ct legal news

Sundown comes to East Haven

Dec 27th

East Haven, CT generally has two claims to fame: being a predominantly Italian-American populated town and being in the middle of the collision of tectonic plates during the Paleozoic Era, which led to the formation of Pangaea (yeah, bet you didn’t know that!). And now, rapidly, the town is intent on adding a third selling point: a sundown town.

Residents of Connecticut will have heard these stories for years now: the systematic harassment of and discrimination against minorities, mainly Hispanic, who comprise about 5% of the town’s population. For example, Father James Manship was arrested in March of 2009 after he started videotaping the harassment of Latinos [what is up with cops and videotaping in the Havens?]. During that same incident, police inexplicably ordered the owner of a store to take down expired license plates that adorned his walls:

On the evening of his arrest, at around 5:30 p.m. on Thursday, Feb. 19, Father Manship walked into My Country Store, a convenience store in East Haven run by Ecuadorians. Inside, the police were removing over 60 expired license plates that had been hung as decorations in the store. The license plates were government property, the officers had said, and they were confiscating them.

After the police arrested the priest, they noticed that the store was equipped with security cameras. Elio Cruz, a leader in New Haven’s Virgen Del Cisne Ecuadorian community, was in the store that night. “When [the police officers] realized there was videotaping from My Country Store, they went crazy,” Cruz recalled later. “They said it was illegal and they tried to grab the computer.”

Matute said that three officers entered the back room without his permission and searched the shelves in his storeroom. When they found the hard drive containing the store’s digital security camera footage, they wanted to take it, but Matute wouldn’t let them, he said. Matute said that the officers then called a detective to bring a video camera to record the security footage off of the computer screen, but the detective’s camera didn’t work.

And this is just the tip of the iceberg. In October of this year, some Latino residents of East Haven filed a federal civil rights lawsuit against the city, after the DOJ had opened an investigation into police tactics:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The suit charges that police routinely harassed immigrants and tried to force them and customers of their businesses to leave town. The suit also reprises allegations that police set up outside the immigrant-run My Country Store on Main Street to ticket and otherwise harass customers.

The plaintiffs charge that police regularly ticketing cars at one store declared that customers could “park in New Haven and walk.” They charge that an officer regularly entered a house with Latino families illegally, without a warrant, to harass its occupants, at one point suggesting to a woman in front of her children that she leave the country.

The plaintiffs also cite previously reported statistics about the issuance of traffic tickets. Of 376 tickets given out in one stretch between mid-June and early 2009, some 60 percent went to Hispanic drivers. Hispanics make up 6 percent of East Haven residents. (Read more about that here.)

And now, this alleged wish of the East Haven police department is coming true. Minority residents of East Haven are leaving the town, their homes and businesses ruined (at least garnering some national attention):

Santiago Malave has worked law enforcement jobs in Connecticut for more than four decades, but as a Puerto Rican, he says he cannot drive through his own town without worrying about police harassing him.

Malave, a probation officer who works in New Haven, says the racial abuse is so bad that he only crosses the town line into East Haven to go home. He and his wife are now preparing to sell their house and move, joining an exodus of Hispanics who say police have hassled them with traffic stops, false arrests and even jailhouse beatings.

Hispanic business owners say police made a practice of parking outside their shops and stopping any Latinos. Some who complained say they faced retaliation.

Luis Rodriguez, an immigrant from Ecuador who owns the Los Amigos Grocery, said he was arrested two months ago and jailed for five days after a woman pointed out to police that his 3-year-old son was unsupervised on the sidewalk outside the store. He said police were out for revenge because his wife had been videotaping them. He was charged with child neglect; the case is still pending.

Meanwhile, his store is up for sale. Ecuadoreans used to travel from as far as Massachusetts for jalapenos, Ecuadorean sodas and other specialty products. But Rodriguez said police have scared customers away by threatening to alert immigration authorities if they ever saw them in town again.

…

Hispanics in East Haven say more than half their population — estimated at 1,900 by the Census Bureau — has moved away.

Mario Marin, who was at work one recent afternoon in his family’s empty restaurant, La Bamba, said two of his siblings moved to nearby Waterbury and another brother returned to Ecuador. He said one brother, like other Hispanic property owners, lost a house to foreclosure after his tenants moved away.

“They destroyed our future here,” Marin said of police. He said even out-of-town diners have stopped coming since officers launched raids on the restaurant’s parking lot, towing away any cars with out-of-state license plates.

And while the DOJ and FBI plod along, hard working people who attempted to live the American dream are exposed to the racist underbelly of our social and racial warfare. East Haven may well be on its way to becoming a sundown town, but apparently the sun never sets on bigotry.

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east haven, racial profiling

Yes, America, we’re embarrassed too

Nov 4th

Posted by Gideon in ct legal news

9 comments

It's 9pm. Do you know what's in your mystery bag?

It is now 8:28pm on Thursday evening, a full 48 hours after polls closed in every single damn State in the country. While the dust has settled everywhere and prognostications for the future of the country have reached their peak and then subsided, we here in Connecticut are glued to our internets and our moving pictures boxes, because the bureaucracy of the state is entangled in an epic battle against that most formidable of nemeses: simple arithmetic.

The full extent of the buffoonery that has occurred over the last two days isn’t apparent until we create a timeline:

Tuesday November 2nd:

2pm: Bridgeport runs out of ballots
Bridgeport is told to photocopy ballots
4-6pm?: Bridgeport gets new ballots
7-8pm: SOTS gets a court order permitting Bridgeport polling stations to stay open till 10pm
8pm: polls close statewide except Bridgeport
10pm: polls close in Bridgeport
8-11pm: Returns trickle in from most towns, Foley takes sizeable lead. Still nothing from B’port, New Haven, Hartford, Stamford
11:30pm: Gideon goes to bed depressed

Wednesday, November 3rd:

