Category Archives: ct legal news

Death penalty in CT still alive

Pardon the pun, but the state’s abolition of the death penalty in 2012 was always an incomplete measure, in part because of the 10 or so men on death row who weren’t pardoned by abolition and because of the one remaining pending capital case of Richard Roszkowski.

Roszkowski killed three people, but got the death penalty for only the killing of one of them: 9-year old Kylie Flannery. This was the second penalty phase trial for him, the first also having ended with a death sentence, but that was reversed by the trial judge because of incorrect jury instructions.

It’s quite illogical to argue that our standards of decency have so evolved that we no longer consider death an appropriate punishment in the State of Connecticut, except for those people who committed their offenses before a certain date.

Ironically, I’ve been told that Roszkowski’s lawyers weren’t allowed to argue to the jury that the State has abolished the death penalty and thus they shouldn’t impose a sentence of death.

I guess when you get the taste of blood in your mouth, it’s really hard to let go.

And so now we have yet another deeply mentally disturbed man on death row, over whose murder we will spend decades and millions of dollars.

Because vengeance is more important. And killing is wrong. So we must kill to enforce that message.

Under new proposed law, no one in CT can accidentally download child porn

There can be little doubt that abuse of children has been the cause du jour. Children do get abused and used and should be protected. To that end, there’s a new bill in the CT legislature that seeks to make several “technical changes” to the child pornography laws, but which actually makes it impossible for anyone to avoid a five year minimum prison sentence, no matter how one came into possession of the video.

There’s a growing discussion among those who observe the effects of the harsh punishment meted out by our black-and-white justice system on the people who are the subject of these zero-tolerance laws: the similar treatment of those who engage in sexual behavior with children and those who, without ever touching a child, view pictures and videos of children in sexual situations or engaging in sexual acts.

In other words, people are starting to realize that the two situations are disparate and should be treated as such. For one thing, the federal sentencing guidelines are over-the-top and maddeningly inconsistent. For instance:

Prosecution by installment: the King Bruce theory

King Bruce of Scotland, you will recall, was a king driven into exile by those damn British. During the course of this, he was taking refuge in a cave, defeated, when he chanced upon a spider which was unable to spin a web, presumably having nothing to do with the fact that it was Scottish and hence drunk. So it tried and failed and tried and failed until it finally succeeded, which gave the Good King Bruce an epiphany that if you try enough times you will eventually succeed at what you want. He then promptly defeated the British and Scotland has been an independent country ever since but he doesn’t get nearly all the credit that Mel Gibson does presumably because he wasn’t wearing blue war paint.

I know what you were thinking. Pervert.

Just last week, the Connecticut Appellate Court issued an opinion [PDF] endorsing the ‘King Bruce’ theory of prosecutions: try as many times as you want. But in order to understand the opinion in State v. Brundage II, you have to start at the beginning with State v. Brundage I.

In the beginning, Brundage was a creep. Over a period of roughly 8 years, he allegedly sexually assaulted his then-girlfriend’s daughter. The girlfriend ended the relationship in 2003 and the girl finally reported the abuse in 2007.

He was charged by the prosecution with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury to a Minor. Out of all the possible crimes available to them, these are the two they chose to proceed on. Brundage, on cue, got convicted and was sentenced to a long time in jail.

Except he appealed, claiming that the criminal charges were actually barred by the statute of limitations. On appeal, the prosecution and the Appellate Court agreed that all charges for all incidents occurring prior to 2003 were barred and could not be prosecuted:

Mama said knock you out

ll-cool-j

What can be more frightening to the innocent man walking down a city street, minding his own business, when a bunch of thugs comes out of nowhere, and for no apparent reason, violently strikes that innocent man causing him physical injury?

Nothing, which is why there was widespread panic last year about the emergence of a new activity that further signaled the moral decay of America’s urban youth: the knockout game.

A game in which seemingly innocent people were randomly targeted to be punched in the head for no other reason than apparent boredom on the part of the hooligans.

And so it comes as no surprise that this viral act of violence that has put fear into the minds and hearts of innocent city working folk and has caused our urban areas to become veritable fields of random assaults has brought about a strict new legislative fix: by God we’ll fix ‘em.

The new bill, proposed by legislator and Police Officer Joe Verrengia of West Hartford, CT, would make a “knockout” punch a felony punishable by up to 5 years in jail1. The bill states (and I’ve reproduced the entire section because context is relevant):

(a) A person is guilty of assault in the second degree when:

(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

(2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or

(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or

(5) he is a parolee from a correctional institution and with intent to cause physical injury to an employee or member of the Board of Pardons and Paroles, he causes physical injury to such employee or member; or

(6) with intent to cause the loss of consciousness of another person, he causes such injury to such person by a single punch or kick or other singular striking motion.

