For the internet age, an internet jury. It is Yahoo! Answers, but still, I’m amazed at the responses. This is who ends up on your juries, people. We need to educate them, even though judging by some of these responses, it may seem impossible or futile.
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.
No one contends that the quality of justice here is so superior that others want to copy our system.
Again false: every single person I’ve talked to about individual voir dire has expressed a desire to have that available to them. The fact that various states haven’t enacted individual voir dire is as much a product of their legislators as it is local lawyers’ desire to utilize this tool.
We have a complicated-sounding name for jury selection in Connecticut: individual, sequestered voir dire. The result is that it often takes far longer to pick a jury than it does to put on evidence. It is not uncommon to take a week or so to pick a juror in a serious criminal case.
I have no dispute with this. In a “serious criminal case”, the maximum punishments often range from 20 years to 60 years in jail. God forbid we take a week – which is 5 business days – to pick a jury of 8-16.
Let me explain how a typical jury selection day goes: court starts at approximately 10:00am. 25-40 potential jurors are brought to the court and sworn in. The judge then reads initial instructions which could take up to 40 minutes. Then those who cannot serve due to conflicts of interest or scheduling are excused. It could be close to noon before the first juror is questioned. Often, of a panel of 25, only 10 or so jurors remain who could potentially serve on the jury. So you go through each one. Some may take 40 minutes to question thoroughly, some might be done in 5.
If I’m sitting there with leg shackles and a borrowed suit, watching the State try to pick 6 people who will put me away for the rest of my life, the last thing I give a shit about is the length of time it takes to pick those 6 people and the last thing I want to see is my lawyer be complicit in illusory arguments about “speed of justice”.
It takes a long time to get a case to trial. Our dockets are lengthy. Folks lose confidence in a system when they cannot get their cases heard promptly. It is not uncommon to field phone calls from people looking to replace their lawyer because “nothing is happening” in their case. You can wait for years to get a jury trial in Connecticut in a simple case. Often there is nothing to do but wait.
And this has what to do with picking juries? I’ll tell you what: absolutely nothing. Norm’s complaint is that the legal system is slow – and I’ll let you in on a secret: it’s not. But the justice delayed line is just an appeal to passions and has nothing to do with whether we take too long to pick a jury. Because if you’ve waited 2 years to “get justice”, what’s another 3 days to pick a jury?
When I questioned him on this on Twitter, he made clear that he was referring to civil cases, because he knows as well as I do that in the criminal system any delay in starting trial is almost always at the request of the defense and there really hasn’t ever been a time when the defense is pushing a trial and the State isn’t ready. If I want my trial today, I’ll get it.
I suspect the real reason some lawyers like the Connecticut method is that it builds delay, and legal fees, into the system. In some harried jurisdictions, jury selection in a civil case can take days, even weeks, as the court staff struggles to juggle its many commitments.
Therein lies the crux of what is motivating Norm: the cost to him and to his fellow attorneys who do civil work. The number of days spent in jury selection represents missed opportunity to earn income elsewhere. In civil cases, attorneys work on contingency fees: they get a certain percentage of what damages you win. So, the amount doesn’t change in the end regardless of the number of days worked. The less days worked, the greater the pay per day and additional income can be gained elsewhere.
Now, I don’t want to take food out of Norm’s mouth and so I will acknowledge that it can be a valid argument: but what I take issue with is that he hides it in his forceful arguments, burying it just under the surface. If we’re going to have a discussion of this subject, at least let it be honest.
The fact is that no empirical evidence supports the assertion that we do it better using individual, sequestered voir dire. In fact, the evidence is to the contrary. It takes far longer to get a case to trial in Connecticut than almost anywhere in the country.
Putting aside the fact that there is a whole industry out there that teaches lawyers how to make the best of the limited time they have in group voir dire and to learn to read jurors’ hidden intentions and motions and memoranda passed around for generations on how to get judges to permit greater questioning, which all imply that in an ideal world, criminal defense lawyers would and should have the right to individually question every person who could potentially decide the fate of a client – a fellow human being, where is the evidence that individual voir dire is worse?
And if there is no such empirical evidence – and I’m not sure there ever can be either way – then shouldn’t we ask ourselves: what is the real reason someone wants to change a system that isn’t broken? What’s in it for them?
The fact that he ties the length of individual voir dire to the time it takes to get to a trial should highlight the bait and switch.
Finally, Norm proposes a change to the law: a system where there base-line is group voir dire and, for good cause, we get to have individual voir dire in rare cases.
I propose that if there is to be a change it should be exactly the opposite: individual voir dire unless both the prosecutor and the defendant (not defense counsel) agree to waive it. Let’s see how many do. I suspect the number will be closer to zero than Norm thinks it will be.
