Category Archives: ct legal news

Spot the differences: A bill to fix Fourtin

[This is Part One of a 2-part series of posts on just how ineffectual the legislature is at fixing statutes. Part Two will come later.]

Remember State v. Richard Fourtin? Of course you do. Back in October 2012, the Connecticut Supreme Court issued a decision reversing the conviction of a man for sexual assault, holding that the definition of “physically helpless” in the statute was very specific and the State did not meet its  burden. Remember the ensuing assault on Due Process that followed?

I said then that this is an area that must be tread lightly upon. Mental illnesses are on a scale and people with mental illnesses have rights, too. I suspected that the legislature would take up a bill to “fix” the problem.

I shouldn’t have been surprised that it did this. The bill does two things. First, it amends the definition of “physically helpless” include a person who is:

(A) unconscious, or (B) for any other reason, is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact.

This change is fine by me. It seems a bit unnecessary because, in my opinion, this scenario is covered by other subsections, but whatever. If only they’d stopped at this one change.

The bill also removes the offensive “mentally defective” and replaces it with “impaired because of mental disability or disease”.

The latter is certainly more specific than “mentally defective” but immensely more problematic, as I’ll explain in a second. To get there, though, we need to look at one more change the legislature is proposing: the deletion of the definition of “mentally defective”:

[(4) "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.]

This definition, while using terms that may be offensive to those with mental diseases, also gave guidance to individuals and courts on the conduct that was prohibited. It said, in essence, that you cannot have sexual intercourse with someone who doesn’t understand what they’re doing.

But this deleted subsection hasn’t been replaced with a definition of “impaired because of mental disability or disease”. So now the statute would read:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (2) such other person is impaired because of mental disability or disease to the extent that such other person is unable to consent to such sexual intercourse;

Right off the bat, actual consent is irrelevant. So the only question is whether the person who is the “victim” can or cannot legally consent.

How is this any different than the scenario that prompted Kortner v. Martise, the civil suit in which the mother of a disabled woman has sued a guy she dated?

This is where the problems begin. How do you define mentally impaired? Who defines mentally impaired? A jury? Their caregivers? A prosecutor?

I can imagine that there is nowhere near any consensus in the medical community as to a bright line rule on consent. This isn’t an historical fact, like age, where we’ve made an arbitrary cutoff for consent. That’s easy to solve: are you 16? Yes, then you can consent. Are you under 16? Then it doesn’t matter, we’re saying you cannot.

How about someone with mild schizophrenia or borderline personality disorder or vertigo or seasonal affective disorder? Is every case then dependent on a battle of experts?

Are private individuals like you and me now the arbiters of determining whether the person is so impaired that they cannot legally consent? How is this not a wide net that will ensnare far too many?

And what if two doctors don’t agree? What if a doctor finds that the person is impaired, but the facts also show that the person did, in fact, consent? How far does the nanny state go? You may have consented but we are saying you’re not capable of consenting? Does this infringe on the fundamental right to sexual congress?

I don’t know the answers to any of these questions, but clearly, this proposed “solution” is creating more of them. That can’t be good.

In which we thank Judge Seeley and go on our way

From time to time, we have to pause in this world of 24 hour news cycles, internet commenters who are like Pavlov’s dogs with keywords and shameless trolling by news organization to get eyeballs on their screens and sift through the sensationalist bullshit and pull out one shining diamond from among the steaming piles of dung.

Judge Hope Seeley is one such diamond. Judge Seeley, former criminal defense attorney extraordinaire (and one-time moot court professor of yours truly even those she did give me a ghastly B- in that class), you see, did something that every judge would do.

When faced with the troubled lives of individuals before her, she took measure of the situation and acted like a human being is supposed to.

