Category Archives: ct legal news

Not even wrong on individual voir dire

It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.

The propensity’s on the other foot

Prosecutors and judges – and law and order types in general – are always on about “once a criminal, always a criminal”, and frankly, given some of the recidivism rates of our clients, sometimes I tend to think there’s some truth to some of it before I come to my senses.

Which is why I really enjoyed this delicious bite of schadenfreude. Remember the three cops in this video beating the tasered man in a park in Bridgeport? (I mean, how could you not? It was three days ago.) Turns out two of them are the subject of a previous separate brutality complaint. Filed by a disabled man. Shame on you, officers.

On May 23, 2011, three days after the Beardsley Park beating reportedly took place, Officer Christina Arroyo stopped Ramon Sierra for questioning, Sierra claims in a letter that he wrote to Chief Joseph Gaudett Jr. seeking an investigation.

Another officer, Elson Morales — who is one of the officers identified in the Beardsley Park videotape — soon arrived at the scene at the corner of Boston and Noble avenues.

Sierra said that, without warning, Morales “put his hands on me, and I asked him what he was doing.”  “The next thing I knew, Officer Morales and an officer later identified as Officer (Joseph) Lawlor both threw me violently to the ground, and on the way down, the left side of my face struck one of the police cars on the scene, causing a bad laceration,” the complaint states.  Lawlor is also identified in the Beardsley Park videotape.  Sierra said that one of the officers then told him to put his hands behind his back, but because he has limited use of his right arm, he was unable to do so. Sierra said that he is disabled and is partially paralyzed on the left side as well as having limited mobility on his right.  “I told the officers this, but they continued to assault me violently, finally handcuffing my hands in front of my body,” Sierra wrote in his letter to Gaudett.

So what happened to Sierra? Exactly the same thing that happens to people who “force” officers to use “physical force”:

Mandatory pro bono: silly season’s here again

January every two years is a goldmine for long-time bloggers and part-time comics like me. It provides just the sort of low-hanging fruit that I need to get the few remaining brain cells up off the couch and into some sort of athletic program.

I’m talking about the long session of the state legislature, which is sure to provide many moments of facepalming (kids still do that, right?) and with every new session comes a mighty challenger attempting to meet and surpass the high standard set by Senator Witkos.

This year, we have one such strong contender very early one: Rep. Christopher Davis of the 57th District thinks that it’s a splendid idea if any attorney who makes more than 50% of their annual income from state funds should be required to do 40 hours of pro bono service. The entirety of the bill is:

Be it enacted by the Senate and House of Representatives in General Assembly convened:  That the general statutes be amended to require that any person who is engaged in the practice of law and receives fifty per cent or more of his or her annual income from state funds shall complete not less than forty hours of pro bono legal work during the calendar year in which the income is earned.

I’ll tell you what is a great idea: pro bono. We should have lawyers doing more pro bono work; there is a glut of indigent defendants and plaintiffs who get screwed because they don’t have legal representation.

I’ll tell you what is a stupid idea: this bill. You know who’d be covered by this bill? Me. Every other public defender. Lots of private attorneys who represent criminal defendants as special public defenders or “assigned counsel”. Also: every prosecutor in this state. Would judges be covered? Perhaps. And he wants us to do 40 hours of mandatory pro bono work.

Putting aside the perhaps untrue joke that we criminal defense lawyers do pro bono work already (because our clients don’t pay us and those that do get paid by clients hardly ever get paid), there are several other problems with such an “idea”. For instance, could I stick to doing criminal work for free? Or would I be forced to learn and take up the practice of property law. Perhaps I could do a few closings a year or really slowly write a will or three (after all, is the State going to also monitor my 40 hours of pro bono?)

Who’s going to pay for my malpractice insurance? Oh, and who’s going to help me when I get fired for violating C.G.S 51-293(d)? Not familiar with 51-293(d)? No worries. That’s what I’m here for. 51-293(d) simply says:

(d) Each public defender, assistant public defender and deputy assistant public defender shall devote his full time to the duties of his office, shall not engage in the private practice of law, and shall not be a partner, member or associate of a law firm.

