ct state law
Objects in mirror are as pretextual as they appear
Aug 9th
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turn left and go directly to jail
Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”
Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”
A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.
Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:
The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.
Racial ridicule in Connecticut
Jun 7th
is apparently a crime. C.G.S 53-37 provides:
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.
Volokh notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but still troubling considering the First Amendment implications:
This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 convictions since 1995. Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race– or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.
UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action — Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.
Yes. So would I. I’d also add that the statute was enacted in 1949 and hasn’t been amended since. A quick Lexis search reveals only one hit for that statute, and that too in a footnote:
As noted, Section 53a-183 is directly relevant to the issue in this case and provides, in and of itself, a basis for determining that a clear, well-defined and dominant public policy exists prohibiting the kind of conduct which is at issue here. It is worth remembering that there are other state statutes which recognize the particular harm that racially motivated criminal conduct inflicts on society. These statutes include Section 46a-58, which criminalizes cross burning under specified circumstances; 53-37, which criminalizes holding persons up to ridicule on account of race, creed or color; 53-37a, which prohibits the wearing of a mask or hood under certain circumstances; 53a-40a, persistent offenders; and 53-181b, intimidation based on bigotry or bias. Related federal statutes exist as well.
State v. Local 387 of Council 4 AFSCME, 1999 Conn. Super. LEXIS 437 (1999) (which is an interesting case that involves the appeal of a decision to reinstate a corrections employee who was terminated after he called a state Senator and left a message calling him an n-word, after the Senator allegedly referred to corrections employees as criminals).
Anyone? Bueller?
Padilla on sex offender registration, indirectly
May 12th
Back when Padilla v. Kentucky was decided by the United States Supreme Court, the defense bar was quite excited not only by the relief it afforded criminal defendants, but also by the exciting possibility that the Court might be willing to take an honest look at the fictional distinction between direct and collateral consequences of a plea.
Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.
Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.
While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.
Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.
But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on:
Frankly arresting
May 6th
[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Justice Blackmun, in Franks v. Delaware, quoting Judge Frankel in US v. Halsey. Franks, of course, permits a defendant to challenge the veracity of the statements in a search warrant. If he makes a substantial showing that the affidavit contains intentional falsehoods or material omissions, then he gets an evidentiary hearing to prove..umm..that there are falsehood or misrepresentations or omissions in the affidavit.
But Franks applies only to search warrants. What of the scenario where the officer intentionally lies to get a judge to sign a warrant for an arrest? There has to be judicial review of an arrest warrant and a finding of probable cause. But since we know officers lie, what if an officer lied to get a person arrested? Is there any remedy for that? I’ve been asked this question more than a few times over the last month and was a topic of discussion on the local listserve today, so I figure it’s about time I write a post on it.
There is a remedy, sort of. It’s more of a hollow remedy. In State v. Dolphin, the Connecticut supreme court, without explicitly stating so, applied the Franks analysis to an arrest warrant. As with the search warrant, a defendant attacking the validity of an arrest warrant must prove by a preponderance of the evidence that the falsehoods contained in the warrant, or the material omissions would defeat probable cause:
Prove the defendant’s bad character, not the crime
May 6th
Let’s play a game. I will give you two quotes, both on the same issue. One is from an erstwhile liberal northeast state, the other from a state in “flyover country”. You guess which is which.
Compare:
Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam, [citation]. Accordingly, we conclude that evidence of uncharged misconduct properly may be admitted in sex crime cases under the liberal standard, provided its probative value outweighs its prejudicial effect, to establish that the defendant had a tendency or a propensity to engage in certain aberrant and compulsive sexual behavior.
with:
that which makes the evidence more probative—the similarity of the prior act to the charged act—also makes it more prejudicial. As we explained in Reynolds, where a prior bad act is “similar to the incident in question, ‘it would be extremely difficult for jurors to put out of their minds knowledge that the defendant had assaulted the victim in the past and not allow this information to consciously or subconsciously influence their decision.’ ” [citation] (quoting State v. Henderson, [citation]). [Statute] violates the due process clause of the [State] Constitution as applied in this case because it permits admission of prior bad acts against an individual other than the victim in the case to demonstrate general propensity.
The defendant’s right to trial by jury
May 4th
Article III, Section 2, Clause 3 of the Constitution of the United States states:
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
The Sixth Amendment to the Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .
The Sixth Amendment was made applicable to the various states through the Fourteenth Amendment to the Constitution of the United States. The Connecticut Constitution, in Article I, Section 8 states:
In all criminal prosecutions, the accused shall have a right … in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury.
This is further codified in Connecticut law in both the practice book and the general statutes. C.G.S. 54-82b provides:
(a) The party accused in a criminal action in the Superior Court may demand a trial by jury of issues which are triable of right by a jury. [...]
(b) In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.
Practice Book Section 42-1 provides:
The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.
The reason I mention all of this is that the other day, I was reading Mark Bennett’s series of interesting posts on jury selection in Texas. He was in the courtroom, not as a participant in the process, and reported the entire voir dire conducted by the prosecutor and pro-se defendant. In his final post, I noted this (which is Mark’s narration of the pro-se defendant speaking to the venirepersons):
AP [prosecutor] is new here, and I had agreed to have case before the judge (objection overruled). I was comfortable with the court system. The court called me a week later . . . (objection sustained). (State refused to waive jury? WTF, AP?)
