Category Archives: ct legal news

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.

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?