But you wouldn’t know it from the coverage by the Hartford Courant – miraculously America’s oldest continuously published newspaper. From the click-bait title “Bristol Man To Watch Baby’s Birth Despite No-Contact Order Protecting Mom-To-Be” to the glaring omission of crucial facts in the article (is it fair to call it an article?), the setup is obvious. It’s written in a way specifically designed to up the outrage of today’s unthinking ADD masses. “Baby”, “birth”, “no-contact”, “Order”, “protecting” “mom-to-be”. Trigger words, all. Cue the outrage!

Because the real story would have the following words in the title “Because Mom-To-Be repeatedly requested that Bristol Man be present for the Birth of His Child”.

Now, anyone who’s covered criminal courts for half a minute would know that there is no judge who is that far out of his or her mind to grant a modification of a no-contact order without any victim input. Far less a new judge, and even far-er less-er a new judge who used to be a criminal defense attorney. So either the reporter was terrible at her job or willfully omitted the key pieces of information. I don’t know which is worse. It wouldn’t have been that complicated to figure out whether the mother objected to or consented to the modification. I suspect all one would’ve had to do was listen to what was being said in court.

But that wouldn’t make a good story, would it? The truth, it seems, is often ill-suited for what passes for modern day journalism.

The woman, who is unnamed, apparently sent a barrage of text messages to the defendant requesting that he be present for the birth.

 

He wisely did not respond to any of them. However, since it was the birth of his child and the woman was pretty insistent he be there, his lawyer requested a modification from Judge Seeley.

Judge Seeley granted a most reasonable modification. Three hours to see the birth, in the hospital and that’s it.

That’s it. What could’ve been a wonderful human interest story, instead is a half-baked, inaccurately reported anger piece without any redeeming value whatsoever that leaves me with only one firm conviction: never trust another report by Christine Dempsey of the Hartford Courant.

Oh, and that Judge Seeley is going to make a damn fine judge. And sometimes, we need to appreciate that because we don’t need judges who are afraid to do the right thing because of you, mad internet commentor. We need judges who treat the people who come before them as individuals and act accordingly. No matter how hard you try, they’re not going to stop being real people with real lives and real problems and turn into stereotypes.

[For my previous rants about irresponsible and shoddy media coverage, see herehere, here, here and here.]

A questioning jury

Every thinking criminal defense lawyer is, at some point every year, occupied with the idea of improving the jury trial process. Having readily concluded that the lawyer himself is not to blame and is at the peak of his abilities, the focus naturally turns to the only laymen in the room: the jurors. For once, though, the lawyer’s narcissism isn’t misplaced. The jury is, most often, the ultimate arbiter of whatever it is at dispute. Having spent thousands of hours ranting on this blog about how the system is flawed and how jurors are like black boxes and you should ELI5, I can’t pass up the opportunity to comment on something unusual that’s occurring in a high profile trial in Arizona.

Jodi Arias is someone who’s accused of doing something and for some reason the trial is getting a lot of publicity. The interesting thing, from my perspective, is the fact that Arizona seems to be a state that permits juror questioning of witnesses during criminal trials. And so Ms. Arias has spent the last few days answering over 100 questions from the jurors in her case. Much to her supposed dismay, the questions in her case seem to indicate that the jury thinks she’s full of shit.

There’s no doubt in my mind that our system is imperfect and even the jury trial itself could use improvement, but whether jurors should be permitted to ask questions of witnesses at all is a very interesting question that I’ve neglected in the past. I’ve written about proposals permitting questions, among others, and of a proposal to permit Q&A during closing arguments (which I still think is a fabulous idea), but the idea that jurors will get to ask questions of my defendant sends a shiver or two down my spine.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not. I’m the lawyer who hangs out in the courtroom after a verdict so I can talk to jurors, because I want to know why they voted one way or another, so I can learn and put it to good use next time. But that’s merely educational. Wouldn’t it be great to know what they’re thinking while the trial is going on?

This excellent article in The Jury Expert argues just that: that lawyers needs to get over their fear (and indeed they do once they’ve gone through a trial with juror question) and embrace the positives (see also the ABA’s 19 principles to improve jury practice [PDF]). Surprisingly, there is some clinical research on the impact that permitting jurors to ask questions has on trials:

Larry Heuer and Steven Penrod examined the impact of allowing jurors to take notes and ask questions in both civil and criminal trials through two experiments, one conducted in Wisconsin state courts, and the other involving both state and federal courts in 33 states. [...] They found that when jurors were allowed to ask questions, jurors felt more informed about the evidence, thought the questioning of witnesses had been thorough, and were more confident they had sufficient information to reach a verdict.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Of course, this is not a practice that should be wantonly permitted: there have to regulations on instructions, objections and what, exactly, is the standard that would permit a question to be asked. Do both parties need to consent? These are questions about implementation, not the wisdom of the practice itself.

The idea scares me because I think of the frustration mid-trial when I learn that the jury may be leaning toward convicting my client. But that eventuality exists whether I am aware of it or not. And if I am aware, I may be able to do something about it. In this instance, it might be better to kill Schroedinger’s cat.

Surprisingly, it seems Connecticut may already permit juror questions. See Spitzer v. Haims & Co., 217 Conn. 532 (1991) and see footnote 3 for the jury instruction related to juror questioning. In Spitzer, the CT Supreme Court held:

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App.3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v.Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 188, 165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors’ objectivity. People v.McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

For a lengthy list of cases discussing this issue, see footnote 8 of Spitzer. To see if your state permits it, see here. While Spitzer was a civil case, State v. Mejia seems to indicate that the practice would likely be extended to criminal trials as well (approving juror note-taking in criminal trials).

Has anyone out there tried it? I am willing to shed my steady habit for this and take juror questioning for a spin.

See also: Turkewitz’s blog.

Safeword: Get out of my bedroom

One of the questions I deliberately side-stepped while ranting about the fiasco that was the media coverage of the Connecticut Supreme Court’s decision in State v. Fourtin, back in October, was the question of whether people who are disabled and mentally ill can legally have the capacity to consent.

Some of the arguments seemed to indicate that people in the position of the complainant in Fourtin – people with physical and/or mental disabilities – are never able to consent and thus any sexual encounters with them are perforce illegal. I expressed some misgivings at the time and I still do: I think that love and sex are two fundamental aspects of what make us human and just because someone has a mental illness or a physical handicap doesn’t mean that we, as whole and able bodied beings, have the right to legislate away their right to be happy.

And now the CT Supreme Court is back at it again, considering just this issue. In Kortner v. Martise, as best I can tell, the two issues are as follows:

1. Whether the trial court properly let a jury decide whether a woman with mental illnesses could consent to BDSM-type sexual encounters.

2. Whether anyone can consent to BDSM-type sexual encounters.

Essentially what happened is this: there was a woman named Caroline Kortner, who, when she was 24 in 1994 was deemed to be incompetent by a probate court and her mother Mary Kortner was appointed her conservator. Sometime in 2003, she met Martise and the two of them started a relationship that involved BDSM:

the relationship included Martise dragging her daughter by a leash and dog collar, slapping her with his hand and a belt, pinching and twisting body parts, tying and gagging her and dripping burning hot wax on her. [The jury in Stamford ruled there was no proof to the dragging and pinching allegations.]

Some other, more “benign” acts alleged were: slapping her buttocks with his hand and belt during intercourse, dressing her in a crotchless black stocking and cat’s mask (?!), and “repeatedly” showing her pornographic pictures and videos. Mary Kortner was appointed conservator because:

In 1994, a probate court had ruled her incapable of managing her own affairs during a period when she refused to eat.

She had other problems as well:

[She] had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia, and she tried to commit suicide twice, according to court documents. She also had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.