As my favorite law professor would say: you’re not even wrong.
Just for fun, here are the court rules for group voir dire in Washington. They scare me:
The voir dire examination of jurors shall be conducted under the direction and control of the Court with the following guidelines:
1) It is expected that voir dire, in most cases, will consume one hour of time or less*. Generally, the Struck Jury Method of voir dire will be used.
2) The Court shall ask all general questions and thereafter shall give leave to the respective parties to ask such supplementary questions as may be deemed proper and necessary by the Court. The parties may submit all proposed general questions in writing prior to voir dire.
3) The Court may intervene without objection in instances of inappropriate questioning and may limit the amount of time each party has to examine a juror or jury panel.
*It took more more than an hour to write this post. Chew on that.
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”:
Sierra was transported to the hospital and later charged with interfering with a police officer and assaulting a public safety officer. His criminal case is pending at Superior Court in Bridgeport.
Remember, our Appellate and Supreme Courts will ignore video evidence in order to sustain a conviction of Assault on an Officer.
Hey, at least my clients have excuses for their recidivism, so poignantly captured in this documentary video from 1961, set to uplifting music:
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.
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?
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:
To that end, they stopped their cruiser approximately ten to twenty feet in front of the men and got out to approach them. When this occurred, the defendant and the other man immediately began to flee, prompting Vasquez to grab the defendant, who physically resisted and threw punches at him, and Larregui to detain the other man, who struggled with him until he drew his Taser gun and threatened to use it if the man continued to resist. When the Taser gun was turned on, its camera began to record the encounter as it unfolded. Officer Damien Csech, another uniformed Bridgeport police officer, then arrived at the scene and took control of the man with whom Larregui had been struggling, freeing Larregui to assist Vasquez in his efforts to subdue the defendant.
Soon, all three officers turned their attention (and tasers) to Osbourne. Vasquez put him in a choke hold and repeatedly ordered him to get down on the ground.
Although Vasquez succeeded in getting the defendant down onto his hands and knees, the defendant continued to struggle with him and to defy his repeated orders to lie down on the ground. In the course of such continuing resistance, while both Vasquez and Csech were attempting to restrain the defendant physically, Larregui tased the defendant in the back, causing him to holler out in pain.
After the first five second tasing cycle, when the defendant continued to struggle with Vasquez, Larregui tased him again. Immediately after that second cycle ended, the defendant quickly reached down to his right shorts pocket, from which he grabbed and partially removed a gun. Upon spotting the gun, which he first became aware of at that point, Vasquez immediately stepped in between the defendant’s right side and right arm, preventing the defendant from reaching downward again. Moments later, Larregui tased the defendant a third time.
Now here’s the fun part:
Notwithstanding Vasquez’ position between the defendant’s right side and right arm from the time the gun first appeared until the initiation of the third tasing cycle, the officers testified that the defendant held the gun in his right hand during this third cycle until it fell to the ground and discharged. After the gun fell, Larregui testified that he kicked it out of the defendant’s reach. Thereafter, as the defendant continued to struggle, Larregui tased him twice more before he was finally placed in handcuffs.
I wish the video were available online (I’ve posted a different one below), but it’s not. Osbourne was charged with and convicted of interfering with an officer (fine) and three separate counts of attempted assault in the first degree, one for each officer that was tasing and putting him in a choke hold. Naturally, he appealed, arguing that it was impossible for him to have the intent to commit this act because he was getting the ever-lovin’ shit kicked out him and had no control of his bodily movements due to 10,000 volts of electricity repeatedly being shot into his body.
The Appellate Court’s decision was written by Judge Michael Sheldon, who is considered by many (myself included) to be one of the smartest appellate judges in CT and a likely candidate for the supreme court in the next few months. Judge Sheldon used to run the criminal clinic at UCONN Law and his work has directly and indirectly helped me and many other criminal defense attorneys in this State (to be clear: I’ve never met him). Which is why it pains me to say this:
Judge Sheldon: You mad, bro?
The opinion affirming these convictions is long and convoluted and makes the argument with a straight face that Osbourne had taken a substantial step toward shooting all three police officers individually. While being tased three times, being put in a choke-hold and being helpless on the ground.
The jury also reasonably could have found that the defendant gave the officers stubborn physical resistance from the beginning of the incident until the end; that, although the defendant was being tased, and thus was incapable of voluntary physical movement until just before he reached for his gun, he was restored to full strength and function, with the capacity to engage in deliberate physical movement, as soon as each tasing cycle ended; and that, when the second tasing cycle ended, he immediately reached downward with his right hand to the right front pocket of his shorts, from which he grabbed and partially removed his cocked and loaded gun.
