Category Archives: ct legal news

Judge imposes blanket internet ban on sex offender

Right on the heels of my post last week1 about a North Carolina Court of Appeals ruling holding that the state’s social media ban for sex offenders was unconstitutional, a judge right here in the idyllic town of Vernon, CT2 has apparently ordered a man to stay off the internet for the entire period of his 10 year probation.

Just, all of it. No emails, no Youtube, no Facebook, no Facebook, no Facebook, no Twitter, no Tumblr or Kickstarter or whatever the hell these kids are watching these days. Heck, no New York Times or CNN or Hartford Courant or WhiteHouse.Gov or SignThisEPetition.Com or whatever the web will become in 4 years’ time which is when he will get out of jail3.

Gregory Lindsey was sentenced to 10 years, suspended after 4 years in jail, followed by 10 years probation for possession of child pornography in the second degree, which is a subject I wrote about just the other day.

Disentitling your rights

In doing the math for this post on the rate of success in the CT Supreme Court, I ran across this opinion, again by the Chief Justice, in the matter of State v. William Brabham [PDF]. It’s one of those opinions that’s a slow boil, so I put it on the backburner, until my outrage was sparked again1 by this recent opinion from the CT Appellate Court in Saksena v. Commissioner [PDF].

If you needed more proof of the fact that our “Constitutional rights” are but a mirage, provenanced from the goodwill of those entrusted with the enforcement and application of those rights. They are more grants of favor by judges than inexorable and inimical fundamental rights.

How else would you explain the frequency and ease with which violations of these fundamental rights are dispensed with, overlooked and excused?

Take, for example, the aforementioned Brabham. Brabham was, to be sure, a lout. He was also an absconder. He wasn’t, shall we say, the most honest person. He was charged with larceny and burglary, so he decided to do what seemed logical: run. Then:

After the jury returned its verdict, but before sentencing, the defendant posted bond and fled to London, England. As a result, the defendant failed to appear for sentencing on September 22, 2000. He later was rearrested and returned to Connecticut. The defendant’s sentencing  was set for March 26, 2004, but before that date, he once again posted bond and fled to London, England,  and again, did not appear for sentencing. The defendant again was rearrested, and on November 18, 2008, he was sentenced to a total effective sentence of fifteen years imprisonment. This appeal followed.

On appeal, he claimed, among other things, that the State had failed to prove his guilt beyond a reasonable doubt and the judge had failed to properly instruct jurors. So these arguments, if successful, would undermine the reliability of the conviction, implicating due process.

But he ran. And we don’t like people who run. And the fact of his running apparently outweighs the reality of his conviction being unconstitutional. There is such a thing as the fugitive disentitlement doctrine.

What it means, basically, is that if you’re charged by the State and a jury convicts you, no matter how erroneously or unlawfully, your illegal, tainted conviction will stand because fuck you. No one shows up the State and gets away with it.

Keep in mind that Brabham wasn’t on the lam when this appeal was heard: he was in custody serving an obscenely inflated sentence2. There is an argument to be made that a defendant who is on the run isn’t entitled to an appeal while he’s on the run. Fair. I disagree in principle, but in effect, I might be inclined to agree. This is not that case. Here, he’s in the State, sentenced to an outrageous sentence (see footnote 3 above).

The court listed the 43 rationales for “fugitive disentitlement”. They are:

(1) the judgment on review may be impossible to enforce because the prisoner has escaped, (2) the  prisoner’s escape disentitles him to call upon the resources of the [c]ourt for determination of his claims, (3) dismissal will [discourage] the felony of escape and [encourage] voluntary surrenders, and (4) dismissal will [promote] the efficient, dignified operation of the courts.

The court rejects the first three rationales and instead adopts the FDD for that fourth reason “efficient, dignified operation” of the courts.