6:30am: Gideon wakes up, after dreams of having to say Governor Foley.
7:00am: Twitter announces that Bridgeport numbers should be in shortly and that Malloy has cut Foley’s lead down to 12,000 votes
Everyone sits on their hands all day as magic stuff goes on in Bridgeport (i.e. people add up numbers)
Post noon, Susan Bysiewicz (yeah, her. She’s still SOTS) makes an “unofficial” announcement that Dan Malloy has won by 3,103 – an awfully specific number if you ask me.
1:30pm: Tom Foley calls into a radio show on which Bysiewicz is a guest and gets into a pissing match with her and maintains that his numbers have him winning. Obviously.
2-4pm: More handwringing, political posturing and all-around cluelessness. Bridgeport is apparently still counting. Or something.
4:00pm: Dan Malloy exhibits staggering hubris and holds a press conference at the State Capitol announcing his “transition team”.
4:05pm: The rest of the state experiences an awkward pause.
4pm-7pm (I don’t know the exact time, I was drinking): The venerable Associated Press “withdraws” its call that Malloy is the winner.
4pm-7pm: The press goes apoplectic. People run around like confused chickens. The world teeters on the edge of ending.
4pm-overnight: One or two sane people keep trying to point out that the AP has neglected to update its New Haven tallies, which result in a net gain of 10K or so votes for Malloy. No one notices, because “AP WITHDRAWS CALL” is a better headline than “AP CAN’T DO MATH”. Bridgeport still counting.
6pm: The statutory deadline for certifying vote tallies by town Registrars passes. Bridgeport still counting. Or sleeping. Or smoking joints. Who the fuck knows at this point.
All day: Math eludes us all. Connecticut still does not have a Governor-elect.

Thursday, November 4th:

10-11am: The AP, having obtained eyeglasses and a calculator, realizes what anyone with half a brain already knew: its New Haven numbers are wrong and now redeclares Malloy the winner.
10-11am: Tom Foley shakes his head like the Aflac duck.
10-11am: SOTS Bysiewicz (yes, still her) announces a noon press conference to give us the “final official” results.
All day: Bridgeport has disappeared into a black hole.
Noon: SOTS pushes back the presser to 3pm.
3pm: SOTS gives an “unofficial” press conference at which she says, Bridgeport just started counting at 2pm.
2pm: Bridgeport is not counting.
3pm: Bridgeport starts counting – officially. Or something.
3:05pm: Bridgeport gets tired of counting and takes a break.
3-6pm: Bridgeport manages to count votes from 6 out of 24 polling places. Their excuse is their pencils broke.
6pm: A MYSTERY BAG OF UNCOUNTED BALLOTS IS FOUND. It may contain FAIL or Vince’s WWE Swag or our collective dignity. No one looks inside to check.
6pm: The world almost ends. Again.
6pm: Foley wants the cops to take control of the bag. Because apparently the bag contains the 20,000 Republican votes cast in heavily Democratic Bridgeport.
6pm: The cops are like “whaa?”
6pm: No one bothers to ask how many ballots are in the bag.
6pm: Bridgeport is no longer counting, because they have to go home and do more important things.
6:30pm: SOTS says Bridgeport went home and so counting will resume tomorrow. Estimates votes will be counted in time for real end of the world in 2012.
7pm: Someone looks inside the MYSTERY BAG and finds a whopping 360 ballots.
7pm: Someone looks inside the MYSTERY BAG and finds a whopping 360 ballots.
7pm: All Republicans in the State cry “ELECTION FRAUD”.
7pm-9pm: The rest of us kill ourselves out of embarrassment.
[Bonus flashback timeline: Tuesday 11pm: worker in charge of bag of 360 ballots says "Fuck it, I got shit to do" and leaves, leaving the bag uncounted".]

So yes, America. We’re damn embarrassed too. Wouldn’t you be?

[For a less profane, more coherent post recapping the above, which has sentences strung together into paragraphs and not the lazy shit I did above, see this tremendous piece by the good folks at New Haven Independent and CT News Junkie.]

And lastly, for the enterprising among you, via Colin Samuels:

Create “I sent my candidate to Bridgeport and all I got was this lousy bag-o-fail-and-swag” tote bag.
?????
PROFIT!!!

Does Martha Dean have a point?

Oct 26th

Posted by Gideon in ct legal news

4 comments

If I’d never heard the words “attorney general” and “lawsuit” and “active practice” in the same sentence again, ever, I’d have been a happy man. Today, I am sad.

As Rick Green reports, professional whackjob Attorney General candidate Martha Dean tweeted today that she’s filed suit seeking a declaratory judgment that her opponent, George Jepsen, doesn’t qualify to be AG of CT. Yeah, this shit again:

Just filed court challenge to Jepsen’s qualifications under Supreme Court standard: trying cases & 10 yrs of active litigation experience.

It seems, though, that her suit is sparked in part by the Court’s decision in the Bysiewicz case from earlier this year. As you will remember, the supreme court issued its ruling from the bench, holding that Bysiewicz was not qualified to be AG of the state. Last week, they issued the actual decision. Here’s the crux of that decision:

We next address the intervening defendant’s claim that the trial court improperly determined that the plaintiff’s performance of her duties as the secretary of the state constituted the active practice of law under § 3- 124. Specifically, the intervening defendant claims that, to be eligible to serve as the attorney general under § 3-124, a candidate must have ten years experience in litigating cases in court. The intervening defendant further claims that, even if litigation experience is not required, the plaintiff did not have ‘‘ten years’ active practice at the bar of this state’’ because she has not, on behalf of clients and as her primary means of livelihood, engaged in conduct that required a high degree of legal skill for ten years. We agree with both claims.

There’s further clarification on that, and that’s where the problem lies:

We conclude, therefore, that, as used in § 3-124, the phrase ‘‘attorney at law of at least ten years’ active practice at the bar of this state’’ means an attorney with at least some experience litigating cases in court. Although the presumption of eligibility might require this court to conclude that an attorney who has not practiced exclusively or even primarily as a litigator for at least ten years is qualified to hold the office of attorney general under § 3-124, the presumption does not authorize us to ignore the clear intent of the legislature that the attorney general must have some measure of experience in trying cases. Because it is undisputed that the plaintiff has no experience representing persons in court, we must conclude that she does not meet the eligibility requirements of § 3-124.

Do you have your brain turned on tonight? Good. Then you’ve already seen the problem here. The court has established, in essence, a case-by-case standard. They have taken it upon themselves to add an element of minimum practice to the statute, without defining what that minimum is.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The trial court’s conclusion that the phrase ‘‘at least ten years’ active practice at the bar of this state’’ does not require ‘‘any particular degree of frequency or intensity’’ effectively reads the ‘‘ten years’ ’’ language out of the statute. Indeed, if we were to accept this interpretation literally, that would mean that an attorney who had engaged in the practice of law in a single instance ten years earlier would be qualified to represent the state and all of its officers and agencies in court. Although the determination as to whether an attorney has engaged regularly in the practice of law as the primary means of earning a livelihood may be a matter of judgment, and doubts must be resolved in favor of the person seeking the office, we cannot conclude that the legislature intended that a person with that minimal degree of experience in the practice of law would be qualified to serve as the attorney general.

