ct legal news
Chief Justice reflects on first year at helm
Apr 9th
Wow, it’s already been a year since the CT Supreme Court got a new Chief Justice. In an interview with WFSB, Justice Rogers reflects on a year at the head of the Court.
Part of her agenda for the past year has been courthouse security:
As she met with judges during her first year in the state’s top judicial job, Rogers said she heard the same concern over and over: There’s a lack of security in Connecticut courthouses.
Judges across Connecticut, particularly those working in older buildings, confided that they don’t feel safe.
“They shouldn’t,” Rogers said in a recent interview with The Associated Press. “There’s not adequate security for these buildings.”
She asked for additional funding for more marshal positions, but that money didn’t make it into the Governor’s budget.
She has also focused on opening the courts to the public and the media, which some have not taken to too kindly (*cough*Norm*cough*), and has asked a Commission she appointed to re-examine how judges are evaluated.
She formed a 42-member Public Service and Trust Commission, which has held more than 90 focus group sessions and spent thousands of hours on a three- to five-year strategic plan for the branch that is due to be released soon.
The ideas range from making sure all courthouses open at 8:30 a.m. to reaching out to minority law students and encouraging them to seek judgeships or apply for Judicial Branch jobs.
Despite all this, she has found the time to author 30 opinions. Thirty!
From what I’ve seen of her in oral argument, I’ve been impressed. She seems to be extremely well prepared and asks intelligent, pertinent questions. For my CT practitioners: what are your impressions of her first year in office?
Second Chance in Connecticut?
Apr 9th
I have long supported greater prisoner re-entry and rehabilitation programs (as you all may know), so I was happy to see that President Bush will sign the Second Chance Act today.
In a sharp change in attitudes about incarceration, many states and private groups have recently experimented with “re-entry” programs to help released prisoners fit back into their communities and avoid new crime.
The strategy will get a major boost this week. President Bush is to sign the Second Chance Act in a public ceremony on Wednesday, making rehabilitation a central goal of the federal justice system. In a sign of how far the pendulum has swung, the measure passed Congress with nearly unanimous bipartisan support.
With the new law, the federal government is to provide more money and leadership in a field where progress is likely to be difficult at best, experts agree.The law authorizes the spending of $165 million a year for grants to promote and experiment with support services and methods to assess which offenders are more like to commit more crimes.
So will the passage of this bill have any impact in Connecticut and will Connecticut take re-entry programs and rehabilitation more seriously? It seems that there may be a chance. Mike Lawlor, judiciary committee co-chair, was “active” in the Council of State Governments and he has been pushing for a similar focus on re-entry in Connecticut and will be in attendance at the bill signing ceremony today.
While much of the criminal justice debate in Connecticut has centered around mandatory-minimums and harsh three-strikes laws, there apparently is more going on that the press has not cared to report.
But state House Minority Leader Lawrence Cafero, R-Norwalk, said that behind those disagreements are wide support for re-entry programs backed by Lawlor, co-chairman of the legislature’s judiciary committee.
“We have a ton in common,” he said.
Gov. M. Jodi Rell’s commissioner of correction, Theresa Lantz, has repeatedly testified in legislative hearings that supervised-release programs are highly effective. Like most governors, Rell has shown little interest in an expensive prison expansion program.
Michael Thompson, director of the Justice Center at the Council of State Governments, said the new push for re-entry programs grew from a realization in the states that a multi-billion-dollar expansion of prisons alone cannot check crime.
Let us hope that this is indeed true and that the legislature will take re-entry seriously. It is foolish to think that we can prevent crime and that the only solution is to lock people up for long periods of time. The sooner we turn our focus and resources to providing released inmates the tools with which to integrate into society, the sooner we start making our communities safer.
Focus starting to shift in crim justice “reform”
Apr 4th
Two news stories today that allow me to hope, just a little bit, that perhaps some sense is seeping into the Capitol. The first proclaims boldly that the suspect in the recent New Britain home invasion had “little rehab for sex offense”.
The ex-convict accused in this week’s fatal New Britain home invasion dropped out of a sex offender treatment program during a 10-year prison stint that involved seemingly little rehabilitation, according to prison and parole documents.
That’s actually inaccurate – he had to leave the program because he was transferred to another facility.
