Category Archives: ct legal news

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.

The lesson is that people are always guilty, even if they’re not.

David R. Cameron, distinguished professor of political science at Yale and a member of the State of Connecticut’s Eyewitness ID Task Force has written one of the most incomprehensible and bizarre opinion columns in the New Haven Register.

The feeling I got after reading that column is similar to the feeling I get after reading briefs written by the prosecution: one struggles for a sizeable chunk of time with where to start in response. As my favorite law professor used to say: it’s not even wrong.

Cameron uses three recent trials in New Haven Part A to illustrate the lesson that more evidence of guilt is better for conviction than lesser evidence of guilt and that without such additional evidence, guilty people will be found not guilty.

No, I’m serious.

Cameron tells us the tale of three trials conducted in recent months, all of which resulted in either acquittals or mistrials. He starts off by presenting unfiltered pro-prosecution evidence in each case:

In October, a jury found Jermaine Scott, 33, not guilty of murdering Marquise Baskin, 26, on June 19, 2010, in a parking lot behind Winchester Avenue. It did so despite the fact that a relative of Scott’s who had taken care of him since he was a child told police in a taped interview that she saw him in the parking lot with a gun, saw flashes of gunfire and heard gunshots.

In November, a jury found Tyrick Warren, 20, not guilty of conspiring with Rajoun Julious to rob John Henry Cates, a 57-year-old homeless man who was murdered on Jan. 3, 2010, near the corner of Huntington and Newhall streets. But it was unable to reach a unanimous verdict on the charges of felony murder and attempted robbery, despite a taped statement in which Warren implicated himself in the crime. The judge declared a mistrial.

And a week ago, Superior Court Judge Jon C. Blue granted a defense motion for acquittal in the trial of Kenta Wilson, 22, for the murder of Timothy Mathis, 25, on Sept. 3, 2011, in a parked car on South Genesee Street on the grounds that the state had not proved its case beyond a reasonable doubt. The motion came after a prosecution witness, Alfonso Dixon, refused to acknowledge that he told the police that several days after the shooting Wilson told friends he shot Mathis. Dixon was sentenced to six months for contempt of court.

He then goes through the rest of the evidence, essentially arguing that there were very good reasons why each judge or jury could not and did not convict the defendant. He boils down the similarities in each to:

But in all three, the prosecutors relied heavily upon a taped statement by an eyewitness, the defendant himself or an acquaintance that unambiguously implicated the defendant only to have the eyewitness, defendant or acquaintance subsequently recant, claim the statement was made under pressure, or refuse to acknowledge having made it.

Just in case you weren’t clear, he doesn’t believe any of this eyewitness recantation pressure nonsense, because clearly no one’s ever falsely confessed or misidentified the perpetrator. It’s understandable that a lay professor isn’t up on wrongful convictions across the country. It’s not like he’s on a task fo-oh.

And then he makes this really absurd conclusion:

However persuasive such statements may sound at the time to investigators and however useful they may be in demonstrating probable cause, they are quite likely to be recanted or otherwise denied later on at trial, especially if they were made by someone who is related to or acquainted with the defendant or by the defendant himself.

It is the fact of kinship that causes recantation, not the possibility that the statement may itself have been obtained under coercive circumstances. Cameron completely ignores this possibility again, so he’s either drunk or trolling everyone with this.

And let’s not forget the lesson he wants the good guys to learn from this:

That means investigators and prosecutors need to realize that judges and/or juries will usually need some corroborating evidence — ideally, forensic evidence — in addition to such statements in order to prove guilt beyond a reasonable doubt; probable cause isn’t enough.

I don’t even know where to start. What is he saying? That confessions aren’t enough because they’re only probable cause, and probable cause is not proof beyond a reasonable doubt?

That prosecutors should “find” some physical evidence because without that murderers and killers are going to go free because they can simply magically say they didn’t do it and juries are so stupid that they automatically believe all recantations?

I’m sorry this post is so rambling, but I literally do not know how to comprehend and deconstruct the vast amount of stupid that is this opinion column.

Wouldn’t it have made more sense for his opinion column to be about reminding prosecutors and police that they should only pursue cases in which there is proof beyond a reasonable doubt and to not try to convict people who are quite apparently not guilty?

That’s not what he writes, though, because surprisingly for someone who comes from his position, he too is of the all too common mindset that once police and prosecutors arrest someone, we have full faith that they’ve got the right person and all that’s left is a matter of meeting the ministerial burden of proof BRD and any prosecution that fails to meet that pro forma hurdle is a victim of cheating, dishonest witnesses and incompetent juries and “liberal” judges.

Never once does he demonstrate the understanding that maybe, just maybe, in each instance the verdict was the just one and the only one that upheld the integrity of the legal system.

But shit like that doesn’t get you on task forces now, does it?

 

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I’d love to see them. Further, if you’re a legislator, request updated statistics from OLR – specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Has no public official in Connecticut heard of the First Amendment?

Why not?

Why not?

It seems, as with other parts of the Constitution, elected and appointment members of the executive branches in the Constitution State have but a passing familiarity with the First Amendment to the Constitution of the United States1.

Just so we’re all on the same level playing field, that first Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In New York Times Co. v. United States2, Justice Hugo Black wrote:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

The press today takes many forms: it takes the form of traditional newspapers like the Danbury News-Times and it takes the form of dedicated, intrepid bloggers like Alfonso Robinson who runs both the HatCity Blog and My Left Nutmeg.