As you can see from the entire statute reproduced above, (6) is redundant. We must, of course, concede that “loss of consciousness” is “serious physical injury”. Putting aside caselaw that states that a fist or shoe can indeed be a dangerous instrument (thus covering subsections 2 and/or 3), subsection (6) seeks to carve out a specific subset of subsection (1), i.e. causing of serious physical injury. Subsection (1) has no restrictions on the type of injury (loss of consciousness) or the manner in which it is caused (single punch or kick).

So, simply put, (6) is useless. But that’s not all. The bill would make a conviction of subsection (6) have a mandatory prison sentence of at least 2 years.

Because getting a warrant is just so tedious. Grumble

“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause.1Warrants based on probable cause are, like, so “tedious”, he followed up2. Further:

“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.

“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.

Defining the role of appellate courts

Dan Klau points, rather diplomatically, to a Connecticut Supreme Court opinion issued today [PDF] which he lost. It’s a civil case, but what sucked me in was his description of the issues in the case, which fits right in with the theme of complaints that I have with this present Supreme Court:

In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative. In short, can and should appellate courts raise and decide unpreserved issues sua sponte?

Today, the Connecticut Supreme Court ruled that yes, it could very well decide appeals based on issues that it raised on its own and that no one thought of at the trial level and that weren’t preserved or properly briefed or that the trial judge had no opportunity to consider.

Okay, that’ll be the last of the snark for today, because it actually is a really interesting and important opinion written by Justice Palmer.

The issues were divided up by the Court as follows:

Can Woody Allen still be prosecuted?

I’m sure everyone’s read and talked about Woody Allen recently, what with his award and then Dylan Farrow’s open letter in the NY Times reminding everyone that ‘hey, this guy sexually molested me’.

Allen has rejected these claims again and reminded the world that a Connecticut prosecutor investigated the allegations and declined to pursue charges.

It ain’t gonna happen. He’s not gonna get reprosecuted. But, for purely academic purposes, could he?

That depends on a few things: mainly the facts of the allegations and the dates of the allegations. Assuming that the incidents were alleged to have occurred in 1992, the statute of limitation in effect at the time was 5 years for a sexual assault. That means the SOL ran out in 1997 and Sexual Assault in the First Degree, a Class B felony, is no longer a viable option.

There’s a new statute of limitations (none) for sex assault crimes with DNA evidence, but that wouldn’t apply here, nor would the Supreme Court’s convoluted rules for “lapsed” and “non-lapsed” statutes of limitation in Connecticut1

UConn Law Criminal Clinic professor Todd Fernow agrees:

The passage of time has likely barred the possibility Allen could be prosecuted on sexual abuse charges, said Todd Fernow, a law professor at the University of Connecticut. Under Connecticut law, the statute of limitations for all but the most serious sexual crimes lasts for five years from when a police report is filed, which if applied to Dylan Farrow’s claim of having been abused in 1992 would have run until 1997, Fernow said.

So does the original prosecutor who declined to pursue the allegations:

Connecticut state prosecutor Frank Maco in 1993 declined to bring charges against Allen and retired in 2003. He declined to speculate on Sunday about whether a criminal case could be brought based on the allegations Dylan Farrow has outlined.  But he added that whether the statute of limitations had passed would depend on several factors including the nature of the evidence and changes in the law in the past decade.  Maco said that he examined the question before he retired and did not believe then a criminal case was still possible. “When I left office, I was satisfied that the statute of limitations had long run in that case,” he said.

But a friend posed the question just the other day: can Allen be prosecuted for something else? That something else being the Class A felony – for which there is no statute of limitations – of kidnapping in the first degree.

Specifically, kidnapping in the first degree provides that:

(a) A person is guilty of kidnapping in the first degree when he abducts another person and: (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony;

In order to convict someone of Kidnapping in the first degree, the prosecution must prove beyond a reasonable doubt that a person “abducted” another person2 and then further restrained the abducted person in order to rape the victim.

So the question is, could Allen be guilty of this? The answer, in my opinion, is it depends. It would depend specifically on the facts of the allegations: did Farrow allege that Allen shoved her in a car and drove her to an abandoned building on the outskirts of town and there touched her? Or is the allegation that when she was in his house, he would touch her sexually?

These factual distinctions are critical because in 2008, the Connecticut Supreme Court clarified the requirements of Kidnapping in the First Degree, ruling that restraint that is required for the commission of another felony and is merely incidental is not kidnapping. In other words, the restraint of liberty must be over and above and independent of any restraint that is required to commit sexual assault.

But this, of course, is a deeply factual scenario. Clients have been convicted of kidnapping for preventing the victim from leaving the room so as to enable them to sexually assault the victim and they have been convicted of dragging a victim to the back of an alley to perform a sexual assault.

As I said, I don’t think anything will come of it at this stage, but the possibility certainly exists, however academic, that a prosecution for kidnapping might be viable.