But Williams’ case is now raising questions about whether the state correctional system properly prepares an inmate for eventual release.
“Whenever we run into those situations that are so horrific, it raises the question if our correctional system is performing to the extent that it can,” said state Sen. John Kissel, R-Enfield, a member of the judiciary committee.
“I think we need to make a concerted effort to benchmark what that optimum program level should be in the Department of Correction, and then see how far away from that level we are,” Kissel said.
Very far, Senator, very far.
Yet there are some that still can’t tell front from down. DOC rep Brian Garnett’s statements remind me of the famed Iraqi minister of (dis)information:
In general, Garnett said, inmates, “can participate in as many programs as they want and refuse to participate in programs.”
“You can’t force an offender to take part in a program,” he said. “You can make them sit in the room, but if they’re not going to engage in participating in the program, all you’re doing is wasting a chair.”
“Can participate” here should be taken to mean “could participate if it weren’t for severe overcrowding and lack of room, facilities and spots in programs”.
Ooops. There’s no such thing as prison overcrowding. My bad.
State Rep. Michael Lawlor, D- East Haven, co-chairman of the judiciary committee, said the case points to the need for more rehabilitative services in prison, but also housing for sex offenders upon release from jail and prison because few want to take them.
“They did not let him out early,” Lawlor said. “Now he finishes his sentence and he’s on probation.”
“What should you do?” Lawlor said. “You should have a place you can force him to go while he’s on probation. No such place exists. That is the problem.”
And no one wants these places in their towns.
The second story is about Gov. Rell’s top secret meeting with law enforcement yesterday (from which Dem legislators – who control the legislature – were excluded). After that meeting, there were no calls for three-strikes laws, but rather a call to streamline the persistent offender statutes and more funding for GPS monitoring.
“The current persistent felony offender law is like the tax code,” said [Chief State's Attorney Kevin] Kane, a longtime prosecutor who stood next to Rell at the afternoon press conference. “You’ve got to be a Philadelphia lawyer to understand it. … If I have a hard time reading it — the number of times I’ve read it — imagine how a judge feels when he’s reading it pretrial.”
Senate President Pro Tem Donald Williams, the highest-ranking senator, said “there’s no reason why we can’t work with the governor” on her request to increase funding for global positioning system, or GPS, monitoring to track convicted sex offenders with bracelets that could monitor their movements.
Williams also favors more money for re-entry programs for those released from prison and for more beds for sex offenders after their release.
“I would like to think we’re moving beyond the finger-pointing stage,” Williams, of Brooklyn, said. “My goal and hope is to move beyond the political rhetoric.”
Me too, Senator, me too…
To inject some lightheartedness into a serious discussion, here’s Amy Winehouse:
[youtube]http://www.youtube.com/watch?v=LD5sahXoj0U[/youtube]
Three-strikes again: Prescience and a three-ring circus
Apr 2nd
The killing of a 62 year old woman last week turned into a political battle over three-strikes laws with a sideshow on plea bargains. Not too long after news broke that Leslie Williams, a probationer, was arrested for one murder and one attempted murder, Gov. Rell renewed her calls for a three-strikes law.
State lawmakers called her out on this, not so subtly suggesting that the was using this tragedy to push her political agenda. They also pointed out that Williams would have had only one “strike” against him and thus, there really was no reason to use this crime to reignite the three-strikes debate.
But they just couldn’t leave it at that.
The problem is not the lack of strong enough criminal penalties, but that prosecutors plea bargain down from offenses that would put offenders away for longer periods, [Judiciary Committee co-chair Mike] Lawlor said. If the suspect had been convicted of what he was originally charged with — first-degree sexual assault — he would have received a 10-year minimum sentence instead of the eight years he received on the plea bargain.
Prosecutors are part of the executive branch, which Rell heads, Lawlor said. She should have talked to Waterbury State’s Attorney John Connelly — never accused of being soft on defendants — to find out why his office agreed to the plea bargain, Lawlor said. Connelly needs to explain that, he said.
And explain it Connelly did. I don’t have to explain the reasons behind, or the importance of, plea bargaining to those of you in the field. Apparently, these basic truths are lost on our legislators, however – or maybe they’re simply ignoring reality in an attempt to win this public battle of perception in an election year. Questioning plea bargaining practices as a whole is a dangerous game to play.
The Courant, of course, has been lapping this up, publishing numerous stories every day. Maybe other news media organizations are doing the same.
Yet, while they discuss plea bargaining, whether sex offenders should have privacy in homeless shelters, whether Rell’s position on three-strikes is inconsistent with her other positions, I have seen little to no mention of the real big problem here: society’s aversion to the reintegration of sex-offenders and the numerous obstacles placed in their path.
One can argue that no matter the resources available to Williams, he would have re-offended. I have no way of arguing for or against that. We will never know. Yet, here is a man (one among thousands) who upon release lived in two homeless shelters. He was sleeping in the victim’s car prior to the incident.
The mass hysteria surrounding sex offenders in our communities in well documented. The utter lack of rehabilitation in our correctional system is well known to those in the field. We can go on increasing punishment for crime all we want, yet that only underscores our utter ignorance (or disregard) of the causes of crime. Probably the only sensible thing I’ve read in the past few days is Rell’s acknowledgment that we will never be able to stop crime (I’m not sure whether she actually believes that); yet we act as if that is a realistic goal.
If we are not willing to fund programs that rehabilitate and make it easier for the recently released to seamlessly reintegrate into society, then we are not really tackling the problem and enhancing public safety. We might as well start handing out life sentences for all crimes.
Previous, similar thoughts here.
A time for change
Apr 1st
Update: Yes, this is an April Fool’s Day post. I’m not quitting my job.
Well folks. The time is upon us. I’ve been hinting at this for weeks now and today I can officially announce to all my readers (and some colleagues who happen to be reading as well) that I will no longer be public defending. I’ve taken a position with the general practice firm of Houlihan and Horowitz, where I will be dabbling in various fields, such as real estate, civil litigation, med mal and insurance defense.
I know, I know. Why this sudden change? Don’t you love your job, you might ask. I do. But frankly, I can’t afford to keep working as a public defender. The money was just too good to pass up, and in the end, I must be fed.
So thank you to all that have been with me for so long (and some not so long). I truly appreciate the support that you have given me and I value the exchanges we’ve had on the blog.
I don’t know if I will keep the blog going, but obviously the focus will change. I don’t know if I will be able to keep up with criminal law happenings – frankly, I don’t think I’ll have the time.
So long, then, and thanks for all the fish.
[youtube]http://www.youtube.com/watch?v=HECJLH4onZk[/youtube]
Monday Night Lullaby
Mar 31st
Yes. Very lame title. I know. It’s 10:12pm. If you expected more, you don’t know me.
Anyway. I found a short window of time in which I have nothing to do, so here are the most interesting posts and stories from the past few days:
- From EvidenceProfBlog, the Iowa Supreme Court will hear the first challenge to “red light cameras” which automatically generate tickets for speeders.
- EyeID recaps the landmark eyewitness ID training seminar held in NYC two weeks ago and makes public eyeid.org.
- Not Guilty comments on the shift in the federal judiciary from lawyers in the private sector to lawyers in the public sector.
- Grits has this fantastic critique of a critic of the Pew Study.
- Scott writes about the 30 year old mother of 2 who is a sex offender who has been forced to move several times. Nowhere left to go, really. We’re really doing a fantastic job of helping non-violent sex offenders reintegrate, aren’t we?
- From WSJ, a motion written by a lawyer representing a capital defendant now is part of an IAC claim. Why? The motion was written in ebonics.
- The ACLU released a report calculating the actual cost of California’s death penalty. Answer: It’s very high.
- Mark Bennett has this terrific post on the Government as the threat to your liberty and this follow up.
- The Windypundit is honest about jury nullification.
That’s it for tonight. Sleep well.
Eyewitness reform bill fails; DNA on arrest bill passes
Mar 25th
Just to show you how skewed the priorities of legislators are, let us compare two bills side by side.
On the left, we have the eyewitness id reform bill and on the right, the “collect DNA from the innocent” bill.
One is clearly needed, the other could be a significant violation of due process. (Yes, I do know that some states have held such DNA collection to not be a violation of the 4th. I disagree with them.)
As EyeID points out, the bill, while missing some legs, would have been a significant step in the right process. Alas, it was not to be. However, the esteemed legislators have deemed it worthy to collect DNA samples from people arrested of crimes. The argument behind this piece of legislation is that collection of DNA at the time of arrest would permit law enforcement to solve more crimes…because, you know, if you’re arrested, then you’ve probably committed a crime in the past.
