ct legal news

CT’s top death prosecutor in federal probe

Aug 10th

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!

attorney general, susan bysiewicz

It’s 5 p.m. Do you know where your bills are?

Mar 29th

Posted by Gideon in ct legal news

1 comment

Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.

There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).

Good news:

The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.

In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)

Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.

For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.

The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.

An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.

Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.

The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.

Bad news:

I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).

The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.

A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.

For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.

I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?

Judge for a day – IV

Mar 24th

Posted by Gideon in ct legal news

8 comments

“Tring tring”

“Hello, how may I help you today?”

“One robbery, please.”

“For here or to go?”

“To go, please.”

“Okay, your total is one smack on the head, plus tax.”

Fine, so that’s not exactly how the conversation went when two would-be robbers called a local bank and informed the person on the phone that they would be stopping by in a few to pick up their order of cash.

“You can’t make this stuff up,” Sgt. James Perez, Fairfield police spokesman, told the Post. “They literally called the bank and said to have the bag of money ready on the floor because they’re coming to rob the place.”

Then, true to their word, they showed up – just as police were coming to greet them.

One is a 16-year old juvenile and the other, 27, is on probation for – wait for it – robbing a bank. Prison may not have cured him of his bank-robber-itis, but it sure did teach him some manners.

[This is just an extreme example of the dire mopiness of most of our clients. An overwhelming number of clients that we here at 'a public defender' represent are sad souls, lost in the quagmire of a dead end life. Most aren't very educated and very few are even street savvy. They're just fools, for the most part, who make bad mistakes without thinking of the consequences. Drugs, alcohol and poverty play a significant role in their motivations for committing crimes. Very few of them, however, have the common courtesy to call ahead.]

So it’s time to return to one of my favorite games: judge for a day (previous installments here, here, here and here). Imagine you’re the judge who is to affix a sentence to those two simpletons. You know what I know: one is a juvenile (assume that he his record is non-existent or minimal) and the other is somewhat older and on probation for robbing a bank. Also assume that the older guy owes about 5 years on probation.

Your options are: a nolle, some form of alternative to incarceration program (see 53a-39a to 39d and other diversionary programs start here), probation for a misdemeanor, conditional discharge for a misdemeanor, probation for a felony or a CD for a felony, or just straight up time in the slammer with or without probation.

The robbery statutes are from here on down and the larceny statutes start here. The terms of incarceration are here and terms of probation are here.

So, Judge Intrepid Reader, how would you dispense your justice?

A few stray thoughts

Mar 23rd

Posted by Gideon in ct legal news

3 comments

the metaphor, stupid

Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.

[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]

The habeas corpus effective suspension and evisceration bill

Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.

Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.

But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.

The second premise of the state’s position is all the more confusing and confounding.

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

To allay the fears of the few who rightly questioned the evisceration of such an important and time-honored Constitutional right, the state has inserted several “exceptions” into the bill that would apparently provide a mechanism whereby petitioners can get review of meritorious claims despite missing the statute of limitations and/or having filed prior habeas corpus petitions.

But the onus in all of those exceptions falls squarely on the shoulders of indigent, incarcerated inmates. When asked, for example, how the inmate could make a showing that there were facts that would lead a court to believe there was a chance that the petition was meritorious, the CSA replied that the petitioner could submit an affidavit of facts, that a court would then consider.

And just how is an inmate to do that? Counsel would not be appointed at that stage, so the petitioner would have no access to resources to effectuate such an affidavit. How is he to send people out into the community to investigate the merit to his claims? How is he to present them in a legally effective manner to a judge? Courts routinely insist that defendants and petitioners should not represent themselves and yet here we place this onerous burden, even in cases alleging actual innocence on an incarcerated inmate.

Not one legislator pointed out, much to my dismay, that the Courts would have the same amount of work, just clothed in a different garb. Instead of ruling on the merits of the petitioner’s claims, the court would rule on the merits to decide if there was merit. And then presumably rule again? The fact that this will only lead to more litigation should be obvious to everyone.

Also to my dismay, not one legislator challenged the sound-bite claim that victims are routinely dragged out to habeas corpus hearings, many years later and forced to face a retrial of sorts. In fact, at around 1:03:00 on the video, Judiciary Committee Co-Chair Mike Lawlor parrots the State’s position that “we can trot thousands of victims in here” who are notified that there is a habeas pending and they may be called to testify. Does it sound terrible? Yes. Does it happen? Almost rarely.