So what, exactly, did the video show? The defendant included a frame-by-frame breakdown in his brief:
When the second [Taser] charge stopped at 00:28, the defendant’s hand had not come in contact with the gun, nor had his hand come in contact with the pocket containing the gun. At 00:28, the defendant had experienced nearly 11 straight seconds of intense pain, incapacitation and electrocution-like effects from the Taser.
At 00:28, the defendant’s right hand can be seen near his pants pocket which contained the gun. The defendant did not touch the gun or pull it out of his pocket. At 00:29, the view of the defendant’s pocket is blocked for a fraction of a second and then (also at 00:29) when the pocket becomes visible again, we can see the defendant’s arm stretched out away from his body and the pocket.
At 00:30, the video shows Larregui’s leg and foot in between the defendant’s arm and his body. At 00:30 to 00:31, the gun comes out of or falls from the defendant’s pocket on its own. At this time the defendant’s arm is still outstretched and not near his pocket or the gun. At 00:30 of the video, someone other than the defendant is heard saying to get the ‘fucking gun out of that pocket.’
The clicking from the Taser can be heard at the very end of the 00:31 mark, meaning Larregui has begun to [tase] the defendant for the third time. When the [tasing] starts, the defendant does not have, nor could he have, the gun. Thereafter, while the camera is pointed at the ground and the defendant is yelling in pain, someone other than the defendant says, ‘I got the gun’ immediately before the gun discharges at 00:35. Confirming that someone other than the defendant picked up the gun and dropped it, a voice that is not the defendant’s is heard at 01:30 of the video saying, ‘Dude, I went to go grab it and it went right off. . . . It bounced right off the ground.’’
There is presumably less than one second (took you longer to read that and sentence and this and this and this and this…) in which he “takes the gun out of his pocket” which forms the “substantial step” to sustain his attempted assault conviction.
It is very critical to note that nowhere in the opinion does the court actually disagree with the description of the video I just quoted above. It merely says, “well, the jury could have chosen to believe the cops’ version”, which, if you’ve just read this post, is completely belied by the video itself.
The jury reasonably could have found that the video shows the defendant reaching towards his pocket and then a silver gun appearing at or near the pocket before falling to the ground beneath him.
The deference to the cops’ version and the handwavium of this apparently “reasonable” juror allows this court to uphold this absurd conviction who, I don’t know, had a gun on him? And any man with a gun in the vicinity of police officers is clearly a man who will eventually shoot such officer, so we just have to find a way.
Here, watch a video of a cop being tasered as part of his training. Notice how uncomfortable he is and how scared he is. But, of course, Osbourne should’ve had no problem with reaching for gun right after being tased twice in quick succession.
Allow me to ask again: You mad, bro?
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:
(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless
See, that’s all he was accused of doing. The rest of the stuff in that statute? Irrelevant. He wasn’t accused of doing any of that. So, contrary to her assertion, physically helplessness is a requirement for rape. It says so right in the statute. As I explained in my previous post, physical helplessness is a legal term of art with a very specific definition which requires that the victim be “physically unable to communicate unwillingness”. It doesn’t mean whatever else you want it to mean. It has a specific definition and we have to stick to that definition.
Further down the rabbit hole:
Although designed to protect those incapacitated by drugs or other means, physical helplessness should not have been the focus of this trial. Other factors such as the woman’s disabilities and that Fourtin was her mother’s boyfriend and occasional caregiver should have been considered.
And this is the part where we introduce Ms. Luo to the Sixth and Fourteenth Amendments to the United States Constitution, which I’m sure she’s familiar with. The Sixth Amendment to the United States Constitution states, in relevant part:
In all criminal prosecutions, the accused shall enjoy the right [...] to be informed of the nature and cause of the accusation [...]
The Sixth Amendment is applied to the States through the Fourteenth Amendment, which states in relevant part:
nor shall any State deprive any person of life, liberty, or property, without due process of law
What that means is that in every criminal prosecution in every state of this country, whether it be for shoplifting, murder, drunken driving or rape of a disabled woman, the State must, prior to trial, inform the accused of the specific allegations against him and the specific law which he is alleged to have broken.
In this case the law he was alleged to have broken was the one involving sexual intercourse with someone who is physically helpless. The right to have notice of the specific charges is, as the supreme court puts it, sacrosanct:
an accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial; these principles of constitutional law are inveterate and sacrosanct. U.S. Const., amend. VI; Conn. Const., art. I, § 8; 2 Wharton, Criminal Procedure (12th Ed.) § 258.