Another rationale put forth by the State [pdf]- and I do love this – is that collection of DNA at the time of arrest would not only serve to solve unsolved crimes, but also prevent wrongful convictions.
The irony here, lest it be lost on you, is that the very same State opposed [pdf] the eyewitness ID reform bill, when DNA exonerations have shown that in 75% of wrongful conviction cases faulty IDs have been the culprit. Apparently, in eyewitness ID reform, there is a “pilot program” and the “jury is still out” on whether sequential or simultaneous lineups are better. Yes, you read that right. Apparently, no one knows how to use Google. There is some heavy citing of the Mecklenburg Report, which permits law enforcement to continually bury its head in the sand. The State’s testimony then quotes Gary Wells out of context (I’ve read about this being done in other states too) and ignores his response to this misquoting (I’m going on memory here – I’m sure the guys at EyeID know what I’m talking about – or if I’m imagining this whole thing, I’ll take it down).
The CT Public Defender’s response to the EyeID bill is here and to the DNA bill here. All the testimony submitted on these bills is available here.
On a positive note, the committee did pass the probation reform bill, which I discussed previously.
All the bills reported out of committee by last night’s deadline are here. For example, here‘s a bill “encouraging” bar owners to install breath alcohol testing devices. Here‘s a bill making it illegal to hang on a noose on public property, or private property without the consent of the owner.
Legal fictions and the standard of proof
Mar 20th
Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.
What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.
In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.
So they disbelieved the eyewitness. Zero credibility. They acquitted.
Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)
So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.
Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.
Three-strikes bill killed in committee
Mar 19th
By a 25-16 vote, the Judiciary Committee voted against one three-strikes proposal today. The bill called for mandatory life sentence for third time offenders.
Opponents said the revamped three-strikes-and-you’re-out proposal was deceiving because it would not automatically require a life sentence for a third violent offense. The bill still gave prosecutors the discretion to decide whether to charge someone under the law.
And committee co-chairman Rep. Michael Lawlor said prosecutors have told lawmakers they would rarely use such a law.
“The bottom line is, this is very misleading,” said Lawlor, D-East Haven.
Another reason legislators gave for the down vote was that they had just recently tinkered with the persistent offender statute and not enough time has passed to evaluate whether that works or not:
Connecticut already has a law on the books addressing repeat offenders. During a special session in January, where many Cheshire-related reforms were passed, lawmakers tinkered with the law. They passed a version that removed a requirement that a judge make certain findings before imposing up to a life sentence for third-time offenders. That law takes effect March 1.
Sen. Andrew McDonald, the other committee co-chairman, said lawmakers should wait and see if that works.
“We are trying to fix something that we don’t know as yet is broken,” said McDonald, D-Stamford.
It must be St. Paddy’s Day – ARO 3/17/08
Mar 17th
I felt like I was drunk this morning (or was it the judges?) when I read the Advance Release Opinions around noon. For there are not one, not two, but three reversals today (and three dissents!).
Goldmine.
First up, from the Supreme Court, State v. T.D.M.. This was a 5-2, after an en banc hearing. On appeal, the defendant claimed that he was not adequately canvassed during his waiver for counsel, the judge improperly charged the jury, he was deprived of due process when the police failed to take adequate steps to locate him and the prosecutor engaged in impropriety during trial.
The Court reversed the conviction on the first claim, addressed the next two (denying them) and did not address the fourth. The thrust of the inadequate canvass claim was that at no point was he told of the consequences of his conviction, i.e., the maximum penalty he could be subject to.
In the present case, as in Diaz, there is simply no evidence present in the record from which we could infer that the defendant had any meaningful appreciation of the period of incarceration he faced if convicted of the charges he faced. ‘‘In such circumstances, it cannot be said that the defendant ‘received a realistic picture from [the court] regarding the magnitude of his decision [to proceed to trial without counsel].’ United States v. Fore, 169 F.3d 104, 108 (2d Cir.), cert. denied, 527 U.S. 1028, 119 S. Ct. 2380, 144 L. Ed. 2d 783 (1999). In other words, the record does not establish that the defendant ‘knew what he [was] doing and [that] his choice [was] made with eyes open,’ as the constitution requires. . . . State v. Day, 233 Conn. 813, 828, 661 A.2d 539 (1995), quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).’’ State v. Diaz, supra, 274 Conn. 833–34.
There is a dissent.
Moving to the Appellate Court, another reversal in State v. Wade. The defendant was convicted of manslaughter in the first degree (evincing extreme indifference to life) for being unbelievably high and consuming some really, really dangerous drugs and providing them to the victim, who was also unbelievably high and consuming really, really dangerous drugs. (I mean, some of this stuff is NUTS.)
The court, however, found that the State could not prove that the actions of the defendant were knowingly reckless:
The state claims that it is common knowledge that prescription medication has inherent risks and that its administration, therefore, must be overseen by a physician. The state also argues that it is common knowledge that taking certain medications in combination is inherently dangerous. The state, therefore, concludes that a reasonable person would not give another person either a combination of medications or multiple dosages of them over a short period of time because doing so creates a substantial risk of death.We are not persuaded that the average person knows the potentially toxic effects of Methadose and fentanyl taken individually or in combination. Moreover, the circumstance in which the defendant gave the victim the medications was one in which the participants voluntarily sought and took medications and illegal substances in large quantities.
The Court reverses the conviction and orders entry of a judgment of conviction of manslaughter in the second degree, as an LIO.
The third, and final, reversal comes in State v. Martinez. The claim raised on appeal was that the trial court improperly declined to hold an evidentiary hearing on the admissibility of prior sexual conduct of the victim. The court holds that the defendant produced sufficient evidence for the trial court to be able to determine whether the prior sexual conduct was relevant to the issues at trial and fit within one of the exceptions to the rape shield law.
After an examination of the record, we conclude that the police reports provided sufficient proof for the court to be able to determine that J’s prior sexual conduct was relevant to whether the defendant had used force in sexually assaulting J. If the defendant had been able to establish that J’s brother did not use force, he might have been able to cast reasonable doubt as to whether the defendant had used force in having sex with J. Because we conclude that J’s prior sexual conduct was relevant to whether the defendant used force in committing the sexual assault, we do not need to address whether it was relevant to J’s credibility, as the defendant argues.
There is a very lengthy dissent. I expect cert to be granted in this case.
Moving to the losses, first we have State v. Kimble. Here, the Court affirmed the trial court’s denial of a motion to suppress, reasoning that gun that was found in a rental car was in plain sight and that the defendant had no standing to challenge any search, because he had no reasonable expectation of privacy. The defendant also claimed that the gun was the illegal fruit of an illegal detention. This claim was analyzed under the State Constitution, which has been held to provide greater protection. Even then, the claim failed. The defendant claimed that the detention started when the officers approached him and his co-d sitting in the car (I’m simplifying it here). The State claimed that the detention commenced when the defendant fled from the car and the officer pursued him, because at that time, the officer had R & AS that criminal activity was afoot. The Court agrees with the State.
Then there’s State v. Betancourt, which is a sufficiency of evidence and prosecutorial misconduct claim. It is really boring. Read it if you want.
In State v. Devivo, the defendant finished his sentence and probation and then moved to vacate his guilty plea. Since there is no statutory or common law authority for the trial court to entertain such a motion at that stage, the court rightly dismissed it. He then asked the Appellate Court to exercise its supervisory authority to review the claim. The court tried hard not to laugh.
In the lone habeas appeal, Dawson v. Comm’r, the defendant claims that the habeas court incorrectly found that he’d violated the terms of his plea agreement, among other things. The defendant had pled under what is known as a Garvin plea in CT. Basically, the defendant agrees to a sentence, postpones sentencing on the condition that he shows up for sentencing and if he does, he gets that deal (another frequent condition is to avoid arrest). If he does not show up or gets arrested, the judge may impose up to the statutory maximum. Here, the defendant didn’t show up at 10, but rather at some point between 10:55 and 2:00pm. The trial court found that he had violated the terms of the Garvin plea and thus imposed a stricter sentence. The Appellate Court affirmed.
That took way too long.
Probation reform considered
Mar 12th
One of the most interesting bills being debated today is H.B. 5877, which is a product of the Sentencing Task Force. The bill would change probation terms (which now max out at 5 years for all felonies) to 5 years for a B felony, 3 years for a C & D felony, 2 years for an A misdemeanor and 1 year for a B misdemeanor.