In fact, I can’t think of any case that I know of where the victim was called to testify at the habeas trial. There is maybe one scenario in which a victim may be called to testify. Perhaps this is something for which statistics cannot be kept. Still, someone should challenge this fearmongering argument, because it will quickly fall apart, instead of blindly accepting it as true. It simply is not true.

And as an aside, even if a victim is called to testify at a habeas trial, we should not use that as an excuse to curtail the basic Constitutional right to challenge the legality of one’s conviction. The slight inconvenience experienced by any such victim should necessarily take a back seat to the monumental interest in determining whether a person has been unlawfully and illegally deprived of his liberty.

The residency “you hate children or you love terrorists” restrictions bill

The testimony on this bill starts at around 03:14:10 on the video. The main testimony in support of the bill comes from State Rep. Rebimbas. Now, she does not represent my district, I hadn’t heard of her existence prior to Monday and I’ve never, ever spoken to the woman. I’m sure she does a fine job representing her district.

But.

Either she’s horribly assisted by aides who gave her incorrect information, or she misspoke or she intentionally fudged so many things to the committee that it made my head spin.

Two big points here as well: 1) The 2000 feet residency restriction zone is not overly restrictive; and 2) Sex offender recidivism is the highest.

Those who are regular readers of this blog know that residency restrictions are a pet peeve of mine (I even have a category dedicated to it). They are ineffective, useless and only tend to drive sex offenders underground.

At 3:41:00 (approx.) she says that 2000 feet is not overly restrictive “because it’s less than half a mile”. Putting aside the fact that 2000 feet is not less than half a mile, 2000 feet would put Connecticut into the group of most restrictive states. Per this 2007 OLR report, most states have residency restriction zones less than 2000 feet. The only states with a restriction of 2000 feet are Alabama, Arkansas, Iowa (whose County Attorneys issued this statement in 2006 against residency restrictions) and Oklahoma. So 2000 feet would be the most restrictive legislation in the country.

At approx 03:47:00, a legislator hits upon the biggest problem with the residency restrictions in urban cities. There’s a map of places covered by a 1500 feet restriction in the city of New Haven. The only place in the entire city of New Haven that is not within 1500 feet of a school or daycare is in the middle of the Yale golf course. Increase that radius to 2000 feet and there’s nowhere in any of CT’s large cities where sex offenders could reside. (See this post for another map and more on this.)

You should also listen to her evasive bullshit response to Rep. Holder-Winfield at approx 03:53:02 on the question of which, if any, states had restrictions greater than 2000 feet.

What’s the upshot of that? Sex offenders move into rural areas. Mike Lawlor joked at one point that he’s not sure how the rural legislators would feel about that. We all know how Southbury crapped the bed when one sex offender moved in. Imagine a whole busload of them.

In her long winded and vacuous answer to the question about where these sex offenders would go, the Rep. responded by repeating the easily refuted claim that sex offenders are very likely to reoffend and that “we’re protecting the children”. I’m not sure how many times I’m going to have to cite to the studies that show 1) that 95% of sex crimes are committed by people known to the victim and 2) that sex offenders have very low recidivism rates.

When pushed (at 03:55:03) about her numbers on recidivism, she didn’t have any handy, but “her numbers show that there are high recidivism rates”.

Look, I’m not sure if she knows all the answers or what. The point here is that this is dangerous legislation and should only be discussed, much less voted upon, with the full knowledge of the facts. Legislators needs to read all the studies in this area, arm themselves with accurate and reliable facts and then have a long and honest discussion about whether residency restrictions are needed in Connecticut.

The reality is that there already do exist residency restrictions and those are in the form of conditions of probation. When a defendant is on probation, they own him. They control what he wears, what he breathes and more importantly where he lives. Every client that I have, who is convicted of a sex offense, has some form of residency restriction built into his conditions.

Poorly thought out laws should have no place in our penal code, much less ones proposed based on knee-jerk fearmongering. Trotting out the children to pass terrible legislation is akin to the “if you’re against the war, you’re for the terrorists” mantra.

We must refuse to cower blindly to imaginary fears.

