Category Archives: ct legal news

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

Narcotics field tests subject to Daubert and other tales of scientific evidence

In an opinion released two days ago in State v. Anthony Martinez [PDF], the CT Appellate Court held – in what was apparently an issue of first impression – that those narcotics field tests that officers do to determine whether the “powdery white substance” was indeed cocaine and not talcum powder are subject to the standards “enumerated” in Daubert v. Merrell Dow Pharmaceuticals. In CT, that standard was adopted in State v. Porter and challenges under Daubert are called “Porter challenges” or “Porter hearings”.

Prior to Daubert, the generally accepted standard was the “Frye” standard and it was that the examination or procedure had to be generally accepted in the scientific community. Daubert then altered that standard – and lowered it – to whether the scientific evidence would assist the trier of fact and whether it was scientifically “valid” as opposed to generally accepted by that scientific community.

The irony is that in CT, the defendant wanted the Court to adopt the lower Daubert standard in Porter so as to let in polygraph evidence. The defendant won on Daubert, but lost on polygraph, thus not completely fucking every criminal defendant over for eternity, but only slightly.

What the Supreme Court didn’t do in either Daubert or Porter is define just what the hell “scientific evidence” is, thus opening a gaping door for all sorts of pseudo-scientific testimony (more on that in a bit).

But clearly, dipping a stick into some chemical and then applying a drop of that chemical to a “powdery white substance” to determine if that substance changes color, thus revealing the presence of a narcotic, seems “scientific” enough.

But just because it’s scientific, doesn’t mean a court has to conduct a hearing to determine if it’s valid. Some scientific evidence is so scientifically accepted that it’s a foregone conclusion:

In one line of cases, ‘‘we have concluded that certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary  . . . .’’ Id., 170; see State v. Porter, supra, 241 Conn. 85  n.30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d  1171 (1996) (ordinary fingerprint identification evidence); see also Hayes v. Decker, 263 Conn. 677,687–89,  822 A.2d 228 (2003) (effects of discontinuation of blood pressure medication); State v. Kirsch, 263 Conn. 390, 405, 820 A.2d 236 (2003) (reliability of alcohol blood testing done at hospital well established); State v. Legnani, supra, 109 Conn. App. 418–21 (matching of fired cartridges to magazines on basis of magazine marks).

This, the Appellate Court notes, is not one of them. While the argument the state makes, that these tests have been admitted into evidence in CT Courts for a very long time, is appealing as to their validity, that doesn’t close the inquiry, nor should it. Just because something has been admitted forever doesn’t make it scientifically valid. It just means we defense lawyers have been terrible about objecting to it.

In this case, there was no evidence presented – and indeed the trial court did not allow it – of the scientific method used in these field tests, nor their acceptance in the community or their validity. So the Appellate Court did hold that there was error in this case. But don’t be fooled. It wasn’t that bad. The guy was still guilty as sin, so we don’t care that there was a mistake in his trial. It was found to be harmless error.

In the second line of cases ‘‘we have concluded that  certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not ‘scientific’ for the purposes of our admissibility standard for scientific evidence, either before or after Porter.’’ Maher v. Quest  Diagnostics, Inc., supra, 170 n.22; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000) (testimony of criminologist regarding visible characteristics of and  similarities between strands of hair not ‘‘scientific evidence’’ for Porter purposes); State v. Hasan, supra, 205  Conn. 490 (testimony of podiatrist as to likelihood that certain pair of sneakers would fit on defendant’s feet was not ‘‘scientific’’ evidence under Frye).

When evidence is “not scientific” it doesn’t mean that an expert is not permitted to testify about their “expert conclusions”; but just the opposite: that the expert opinion is not subject to a gatekeeping function by the court to determine if that “expert” is an expert or an “expert”.

The big unmentioned area where the State has driven a truck through this hole is the testimony of “child sexual abuse experts” whose job it is to take the facts of a case and opine, based on their training and experience that such behavior is consistent with being sexually abused.

If a complainant does poorly in school, that’s consistent. If a complainant does well in school, that’s consistent. If a complainant discloses abuse immediately after it happens, that’s consistent. If a complainant discloses 5 years later, that’s consistent. If a complainant is left-handed, that’s consistent. If a complainant is right-handed, that’s consistent. You get the picture. And this is permitted, routinely, without limit or caution, because it’s not “scientific” evidence:

We first consider whether the trial court abused its discretion in declining to subject Lanning’s testimony to a Porter hearing. On appeal, the defendant concedes that Lanning’s testimony was not “scientific” but argues that the testimony nevertheless required the trial court to conduct a Porter hearing because it was “other specialized knowledge” within the meaning of § 7-2 of the Connecticut Code of Evidence. The state argues that no Porter hearing was required because Lanning’s testimony was not based on any scientific theory but, rather, on his training and experience in the field of child victimization. We agree with the state that, because Lanning’s testimony was not based on scientific knowledge, the trial court properly determined that a threshold admissibility hearing under Porter was not necessary.

State v. Sorabella. So these “experts” show up in court, talk about the 2000 children they’ve interviewed and in their (anecdotal) experience, what the characteristics are of those that have been abused, which incidentally happen to be every single child they’ve ever examined.

So, clearly, it’s not scientific. More like junk, but whatever.

But that’s not the end of the road. There’s this decision called Kumho Tire Ltd. v. Carmichael, which essentially applies Daubert to “non-scientific” evidence.

In Kumho Tire Co., Ltd., the United States Supreme Court held that a trial court’s gatekeeping function under Daubert applies not only to expert scientific testimony but also to expert testimony based on technical or other specialized knowledge. Id., at 149, 119 S.Ct. 1167. We decline to consider the defendant’s claim, however, because the defendant failed to raise it in the trial court.

That’s from Sorabella again, a shining example of what the CT Supreme Court does best. Surprisingly, in the 7 years since Sorabella has been decided, not one single appeal has challenged the admissibility of this type of “expert” testimony under Kumho Tire.

That should be next.



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.