in Brown is whether post-arrest silence can be used against the defendant if the defendant first puts on evidence that he was co-operative with police and answered their questions. Has he, in essence, “opened the door” to harmful questioning? Once he does that, can the prosecutor show that when asked by the police how much he (in this case) had to drink, the defendant remained silent? The Appellate Court said yes and the Supreme Court will decide if that important protection of Due Process has an exception of these circumstances.

Interestingly enough, on the very same day, the United States Supreme Court will hear oral argument in Salinas v. Texas, in which the issue to be decided is whether the pre-arrest silence of a suspect can be used to show his guilt. [Greenfield has more here.]

Wednesday, April 17 @ 11:00am: State v. Stephen J.R. [Briefs available here.] The defendant, who was accused of sexually abusing the minor victim on four occasions, was charged with eight counts of sexual assault in the first degree and eight counts of risk of injury. At trial, the victim testified that the defendant abused her on “three or four” occasions and that she was forced to engage in two sexual acts each time. The defendant subsequently was convicted of all sixteen charges. He argues that the victim’s testimony was too vague to support the guilty verdicts on all sixteen charges, as she described generally what happened each time the abuse occurred but did not differentiate between the incidents. In addition, the defendant contends that the trial court, after conducting an in camera review of the records of the department of children and families pertaining to the victim and her family, improperly failed to fully disclose all of the relevant records. Finally, the defendant asserts that the prosecutor, during closing argument, improperly appealed to the emotions of the jury and thereby denied him a fair trial.

Thursday, April 18 @ 10:00am: O’Neil Brown v. Commissioner. [Briefs available here.] A case that will decide the applicability of Padilla v. Kentucky here in Connecticut. Padilla said that it was a lawyer’s responsibility to advise a defendant about any immigration consequences of a guilty plea. While Padilla was an important case for defendants going forward, the question here is whether it applies retroactively to people whose convictions are final and who may be awaiting deportation. While SCOTUS has said no, Chaidez v. US [PDF], they have also said that states are free to provide retroactivity under state law, Danforth v. Minnesota. Further, last year the Connecticut Supreme Court also said too bad you’re shit out of luck to a guy who sought to vacate his 1999 conviction because he was facing deportation in 2010 and no one told him that he could be deported. He relied on CGS 54-1j, but the Court said no, that only provides relief within the first three years. So O’Neil Brown is critical for defendants who may have pled guilty without any knowledge of the negative deportation consequences of that plea.

Monday, April 22 @ 10:00am: State v. Pires. The issue in this case is whether the defendant properly invoked his right to represent himself and whether that right was violated. The Appellate Court said no and the Supreme Court will review that decision.

Monday, April 22 @ 11:00am: State v. Mitchell Henderson. In 1993, the defendant was found guilty of several crimes and due to his extensive criminal record, was also found to be a persistent serious felony offender and a persistent dangerous felony offender, both of which triggered a greater punishment than normal. As a result of this, his sentence was lengthened or “enhanced”. In 2007, our Supreme Court decided that any such “enhancements” must be based on facts that are found by a jury beyond a reasonable doubt, rather than by a judge. So Henderson argued that his enhanced sentence is illegal because the facts weren’t found by a jury. The Appellate Court said no, the 2007 rule doesn’t apply backwards. The Supreme Court will now review.

Tuesday, April 23 @ 10:00am: State v. Eduardo Santiago. [Briefs available here.] This is the other big one this month, which will decide whether the prospective repeal of the death penalty is Constitutional or whether the entire death penalty needs to be scrapped or whether the repeal needs to be repealed. Keep in mind that the hearings on the racial and geographic disparity in the application of the death penalty are still pending.

Wednesday, April 24 @ 10:00am: State v. Milner. Here’s another fascinating case (and the last one of) this term. Milner was placed on probation in 2005. Sometime later, he was charged with a new crime and as a result of that, also charged with violating his probation. He apparently had a hearing on the violation of probation (VOP) first and a judge decided to revoke his probation and sentence him to jail. He appealed that judge’s decision. While that appeal was pending, he pled guilty to one of the new charges that formed the basis for the violation of his probation. He didn’t appeal that conviction (he couldn’t, really, because you typically can’t appeal from a guilty plea), but he did challenge its legality by filing a habeas corpus petition. The Appellate Court held that it wasn’t the same, his conviction was final and so his pending appeal (from the VOP) was moot. The Supreme Court will decide if that’s the case.

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If you have the briefs in any of these cases, please email them to me. If you’re going to see oral argument in any of these cases, please leave a comment with your observations.

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Image via. License details there.

 

 

 

 

Treating juveniles as adults: there are no winners

Just try to imagine the circumstances that lead a man to abandon his teenage son in a criminal courtroom and walk away, never to have contact with him again. Imagine the trauma already felt by a 15 year old boy, charged as an adult, told he’d have to walk around with a felony conviction and register as a sex offender for the rest of his life and then turn to see the only person there to support him – his father – leave during a recess and never come back.