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Sex-y times at the state lege

Mar 18th

Posted by Gideon in ct legal news

4 comments

It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.

During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).

S.B. No. 33 An act concerning the registration of sexual offenders

This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.

S.B. No. 34 An act concerning computer crimes against children

This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:

or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.

In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.

S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.

Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.

H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.

That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.

The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.

The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.

The “good, I guess”: A violation is only a Class A misdemeanor.

H.B. No. 5533 (RAISED) AAC sexting.

Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.

Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.

The Limp Writ

Mar 18th

Posted by Gideon in ct legal news

3 comments

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:

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

Section 1. (NEW) (Effective October 1, 2010) The provisions of sections 2 to 6, inclusive, of this act apply to any application for a writ of habeas corpus filed on or after the effective date of this section that is brought by or on behalf of a person who (1) claims to be illegally confined or deprived of his or her liberty as a result of a conviction of an offense, as defined in section 53a-24 of the general statutes, or a motor vehicle violation for which a term of imprisonment may be imposed, and is challenging the validity of the conviction or sentence imposed, [...]

Yes, this bill would be effective immediately and apply to all new habeas petitions and apply retroactively. So if an inmate decides to file a petition tomorrow for a conviction obtained in 2004, the SOL would apply. Is the concept of notice so novel to the legislature that they cannot grasp the implications of this? Increase litigation 10-fold.

Sec. 2. (NEW) (Effective October 1, 2010) Except for the remedies of appeal, petition for a new trial, sentence review in accordance with section 51-196 of the general statutes or sentence reduction or discharge in accordance with section 53a-39 of the general statutes and the authority of the sentencing court at common law to correct an illegal sentence, the remedy of habeas corpus as provided in sections 1 to 6, inclusive, of this act shall be used exclusively in lieu of all common law, statutory or other remedies available prior to the effective date of this section for challenging the validity of a conviction, sentence or commitment.

This is a frightening provision. Perhaps unintentionally so. What it does, immediately, is eliminate the Writ of Error Coram Nobis. WECN (I made up that abbreviation; you are free to use it) is an extraordinary remedy to be applied only when no other avenue is available. Combine that with the forthcoming section on the statute of limitations for the Great Writ and the effect is that for some people, there will be absolutely no avenue to seek redress for a Constitutional violation.

In addition to that, this section also seeks to eliminate the statutory Motion for New Trial (not to be confused with the Petition for New Trial), which must be filed shortly after a verdict of guilt. This gets a +5 on the “more litigation” scale.

Serenity now.

Sec. 3. (NEW) (Effective October 1, 2010) (a) No application for a writ of habeas corpus challenging the validity of a conviction, sentence or commitment shall be brought except within: (1) Three years after the date that the sentence was imposed or the commitment ordered, or (2) one year after the date of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the denial of a petition for a writ of certiorari to the Supreme Court of the United States or issuance of said court’s final order following the granting of such petition; whichever is later.

This is the big kahuna. The SOL is introduced into state habeas corpus petitions, where none existed before. But note the end of that provision: the SOL is one year from the denial or granting of cert by SCOTUS. So if the United States Supreme Court grants an inmate’s petition for certiorari, the SOL still continues to run! Bueller?! Bueller!???!? What. The. Fuck.?

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if the applicant establishes due diligence in presenting the claim and:

(1) The applicant establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) The applicant alleges the existence of newly discovered evidence, including scientific evidence, that could not have been discovered by the exercise of due diligence by the applicant or the applicant’s counsel prior to the expiration of the three-year period for the filing of an application for a writ of habeas corpus, is not for impeachment purposes and would establish that the applicant is actually innocent of the offense or offenses for which the applicant was convicted or committed;

(3) The applicant’s claim for relief is based upon a new interpretation of federal or state constitutional law by either the Supreme Court of the United States or the Supreme Court of this state that is retroactively applicable to cases on collateral review; or

(4) The applicant establishes that the evidence on which the claim is based was in the exclusive possession of the state and not otherwise available to the applicant, was not disclosed prior to the expiration of the time periods set forth in subsection (a) of this section, is favorable to the applicant and is material to the applicant’s guilt or punishment.