Seriously. Are you laughing yet? I don’t even know what that means. The court then makes up some nonsense about how since he was gone for so long, a few exhibits went missing so they can’t rule on whether the state actually proved beyond a reasonable doubt that he was guilty of breaking into some dude’s office. Seriously. Do you see what we have to deal with here in Connecticut?

[Yes, okay, he shouldn't run. Yes, okay, there has to be some disincentive. But those rationales were rejected by the Court.]

But that’s not all. That merely brings us to Saksena v. Commissioner, which I mentioned above. That’s a habeas corpus case in which the opinion lists the only claim as being that he was not properly advised of immigration consequences pursuant to Padilla v. Kentucky. Until you look at the footnotes4. Footnote 1 says:

The petitioner also claims that the habeas court erred when it proceeded to trial without him present in contravention of his due process rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, Practice Book § 23-40, and General Statutes § 52-470. For reasons set forth in this opinion, we conclude that any error by the habeas court in proceeding to trial without the petitioner present was harmless.

My laughter has turned to tears. In case you don’t get the irony in this, let me spell it out for you.

Habeas Corpus is Latinese for… you have the body. It is a Latin phrase literally commanding the warden to present the physical body of the petitioner and answer why his conviction is legal.

I swear to God sometimes I think I’m living inside an Onion article. In Saksena, he was transferred to ICE custody for deportation purposes and was held in MA. They’d transport him to CT for his trial if the CT judge ordered it, but the CT judge refused to do so5. So, Saksena’s “bring the body” trial was held without the body.

And of course, the Constitutional violation doesn’t matter because he was guilty anyway.

 

Clarifying the problems with mandatory-minimums: why it’s okay to let them go

Over the weekend, Susan Bigelow at CT News Junkie had a fantastic op-ed piece arguing that Connecticut should follow AG Holder’s lead1 and revisit its use of mandatory minimum sentences.

Susan writes:

Just as important as efforts on the federal level, however, are criminal justice reforms we can and should implement here at home. The number of prisoners held in Connecticut’s facilities has, for a number of reasons, dropped from all-time highs in 2007 and 2008, but those levels are still high considering the drop in violent crime that’s occurred over the past decade. Also, the parole reforms enacted after the Cheshire murders in 2007 have contributed to the reversal of recent declines in prison population, meaning fewer prisoners are being released.

That’s accurate, with some recent reporting by The CT Mirror showing that numbers have gone up and overcrowding is a problem again, driven in large part by “reforms” to parole laws. Susan argues that in the next legislative session, we should “reform” mandatory-minimums or,  better yet, do away with them altogether.

There’s nothing to reform. Mandatory-minimums are a dangerous power to give to prosecutors. The results of that power being wielded in a heavy-handed way are evident in the war on drugs. It’s taken decades for the Attorney General of the United States to recognize that mandatory-mininum sentences have a terribly disproportionate impact on racial minorities.

In Connecticut, mandatory-minimums apply if you’re selling drugs within 1500 feet of a school or public housing project. Repeated efforts over the last few years to reduce that “drug-free zone” to 200 or 300 feet have failed.

Take a guess as to who is most impacted by this mandatory-minimum sentence2? You know where you can’t stand without being within 1500 feet of a school or public housing project? That’s right. Connecticut’s urban cities (that’s a post from 2007, by the way. We’ve been dithering over this common sense reform for six fucking years).

Mandatory-minimums are also dangerous because they are a chain that binds the hands of judges who seek to do justice and are a weapon in the hands of prosecutors who want to be unreasonable and unjust.

In Connecticut, prosecutors determine the charges to be filed and pursued. A judge, short of dismissal of a charge for legal reasons, cannot alter the charges filed by a prosecutor. Judges, on the other hand, can indicate a sentence they would impose, which can differ from a prosecutor’s recommended sentence.

So let’s say that a judge thinks an assault charge is worth a prison sentence of two years; the victim doesn’t want to the defendant to go to jail and there is no real long-term injury to any party. The defendant is a young man, with little or no criminal record and the state’s case is iffy at best.

But a gun was used in the assault, so the prosecutor charges Assault in the First Degree, which carries a mandatory sentence of 5 years. Now, no one thinks that a 5-year sentence is appropriate, except the prosecutor, but no one can do anything about it, including the judge and/or victim. Maybe the prosecutor doesn’t like the defendant, maybe she doesn’t like the defense lawyer, maybe she doesn’t like the judge or doesn’t like the system. Who knows.

But the point is that the prosecutor can hijack “fairness” in the process by “sticking” on a mandatory-minimum.

Mandatory-minimums are set by the legislature, based on precise calculations made using actuarial tables and deep meditation pulling numbers out of their ass. Most don’t have any experience in the day-to-day operation of the criminal justice system and base their ideas of “justice” and “fairness” on fairytales Law and Order. To be fair, when we’re resolving cases, we also pull numbers out of our ass, but at least our asses are attuned to the range of widely accepted resolutions.

But legislators, in someone’s infinite wisdom, have selected arbitrary numbers and have decreed not only maximum punishments, but also minimum punishments, sometimes in abject disregard for the realities of the criminal justice system.

Eliminating mandatory-minimums would do only one thing: eliminate the minimum. It would do nothing to the maximum. But it would allow judges the flexibility of making fair determinations of the appropriate sentence to be imposed, not hindered by an over-charging prosecutor. If a case is “worth” 2 years, a defendant should get a sentence of 2 years. But if a case is worth 8 years, he will get 8 years. Eliminating mandatory-minimums does nothing to alter that possibility.

Instead of a range of 5-20 years, the range simply becomes 0-20 years and a judge is free to sentence anywhere between those two numbers.

Finally, as I’ve said before, CT’s mandatory-minimum scheme has a weird interaction with its juvenile sentencing scheme, resulting in 14 year old children being tried in adult court as adult criminals and sentenced to mandatory ten years in jail. Juveniles – children – are different than the rest of us. The science is incontrovertible and established and even the United States Supreme Court has acknowledged this distinction. They deserve a second chance. While states across the country are considering altering their laws to comply with the Supreme Court, a bipartisan bill that would have done just that was defeated in the State legislature.

Because people are afraid:

“There seems to be some notion that mandatory minimum sentences make us safer and that moving away from them makes us less safe,” [State Rep. Gary] Holder-Winfield said, highlighting a stale leftover from the tough-on-crime rhetoric of the 1980s and 1990s. More people in prison doesn’t equal a safer or more just state, especially not when so many lives are being destroyed in the process.

People who commit crimes should be punished. But they should be punished fairly and proportionate to their crime. They should also be punished in a manner that is proportional to others who have committed similar crimes. They should also be punished in a manner taking into account their individual facts and circumstances.

Smart on crime means all of that. It means treating people as human beings. “Tough on crime” means being afraid of everything that isn’t you and condemning vast numbers of people because you’re scared. Tough on crime is simply continuing the narrow-minded racist policies that got us where we are today: staggering numbers of children and low-level non-violent drug offenders serving significant prison sentences, while our jails burst at the seam, corrections swallows the largest portion of our state’s budget and a trail of destroyed lives and families in its wake.

It’s time to stop being stupid on crime and start being smart on it. Eliminating mandatory-minimums is a step in the right direction.

It’s criminal!: An (updated) analysis of CT Supreme Ct opinions

not an actual judge

not an actual judge1

The last time I did this superficial analysis2 was three years ago. Let’s see what the Court has been up to since then, shall we?

First, some ground rules:

I may have missed one or two cases. Further, if you add up all the various numbers they might be off by one. It was difficult to figure out how to categorize partial “wins”. In a few cases I didn’t count them entirely, while in others I counted them. The percentages, however, should be unaffected by this. I’ve also ignored one which was deemed “moot”, so while I counted that in the stats for certification granted, I haven’t counted it in the verdict column. I also ignored the capital cases.

Further, I’ve compiled the number of times a Justice wrote a majority opinion or a dissenting opinion. I have not included, in each justice’s tally, every time they signed on to a majority, but I have counted each time they signed onto a dissent.

So, the stats from April 2010 till today:

In that time period, the Supreme Court decided approximately 137 cases dealing with criminal law.

Of those 137 cases, 81 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 81 direct appeals, 68 were affirmances of convictions. That’s a remarkable 84% success rate for the Government’s position.

Of the 56 cases that went through the Appellate Court, the State was given permission to appeal in 24 cases, the defendant in 32 (this is a change from three years ago, when the State was given permission to appeal in more cases than the defendant. Does this mean that the State had less occasion to appeal? I don’t know).

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

  • When the State appealed a reversal of a conviction (25 times in all), the Appellate Court was affirmed 8 times, meaning the State was the loser in only 32% of the cases it chose to appeal.
  • When the defendant appealed an affirmance of a conviction (which he did 32 times), the Appellate Court was affirmed 25 times, meaning the defendant was the loser in 78% of the cases he chose to appeal.
  • When the defendant appealed an affirmance of a conviction (32), the Appellate Court was reversed a paltry 6 times, meaning the defendant “won” in only 22% of the cases he chose to appeal, and the big kahuna:
  • When the State appealed a reversal of a conviction, the Appellate Court was reversed 16 times.

So, in 24 cases where there was an appeal from the Appellate Court’s reversal of a conviction, the State won 16 times, which is 66%.

The Appellate Court was reversed by the Supreme Court in 22 cases out of 56, which is a 40% failure rate, down slightly from the 50% failure rate in 2010.

But there were far more affirmances of convictions being appealed by defendants than 3 years so, so that might account for the drop in percentages.

Of the reversals, the defendant “lost” 72.2% of the time. A conviction upheld by the Appellate Court was upheld by the Supreme Court 76% of the time.

A defendant was successful in the Supreme Court in only 14 out of 56 cases, which is a paltry 25% success rate. [Keep in mind that I have included partial wins as wins.]

Overall, out of the 137 criminal-ish cases considered by the Supreme Court, the defendant was ultimately successful in getting either an acquittal or new trial in 27 cases, which is a 19% rate of success. By contrast, the State “won” in 81% of all cases considered by the Supreme Court.

So, in the end, the overall “win” and “loss” numbers are pretty identical to those three years ago. What that means is that appeals are rarely successful.

Here are the stats on which justice wrote a majority or dissenting opinion, and how many times:

Justices Writing to Affirm Conviction:

Norcott: 20
Palmer: 14
Zarella: 13
Rogers: 13
Eveleigh: 10
Harper: 10
McLachlan: 8
Vertefeuille: 7
Katz: 6
McDonald: 2
Espinosa: 2

Justices Writing to Reverse Conviction:

Palmer: 6
Eveleigh: 5
Rogers: 4
Norcott: 3
Harper: 3
McLachlan: 2
Vertefeuille: 1
Katz: 2

Dissents to affirming conviction:

Palmer: 8
Eveleigh: 4
Katz: 2
Vertefeuille: 1
Harper: 1

Dissents to reversing conviction:

Zarella: 6
Palmer: 5
Rogers: 3
Eveleigh: 3
Vertefeuille: 3
Norcott: 2
McLachlan: 1
Harper: 1

Footnotes:

The problem with the justice system (in a nutshell)

While doing an updated analysis of this post, I came across this “concurrence” [PDF] by the Chief Justice of the CT Supreme Court that perfectly encapsulates everything that is wrong with our “justice” system. Here it is, in its entirety:

ROGERS, C. J., concurring. I agree with the majority’s conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court’s decision in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered  question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.

Those 6 lines make me want to throw up.

The defendant claims that the jury was not told that the State had to prove an essential element of a crime. Imagine, for example, the scenario that in order to find a person guilty of stabbing someone else, the judge doesn’t tell the jury that they have to find that the victim actually got stabbed. That’s an “essential element of the crime”.

That’s what the defendant is arguing the jury wasn’t told about. But no. We (the Appellate Courts) don’t care, because we elevate form over substance. We are a bureaucracy first and a judiciary second.

Kitchens is a case that says if a defense lawyer doesn’t specifically request X or Y – even if the absence of X or Y would be a gross Constitutional violation – we don’t care and the person can rot in jail. Too bad.

The second part of that paragraph is even worse.

Courts are – we would hope – entrusted with the administration of justice. They are – or should be – charged with, in the end, doing what is right and what is just and fair. They should be zealously and jealously guarding our rights and our protections, not running roughshod over them in an attempt to adhere religiously to some overwrought ideal of being an umpire first and an inspiring jurist never.

Plain error. Error that is plain to see. Error that is apparent to everyone. A mistake that has so infected the trial that it cannot have been fair.

Except now it is not available unless you “request” it. The defense attorney has to fill out a form in triplicate, signed by your mother, asking permission, pretty please, could you acknowledge the existence of the manifest error that you clearly know is there but pretend not to. And then, maybe then, we will deem it worthy of our review. Until that time, we are quite okay with a conviction obtained by a trial infected with Constitutional error.

This is what “justice” has come to.

The error of their ways should be plain for everyone to see.

CT: New rule for jurors and media

New Rule for Jurors: Don’t listen to media coverage about the case you’re serving on and if you do, let a judge know.

Oh? That’s not so new, you say? Well, welcome to CT, where yesterday is 1950 and tomorrow might be the landing on the moon.

Roughly 30 years after the invention of the internet and about 15 years after the invention of internet comments, the CT Supreme Court has issued an order [PDF] directing all trial court judges to instruct jurors after they’re selected that they have to avoid all media coverage.

This all came about in a civil case that was really contentious 1 and the New York Times published an in-depth article about the case. The plaintiff got mad and asked to poll 2 the jury if anyone had read it. But by this time the jury was already seated, because in CT, in civil trials, the judge doesn’t sit on the bench for jury selection. Seriously. He’s got other “judicial business” to attend to, while civil lawyers civilly agree on jurors. Bizarre. Anyway. The judge refused because, I don’t know. 3

The Supreme Court, while not agreeing that the trial court should have inquired into whether anyone was exposed to the media, nonetheless said that going forward trial courts should give an instruction to disregard the media and inquire into it, if brought to their attention. Because logic.

So they exercise their supervisory authority, which means, “we decree”:

Pursuant to our supervisory authority, we now direct all trial judges in this state to enforce the following policy when presiding over a jury trial: immediately after each juror is selected, he or she must be instructed by the court, either orally or in a written order from the presiding judge, which the juror must read and sign  before leaving the courthouse, that: (1) his or her sworn duty as a juror will be to decide the factual issues of the case for which he or she has been selected based only upon the evidence presented at trial; (2) consistent with that duty, he or she must avoid all publicity about the case and all communications to or from anyone about the case or any issues arising in it; and (3) if he or she is exposed to any such publicity or communications despite his or her best efforts to follow this instruction to avoid it, he or she must immediately inform the court about the exposure in writing, without advising any other jurors about the fact or the nature of the exposure, so that the court can follow up, as necessary, with him or her and/or other jurors, to protect the parties’ right to a fair trial.

Welcome to 2005.

Free after 17 years

Late yesterday afternoon, 4 men walked out of the New Haven, CT criminal courthouse, free men for the first time in 17 years. Earlier in the day, they got to stand in court and hear the judge say that all charges against them were dismissed.

17 years ago, Sean Adams, Darcus Henry, Carlos Ashe and Johnny Johnson were charged with, tried and convicted of the murder of one Jason Smith and the shooting of Andre Clark. They all were sentenced to prison terms of over 75 years.