What is meant by “some measure of experience”? And a lawyer who’s never been physically in court is ineligible to be AG, even if that person has actively engaged in the practice of law – in, say, a real estate practice – for 50 years? That’s absurd.

The concurrence makes the point:

In 1879, the Supreme Court provided an extensive definition of the term attorney-at-law. In Savings Bank v. Ward, 100 U.S. 195, 199, 25 L. Ed. 621 (1879), the court stated: ‘‘Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as attorneys- at-law within the meaning of that designation as used in this country; and all such, when they undertake to conduct legal controversies or transactions, profess themselves to be reasonably well acquainted with the law and the rules and practice of the courts, and they are bound to exercise in such proceedings a reasonable degree of care, prudence, diligence, and skill.’’ This definition of the term attorney-at-law does not instruct, nor imply, that an attorney-at-law must be involved in litigation. To the contrary, the Supreme Court’s definition had a broad sweep, expressly including attorneys whose practices were transactional in nature and unrelated to controversies.

Is one trial in 10 years enough? Is one trial a year needed? Who the fuck knows. The court must have anticipated this when they wrote their decision. Or maybe not – but that’s the problem with issuing a decision from the bench after an hour of deliberation.

Now back to her suit. She alleges, in her suit, that Jepsen has admitted he has no litigation experience, that he resided out of state from 2004 to 2009, that for most of his career he held non-legal political positions or been “of counsel” or “in-house counsel”. [Others disagree.] If that’s the case, the Supreme Court just set themselves up for another hearing.

This is going to lead to some serious nickle-and-diming (if I’m applying that phrase in a somewhat translatable manner). What I’ve said all along is that once you say that “some” in-court experience is required and then don’t set an arbitrary minimum threshold, we’re going to be here until eternity litigating what the minimum is. And any minimum threshold will be arbitrary. Think about it: how is a court to determine what minimum experience is necessary? There are no guidelines for this. It will end up being decided by 7 people on an ad hoc, individual basis. Is the line at 1 trial and 2 appellate arguments over 10 years? Does any of this experience have to be in the most recent 10 years? What about 5 trials? 7? 12 motions for summary judgment but no trials? Why not 6? Or 13? I could go on all day…

Strap yourselves in, this could be fun.

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Because restrict does not mean disseminate

Oct 21st

Posted by Gideon in aro

No comments

Everyone knows that a sex offender registry exists. Almost everyone knows where to find it online. People use it routinely, even if just for fun. You log on and you search for your town and you see all the creepy people living around you. You may know some of them.

And almost everyone knows that there’s a second “secret” registry. A registry of a much smaller number of individuals, who are permitted to have their names removed from the aforementioned “public” registry (I put public in quotes because all conviction information, whether on the regular list or on the secret list, is still public and you can walk to your local courthouse or police department and get that information) for a variety of reasons – primarily to protect the identity of the victim. There are about 40 people on this “secret” registry. There are thousands on the “public” one.

In an important decision today, the CT Supreme Court reaffirmed that the “secret” registry must remain secret. In Dep’t of Public Safety v. FOI Commission (concurrence), a unanimous court held that “duh! do not disseminate means do not disseminate!” Of course, this all started not because Nosy Neighbor sought this information, but because a reporter did*.

A reporter for the Manchester Journal Inquirer wrote to the department of public safety and asked not for the name and address of the defendant, but basically everything else: the court of conviction, the name of the judge, the name of the prosecutor and the defense attorney. The department refused, the FOI commission ordered the department to turn it over and a trial court supported the commission’s ruling. Until the Supreme Court ruled. The question, boringly enough, turns on the meaning of the phrase “registration information”. Does that mean only the name and address of the registrant, as the newspaper argued, or everything that the department of public safety is required to catalog and maintain, as they argued?

There is no language in Megan’s Law that restricts the meaning of ‘‘registration information’’ to only some of the information in the registry.

The opinion makes the compelling point that for the “public” registry, all “registration information” is available to the public. One cannot then turn around and say that the same word, when applied to the “secret” registry means something different:

General Statutes § 54-258 (a) (1) provides in relevant part that ‘‘the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. . . .’’ There is no limiting language suggesting that only some of the information in the registry shall be accessible to the public. Correspondingly, General Statutes § 54-258 (a) (4) provides that, ‘‘[n]otwithstanding the provisions of subdivisions (1) and (2) of this subsection, registration information the dissemination of which has been restricted by court order pursuant to section 54- 255 and which is not otherwise subject to disclosure, shall not be a public record . . . .’’

Because the boldface title of § 54-258 refers to the ‘‘[a]vailability of registration information,’’ we must assume that all of its subsections and subdivisions refer to the same information. Thus, we must conclude that, just as the statute provides that all of the information in the registry is accessible to the public with respect to the overwhelming majority of offenders, none of the information in the registry is accessible to the public in the very few cases in which the court determines that the information should be restricted pursuant to § 54-258 (a) (4).

Judiciary Committee co-chair Mike Lawlor, whose remark (no, that’s not a typo) during the debate on the bill is heavily relied upon by the newspaper in support of its argument, is quoted in this Courant report:

State Rep. Michal Lawlor, co-chairman of the judiciary committee and one of the architects of the online registry, said the restricted list is intended to protect victims from further trauma.

He recalled a case in which a child, under the age of 6, was molested by her father. The man went to prison; the child grew up. When the man got out, he rejoined the family and was receiving counseling. In 1998, when the Internet sex-offender registry was created, the man’s name was posted. The daughter was in high school. She was shunned from events for fear that the father would show up. His name was eventually removed from the public list.

Lawlor noted that conviction information remains available through other channels, “but our concern was to keep it off the Internet registry, where it is obviously more visible.”

(*By the way, given the amount of grief I give newspaper reports and their coverage of legal issues, it is only fair to point out that this Courant piece by Josh Kovner is concise, precise and accurate. Well done, Josh!)