Due Diligence. I don’t know what that means. Do you? cough*morelitigation*cough. Subsection (2) is so mind-numbingly stupid that I can only fairly criticize the “not for impeachment purposes” clause. The legislature is purporting to tell a court of equity what types of evidence it may consider? The litigation meter just went to 100.

Subsection (3) is also evidence that this bill was drafted by a prosecutor non-lawyer. The United States Supreme Court has, on several occasions, applied new interpretations of criminal statutes retroactively [I once wrote a brief on that damn issue].

On the more litigation front: Who decides all this anyway? Does a Court? If a court decides this, is it prior to the filing of the Great Writ, or after? Or is it in purgatory? Is counsel appointed? Is counsel appointed provisionally? Can this be appealed? If it is appealed, is counsel provided? There is a right to counsel, after all. Oh yay!

Suspension of the Writ

Read the following section and tell me how this is not a suspension* of the Great Writ for some:

Sec. 4. (NEW) (Effective October 1, 2010) (a) A claim for relief raised in an application for a writ of habeas corpus, or in an amended application, shall be barred and no court may decide the claim if:

(1) It was raised and decided, either on the merits or on procedural grounds, in any earlier proceeding; or

(2) It could have been raised but was not raised:

(A) At any time prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment;

(B) In a direct appeal from the proceeding that resulted in the applicant’s sentence or commitment; or

(C) In a previous habeas corpus proceeding challenging the same sentence or commitment.

I’ll give you an example of the idiocy of 4(1): an inmate files a sentence modification and his grounds for the modification are that his conviction is illegal and thus he should have no sentence at all. A trial court, rightly, says, “sir, you are crazy, go file a habeas”.

Mr. Not-So-Smart-Inmate goes to habeas court where it is barred because it was decided on procedural grounds in a prior proceeding. This is so flatly contrary to mountains of state and federal Constitutional law that I have half a mind to go to the public hearing on Monday and just scream into the microphone, following the advice of Anouilh.

You want even more litigation? I’ll give you more litigation:

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if:

(1) The applicant demonstrates good cause for his or her failure to raise the specific claim in the earlier proceedings and sets forth sufficient facts to demonstrate a reasonable likelihood that, if the facts are viewed in a light most favorable to the applicant, the claim or claims will succeed on the merits. For purposes of this subdivision, an applicant demonstrates good cause by identifying an objective factor external to the defense that impeded his or her ability to raise the specific claim during the earlier proceedings, or by proving the ineffectiveness of counsel in failing to raise the specific claim prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment, or on direct appeal;

A) Who is going to decide, prior to deciding the merits of the claim, whether there is a “reasonable likelihood that the claim will succeed on the merits”? A judge, that’s who. So…why…I mean…umm…what?

B) Is counsel going to be appointed? Or is this going to be pro-se? And what if a judge decides that the claim can proceed because there’s a reasonable likelihood that it will succeed and then denies it?

C) Demonstration of good cause that there was an objective factor: who decides this? A judge – repeat A and B above. Make sure you lather well.

D) Ineffective assistance of counsel is good cause to proceed, but who decide – oh what the hell, I can’t play this game anymore.

Sec. 5. (NEW) (Effective October 1, 2010)

(b) The ineffectiveness of any counsel who represented the applicant in an earlier habeas corpus proceeding shall not be a ground for relief in a second or subsequent application.

100 magic brownies to whoever points out how unconstitutional and stupid this is in the funniest way possible. To those that may not understand it, I provide a big hint: Right to Counsel = Right to Effective Assistance of Counsel. Quod Erat Demonstrandum .

This post has gone on long enough so I won’t reproduce Section 6, but I will tell you that it is merely another “gatekeeping” provision. That makes it, what, the 3rd? We screen the screen that screens the claim, deciding whether to get to a full hearing. Each stage is appealable (and believe me, it will be appealed). Wouldn’t it be simpler to just have the damn hearing?

The bottom line

Yes, there’s a bottom line. And that is this: this bill “streamlines” habeas corpus procedures in the State of Connecticut in the same way Mount Everest placed atop the Space Shuttle would streamline it. Which is to say, not at all.

I wouldn’t be surprised, if this bill passed, that the State would have to provide greater resources to the State’s Attorney’s office and the Public Defender’s office to litigate every step of the process. And at the end of that litigation, most of this garbage bill would be struck down as unconstitutional anyway.