Oops. Rep. Davis would make lawbreakers of us all. Sorry, Rep. Davis, but I break the law on my own terms, not on the law’s terms.

That this is very low-hanging fruit is not in dispute; that this bill probably goes no further than one man’s fancy and one blogger’s delight is pretty set in stone, but the fact that it was actually proposed by someone who is elected to be our representative in the legislative body should give pause. And perhaps when we pause, we should think. It’ll be more than Rep. Davis did.

 

A ray of sunlight in East Haven

the land of steady racism

East Haven, Connecticut’s most famous modern day “sundown town“, has just learned what it feels like to be on the other end of a good scrubbing. The town, you will recall, made the news when the DOJ filed a federal lawsuit alleging racial profiling and violation of civil rights for its policy of targeting minorities for traffic and other violations. From the DOJ report [PDF]:

  • The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
  • However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
  • Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
  • Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
  • Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

Yesterday, in the wake of another guilty plea by one of the embattled police officers, the town and the DOJ announced an agreement that they entered into, which will halt the lawsuit for the time being. The consent decree is 54 pages long and I’ve embedded it below. In it, East Haven agrees that:

  • EHPD officers shall conduct investigatory stops or detentions only where the officer has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime.
  • EHPD officers shall not use “canned” or conclusory language in any reports documentinginvestigatory stops, detentions and searches. Articulation of reasonable suspicion andprobable cause shall be specific and clear.
  • EHPD officers shall not use or rely on information known to be materially false or incorrect in effectuating an investigatory stop or detention.
  • EHPD officers shall not use demographic category as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • EHPD officers shall not use demographic category in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • Where an officer seeks consent for a search, the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, articulate and document the independent legal justification for the search, and document the subject’s consent on a written form that explains these rights
  • EHPD officers shall only arrest an individual where the officer has probable cause. In effectuating an arrest, EHPD officers shall not rely on information known to be materially false or incorrect. Officers may not consider demographic category in effecting an arrest, except as part of an actual and credible description of a specific suspect in an ongoing investigation.

Sadly, I could go on. This is pretty basic stuff here that the EHPD has failed to do in the past and needs to do in the future to rectify their despicable practice of targeting minorities. What’s interesting, though, is that the decree also includes a provision stating clearly that citizens have the right to observe and record police conduct and that the EHPD cannot interfere with that. This is obviously a response to the glut of arrests state-wide and across the country of people who were merely recording police activity:

  • EHPD shall ensure that onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force in accordance with their rights, immunities, and privileges secured or protected by the Constitution or laws of the United States.
  • Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and EHPD shall ensure that officers understand that exercising this right serves important public purposes.
  • Individuals observing stops, detentions, arrests and other incidents shall be permitted to remain in the proximity of the incident unless there is an actual and articulable law enforcement basis to move an individual, such as: an individual’s presence would jeopardize the safety of the officer, the suspect, or others in the vicinity; the individual violates the law; or the individual incites others to violate the law.
  • Individuals shall be permitted to record police officer enforcement activities by camera,video recorder, cell phone recorder, or other means, unless there is an actual and articulable law enforcement basis to deny permission.
  • Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities.
  • Officers shall not seize or otherwise coerce production of recorded sounds or images,without obtaining a warrant, or order an individual to destroy such recordings. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no more than three hours while a legal subpoena, search warrant, or other valid order is obtained.

Of course, this does nothing but force the members of the town’s police department and the mayor to behave in an orderly fashion. The consent decree does nothing to actually enhance their tolerance of minorities. East Haven Mayor Joseph Maturo, after all, is the same man who upon being re-elected in 2011, reinstated suspended Police Chief Gallo and then allowed him to retire. He’s also the man who, upon being asked what he was going to do for the Latino community in the wake of these allegations, glibly stated that he might go home and eat a taco.