Further, under the new bill, the probation officer will submit a report to the Court at least 60 days prior to the expiration of the 2nd year of probation, chronicling whether the probationer has complied with the terms of probation, his progress on probation and whether to terminate the probation at the end of two years or continue it for the remainder of the term.
This is a result of nationwide studies that conclude that most recidivism occurs in the first 18 months of probation. So, in essence, if they’re going to violate, it’s most likely to happen in that period. After that, the rate of recidivism drastically drops off. To continue probation at that point eats up resources and sets up probationers to fail.
This is a very interesting idea that has the support of probation and the judiciary. It provides enough incentive to probationers to start working at going on the straight and narrow early on in their probationary period.
Three-strikes, prison overcrowding back before Judiciary Committee
Mar 12th
Not satisfied with the harsh penalties enacted by the special session of the legislature in February, we once again embark on a discussion of “true” three-strikes laws. There are four separate proposals before the Judiciary Committee to create a three-strikes and you’re out law and there are several bills dealing with prison overcrowding, inmate services and re-entry programs.
Here is a list of all the bills being considered today and here is all the submitted testimony.
What intrigues me is that there seems to be a lot of talk about funding rehabilitation and programs for first time offenders and providing re-entry services.
Prison overcrowding was also a big issue, with Commissioner Lantz being questioned for several hours. What she was still unable to give, however, was a maximum number of inmates that the correctional facilities could hold. I don’t think that’s a difficult question. Several legislators were pressing her on that. It turns out that the maximum number of permanent beds that our system can hold is 20,095. This, as she explained, does not include adding more permanent beds and temporary beds. Why she could not estimate from there how much space is remaining and how many inmates can be fit into that remaining space is a mystery. Rather, I suspect that she did not want to. Which isn’t particularly helpful because overcrowding is a serious problem and we don’t have a max capacity number then how do we know when the facilities are overcrowded?
My views on this are well known, so I won’t repeat them.
Here is one report on today’s hearing, focusing on the Chief State’s Attorney’s opposition to the 3-strikes bill. More as it becomes available.
The hearing is actually still going on, so you can watch either on your TV (CT-N) or on the web.
Denial is not a river in Egypt
Mar 11th
Allegations of prison overcrowding and inhumane treatment of inmates abound and yet the American Idol Governor continues to turn a blind eye. Take this latest lawsuit for example. Two inmates at Cheshire Correctional filed a lawsuit claiming that they were forced to defecate and urinate in plastic bags because of the severe overcrowding problem.
In the lawsuit, the men say they were let out of the locked day room — designed as a place to read or watch television, not sleep — once per night to use the bathroom, according to their suit. In intervening hours, they have used plastic bags to urinate or defecate, they claim, and suffer from bladder problems as a result of having to hold their wastes.
The Governor’s response was more of the same:
Brian Garnett, a spokesman for the Department of Correction, said he could not comment on pending litigation, but said the state’s prisons are “orderly, humane and safe.”
DOC Commissioner Theresa Lantz has insisted that the prison system can absorb spikes in population, a position that frustrated the correction officers’ union and certain legislators last year when she refused to put a number on the prison system’s capacity.
A few weeks ago I heard about two separate assaults on correctional officers, but couldn’t find any news coverage of it.
This is a real problem, folks. It’s about time DOC did something about it.
Death penalty on our minds
Mar 10th
Two separate news items of note on the death penalty in Connecticut today. The first is a hearing in the judiciary committee on a bill that sets absurd time limits on the filing of appeals and habeas corpus petitions. S.B. 320 is a resurrection of an almost identical bill that failed in the last legislative session. The bill would require both the defendant and the state to file its briefs within 4 months of the imposition of the sentence and it would require the Supreme Court to schedule oral argument no later than 6 months from the date of the imposition of the sentence. These time limits are absurd and arbitrary and unworkable. There is no way that all issues that need to be raised in capital cases can be raised in two months.
Further, it requires all habeas corpus petitions in capital cases to be filed within 180 days (or at the same time that oral argument is scheduled) of the imposition of the sentence and a hearing on such a habeas petition shall be held within 180 days of the filing of such a petition.