It seems that the Court got the legislature’s intent right. And so the “secret” registry lives on, protecting the identities of 40 victims and allowing them and their families a fair chance at reintegrating into society and living productive lives. Now if we could only do something about those thousands others whose names and pictures are readily available at the click of a button.

Not my town-itis

Sep 9th

Posted by Gideon in Adam Walsh Act

3 comments

Connecticut, for some reason I have not yet uncovered, has thus far been immune to the sex offender hysteria that has gripped our nation for well over a decade now. Sure, we have mandatory minimums and calls to classify sex offenders on the same level as murderers, but the legislature, in an exemplary show of good sense, has resisted the urge to enact residency restrictions and has now twice rebuffed the implementation of the horrid Adam Walsh Act.

But, as I wrote back in December, the State hasn’t taken any positive steps either. There’s still nowhere for sex offenders who need treatment to get it. And if the residents of Montville, CT have their way, there won’t be anywhere for a while.

Montville, already home to two correctional facilities, was identified by the State as the prime location for a sex offender residential treatment facility, with an allocation of 24 beds. Frankly, 24 beds is nothing. Me and the 5 other attorneys in my office could come up with a list of 24 people before you finish reading this sentence, never mind the 100 other attorneys in the public defender system and their clients from just this year alone. But it’s a start and we have to start somewhere.

Yet, just like there are peas in a pod and two of a kind and how Garfunkel needed Simon, “sex offender treatment facility” seems incomplete without “not in my town”. And that’s exactly what the residents of Montville are arguing. Today, the town committee voted to seek an injunction to block the building of said treatment facility.

The state Department of Correction plans to create a 24-bed facility at the Corrigan-Radgowski Correctional Center for sex offenders about to be released from prison and those who have already been released. Creation of a residential sex offender program was part of a 2008 criminal justice reform law passed after the 2007 Cheshire home invasion.

Oh wait, this facility was to be created at the two jails that already exist in your little town? Perhaps they don’t realize these are the very jails that these sex offenders come from. It’s like moving them from one wing of the jail to another. But then again, it’s called hysteria for a reason…

In all the objections to constructing treatment facilities or the arguments in support of residency restrictions, I haven’t heard a single legitimate reason for excluding these from a particular locality or any justification that acknowledges the realities of banishing an entire group of people. Folks, “not in my town” isn’t a reason, it’s a position. You should explain, logically, why.

And as if that wasn’t enough, the town committee also voted to set a public hearing to consider an ordinance that would create a “sex offender free zone”. Montville isn’t the only town considering such an ordinance in CT. Greenwich, that bastion of purity and wholesome values and more BMWs than all the dealerships in the state combined, is also considering such an ordinance to ban its five (count ‘em – 5) sex offenders from places that are “frequented” by children.

Yet it is town officials in Greenwich who have been debating since February whether to approve an ordinance that would prohibit sex offenders from being near schools, parks, playgrounds and other places children congregate. The ordinance would not limit where sex offenders can live, as similar laws in other states do, but it would impose a $100 fine on a registered offender caught in the wrong place for a second time.

After unanimous approval by the Board of Selectmen, the measure moved on to the Representative Town Meeting, the city’s 230-member legislative body, where it failed twice, most recently on Sept. 21.

The quote speaks for itself. What needs addressing, however, is the mindless repetition of what should properly be considered pure fabrication by the Republican members of the state legislature:

“Look, there is obviously an extremely delicate balance between protecting the public and the constitutional rights and freedoms of individuals, whether they are convicted sexual predators or not,” [State Senator McKinney] said. “The difficulty comes with the fact that this type of crime has an extraordinarily high recidivism rate, which justifies us in government taking greater steps toward protecting the public than we would with other crimes.”

As is noted in the article linked to above, and as I’ve cried myself hoarse on this blog, that’s just not true. McKinney knows that too, because he’s been on the Judiciary Committee when these residency restrictions have been proposed and he’s been given the studies that show it’s not true. But of course, acknowledging the truth doesn’t further the fearmongering agenda and so here we are. Again.

Coincidentally, and that’s how these things usually go, today’s episode of the local NPR program “Where We Live” was devoted to sex offenders in Connecticut and these “loitering ordinances”.

Here’s my question, that I wish these proponents of the Scarlet Laws would answer: do you believe that we can completely eradicate sex crimes against children? If your answer is yes, then you’re either a liar or you don’t understand anything about how crimes are committed and why. If you answer no, then I have a follow up question: What is the most effective use of resources? Police loitering around parks and schools and enforcing these possibly unconstitutional ordinances or creating facilities for offenders to reintegrate into society, in a productive manner, so as to prevent future occurrences?

The answer is clear. The only question that remains is whether you want to be honest with yourselves or lie to everyone in order to win a vote.

The obscenity of risk of injury

Sep 6th

Posted by Gideon in ct legal news

2 comments

Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

For something that forms the crux of the criminality of actions in this statute, there is precious little guidance on the legal meaning of that phrase and the evidence that is required to sustain proof beyond a reasonable doubt on that element. The only explanation of “likely to impair” is as follows:

The term “likely” and the phrase “likely to impair” are defined neither in § 53-21 (a), nor in any related provision of our General Statutes. In the absence of statutory guidance as to the meaning of a particular term, it is appropriate to look to its dictionary definition in order to discern its meaning in a given context. Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 232, 842 A.2d 1089 (2004). Our review of such sources reveals that, depending on the context, the term “likely” most commonly is understood as an adjective that denotes when particular subject matter will probably come to be or when its chances of realization are more probable than not. Oxford English Dictionary (2d Ed. 1989) (defining “likely” as something “that looks as if it [will] happen, be realized, or prove to be what is alleged or suggested”); The American Heritage Dictionary of the English Language (3d Ed. 1992) (defining “likely” as “possessing or displaying the qualities or characteristics that make something probable”).

In contrast, dictionary sources indicate that the term “possible,” again, depending on the context, primarily has a lower degree of probability or certitude of realization. Oxford English Dictionary, supra (defining “possible” as “that may be [i.e. is capable of being]; that may or can exist, be done, or happen”); The American Heritage Dictionary of the English Language, supra (defining “possible” as something that is “capable of happening, existing or being true” [emphasis added]). The common understanding of the term “likely” therefore ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of “probable,” but that counsels against an understanding of its meaning as merely “possible.” Indeed, at oral argument before this court, the state conceded that it would be “hard-pressed” to contend that the term “likely” reasonably may be understood as meaning “possible.” Accordingly, with no persuasive argument to the contrary, the trial court’s jury instructions that the term “likely” was to be understood as meaning “in all probability or possibility” and “possible or probable,” were improper.

