Category Archives: ct legal news

Juris ‘not a medical’ Doctor

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Hello, Sweetie.

I’ve long joked that my favorite pickup line is “I’m a lawyer, but you can call me Doctor” and I’ve semi-seriously tried to get people to call me Dr. Trumpet for years now. My graduate degree, after all, is the Juris Doctor1. While I may play one on Friday nights, I’d sooner seek the services of one than play a doctor in court, during a trial.

Criminal cases surprisingly involve a variety of medical issues: from gunshot wounds to broken noses to neuroscience to sexually transmitted diseases. While it helps to have a more than basic understanding of how many liters of blood the are in the human body or what posterior and anterior lateral thingy muscle mean, no criminal defense lawyer should purport to try a case with material medical evidence without consulting someone who has actual training in the medicinal arts.

Take trichomonas, for example. How many here know what that is? And if you’re told that the complainant in a sex assault case contracted trichomonas, allegedly from your client, wouldn’t it behoove you contact a medical profession to ask just how likely that is? Continue reading →

Sometimes, undermining confidence is all you need

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Justice delayed is justice denied, goes the saying, but really, we all know that justice delayed is better than no justice at all. And so it may be for Richard Lapointe, whose 20 year old conviction for raping, killing and setting alight his grandmother-in-law has become a cause celebre of sorts for people across the State.

Today, after 4 appeals and 2 habeas corpus petitions¹, he finally received the relief he sought and that many people thought he long deserved. The Appellate Court² issued an opinion [PDF] today ordering a new trial after finding that a Brady violation undermined their confidence in his conviction.

In order to understand the significance of this decision, we must first have a bit of background on the facts of the case: On March 8, 1987, the defendant called the emergency telephone number, 911, to report a fire at the Manchester apartment of the victim. Earlier that day, he and his wife had visited the victim between 2 and 4pm, as was their custom. They returned home where they all remained until approximately 7:45pm when the defendant received a call from the victim’s daughter stating that she hadn’t heard from the victim and asked the defendant to go check on her. Important to note is that the defendant’s wife was giving their son a bath between 6:15 and 7:00pm while Lapointe sat in the living room watching TV. Continue reading →

Fists of fury: shod off

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you wanna come a little closer when you tell me I’m not dangerous?

Bruce Lee, David Carradine, Chuck Norris, The Karate Kid and Jackie Chan would be extremely unhappy with the Connecticut Supreme Court’s decision in State v. LaFleur [PDF], which held, quite sensibly, that bare hands, while possibly quite dangerous, cannot be an “instrument” under CGS 53a-3(7). The definition of dangerous instrument in the statute is:

“Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a “vehicle” as that term is defined in this section and includes a dog that has been commanded to attack, except a dog owned by a law enforcement agency of the state or any political subdivision thereof or of the federal government when such dog is in the performance of its duties under the direct supervision, care and control of an assigned law enforcement officer;

So the question, simply, is whether a fist is a dangerous instrument. In order to get to the correct answer, the court has to get around several declarations in prior caselaw about what a dangerous instrument really is. For example: Continue reading →

How not to represent a client

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Imagine that you represent a man accused of a bank robbery. He is in jail and you’re in your office. You receive a letter from this client in an envelope marked “Legal Mail”. That envelope contains within it another sealed envelope with a letter directing that the second sealed envelope be delivered to the client’s cousin. You:

a. Leave the envelope sealed and tell the client you won’t/can’t send that on, or;

b. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi and tell the client that you won’t forward the letter and that he shouldn’t be sending letters like that, or;

c. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi, turn the letter over to the prosecution, move to withdraw from representation and then testify against the client at his trial.

Corvet T. Williams’ lawyer Dennis Ryan chose option (c). At the criminal trial: Continue reading →

Death on death’s doorstep

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[You should've seen the alternate title I had lined up for this post: Death's Final Countdown.]

In the early morning hours of April 11, 2012, the people of Connecticut, through their elected legislature, decided that they would no longer permit their own to be put to death with the imprimatur of official state action. For those like me, who are abolitionists, it was only half a victory: the measure was prospective only. So while we rejoiced, we did so with caution and measure, because there were still 11 men who could be executed by the State and at least two more who could legally join them on death row.

Even before the ink that formed the Governor’s signature on the “repeal” bill was dry, chatter was building that there would soon be a push to make the repeal retrospective as well. Despite the clear language that this piece of legislation applied only to future crimes, many were skeptical that such a measure could pass constitutional muster. After all, what is more “arbitrary and capricious” than deciding who lives and dies based on a date?

Soon, we will find out if those skeptics were indeed correct. The Connecticut Supreme Court has granted a motion for reconsideration in the death penalty appeal of Eduardo Santiago (who was one of the 11 on death row, but whose death sentence the Supreme Court reversed [PDF] on other grounds in June). Instead of going straight to another penalty phase hearing, Santiago’s lawyer asked the Supreme Court to rule whether the death penalty is even a legal option in his case, given the repeal. The Supreme Court agreed to do so.