Many of the “provisions” of this bill are already law: procedural default, cause and prejudice, motions to dismiss, motions for summary judgment. Moving these restrictions from their proper place – during the pendency of the proceedings – to a newly created space prior to the institution of proceedings is nothing but another way to increase litigation and create backlogs and nightmares where none exist.

My version of a “habeas reform” bill

What? You thought I didn’t have an idea of my own? I thought you knew me better than that.

Section 1. The right of access to the Great Writ shall be inviolate.

Section 2. All State’s Attorneys charged with defending against petitions for writs of habeas corpus are required to file Motions to Dismiss and Motions for Summary Judgment in all applicable cases.

Section 3. All Special Public Defenders, appointed to represent inmates in petitions for writ of habeas corpus, shall be paid a flat fee per case, regardless of whether a hearing is conducted on the merits of the petition or not.

Section 4. A second or subsequent petition challenging the same conviction that was challenged in a prior habeas petition adjudicated on the merits shall be automatically subject to a motion to dismiss. If the petitioner, through counsel, can establish that there exists good cause for raising new claims challenging the same conviction, then the petition shall be permitted to proceed. Otherwise, it shall be dismissed.

Fin.

[The opening paragraphs of this post have been lifted, word for word, from this law review article. The principles are articulated so well there, that it would be a shame for me to try and reproduce them in my meandering style.]

*Yes, I realize I’m being a bit dramatic here. But.

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The Adam Walsh fearmongering and bleeding money Act

Feb 10th

Posted by Gideon in Adam Walsh Act

2 comments

I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
The rules for exemption from registration are putrid and hollow.
The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
The retroactive application of the registration requirements, which are already being successfully challenged.
The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:

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

Sec. 8. (NEW) (Effective October 1, 2010) Any person who has reason to believe that a registrant is in violation of registration requirements and who, with intent to assist the registrant in eluding a law enforcement officer in the investigation or enforcement of such violation, (1) withholds information from, or does not notify, the law enforcement officer about the registrant’s noncompliance with such requirements and, if known, the whereabouts of the registrant, (2) harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the registrant, (3) conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the registrant, (4) knowingly provides false information regarding the registrant, (5) obstructs or hinders the law enforcement officer in the performance of such officer’s official duties relative to the investigation or enforcement of such violation, or (6) falsely represents the registrant by signing address verification forms or other official documentation relative to the registration of sexual offenders, shall be guilty of a class D felony.

At first glance, the statute seems to be somewhat restricted in its application, proscribing active hindering or deception. But there is much potential for abuse here. For example, when is a “law enforcement officer in the investigation of such a violation”? Is it automatically assumed, that once a registration lapses on the 90th day or the 181st day, that an officer would begin to investigate the noncompliance?

And how is one to be held liable for not notifying, if one is unaware that an “active investigation” is underway? The word “notify” signifies an affirmative duty on the part of the individual with knowledge of non-compliance. So does this create a requirement and place a responsibility on all of us to notify law enforcement as soon as we become aware that someone we know is not in compliance? Are we being asked to spy and snitch on one another?

This statute ignores many of the realities surrounding sex offenders: an overwhelming percentage of offenders are known to their victims, are members of their family, etc. In a lot of cases, the people just want to move on, to try and reconcile, to forgive and forget. Especially after the defendant has served his sentence and been reunited with his family. Now this places the difficult choice in the hands of the family members or new loved ones: risk exposing the one you love to further incarceration or yourself to that same penalty.

Why can’t we keep policing to the police? And why is not snitching a crime only when it comes to sex offenders? Why not a bill that covers all crimes and failure to report information pertinent to a crime?

The AWA is a bloated piece of crap, which moves the state of our legislation in exactly the opposite direction of where it needs to go. It ignores the realities of recidivism, of risks and generally and spectacularly fails to recognize the individual circumstances that surround each offense and instead lumps people together into pseudo-homogenous categories where none apply.

But here, in the liberal Northeast’s southernmost state, it is de rigueur.

[For more, see this and Sex Crimes' AWA page.]

[The silly bill is No. 33. In order to counter the vicious hate directed at No. 33, I give you something beautiful: K 333.]

http://www.youtube.com/watch?v=mGDmy50k-Qk&NR=1

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