State v. Romero. Got that? Likely to impair means “more probable than not” and (heh) more likely than possible. And yet there is precious little on exactly how the State is to go about the business of proving that an act or situation is likely or more probable than not to impair the morals of a child. There, of course, is no requirement that the morals be actually impaired, merely the probability that they might be. This results in nothing more than that which the Supreme Court said it was avoiding in Robert H. above:

In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.

Take the court’s reasoning for its rejection of the defendant’s claims in Romero (and repeated verbatim in subsequent opinions):

Once the jury determined that the anal intercourse and mutual sexual touching took place, as described by D, it is difficult to imagine a finding that this conduct could not be deemed likely–in the context of probably–to impair D’s morals. Put another way, the defendant has made no claim, and we can conceive of no justification for one, that the defendant’s conduct in relation to his abuse of D, conduct which the jury found to have occurred, is not conduct that is “likely to impair” the health or morals of a child.

Leaving aside the obvious examples quoted involving “acts” as opposed to “situations” (for no one should reasonably argue that it should be legal to force a minor into sexual intercourse), consider the slightly more nuanced scenario where a defendant is charged with showing pornography to a 2 year old child, and thus is said to have violated the Risk of Injury statute. How can one, beyond a reasonable doubt, prove that such an act is likely to impair the morals of a minor? Isn’t this essentially taking for granted that any act involving sexual conduct or placing a child in any situation which has a hint of sexual innuendo is always likely to impair the morals?

What is the functional difference between my example of the 2-year old being exposed to pornography and an 8-year old who walks into his parents’ bedroom while they are engaged in intercourse? To those of you who’ve had the misfortune of experiencing the latter, would you say your morals were impaired?

My point isn’t that we should show pornography to 2-year olds, but rather that the State should be put to its burden of proving beyond a reasonable doubt that such acts or situations are likely to impair the morals, rather than simply taking it for granted.

Sex offenders and sex offenses aren’t popular people and crimes and we’re all a bit squeamish about the topics and the ideas. But this is the top of the very, very, slippery slope. If we can’t confront the inadequacies in the state of the law in this area, then how soon is it before the burden starts slipping in other areas of the law?

Or perhaps it is time to revisit the actual statute itself and rewrite it such that it doesn’t require 20-odd years of judicial gloss to make it Constitutionally acceptable.

And doesn’t this all oddly reek of the same logical fallacies underlying the obscenity laws? You’ll know when your morals are impaired, because my morals are the same as yours.

[For a fascinating read on obscenity trials, be sure to look at this article on the trial of Lady Chatterly's Lover.]

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CT’s top death prosecutor in federal probe

Aug 10th

Posted by Gideon in ct legal news

2 comments

I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.

Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.

One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.

According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”

Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.

By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.

[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]

One man’s regret is another man’s disparity

Aug 2nd

Posted by Gideon in aro

No comments

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The death penalty is but one type of sentence that is subject to this disparate effect. There is a strong argument to be made that all sentencings are inherently biased and that the data exists – if only one would look for it – that blacks and minorities are routinely sentenced more harshly than their white counterparts. Even controlling for variables like criminal history (which presents an interesting chicken-and-egg argument), there is ample anecdotal evidence to suggest that minorities are indeed treated more harshly than whites.

Yet, there is McCleskey. It is not the effect, but the purpose, we are told. So our conscience must be clear.

And so today, in a non-death penalty case, former Connecticut Supreme Court Justice David Borden, writing for an unanimous appellate court in Abdullah v. Commissioner, holds out his handcuffed hands and cites to McCleskey as often as is conscionable:

The short answer to this argument [that the Court should recognize McCleskey as an outlier and decline to apply it] is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

But we must remember that there are always two Constitutions at play in criminal justice: the Federal and the State. Abdullah, for some reason, makes a complete muck out the State constitutional argument, failing to even raise it in his opening brief. Justice Borden, ever the brilliant jurist, seems somewhat disappointed with his inability to even attempt a bite at the apple:

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Maybe he’ll still get his chance with the death penalty racial disparity litigation that’s ongoing. State v. Geisler is a Connecticut Supreme Court case which lays out the rubric under which state constitutional claims are to be analyzed. Geisler, in the context of this post, also provides the perfect segue for a greater problem with cases like McCleskey and the 5-4 vote of most controversial decisions today. The majority opinion in Geisler was penned by Justice Berdon (not to be confused with Justice Borden), who is this blog’s favorite jurist ever in the history of the world.

And the problem is this: Justice Powell’s belated change of mind has left in place a terrible decision that continues, to this day, to block any and all attempts at legitimately explaining the injustices inflicted by the death penalty in its application. That the death penalty even exists in its current form in the United States can be traced back to one man. That the application of our laws and the erosion of our fundamental rights and protections and liberties are the product of the particular whims and fancies of one (or nine) individual is pretty potent food for thought.

In times such as these, I turn once again to Justice Berdon:

[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.

Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.

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Rell vetoes sentencing commission

Jun 8th

Posted by Gideon in ct legal news

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Rell, intent on breaking the world record for vetoes and dumbass moves as Governor before she leaves office this year (can that day come soon enough? I say no), vetoed yet another important criminal justice bill yesterday. The bill, which would have created a sentencing commission to evaluate the state’s statutes and sentencing practices and analyze them for disparity – including those of the racial kind – apparently carried a very hefty price tag, which is what prompted her veto.

The gargantuan sum of $130,000 a year easily dwarfed the $150,000 price tag for each of the 9 new judges that she nominated, that the State didn’t need, but were eventually confirmed.

“While I appreciate the need for review of our sentencing statutes and practices, given our State’s ongoing economic challenges, this is simply the wrong time to create yet another state entity,” Rell said. “I have spent much of the last year examining our state budget to find ways to save money so that we would not have to increase the burden borne by our already struggling taxpayers. Some of the cuts we have made were painful; none were easy.”

She said. I rolled my eyes.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

All drivers are dangerous and the police are the Borg

Apr 26th

Posted by Gideon in cops

10 comments

Consider the facts:

On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The officers were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.

So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.

The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.

The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:

purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then have access to any weapons

and thus, when analyzing a warrantless search under Long:

our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the vehicle to gain control of a weapon.

Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.

Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.

But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.

In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn. 647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’

Justice Who?

Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.

In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!

Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.

Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.

[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]

SCOC

Effective misadvice is ineffective

Apr 23rd

Posted by Gideon in clients

2 comments

[Or: Leave your ego in law school]

When Ahmed Kenyatta Ebron was told by his lawyer that he should reject the State’s offer and instead plead guilty without an agreement because “he couldn’t do much worse or words to that effect”, he did what all of us usually hope our clients do: take our advice.

At this open plea, armed with the client’s record and an unfavorable pre-sentence investigation report, the judge imposed a sentence of 11 years to serve, 5 more than the State’s offer of 6.

Mr. Ebron, relying on counsel’s advice, is serving 5 more years than he should be. For now, at least. His conviction has been reversed, based on ineffective assistance of counsel, and that reversal has survived the Appellate Court (I’m not optimistic about its chances at the Supreme Court).

The events leading up to Mr. Ebron’s conviction, the habeas itself and the aftermath raise several points.

First, it is easy to forget that at the end of the day, we are in a service industry. As criminal defense lawyers, our job description is limited to the service of another. We are protecting the rights of others, we are helping others make important decisions about their lives and we are, ultimately, representatives of other people.

That this is easy to forget should come as no surprise. Lawyers have famously large egos. But there is a danger in letting the sense of self overwhelm the duty and responsibility that we have.

It is that duty to the client that compels us to treat each case with the attention that we would give to it were we the defendant. There is no greater sin that can be committed by the defense lawyer than misadvising the client.

Clients rely on us to show them the way, to spell out the alternatives and to recommend one over the other, based on our knowledge, skill and experience, keeping their best interests in mind.

It is imperative that we fully inform ourselves of the facts and circumstances of the client’s case and then, and only then, recommend a final course of action.

I am not suggesting that we must force a client to take our advice; the client remains free to make stupid decisions. But the advice that we give clients must be sound. There are some that take the view that our job is to present the alternatives to the client and then accept whatever decision the client makes. I am not of that view. I believe – and certainly I may take some flak for this – that it is our responsibility to do our best to convince the client to choose the course of action that is in his/her best interests, despite the client’s seeming disapproval of that path.

This, however, can only be done if the advice we give is informed. We can only stand behind the advice we give if we are convinced that it is the best alternative and that decision can only be made with a full understanding of all the circumstances and an awareness of the pitfalls of that and every other course of action. If someone else, years down the road, decides that the advice was unreasonable, so be it. No one gets hurt by that and it only helps the client.

Ebron’s lawyer didn’t do that (and to his credit, took responsibility for it). The standard for effective assistance of counsel is woefully low. To scrape by and meet Constitutional scrutiny, a lawyer needn’t do much. But if you’re aiming for the standard, then you’re not really fulfilling your duty. If you truly believe it is sufficient to perform at a minimum level, then there are other areas of law that might be better suited for you. Stop meddling with the liberties and freedoms of fellow men and women.

…

Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.

IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.

At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.

The local listserve erupted with comments after the release of the Ebron decision: there were voices from both sides – those that praised the decision and those that lamented the additional burdens it seemingly placed on the defense lawyer (based, it seems to me, on a misreading of the case and the responsibilities it underlines).

Why does IAC evoke such polarized reactions among us? Are we that sensitive? Or is it because we view ourselves as separate and distinct from our clients? Do we believe that the players in the criminal justice system are the State, the judge, the defendant and the defense lawyer? If so, that is a terribly misbegotten view.

This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.

I will not lie to help a client, but I will not add my name to the list of those that violate his Constitutional rights.

It’s criminal!: an analysis of CT Supreme Ct opinions

Apr 19th

Posted by Gideon in aro

7 comments

Two long years ago, on a bored Saturday afternoon, spurred by my (now AWOL) muse Miranda, I wrote this post which superficially analyzed Connecticut Supreme Court decisions. The analysis was pretty limited: how many times did the State win and how many times did the defendant win.

Well. I’ve done it again. Here is my updated count, from February 2008 to today.

In that time period, the Supreme Court decided approximately 110 cases dealing with criminal law (I’ve left out the habeas corpus cases because…well, this was fucking depressing enough. If I include habeas cases, the numbers are sure to get worse for defendants).

Of those 110 cases, an astounding 64 were direct appeals to the Supreme Court. This is either a direct appeal by statute (few) or a transfer to the Supreme Court before the Appellate Court got to decide it (many, many more than in years past).

Of those 64 direct appeals, 52 were affirmances of convictions.

Of the 46 cases that went through the Appellate Court, the State was granted cert in 28 cases, the defendant in 18 (the numbers may be off by one or two, because there were a couple of “cross-appeals”. I don’t remember how I counted them).

Of all the cases that came from the Appellate Court, the breakdown is as follows:

When the State appealed a reversal of a conviction, the Appellate Court was affirmed 8 times.
When the defendant appealed an affirmance of a conviction, the Appellate Court was affirmed 14 times.
When the defendant appealed an affirmance of a conviction, the Appellate Court was reversed only twice (!).

and the big kahuna:

When the State appealed a reversal of a conviction, the Appellate Court was reversed 21 times.

So, in 29 cases where the State appealed from the Appellate Court’s reversal of a conviction, they won 21 times, which is 75%.

The Appellate Court was reversed by the Supreme Court in 23 cases out of 46, which is a 50% failure rate.

Of the reversals, the defendant “lost” 91.3% of the time.

A conviction upheld by the Appellate Court was upheld by the Supreme Court 87.5% of the time.

A defendant was successful in the Supreme Court in only 10 out of 46 cases, which is a paltry 21% success rate.

[Keep in mind that I have included partial wins as wins.]

Overall, out of the 110 criminal-ish cases considered by the Supreme Court, the defendant was ultimately successful in getting either an acquittal or new trial in 22 cases, which is a 20% rate of success. By contrast, the State “won” in 80% of all cases considered by the Supreme Court.

Also keep in mind that over the course of the last two plus years, the Supreme Court has issued some very, very bad decisions and one or two good decisions, which they promptly started to roll back.

Liberal, defendant-loving judges indeed. Welcome to Connecticut, the Texas of the Northeast.

http://apublicdefender.com/2008/02/02/superficial-analysis-of-ct-supreme-court-decisions/

SCOC, statistics

Skakel loses the battle, but the war looms?