There’s also a similar motion pending in the case of Richard Rozkowski, who’s currently awaiting another penalty phase hearing. I wouldn’t be surprised if that were joined with the Santiago appeal at some point.

Meanwhile, the trial of the death penalty on charges of racial and geographic bias continues undeterred this week, despite the abomination that is McCleskey. Professor John C. Donohue’s study here in CT isn’t the only one to find great bias in the application of the death penalty. See this recent paper on a study of one county in California.

Frankly, the conclusion that the death penalty needs to be taken off life support is inescapable to me when viewed the prism of stories like that of Terrance Williams, where 5 jurors signed a letter stating that they were unaware that the alternative to death was life without the possibility of release; or that of Robert Wayne Holsey, whose lead attorney confessed that he drank a quart of vodka every day during the trial, and yet the 11th Circuit upheld [PDF] the death sentence, because nothing would’ve made a difference.

Will it be taken off life support? Or will it be allowed to live, weakened, cowering in a corner, yet poisonous and infecting us all? We’ll find out soon enough.

A quart a day keeps effectiveness at bay.

 

 

State has no guidelines or policies for seeking death

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The first day of the ‘racial and geographic disparity in the death penalty‘ trial ended pretty abruptly today, after the testimony of just the Chief State’s Attorney Kevin Kane. After being peppered with questions about his time as the supervisor of the New London State’s Attorney’s Office and his decisions to seek the death penalty in some cases and not in others, both sides apparently agreed to forgo questioning of all the other 13 chief prosecutors and some former ones in exchange for a stipulation.

While I’m not particularly clear on whether I’m in agreement over forgoing the questioning of the prosecutors and subjecting their decision making to scrutiny, the stipulation gained is a pretty damning one:

That from 1973 until today no written or oral guidelines or policies have been used by states attorneys or chief states attorneys to make decisions on an initial charge, whether to seek the death penalty or whether to reduce a charge.

There is no oversight by chief states attorney over decisions make by states attorneys on whether to seek the death penalty.

Each states attorney makes decisions on charging capital felony and seeking death based on criteria that is appropriate in their case.

Essentially, each judicial district is an island unto itself and each chief prosecutor makes the decision to seek the death penalty based on his or her own view of the aggravating and mitigating factors and his own personal opinion as to the seriousness of the case. While Attorney Kane, as I predicted yesterday, maintained that his decisions were based on the statute itself and factors contained therein, the bottom line remains inescapably that the decision to seek the death penalty is entirely arbitrary. Continue reading →

Racial disparity to finally take center stage

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Starting tomorrow, the geographically and racially arbitrary application of Connecticut’s death penalty will be put on trial in a makeshift courtroom in the state’s only maximum security prison, which, in a twist of unintended irony, is called Northern.

The disparity lawsuit, which I’ve written about for years now, will focus on whether the decision to seek the death penalty in Connecticut courts is influenced by race (duh) and geography (hello, Waterbury). Not surprisingly, this will be a battle of experts: John Donohue, hired by the Office of the Chief Public Defender and some other guy hired by the Office of the Chief State’s Attorney. Here‘s [PDF] the latest version of the study prepared by Donohue and read this prior post for a summary. The New York times created this nifty graphic summarizing the findings of the study:

The trial is also expected to feature the testimony of various State’s Attorneys from across the state as they try to explain their justifications for seeking death in one case as opposed to life in another. There will be mountains of obfuscation and chest-thumping and people will get their backs up, as they are wont to do when their decisions are questioned in the light of racial biases. There will be plenty of explanations provided for choosing one case over the other, perhaps an appeal to the specific emotional tugs of one case or the personal horror of another and lots of indignation and calls to the prosecutors’ sense of duty and justice. And that’s all well and good, but them facts are the facts and it seems that – intentional or otherwise – a systemic bias does exist in this state: you’re more likely to have the death penalty sought against you if your victim is a white female and certainly more so if the crime you commit happens to be within the geographic boundaries of the Judicial District of Waterbury.

No amount of hand-waving or imploring that these are “just good folks conscientiously applying the law” should be allowed to overshadow and hide the fact that the system punishes those whose ethnic status is anything other than “white”.

It is important to remember that a bias need not be explicit: that there need not be an explicit preference for one gender or one race over another. Rather, some biases are insidious and work subconsciously and those, after all, are the most dangerous biases of all.

What this trial is not about, however, is whether the death penalty repeal in Connecticut is to be applied retroactively. That was explicitly rejected by the judge as an additional claim in this lawsuit because goddammit it’s dragged on long enough already or something. Not like that’s probably the most important issue that our courts are going to have to address in the near future or anything. But judicial efficiency and all that.

That the death penalty is sought – and applied – in an arbitrary fashion should really come as no surprise to anyone following this area of jurisprudence with just a little bit of brain power, but will the law – which is always notoriously last in these situations – finally catch up? We’ll find out starting tomorrow.