State v. Sumner. We do not have a “moving target” theory of justice. We, in our quest to have a system of fairness and integrity, have mandated that we tell defendants what crime we’re accusing them of committing and then give them the opportunity to defend against just that. I cannot think of anything more fundamental to any system of justice. To argue otherwise is to argue for secrecy, kangaroo courts and a dismantling of our time-honored standard of proof beyond a reasonable doubt.
The mere mention of the idea that we can and should convict someone for something that we give them no opportunity to defend against is abhorrent. How can we be a civilized society, a fair society, the leader of the free world even, if we condone a system of justice where the only goal is to lock away people whom the populace doesn’t like regardless of whether there is any proof of the commission of those acts? What kind of world would we live in if we were to accuse someone of shoplifting a bag and upon completion of the trial, ask a jury to find him guilty of stealing a car instead?
So, no, Ms. Luo, her disabilities and the fact that he was her mother’s boyfriend and occasional caregiver should not have been considered because they have absolutely no bearing on whether she was “physically helpless”. The focus properly should have been only her physical inability to communicate. To suggest otherwise is mindboggling.
I wish it ended here, but it doesn’t:
Fourtin’s argument hinged upon the reasoning that because the 25-year-old woman could have indicated her refusal with physical resistance, the fact that she didn’t means that she consented.
This makes my brain hurt because it is preceded by a paragraph that correctly states that the statute does not care about whether a person consented or not. And yet here she makes a mess of comprehending Fourtin’s argument on appeal.
The argument, simply, once again, is that if she could have indicated her refusal physically, then she is not physically unable to indicate refusal. The State had alleged that she was physically unable to refuse. Fourtin argued that she was physically able to refuse. As Mark Bennett has often chided me: I can explain it to you, I cannot understand it for you.
The reality that the State failed to/chose not to allege a violation of a different, perhaps better fitting crime, is not something the Supreme Court should be blamed for.
You know where this is going:
Even though she had no means of verbal communication; even though there is absolutely no evidence that the woman actually gave her consent. The fact that the case didn’t focus on this question, but instead concentrated on how she didn’t show refusal, goes to show how easily society still blames the victim.
It also goes to show how easily the Court was correct and how spectacularly you have failed at understanding a simple legal issue. If the State alleges that I shot someone with a .22 handgun and presents no evidence that the object I shot with was, indeed, a .22 handgun and if, in fact, evidence is presented that it was a banana, please explain why I should be found guilty?
Due Process of Law, a principle that we should all hold dear, mandates a verdict of not guilty, just as it would for Fourtin if any Court were to suddenly, somehow, after the fact decree that he was guilty of another crime that he did not have the opportunity to defend against.
This is one of the bedrock principles of our Constitution: we do not have trials in secret, or by ambush. There is no more Star Chamber.
Ms. Luo argues that the “case didn’t focus on [the] question” of whether she actually gave any consent, not three sentences after stating that consent is not a requirement in this statute. I don’t know how else to explain this.
But perhaps Ms. Luo also missed this part of the Court’s opinion:
the failure of the state to present any evidence probative of whether the [victim] was unable to use these forms of communication at the time of the alleged assault[.]
Her argument in that last paragraph I quoted is a red herring born of a misunderstanding. Her verbal communication is irrelevant in this case. But even granting her that, the inescapable fact is that there was no evidence introduced that she was physically helpless at the time of the assault.
There are certainly things Fourtin may well be guilty of: sexual intercourse with someone who, due to a mental disability, is legally unable to give consent comes to mind.
But he was not accused of that crime. And as much as we dislike him and want to, we cannot now, ex post facto convict him of that.
Update: Former Chief Justice Ellen Ash Peters, who authored the opinion of the Appellate Court, says it best:
We reverse the defendant’s conviction in this case because we are not persuaded that the state produced any credible evidence that the complainant was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault. Whatever other provision of our criminal code the defendant may have violated, the state did not prove that he committed the crimes for which he was put to trial.
The judgment is reversed and the case is remanded with direction to render judgment of not guilty.
The Constitution guarantees protection to all of us: those who have committed crimes, those who haven’t but accept that it’s possible they could and those that mistakenly believe that they never can. These treasured and trumpeted Constitutional protections do not discriminate in the shelter they provide based on how offensive the person seeking that refuge is. And it does not permit us to do so either.
We cannot alter the Constitution midstream because we don’t like someone. Today, you don’t like Fourtin. Tomorrow, the State might not like you.
Update 3: The post at BoingBoing, which caused Ken to write his at Popehat has been amended to include links to mine and his, with an acknowledgment of the different interpretation of the Court’s decision. Much credit to Xeni Jardin for doing that. HuffPost and ThinkProgress do not get any such kudos and the less said about the Hartford Courant and the CT Post, the better.