In 2006, the mother sued Martise, alleging the torts of sexual battery, assault and battery and intentional infliction of emotional harm, seeking $500,000 in damages because she claimed that he had abused her daughter and that because of her daughter’s mental and physical condition, she couldn’t consent to anything. Martise responded that Caroline was an adult woman and could, indeed, consent to sexual activity.

The mother then argued to the judge that because of the conservatorship, Caroline couldn’t legally consent and therefore whether she actually consented was not a question for any jury to determine. The trial court disagreed and let the jury decide whether Caroline had indeed consented. They found that she had and thus, did not render verdict in the mother’s favor. Here [PDF] are the questions posed to the jury and their responses.

[At this juncture, it's important to note that this was not a criminal trial. I don't think Martise was charged with a crime. This was a civil trial, a lawsuit filed by the mother against Martise seeking money.]

So this presents an opportunity for an intellectual exercise on the first question and a clear, unequivocal rant on the second question. Can someone be so mentally ill or physically disabled that they cannot, by operation of law, consent to an act? I think the answer has to be yes. There has to be a line at which we say that no consent is knowingly given. But that line, I think, must depend on individual circumstances. And so, by default, the inquiry must be fact-specific.

A jury must determine whether a person with a disability: 1) has, in fact, consented; 2) if they have consented, how intelligent was that consent: in other words, was that consent given with an understanding of the consequences of that consent and a willing participation in the actions that followed that consent.

In that sense, consent given by someone with a mental illness is no different than determining whether someone without a mental illness has consented. The reason, I suspect, why there can’t be a bright line “anyone with mental illness cannot consent” rule is that such a rule would cover well over 70% of the population1 of the United States. It’s got to be on a case-by-case basis. The court may well rule that the conservatorship is a factor to be considered in determining whether the person has the ability to consent and whether consent was actually given, but it won’t be the whole shebang.

As to question number two, which is phrased thusly in the summary: “The plaintiff also argues that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation.” let me simply say this: get. the. fuck. out. of. my. bedroom.

If I want to whip a consenting adult in my bedroom, it’s none of your damn business. If i want to be tied up and made to squeal like a pig while my lover attaches electrified nipple clamps to my nipples because I like it, I’m going to do it and it’s none of your damn business. If I want to have sex while my lover reads transcripts of my worst moments in court and calls me a public pretender and rules that I provide ineffective assistance of counsel, it’s none of your damn business.

Just because you don’t get off doesn’t mean you get to tell me how I can’t get off. Or you can, but only if I like that sort of thing.

 

1Not a scientific stat, but based purely on personal experience. You people are fucking nuts.

We thought of the children

For years I’ve written about the sorry state of the juvenile justice system and the inattention we pay to the lives of the children who get caught up in it, sometimes through no fault of their own. So it heartens me (with some pretty important reservations) to see this report [PDF] from the Justice Policy Institute about the remarkable transformation of CT’s juvenile justice system from one of complete failure to that of a role model for the rest of the country in about 10 short years. From their executive summary [PDF]:

In 2007, Connecticut made national headlines when it passed a law ending its status as one of just three states that automatically tried and punished all 16 and 17 year-olds as adults. Yet this historic   “Raise the Age” legislation is just one of many reforms enacted by Connecticut’s juvenile justice system in recent years. Propelled by a determined coalition of advocates and public sector innovators, Connecticut has forged a new consensus for progressive change in juvenile justice, and it has transformed a previously wasteful, punitive, ineffective, and often abusive juvenile justice system into a national model – at no additional cost to taxpayers. Perhaps more than any other state, Connecticut has absorbed the growing body of knowledge about youth development and delinquency, adopted its lessons, and used the information to fundamentally re-invent its approach to juvenile justice. As a result, Connecticut’s system today is far and away more successful, more humane, and more cost-effective than it was 10 or 20 years ago.