The question, of course, is whether this ray of sunlight will disinfect the whole town in years to come or whether, when the FBI has moved on, the windows will be shuttered again and embedded racism allowed to fester again. Rev. Manship, whose arrest for videotaping the harassment of a Latino shop-owner kickstarted this effort, says just as much:

“When the spotlight’s on, everybody’s behaving well,” Manship said, “so the real test for this will be years after the Department of Justice has left East Haven and [see if we] can have a Police Department where everybody is comfortable, safe, and can go to and not be afraid of.”

Isn’t that what we should want?


 

When there’s a cop, there’s a way

One of the first reality checks I had when I was in law school was the creeping awareness that despite what we’ve all been raised to believe and wish for, police officers are human beings and being human beings, are prone to lying, fabrication and violent acts of thuggery. One need only spend a few hours on the internet and eventually you’ll come across a video of some cop tasing some bro or sucker-punching a female protester. Radley Balko at The Agitator has been chronicling the abuses by police forces across American and our slow slide down into full police-state status. Others have been equally diligent in keeping tabs: the site Injustice Everywhere; Carlos Miller and several of my fellow legal bloggers as well.

The general consensus seems to be that permitting citizens to videotape police activity is beneficial: after all, the event is recorded live and is plain for everyone to see and draw their own conclusions. One would think. But the coddling of police officers and the failure to hold them accountable for their illegal actions can find a way even when faced with incontrovertible evidence to the contrary.

Meet Lorenzo Osbourne [PDF]. Osbourne was hanging out in front of a church with another man when police rolled up because of a burglary call. Having determined that the call was false, they went on their way to other important business decided to investigate the two men because it was a high crime area and they seemed suspicious for walking away from the officers:

Why we can’t just make stuff up as we go along, or: Due Process

What started out as a fairly fact specific hyper-technical statutory interpretation of the meaning of a phrase in an extremely narrow statute has ballooned into a general hue and cry about “rape culture” and a disregard for women’s rights.

I wrote last week about the Connecticut Supreme Court’s decision in State v. Richard Fourtin [PDF], which is only the former and has no shades of the latter. But that hasn’t stopped advocacy groups and pageview hungry tabloids like ThinkProgress and the HuffingtonPost from burying their heads in the sand about the boring reality of the opinion and instead pressing on with their fabricated quotes and blatant misrepresentation. Which is why it comes as no surprise that the Hartford Courant – never one to miss an opportunity to drum up page views and advertising revenue through the use of incendiary and sensationalist “opinion” pieces – published this “opinion” piece.

On the one hand, I’m incensed that allegedly reputable news organizations would publish pieces with a blatant disregard for truth and a fundamental – and frankly, frightening – misunderstanding of and disregard for our criminal justice system.

On the other, what better opportunity could there be to perhaps try and educate people and correct these pervasive misconceptions. So I’m going to give this another shot in the hope that maybe one person will walk away with a more accurate understanding of our core fundamental protections and rights.

The opinion piece is fortuitously titled in the form of a question – “He’s Not Guilty Because Disabled Woman Didn’t Fight Back?” – allowing me to respond appropriately: “No”. In order to make this post coherent, I’m going to reproduce her opinion and respond point-by-point.

First, Cindy Luo (the author of the opinion piece) opines:

The Appellate Court claimed, in justifying its decision, that because the defendant could “communicate by gesturing and vocalizing … and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression — including biting, kicking and scratching — and by making screeching and groaning sounds,” then “no reasonable jury could have concluded that she was physically helpless at the time of the assault.”

She means ‘complainant’ when she says ‘defendant’, but other than that it’s accurate. Moving on:

Fourtin was sentenced in 2008 to six years in prison for attempted second-degree sexual assault and fourth-degree sexual assault involving the woman, who was then 25 and who has cerebral palsy, mental retardation and hydrocephalus, and cannot talk or walk. The Appellate Court reversed the convictions in 2009 and ordered the lower court to acquit Fourtin because the prosecution didn’t prove the woman was “physically helpless.”

Still correct. Next:

However, physical helplessness is not a requirement for rape.

And this is where it begins to fall apart. Because, you see, Ms. Luo, it is a requirement for “rape” under the subsection he was charged with. In case you were unable to find the pertinent subsection and read it, I’ll reproduce it for you here: