Category Archives: ct legal news

The Harmless Writ: whether you get due process depends on how guilty you are

In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ [of habeas corpus] “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the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which, if withdrawn, “risk[s] injury to an important interest in human liberty.”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.”

Taken, once again, from this law review article [PDF]. To those who don’t know, a petition for writ of habeas corpus is a post-conviction1 avenue to challenge the legality of their incarceration.

As the legendary Judge Weinstein quoted in his report on 500 habeas corpus cases:

The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

Because, at one point in time, in this country and this legal system, we valued the process as much as the outcome. We placed emphasis on doing things correctly, because we possibly recognized that we all weren’t so blissfully immune from the powerful crosshairs of a runaway government. To that end, judges across the various states and in the federal system were given broad authority to hear these “habeas petitions” challenging the legality of convictions.

Concomitantly, they were given broad powers to fashion remedies, because the harm caused by a violation of a Constitutional right must be made whole as completely as possible.

In Hilton v. Braunskill, Chief Justice Rehnquist wrote

Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

So, for example:

Riggs v. Fairman, 399 F.3d 1179 (9th Cir.2005), a district court has considerable discretion in fashioning a remedy tailored to the injury suffered from the constitutional violation, and a court must consider the unique facts and circumstances of a particular case; Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla.2002), a court granting a writ of habeas corpus may also issue an injunction in aid of the writ; Gall v. Parker, 231 F.3d 265 (6th Cir.2000), a habeas court has broad discretion in fashioning habeas relief; Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992), a district court may exercise its broad authority in habeas cases to grant any relief it deems necessary, including 638*638 permanent discharge of a successful habeas petitioner; Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), federal courts have largest power to control and direct the form of judgment entered in cases brought up on habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.1981), where appropriate, a habeas court may grant injunctive, declaratory and mandatory relief; Hobson v. Murray, 485 F.Supp. 1340 (E.D.Va.1980), federal courts are not narrowly restricted in fashioning an appropriate remedy on granting petition for writ of federal habeas corpus relief but instead, the court is charged to dispose of the matter as law and justice require; U.S. ex. rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3rd Cir.1973), immediate and unconditional release is not the only remedy available in a habeas corpus proceeding.

Gentry v. Deuth. In Connecticut, this power, which derives from the habeas corpus court being a “court of equity” is identical to the power of the federal court. There are a set of statutes in this state, duly enacted by the legislature, that create special “habeas corpus courts”2 In CT, the legislature deemed it efficient to consolidate all these petitions in one courthouse in Rockville and assign 2-3 judges there to hear and dispose of all these cases. When I say “habeas court”, I’m referring to a judge assigned to sit as a habeas judge by the administration of the judicial branch. Once a judge has been administratively assigned to assume that role for a period of 2 or 3 years3, the judge takes on the duties, responsibilities and powers of the habeas corpus court which are given to it either by the common law (all the quotes above) or by statute, which states:

(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require.

Emphasis added by me. Because as of today, that bolded portion is functionally excised from the law books and placed in the metaphorical trash heap which the CT Supreme Court is doing a fine job of filling with your and my individual rights and liberties.

In a decision today [PDF] in H.P.T. v. Commissioner that is one in a long line of utterly confused and confusing decisions about what, exactly, one must do in order to correct a Constitutional wrong when it comes to bad advice given by an individual’s lawyer, the court effectively divests these “habeas corpus” courts of their long-standing and inherent power to fashion the appropriate remedy.

This supreme court, for some reason, has gotten it into its head for over a decade now, that impartial habeas courts whose job is to determine whether a person has been “accorded due process”, not to sit and once again decide “whether he is guilty” are the wrong jurists to determine just what is to be done once they have decided that there was no due process.

A habeas court, generally, decides three things:

  1. Was there a Constitutional violation?
  2. Was there harm to the individual?
  3. How do we fix it?

There is absolutely no precedent whatsoever for questions 1 & 2 to be decided by one court and question 3 to be answered by another court altogether. And yet here we are in CT where this is precisely what has happened.

Here’s what the court wrote:

the proper remedy remains the same in most cases, namely, remanding the case to the trial court, which is vested with the discretion to [return the individual to pre-harm status]

Except, as we have seen just above, it is the habeas court, not the trial court that is “vested with the discretion”.

In order for its proposition, this opinion in H.P.T. cites only two cases4. One is its own opinion from last year in Ebron v. Commissioner, which is based primarily on a (deliberate?) misreading of Lafler and Frye and Lafler itself. The problem is that the SCOTUS cases of Lafler and Frye deal with setups where the trial court and the habeas court are one and the same, which is clearly not the scenario here in Connecticut.

So, in this opinion today, the CT Supreme Court has, without being asked to or without any due consideration, effectively repealed a statute duly passed by the State legislature. It has done so for one reason and one reason only:

In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court.

In other words, because the trial judge will know if he’s a really bad guy who needs to be locked up. The beauty of having an independent court not only evaluate the harm, but then also direct the remedy is that by virtue of being independent, the court has no stake in the game. It is not being asked to second guess or explain its own decision making.

Remember that the trial judge is the one that presided over the case when it was initially pending. This is the judge who may have ruled on discovery requests and, more importantly, conveyed plea bargain offers to the individual’s lawyer. This is the judge who was informed of the vagaries of the case and the strength of the evidence of guilt, or lack thereof. This is a judge who has formed an opinion of the individual’s guilt.

The supreme court says today, in stark contrast to centuries of habeas corpus jurisprudence, that guilt is relevant to determining whether an individual should be afforded the protection of the Constitution against illegal convictions.

The court affirms that as long as someone is guilty, it doesn’t matter how that conviction was obtained.

A Constitutional harm is being weighed not against the principle that was violated or the actual harm caused to an individual, but against the character of that person.

What this decision today does, is give rise to a scenario where questions 1 and 2 above may be answered in the affirmative and question 3 may be answered by a judge with an emotional stake in the outcome who might proffer a middle finger by way of remedy.

We may end up with a situation with absolutely no relief for a proven Constitutional violation. A harm without a remedy is no harm at all.

This court has managed to take the “best and only sufficient defense of personal freedom” and turn it into a harmless piece of paper.

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Restoring sanity to child sex cases

For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.

There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.

Not my town-itis: Norwich, CT edition

It seems, does it not, that sex offender hysteria has died down a bit? The outrageous calls for inhumane residency restrictions seem to have abated1. Except CT. You see, Connecticut never did succumb to the grip of the madness, relentless rejecting calls for residency restrictions2. But we’re not to be outdone, because if there’s anything that CT is good at, it’s doing things late.

So after the town of Montville got its panties in a bunch in 2010 over a sex offender treatment house that was scheduled to open3, there really hasn’t been much noise here about this.

Enter Norwalk, New London, Norwich, CT. I’m telling you this news article reads like a cut and paste job from many similar news articles years ago. First, you have the children:

Norwich residents are concerned about the number of sex offenders in town, several of which are concentrated in a neighborhood full of children and teens.

What’s concentrated, you ask? They’re hoping you’ve stopped paying attention after that first sentence and are now fuming in your living room, hurling obscenities at Obama, liberals and the Devil:

According to police, four of the city’s 75 registered sex offenders live on a stretch of Central Avenue, which borders a park in the Greeneville section of town.

Sound of record scratching from 80s sitcoms.

Four. Out of Seventy-Five. Live on a “stretch” of road which “borders” a park. Cue quote from parent:

“I’m appalled,” said Norwich resident Melanie Silva. “I’m a parent of four. This playground here is a hub for teenage and young children.”

Oh man, Silva is appalled. I bet some perp showed her his penis or something:

Silva said she hasn’t had any direct contact with the sex offenders, and neither has her personal trainer, Jessica Doubleday, who opened a studio in a garage facing the park.

At this point, any self-respecting journalist would walk away after rolling her eyes and mouthing, “get the f*ck out”. But, of course, this is Connecticut journalism we’re talking about, so strap in.

But this park is apparently the arboreal embodiment of the bogeyman:

“There’s no lighting in this playground, there’s no bathrooms in this playground, and there’s people walking around with open-bottled liquor and there’s people walking around that are selling drugs, and it’s very obvious,” she said.

And then failed to explain just what, exactly, was so “very obvious”, because I have no clue what she’s talking about or – more importantly and here I’m bringing this lesson back, kids – what the motherloving hell this has to do with sex offenders.

“With that many people around that are sex offenders, you never know when something is gonna happen,” she said.

Nope. Still no clue what she’s referring to. Because, Ms. Silva and Doubleday. Let me let you in on a secret. Come closer. Closer still. I’ll whisper in your ear:

There are sex offenders among us. Every day. You see them. They see you! BOO! Happy Hallooween.

But no faux outrage story in Connecticut would be complete with a legislator trying to re-reinvent the wheel:

Norwich officials met Monday with State Sen. Cathy Osten of Sprague, who is pushing for reform and hopes to to develop proposals by late winter.

“We will be looking at the rules revolving around parole and probation to see what we can impact there,” said Osten.

“Many of the sex offenders that are identified are not controlled by the state any longer.”

Osten said some are beyond probation or parole and are living with family or on their own. She said she also wants to see more information reported on the state police website regarding the sex offenders’ crimes.

Forget a sex offender registry. I want a dumb legislator registry. An independently maintained list of idiotic comments by our elected officials, so I know whom to avoid the next time I’m at the legislature.

Sherman Screwed Skakel: New trial ordered

Well. This is something I never thought I’d type, but Michael Skakel has just had his convictions reversed and a new trial ordered [PDF] by former Appellate Court judge Thomas Bishop1, who was designated to preside over and adjudicate Skakel’s petition for writ of habeas corpus.

The allegations revolve mostly around Skakel’s representation by famed celebrity lawyer Mickey Sherman, in that Skakel alleges that Sherman did a terrible job representing him.

See, the Constitution not only requires that you have a lawyer, but that you have a lawyer who is competent and whose performance is within the norm2.

And that makes sense: what good is a lawyer if the lawyer performs terribly, is asleep and incompetent and completely mucks up your case? The lawyer must be required to act in an universally acceptable way.

So Skakel alleged that Sherman did many things wrong. In support of his allegations, he presented the testimony of three very respected Connecticut lawyers, all of whom seemed to have some very choice things to say about Sherman’s performance.

In a very lengthy, detailed and thorough opinion, Judge Bishop finds in Skakel’s favor on most of the serious allegations of ineffective assistance.

In other words, Sherman did a piss poor job of representing Skakel and that piss-poor representation deprived Skakel of his Constitutionally protected right to effective assistance of counsel and there is a reasonable likelihood that his piss-poor representation led to Skakel’s conviction.

Before I go any further, some background: Skakel is some rich and politically powerful dude (“a Kennedy cousin”) who was 15 years old when his neighbor – a 15 year old girl – was found bludgeoned to death. About 23 years later, in 1998, a grand jury was convened and in 2000 Skakel was charged with the murder.

Although a juvenile at time of the murder, he was tried as an adult. But lest you think this is a case of one brand of justice for the rich and one for the poor, let me explain to you that Skakel got screwed.

They’ve fucked him at every step. 15 at the time of the murder and should legally have been in juvenile court? No worries, we’ll just rule that sure that may be but now he’s an adult so he should be tried as an adult. Easy. Oh what’s that, you say? The statute of limitations ran out 20 years ago? No problem, we’ll just create a brand new rule out of our asses whole cloth that statutes of limitations don’t expire if the legislature changes statutes of limitations while they’re still running. Or something. Did we throw enough legal words at you so now you’re confused and have no idea what we said? Yes? Good. Go away. Don’t look here any more.

So, no. He hasn’t gotten preferential treatment from Connecticut courts. In fact, if anything, it seems to be almost the opposite3.

Judge Bishop finds that Sherman was ineffective in some pretty serious ways: first, that he failed to argue to the jury that there was someone else who had committed the crime – Thomas Skakel, Michael’s brother. Judge Bishop has this to say:

Attorney Sherman’s failure to point an accusatory finger at T. Skakel was and is inexplicable. Given the evidence of T. Skakel’s culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel.

He further finds that there was an independent, detached reliable alibi witness Dennis Ossorio, who would’ve testified that Skakel was at his house around the time of the murder. This was not investigated or presented to the jury.

Equally damning is the Sherman’s failure to undermine the state’s star witness: Gregory Coleman who alleged that Skakel had made some specific confessions to him about murdering Moxley. Judge Bishop found that there were several other witnesses who would’ve testified that Coleman was a liar, proud to be a liar and that some of the described encounters with Skakel never occurred.

Sherman’s handling of the trial and his attitude throughout can best be summed up by this quote of Attorney Michael Fitzpatrick, one of Skakel’s experts:

Sherman’s failure…was a significant strategic error born of an overabundance of self-satisfaction with his [performance]

Here’s something I didn’t know: after closing arguments, but before the judge instructed the jury on the law, the trial judge had to specifically instruct the jurors that several comments made by Attorney Sherman were improper and they should ignore those comments. I can tell you that I’ve never seen that happen in relation to a defense attorney’s closing argument.

The real question, of course, is whether this will survive appellate review. I think the fact that it clocks in at 136 pages already gives the ruling a strong chance of survival4. Think of the work it will take to undo it. It’s possible – and if there ever was a case where it would happen, it would be this – but I think it’s somewhat unlikely. Further bolstering its chances are the other parts of the ruling where Judge Bishop finds either that Sherman did nothing wrong or that he did, but it didn’t affect the trial.

However one cannot come away without the sense that Sherman’s performance was so below par that it fundamentally affected the reliability of the outcome and called into question the fairness of the trial.

And that is something we should all be concerned about, whether the defendant is a Kennedy cousin or just your cousin.

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1,532

One Thousand, Five Hundred and Thirty Two. According to this 2012 report, that’s how many crimes there are in Connecticut that carry a punishment of incarceration.

That’s three crimes a day for 510 days. That’s a cumulative 60 billion years of incarceration1.

And that’s about 1475 more than anyone’s ever read or paid attention to.

There are crimes in there that need to be crimes – murder and the like – and crimes that maybe nobody can dispute but you still wonder if it’s necessary – practicing psychology without a license2;

and crimes that make you go “huh?” – did you know that gas stations are required to provide free air, much less that a second conviction for failing to do so can send you to jail for 6 months?;

and crimes that are pretty clearly written for special interest groups – for instance, spreading a rumor that is derogatory to the financial condition of a bank3;

and crimes that are so horribly written that they only way they can continue to exist is only by judicial re-working and interpreting and salvaging4;

and crimes that really, really cannot be crimes:

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

This is a 1949 statute that doesn’t seem to have any case citations. Barring some sort of escape hatch hidden in “by his advertisement”, I can’t see how his statute passes First Amendment muster.

But yet, there it is, exposing every day citizens like you and me to 30 days in jail.

The top of the statutory scheme, with the obvious felonies isn’t in issue here (besides the stupid Risk of Injury). It’s at the bottom of the chart, where the punishments are a year and under that the fun lies.

As Jeremy points out, ignorance of the law is no excuse. What have you been guilty of?

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Clearly unclear and unequivocally equivocal

The Hitchhiker’s Guide to the Galaxy describes Vogons as:

[O]ne of the most unpleasant races in the galaxy – not actually evil, but bad tempered, bureaucratic, officious and callous. They wouldn’t even lift a finger to save their own grandmothers from the Ravenous Bugblatter Beast of Traal without an order, signed in triplicate, sent in, sent back, queried, lost, found, subjected to public enquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.

There is no way that Douglas Adams, when he created the Vogons, would have the foresight to know of the CT Supreme Court. But in his description of the Vogons, he has also put into words the most precise description of this State’s highest court1.

They’re not evil. They’re bureaucratic.

And they certainly won’t lift a finger unless every request you’ve made is signed in triplicate and somehow magically predicts the spot to the which they’re going to move the target and then manages to hit it perfectly, while following all the rules they’ve subsequently made up.

Some of their opinions are much like Vogon poems:

Vogon poetry is of course, the third worst in the universe. The second worst is that of the Azgoths of Kria. During a recitation by their poet master Grunthos the Flatulent of his poem “Ode to a Small Lump of Green Putty I Found in My Armpit One Midsummer Morning”, four of his audience died of internal hemorrhaging and the president of the Mid-Galactic Arts Nobbling Council survived only by gnawing one of his own legs off. Grunthos was reported to have been “disappointed” by the poem’s reception, and was about to embark on a reading of his 12-book epic entitled “My Favourite Bathtime Gurgles” when his own major intestine–in a desperate attempt to save life itself-leapt straight up through his neck and throttled his brain.

So pretty much how I feel after reading CT Supreme Court opinions. Like this one from yesterday [PDF].

Meet Michael Pires, Sr2. Pires was a VeryBadMan©, guilty of murder. Michael Pires also had a big problem with his lawyer. In a word, he didn’t like her. So he tried, on many occasions to fire her. The problem is, that he didn’t hire her to begin with, so the upside-down law says that you can’t fire someone you didn’t hire.

As a poor person who couldn’t afford private counsel to defend a murder charge – and let’s be honest, unless you live in Fairfield County or the East End of Long Island, you can’t afford a private attorney to represent you on a murder charge – he was appointed a public defender.

And once you have counsel foisted upon you, you’re stuck with that attorney no matter how much you hate him or her. Because that’s what you get for free.

Now there is an alternative, which is usually used as a stick to make the carrot of the infuriating counsel-who-can’t-be-fired more attractive: represent yo’self! After all, Faretta v. California says that it a core Constitutional right to be permitted to represent oneself.

In order to exercise that right, you have to inform the Court somehow that you want to. That’s fair and logical. You can’t be afforded a right that you don’t express you want to exercise.

So, what did Pires do, after rounds of headbutting with his LawyerWhoCouldn’tBeFired? He apparently told her he wanted to represent himself. Which she duly conveyed to the court:

I did go downstairs and attempt to talk to [the defendant]. He did want to discuss strategy with me. He indicated now that he wishes to represent himself in this matter. I informed him that I didn’t think Your Honor was going to allow him to represent himself on a murder charge simply because that would be much too dangerous and it would not be in his best interest. And that’s about where we stand, Your Honor.

Putting aside the fact that counsel’s advice was blatantly wrong, she is alerting the court “that he wishes to represent himself in this matter”.

Now. Imagine you’re the CT Supreme Court. A court that has increasingly become reliant on procedural rules to deny VeryBadPeople new trials. A court that has become so reluctant to judge whether rights have been violated that it makes a tortoise stuck in its shell look like Evel Knievel.

So what do you do? Well 5 of them decided that his “request” wasn’t “a clear and unequivocal invocation” of his right to self-representation.

At this point, I’m just inclined to throw up my hands and say “I don’t even know anymore”. How can “he indicated now that he wishes to represent himself” not be a “clear and unequivocal invocation”?

I mean, surely there must be some rules in place to deal with situations where unsophisticated defendants make fumbling assertions of their individual rights, much less so clear and unequivocal?

Why yes, yes there are. Articulated by this very court, just last year in State v. Jordan:

Although a clear and unequivocal request is required, there is no standard form it must take. “[A] defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to [that] request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.”

Ask the damn question. If a lawyer or defendant tells you he wants to represent himself, how long does it take to ask him a few questions? Really? Why is everything a game?

Chief Justice Rogers, who wrote Jordan, dissents in Pires [PDF] saying essentially the same thing she said before: that requests for self-representation can be made through counsel and that this is as clear as they come.

The unfortunate reality, however, is that the die has long been cast. The lasting legacy of the “Rogers court” will be their systematic destruction of modes of review. For those who don’t know what I mean, I’m referring to the methods by which appellate courts, whose job it is to ensure that trials were conducted fairly and according to the law and rules of court, determine whether that was done.

If improper evidence was admitted, a new trial may be warranted. If Due Process was violated, a new trial may be warranted. If a judge or lawyer makes a mistake that results in the violation of rights, remedies must be issued. We used to value the protections built into our system more than we valued the result. But now, we value procedure over all else.

So if you are on trial and the judge admits some very improper and damaging evidence against you, evidence that the jury should have under no circumstances heard or considered, and your lawyer didn’t object either because she was asleep or frenzied or scared or incompetent, our appellate courts will refuse to remedy that wrong, because proper procedure wasn’t followed.

It’s akin to doctors refusing to perform surgery because there isn’t a signature on the requisition form for the lightbulbs that are in the operating room.

There is a silver lining, though: maybe someday soon the Court will start to get it. There are fresh faces on the court and more to come. Maybe people will start to realize how narrow appellate review has become. That maybe elevating finality and form over substance has negative consequences for society as a whole.

Well, if not, then we can always go have a drink at the Restaurant at the End of the Universe.

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