That’s what happened to one young teen in New London, CT, back in February. The Day has this absolutely heartbreaking story of the problems of juvenile sex offenders, the harsh laws that we have and the absolute lack of any viable treatment options for these teens (The Day has chosen to name the 15 year because he’s being tried as an adult; I disagree with their tact, so I’m not going to name him).

The penalties of gun control

Gun Control™ is here and it’s here to stay. This is not about whether we should have reasonable limits on the ownership, sale and transfer of weapons (we should) or even whether the limits proposed are reasonable (eh) or whether some types of weapons should be outright banned (arguable) or whether you’re a moron for waiting this long to realize that the State has been infringing on your rights and whittling away at them for decades (it has).

We can talk about the incomprehensible argument that there should be no limit on the ownership of guns because only criminals use guns in a criminal way (I think there’s a word for this linguistic marvel but I’m too tongue-tied to think of it right now), which is accurate, because once you use a gun in a criminal way, you’re a criminal (but we won’t), or we can talk about just how much you’re going to need a lawyer now that some types of ownership has been outlawed (but that would just be me rubbing it in), so instead I’m just going to complain about how this bill will succeed only in making life worse for my clients.

Because it will do just that.

State to establish dangerous weapon offender registry

You knew it was going to happen. It was just a matter of time. Doesn’t matter that we weren’t the first state to rush to pass gun control laws, as long as we’re the one with the best laws. And having the best laws means having the toughest laws and having the toughest laws not only means heavy regulation but also By-God-We’re-Going-To-Punish-The-Hell-Out-Of-You.

And so here we are. Along with bans on high capacity magazines and universal background checks, we also have “the nation’s first statewide dangerous weapon offender registry”. An idea that Senate Majority Leader Martin Looney has proposed before (here‘s a 2011 Courant article on that proposal), the registry requires that:

[I]ndividuals must register with DESPP if they have been convicted of any of more than 40 enumerated weapons offenses (mostly gun offenses) or another felony that the court makes a finding involved the use or threatened use of a deadly weapon.

Individuals must register with DESPP for a total of five years after their release into the community. During that time they must keep their registration address current at all times, and they must check in once per year, on the anniversary of their release, with local law enforcement in the town where they currently reside. Unlike Megan’s List, this registry will not be public. Instead, it will be available to law enforcement only.

In addition, this mega compromise super-awesome-best-in-the-world-bill naturally also “significantly increases penalties for many firearms trafficking and illegal possession offenses.” Of course it does.

These provisions will do nothing to stop another Adam Lanza. These provisions won’t affect James Holmes.

What they will do is further oppress an already oppressed segment of society. Now poor black and Hispanic defendants will have two more procedural hurdles to jump through and more opportunities to commit crimes.

So why not just take everyone who’s committed a crime and make them register somewhere with some agency. And we’ll make them undergo some rigorous testing when they’re released, so we can probe them and see if they’re doing the right thing. Maybe we can call it, hmm, let’s see, probe…probate…probation! Yes. Probation. And when they’re on probation they have to report to an officer of some sort. Someone who keeps tabs on them. Let’s see. What shall we call this Officer of Probation? Okay, nevermind, we can come back to that.

What’s that? We do that already? Oh. But what’s one more registration requirement, right? I mean, all of our other registries are working so wel-oh, wait.

Also included in the bill are a bunch of mental health provisions. Because now apparently the mantra is that people don’t kill people, but mentally ill people use guns to kill people. Whatever.

If you accept that flawed premise as the root cause of all gun-related evil (as has been bandied about by many since the mass shootings of the past few years); that these are mentally ill people who are committing crimes and of course no sane law abiding citizen would ever use a gun in an unlawful manner (of course they wouldn’t; once they do they aren’t law abiding anymore), then the question becomes, what to do with those that are mentally ill and thus predisposed to crime? Or are criminals mentally ill because only mentally ill people commit crimes with guns? And if we have such a large gun problem, that means that there are many people who are mentally ill, correct?

The truth, of course, is that some mentally ill people commit crimes, some sane people commit crimes, some mentally ill people don’t commit crimes and some sane people don’t commit crimes. What’s also true is that our prisons are filled with people who did commit crimes because they are mentally ill and there are zero options available to treat and assist them and prevent them from re-offending. Putting them on a fucking list isn’t going to solve anything.

So what’s plainly missing from these “mental health provisions” is any mention of mental illness among the prison population and the taking of any steps to address that huge neglected problem. At least a quarter of all inmates have mental illnesses and in a society where there are fewer and fewer resources being assigned to diagnose and treat those mental illnesses, any bill that proposes to make mental health reforms but doesn’t so much as mention the incarcerated population (in a bill that is all about criminals and criminalizing conduct, no less, wtf, is this crazy season?) is a joke.

WAIT. It’s April Fool’s Day today, right? That’s got to be it. That’s the only explanation. Whew. Good one, Connecticut legislature.