And the evidence is staggering: residential commitments for juveniles are down 70% despite the influx of 16 and 176 year olds into the system; the number of juveniles locked up for “status offenses” (missing school, etc.) has become negligible; the number of youth tried and convicted as adults has also drastically declined:

For decades, Connecticut was one of only three states that prosecuted and punished all 16- and 17-year-olds as adults. In 2007, the state enacted historic legislation to raise the age of juvenile jurisdiction from 16 to 18, effective January 1, 2010 for 16 year olds and July 1, 2012 for 17 year olds. Even before 17 year-olds became eligible for juvenile court on July 1, 2012, the new law had enabled 8,325 16 year-olds to avoid prosecution and punishment in the adult criminal justice system. Extending juvenile jurisdiction to 16 year-olds has increased juvenile caseloads far less than expected (22 percent actual versus 40 percent projected); as a result the state spent nearly $12 million less in fiscal years 2010 and 2011 than it had budgeted. Meanwhile, 16 year-olds served by the juvenile system have had higher success rates in alternative programs and lower rearrest rates than youth 15 and younger, disproving concerns that they should be in the adult system.

That’s great and all and everyone involved with this staggering reform must be commended. But.

But as I’ve written before, there are 14 and 15 and 16 and 17 year olds who are still treated as adults. And still subjected to the horrors of the adult criminal system and adult prisons:

Department of Correction data show that youth incarcerated in adult correctional facilities suffer alarming recidivism: 85 percent are re-arrested within two years of release, 62 percent are convicted of new crimes, and 70 percent return to prison on a new charge or parole violation.

Pursuant to C.G.S. 46b-127, any child 14 and older, who is accused of a Class B or A felony is automatically transferred to adult court and treated like an adult. There is no discretion; the legislature, in their “hard on crime”  binges in the 90s, took that power away from the prosecutor and the judge. At the same time, they legislature removed the defendant’s seat at the table. The defense can no longer put on a hearing or ask that the case remain in juvenile court.

Even when the case is in adult court, no one except the prosecutor has the authority to decide to send it back. There’s no oversight and, unlike New Jersey [PDF], our legislature and courts haven’t decided that the decision to treat 14 year olds like adults is important enough to warrant that someone, somewhere state their reasons for doing so on the record. There is absolutely no accountability and the only thing that matters is checking off a box on a list.

So, you say, that’s fine. Even a 14 year old should be held accountable for a serious crime. No doubt. But do you know the punishments Class A and B felonies expose a teenager to? Class B felonies have a 20 year maximum and Class A 25 years, both longer than the life that the teenager would have lived up to that point.

Making matters worse is the mandatory-minimums. There is a lengthy list of crimes for which 14 year old children have to be tried as adults which carry mandatory minimum sentences of 5 or 10 years. And that means no matter how much anyone thinks it’s wrong, the child must get that time in jail. Minimum.

According to the data in this report, in 2010, approximately 170 children were automatically transferred to adult court and kept there and treated as adults. How many of them are now serving long, mandatory prison sentences in adult court? Whose 14 year old is going through absolute hell?

When the Supreme Court decided Miller v. Alabama, it made no distinction between 14, 15, 16 and 17  year olds. Because the Court recognized that they were, after all, children. Why do we insist differently?

Our decisions rested not only on common sense — on what “any parent knows” — but on science and social science as well. Id., at 569, 125 S.Ct. 1183. In Roper, we cited studies showing that “`[o]nly a relatively small proportion of adolescents’” who engage in illegal activity “`develop entrenched patterns of problem behavior.’” Id., at 570, 125 S.Ct. 1183 (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham, we noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds” — for example, in “parts of the brain involved in behavior control.” 560 U.S., at ___, 130 S.Ct., at 2026.[5] We reasoned that those findings — 2465*2465 of transient rashness, proclivity for risk, and inability to assess consequences — both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “`deficiencies will be reformed.’” Id., at ___, 130 S.Ct., at 2027 (quoting Roper, 543 U.S., at 570, 125 S.Ct. 1183).  Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.

Children are different. Let’s continue to treat them that way.