However, a subsequent petition will not be barred if (1) the facts underlying the claim were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence prior to the filing of the earlier application, and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would have reasonably led the original trier of fact to have either found the defendant not guilty or not sentence the defendant to death. The court shall hold a hearing on such subsequent application not later than one hundred eighty days after the filing of such application.
Written testimony submitted to the Judiciary Committee is available here. This bill is opposed by the ACLU, the Public Defender’s Office and the State’s Attorney’s Office.
The second news item was a discussion on the state of the death penalty in Connecticut on NPR’s “Where We Live“. The guests include Waterbury State’s Attorney John Connelly, Yale Prof. John Donahue, who conducted the disparity study, Helen Williams – the mother of Richard Reynolds’ victim, Robert Nave – the director of the Connecticut Network to Abolish the Death Penalty, New Jersey Senator Christopher Bateman and State Rep. Michael Lawlor.
Connecticut is one of 2 states in New England that still has a death penalty. New Hampshire is the other—but recently that state has created a commission to study the process including whether the death penalty actually deters crime, just as New Jersey did prior to its abolition of the death penalty.
The discussion included the cost of the death penalty vis-a-vis life imprisonment, its deterrence value and who the focus is on. Quotes from citizens include comments about the fallibility of the justice system as demonstrated by the DNA exonerations and whether we should take that risk with the one truly irreversible punishment. It is an hour long, but definitely worth listening to.
Connelly and even the host keep trumpeting the “fact” that the majority of citizens are in favor of the death penalty. Lawlor mentions that when CT citizens are given the choice between the death penalty and life imprisonment, the opinions are more even.
Then the discussion turns to the hearing scheduled in the judiciary committee and Connelly characterizes it as appeals and habeas corpus petitions filed “ad nauseam“. Where he gets this, I do not know, but apparently NPR didn’t see it fit to have anyone from the defense bar to mention that there is a statutory right to a direct appeal and a Constitutional right to habeas corpus.
Lawlor then says it like it is: This is a political issue and whether abolition proceeds depends on opinion polls and what people think about it. He says they will look to New Jersey’s upcoming elections to see whether the abolition will be an issue there.
Courtesy of NPR, the audio is available below.
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Burglarizing your mother’s house?
Mar 3rd
This very odd story today leads me to ask the question in the title of this post. Luke Stetson and his girlfriend stole his mother’s chihuahua from the mother’s house and held it for ransom. They demanded hundreds of dollars. Hundreds. Apparently the transfer was made, but they were arrested trying to flee. Details haven’t been released, but I wonder if they themselves took the dog back to the mother for the money exchange.
Anyway, this led me to wonder whether you can be convicted of burgling your own house or your mother’s house. The burglary statute provides that one is guilty of burglary “when he enters or remains unlawfully in a building with intent to commit a crime therein”. It’s the second clause that interests me. “Remains unlawfully”. Caselaw has defined that as a situation in which an individual has permission to enter the premises, but then that permission is subsequently withdrawn – either explicitly or implicitly. State v. Henry (“even if one is lawfully admitted into a premises, the consent of the occupant may be implicitly withdrawn if the entrant terrorizes the occupants”).
However, every case that has dealt with that portion of the statute (at least the ones that I found) involve an attack or assault on the home-owner. The theory is that while you invite someone over, that invitation is rescinded once they attack you or commit a crime. Now bear with me here.
If Stetson had permission to enter, stay and take whatever he wanted from his mother’s home, can he be convicted of burglary for taking the dog? The predicate crime being, of course, larceny. Larceny, in this context, would be defined as:
(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.
Clearly, it would have to be under sub (a). So let’s look further:
A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
(5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime…
So there are questions aplenty. First, it would seem clear that he “wrongfully withheld”. But is it? Would a dog be “property”? Even if it is, did he “compel or induce another person to deliver such property”? Or is the “property” money? Because he clearly compelled the mother to “deliver money”. So he could “wrongfully obtain” this “money” by “instilling fear” that if it is not delivered, he will “cause damage to property”. Which property is that last “property”? Would that be the dog?
Now, getting back to burglary. The crime itself – the extortion – didn’t occur till after he left the mother’s premises. So did the crime occur while in the house? If not, can it be burglary?
I think the answer will be yes, but it’s not a decided question by any means. Thoughts?
PS: I love elements analyses.
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