Apr 15th

Posted by Gideon in ct legal news

No comments

In a mind bogglingly long opinion released earlier this week, CT’s Supreme Court upheld the denial of Kennedy cousin Michael Skakel‘s motion for new trial. There is a concurrence and a dissent as well.

The decision is long and I don’t care enough to dissect it. Except to state that despite the court shooting down all his claims, there is still hope for Skakel. And that rests entirely on the claim that Mickey Sherman, celebrity lawyer extraordinaire, rendered ineffective assistance of counsel.

Normally, our appellate courts are quick to shoot down future hypothetical claims of ineffective assistance. Not so in this case:

The trial court concluded that efforts to locate the three witnesses prior to and during trial did not satisfy due diligence. The court further concluded that these witnesses could have been located using the same methods that ultimately were used after trial to locate them. Therefore, the court concluded that the evidence was not newly discovered within the meaning of § 52-270. We agree.

It is highly significant that this evidence is not newly discovered in the sense that the petitioner did not know of the existence of these witnesses prior to trial. Coleman had identified these witnesses years before trial. Moreover, the petitioner should have known that Coleman’s testimony, if credited, could be a key piece of evidence in the state’s case.

Sherman apparently concluded, however, that cross-examination of Coleman at trial would be sufficient to discredit him, as he justified his lack of direction to Colucci about locating these witnesses by the fact that he ‘‘didn’t anticipate that . . . Coleman would be dead at the [time of] trial . . . [and] believed that the jury would see [him].’’ Sherman had James’ contact information in the spring of 2002, but could not ‘‘connect’’ with him. No effort was made to locate Simpson or Grubin prior to or during the trial. Therefore, we fully agree with the trial court’s conclusion that Sherman had failed to exercise due diligence to locate the three witnesses.

and:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We concluded that ‘‘the trial court acted within its discretion in rejecting the [petitioner’s] claim on the ground that the [petitioner] had failed to raise it in a timely manner under Practice Book § 42-54. Even though the [petitioner] became aware of the two reports during trial, he did not raise a Brady challenge to the state’s failure to provide him with the reports until two and one-half months after the five day limitation period [for filing a motion for a new trial under] . . . § 42-54 had expired.’’ (Emphasis added.) Id., 710.

In addition to the aforementioned facts and conclusions set forth in Skakel, the trial court in the present case pointed to the following testimony. Garr had offered testimony to establish that the composite drawing had been in the state’s files, which always were accessible to the petitioner. Sherman admitted that, shortly before trial, Solomon had told him about the profile reports.

Although Sherman had filed a discovery request almost one year before trial, he acknowledged that he had not renewed this discovery request specifically to request the profile reports. In light of this testimony and this court’s conclusions in the petitioner’s previous appeal, we conclude that the trial court did not abuse its discretion in concluding that this evidence was not newly discovered.

and finally:

We are mindful that we have disposed of two of the petitioner’s claims solely on the ground that the trial court did not abuse its discretion in concluding that the evidence was not newly discovered because the petitioner did not meet his burden of proving that this evidence would not have been available for use at trial if due diligence had been exercised. Because this conclusion is dispositive of those claims; Costello v. Costello, 139 Conn. 690, 695, 96 A.2d 755 (1953); Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 80; we express no opinion on the possible effect that this evidence could have in a new trial.

Undoubtedly, the prerequisites for obtaining a new trial at this stage are stringent. ‘‘This strict standard is meant to effectuate the underlying ‘equitable principle that once a judgment is rendered it is to be considered final,’ and should not be disturbed by posttrial motions except for a compelling reason.’’ Asherman v. State, supra, 202 Conn. 434. To the extent, however, that the petitioner believes that this evidence would have changed the outcome of his trial, habeas relief is the appropriate avenue to pursue such a claim.

Now that kind of language is certainly unprecedented. If the Court didn’t believe that the evidence would, indeed, have an effect on the outcome of the trial, it would likely have reached the issue and said so, like it does in every other damn case not involving a famous person other cases.

So the question becomes: what will Mickey Sherman do? What will a habeas court do? That’s where the real fight is, in my opinion. Expect long hearings, big pronouncements and pointed and repeated references to this decision of Skakel v. State. If, as the court seems to suggest, the fault lies with Sherman, then how difficult will it be to deny relief on ineffective assistance grounds? And then there’s that matter of the odd filing of the federal habeas. I still don’t know why that occurred.

Ultimately, though, Skakel might have the luxury of fighting the conviction “from the outside”. Because of good time laws in effect at the time of the offense, he’s eligible for parole in a few years.

Whether he is innocent or guilty, the Skakel case has already resulted in two tragedies: the death of Martha Moxley and the abomination that is the Supreme Court’s decision on direct appeal, affirming his conviction in State v. Skakel [oddly, the author of State v. Skakel, Justice Palmer, is the lone dissenter in Skakel v. State]. I’ve never seen such judicial gymnastics. If you get me drunk enough, I’ll tell you why.

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michael skakel

Bysiewicz in brief

Apr 11th

Posted by Gideon in ct legal news

11 comments

[Yes, another Susan Bysiewicz as AG post. But these are hit-machines, so I'ma milk this cash cow till it comes home.]

Thanks to the good folks at CT News Junkie, we get to read the trial brief submitted to Judge Michael Sheldon by Bysiewicz’s attorney Wesley Horton [I guess someone at CTNJ went to the clerk's office, got a copy and scanned it, so there's this ugly watermark on every goddamn page].

My conclusion, after reading the brief, is this: Wesley Horton is every bit as good as his reputation and Susan Bysiewicz is torpedoing her own chances. If only she’d get out of the damn way and let Horton work his magic, she’s as good as CT’s next Attorney General.

Her answers to the deposition questions do nothing to help the fine arguments made by Horton. Horton, correctly in my opinion, leads with the argument that active practice means nothing more than admitted to the bar and in good standing.

He argues that the relevant rules of practice in effect in 1890 and even today distinguish between the statuses of lawyers based solely on their ability to practice law in the state: active practice as opposed to suspended or disbarred. He further argues that our courts have recognized that it is not easy to describe “active practice of law” and that a wide variety of functions can be understood to be legal practice:

Attempts to define the practice of law have not been particularly successful. The reason for this is the broad field covered. The more practical approach is to consider each state of facts and determine whether it falls within the fair intendment of the term.