The main evidence against them at trial was the testimony of Andre Clark. Andre Clark, however, was himself the defendant in several other criminal charges. Prior to the Adams’ trial (I’m going to use Adams as shorthand for all the rest), Clark had pled guilty in that same New Haven courthouse and instead of facing 35-38 years in jail, had entered into an agreement that would cap his sentence at 4 years, with a right to argue for less in exchange for his testimony against Adams.

Clark testified against Adams. Under intense cross-examination, Clark denied that he had pled guilty, or had any deal with the prosecutor or had any expectation of leniency in exchange for testifying. In other words, he flat out lied. No prosecutor uttered a word to correct him.

It’s not like even with Clark, the State’s case was strong. From the Supreme Court opinion reversing their convictions [PDF]:

Finally, the fact that the evidence against the petitioner was hardly overwhelming is borne out by the  apparent difficulty that the jury had in deciding the case. The jury deliberated for ten days before reaching a verdict on the petitioner’s charges. Moreover, the jury could not reach a unanimous verdict on any of the charges against two of the petitioner’s three codefendants, resulting in a mistrial as to them, and before reaching its guilty verdicts as to the petitioner and Henry, the jury requested that the testimony of Ogman, Andre, and Charles Clark be read back. Although not necessarily dispositive of the issue of the strength of  the state’s evidence, the foregoing considerations support the conclusion that the jury viewed the case as a  relatively close one.

Prosecutors have an independent an affirmative duty under Brady v. Maryland to disclose biases that witnesses might have if it could lead to their impeachment on the witness stand. A plea agreement for a significantly favorable sentence in exchange for testimony in another trial certainly qualifies as such. If there was any doubt that he received favorable treatment, it was dispelled at his own sentencing:

Although the court originally set sentencing for February 19, 1999, Andre was  not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December  14, 1996 shooting, including the petitioner’s trial.At  Andre’s sentencing hearing, [the prosecutor] recommended that the court vacate Andre’s pleas on two of the charges  and impose an unconditional discharge on the third charge. In support of this request, [he] observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. . . . He’s been enormously cooperative.’’

But here, there were two prosecutors: one prosecuting Adams and one prosecuting Clark. They set up a sort of “firewall” between themselves, agreeing not to talk to each other about the other’s case. So when Clark testified at Adams’ trial that he had no agreement, that prosecutor didn’t actually know if that was untrue.

But that’s not good enough, said the Supreme Court – and the State agreed on appeal:

Of course, as the respondent now concedes, the state certainly did have a duty to disclose  Andre’s plea agreement, no less than it had a duty to correct Andre’s false testimony denying its existence, because the prospect of a lenient sentence gave Andre an incentive to curry favor with the state and the sentencing judge, an incentive that the petitioner and his codefendants were entitled to explore on cross-examination. See, e.g., State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010) (‘‘[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence’’ [internal quotation marks  omitted]); see also DuBose v. Lefevre, 619 F.2d 973, 979 (2d Cir. 1980)  (‘‘[u]nquestionably, agreements . . . to reward testimony by consideration create an incentive on the witness’ part to testify favorably to the [s]tate  and the existence of such an understanding is important for purposes of  impeachment’’)

Having found that there was a Constitutional violation and that the evidence was material to the trial, the Supreme Court had no choice but to vacate the convictions and return the matters to the trial court.

And that’s where we started, as did Adams and his co-defendants. And now they’re back. To start a new life; maybe a different life.

“I’m overcome with joy,” said Johnson’s mom, Gloria, after hugging her son.

“Justice finally prevailed,” declared Adams. “I don’t have time to feel bitter or hate. I’m just glad it’s over and done with.” He held onto his daughter as he moved through the crowd. “Finally, I get to be with her,” he said. “She was born while I was in jail.”

Darcus Henry has two 14-year-old sons, both of whose lives he’s missed out on.  “I feel like justice is served,” said Henry as he hugged Darcus, Jr.