As to the state of facts, this court has consistently held that the preparation of legal documents is commonly understood to be the practice of law. Grievance Committee v. Dacey, 154 Conn. 129, 140-44, 229 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed.2d 404 (1967); State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. 222; Grievance Committee v. Payne, supra, 128 Conn. 325; see also Monroe v. Horwitch, 820 F. Sup. 682 (D. Conn. 1993), aff’d, 19 F.3d 9 (2d Cir. 1994). “The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a variety of subjects and the preparation of legal instruments covering an extensive field.

Statewide Grievance Committee v. Patton. This is an argument that Bysiewicz has made in the past, along with the notable “private practice” charge that she leveled against her “detractors” out of thin air. No one is arguing that “active practice at the bar of the state” literally means appearing in court and arguing in front of a judge or jury. That’s just silly.

But it’s important to note that not only is Horton arguing that she has the requisite years of admission to the bar, but in my opinion, there’s also a concession that the statute requires something more than just being someone admitted to the bar, i.e. you actually have to be engaged in the practice of law, in whatever capacity. This, of course, is in stark contradiction to Bysiewicz’s own answers to the hypotheticals posited by the Repub’s attorney (see link above).

In emphasizing this point, he quotes the Supreme Court of Florida:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

[I]t is not the nature of the agency or body before which the acts are done, or even whether they are done before a tribunal of any sort or in the private office of an individual, that determines whether that which is done constitutes the practice of law. The best test, it seems to us, is what is done, not where, for the safest measure is the character of the acts themselves. If they constitute the practice of law the fact that they are done in the private office of the one who performs them or before a nonjudicial body in no way changes their character.

….

It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.

The Florida Bar re Advisory Opinion. The question in Bysiewicz’s case has always been: does what she does qualify as “active practice”? This is where I think Horton works some magic. By broadly describing “engaged in the practice of law” to include more than actually appearing in court, he gives her a shot. He makes the distinction, implicitly, between the “active practice of law” and “solely engaged in the practice of law”. The statute does not require the latter and if that were the criteria, then she surely would fail to pass muster.

Pages 12-14 of the linked PDF set about describing the various law related activities and duties the Secretary of State is required to perform, underlining his point that for over 10 years, Bysiewicz has been in good standing and doing lawyer-ish things. I’d reproduce them here, but whatever CTNJ did to the PDF rendered it impossible to copy and paste the text.

Horton then moves on to the constitutionality of the AG statute and makes the simple argument that the language of the section in the Constitution is pretty darn clear. I agree that the language is pretty darn clear. However, I think the distinction between the cases that he cites and the situation here is that the AG statute was enacted in 1897, long before the office of the Attorney General was a constitutional office. Second, there’s almost no legislative history available for that statute and no mention of the qualifications in the discussions leading up to the Constitutional amendment in 1970.

The only discussion leading up to the Constitutional amendment is that of converting the office of the Attorney General to that of constitutional magnitude, so as not to be eliminated by, you guessed it, statute. That debate is silent as to the interplay between the AG statute and the Constitutional provision. A statute, I would remind you, that had been around since 1897. Horton make a valiant effort to argue that silence doesn’t mean anything – and there is caselaw to back up that general notion. But this is where I think the argument fails.

The very fact that the only discussion surrounding the Constitutional amendment in 1970 is to ensure that the position of AG cannot be eliminated by statute seems to me to be pretty good evidence that the legislature was aware of the qualifications statute and chose to leave that intact. Had they had a difference of opinion, it would have been very easy for them to amend or eliminate the statute at the same time, to comport with this new idea that the AG need not be an attorney.

The CT Supreme Court has written:

a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, 212 Conn. 258, 269 (1989); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 391 (1986). In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. State v. Floyd, 217 Conn. 73, 79 (1991).

State v. Metz. Typically, courts do not address constitutional arguments if there are other (common law or statute based) ways to dispose of the claims. However, where the constitutionality of a statute is called into question and it raises a question of significant public interest, the court will – and should – decide the issue of constitutionality.

We begin by noting that we ordinarily “eschew unnecessary determinations of constitutional questions”; (internal quotation marks omitted) Stamford Hospital v. Vega, 236 Conn. 646, 663 (1996); DeBeradinis v. Zoning Commission, 228 Conn. 187, 195 (1994); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692 (1989); and that we generally have declined to engage in constitutional analysis when we have been able to decide a case either on the basis of an established common-law principle or in reliance on a statutory provision. Binette v. Sabo, 244 Conn. 23, 51 (1998). In this case, however, the trial court’s conclusion that the school expulsion statute is incapable of having any constitutionally valid application has raised “a matter of substantial public interest … in which delay may work a substantial injustice.” See General Statutes § 52-265a. Consequently, we consider it appropriate to confront the constitutional issue raised in this appeal. We, therefore, address the trial court’s conclusion that § 10-233d (a) (1) is unconstitutionally vague without first considering whether there exists an alternate common-law or statutory basis for resolving the plaintiffs application for injunctive relief.

Packer v. Board of Education. Judge Sheldon’s hands are tied, I think and he will have to rule on whether 3-124 is constitutional. If there’s anyone up to the task, it’s him.

Strap in, folks. This one’s going to be fun!

[My ringing endorsement of Horton's work is only tempered by his apparently being on the other side of The Big Debate: he prefers to italicize his citations. Readers will know that I do not approve.]

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attorney general, susan bysiewicz

Bye bye Bysiewicz

Apr 6th

Posted by Gideon in ct legal news

2 comments

The transcripts of Susan Bysiewicz’s deposition have been released after her lawyer, the renowned Wesley Horton, conducted a cursory 5 minute search of the relevant law and determined he couldn’t block their dissemination.

It’s not looking good.

“You’ve actually said you’re every bit as qualified as Dick Blumenthal was [in 1991] when he took this position, based upon your legal experience, correct?” Gersten asked during the March 31 desposition.

“Yes,” she answered.

“And you’re aware, aren’t you, that prior to the time Mr. Blumenthal became attorney general, he actually, in contrast to you, appeared in court, correct?”

“Yes,” she said.

“In fact, he tried a bunch of cases, didn’t he?” Gersten said. “You never tried any cases?”

“No,” Bysiewicz said.

Then she was asked a series of ludicrous hypotheticals, the answers to of each of which should have been a resounding no:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

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Bye bye Bysiewicz

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