That got me thinking. As evidenced by the Constitutional provisions listed above, I’ve always believed that the right to trial by jury is the defendant’s and defendant’s alone. Was I mistaken? So I tried to locate the relevant jury waiver provision in Texas’ criminal code. This is what I found:
Art. 1.13. WAIVER OF TRIAL BY JURY. (a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.
(b) In a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty, the defendant may waive the right to trial by jury but only if the attorney representing the State, in writing and in open court, consents to the waiver.
That’s certainly a little strange. What confounds the matter further is the very next provision:
Art. 1.14. WAIVER OF RIGHTS. (a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code.
But what of Article 1.13(a), which lays out the procedure for waiving a jury in a non-capital case? All the language I could find in constitutional jurisprudence assigned the right to a trial by jury to the defendant only. Take, for example, Patton v. United States, a case in which the defense and prosecution agreed to have the defendant tried by 11 instead of 12, after one juror fell sick. Justice Sutherland, for the majority, wrote:
We come, then, to the crucial inquiry: Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guaranty to the accused the right to such a trial? If the former, the question certified by the lower court must, without more, be answered in the negative.
…
In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative. That this was the purpose of the Third Article is rendered highly probable by a consideration of the form of expression used in the Sixth Amendment.
The Court then concludes:
Upon this view of the constitutional provisions we conclude that Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.
Lending further support to the argument that the right is the defendant’s alone is the court’s discussion of the ability of the defendant to waive any damn right he pleases:
A defendant is supposed to understand his rights, and may be aided, if he so desires, by counsel to advise him. There are many legal provisions for his security and benefit which he may dispense with absolutely, as, for instance, his right to plead guilty and submit to sentence without any trial whatsoever.
So how does one square this core Constitutional right, which by all accounts, seems to be confer the benefit solely on the defendant along with the ability to waive this right if he so chooses, with what appears to be a prohibition in Texas on the waiver of this right without the permission of the State? Have I misread Texas’ statute? Perhaps Mark can chime in here and clarify things. Do other states have a similar requirement?
[Note: I know that caselaw establishes there is no fundamental right to trial by jury where the punishment does not exceed six months and yes, death is different and in capital cases, the consent of all parties is required to waive a jury.]
[Note 2: If nothing else, the Patton case and State v. Gannon - a 1902 Connecticut case - make for fascinating reading. They both explore the deep and rich history of the Constitution and their underpinnings of the right to a jury trial and the process by which that right came to be recognized.]
Pretextual trespass
May 3rd
In an effort to combat drug crime in “minority high crime neighborhoods”, police long ago adopted the “pretextual stop”, which was later condoned by SCOTUS in Whren. In Whren, Scalia wrote:
Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U. S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid “because the customs officers were accompanied by a Louisiana state policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marihuana.” We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U. S. 218 (1973), we held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was “a mere pretext for a narcotics search,” id., at 221, n. 1; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U. S. 260, 266 (1973). And in Scott v. United States, 436 U. S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that “[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.” We described Robinson as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” 436 U. S., at 136, 138.
While the pretextual stop is almost exclusively thought of in the motor vehicle context (what with it being a stop and all…), I recently came across the use of a pretext to police drug activity in the non motor vehicle area. [A Lexis search for trespass and Whren and trespass and pretext yielded no meaningful results. Yes, I am that much of a nerd.]
Apparently, police departments in some parts of the state have taken to entering into “criminal trespass agreements” (or some such variation: the public defender I got this from wasn’t entirely clear so blame him, not me). What this essentially means is this: the property owner will enter into a contract with the police department, giving them permission to enforce the criminal trespass statutes. The property owner then provides the police department with a list of the properties and the names of all the residents in those locations. There may or may not be signs to that effect posted on the property.
All drivers are dangerous and the police are the Borg
Apr 26th
Consider the facts:
On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The officers were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a marked cruiser in order to effectuate a motor vehicle violation stop.
Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.
Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.
So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.
The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.
The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:
purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then have access to any weapons
and thus, when analyzing a warrantless search under Long:
our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the vehicle to gain control of a weapon.
Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.
Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.
But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.
In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn. 647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’
Justice Who?
Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.
In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!
Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.
Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.
[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]
Effective misadvice is ineffective
Apr 23rd
[Or: Leave your ego in law school]
When Ahmed Kenyatta Ebron was told by his lawyer that he should reject the State’s offer and instead plead guilty without an agreement because “he couldn’t do much worse or words to that effect”, he did what all of us usually hope our clients do: take our advice.
At this open plea, armed with the client’s record and an unfavorable pre-sentence investigation report, the judge imposed a sentence of 11 years to serve, 5 more than the State’s offer of 6.
Mr. Ebron, relying on counsel’s advice, is serving 5 more years than he should be. For now, at least. His conviction has been reversed, based on ineffective assistance of counsel, and that reversal has survived the Appellate Court (I’m not optimistic about its chances at the Supreme Court).
The events leading up to Mr. Ebron’s conviction, the habeas itself and the aftermath raise several points.
First, it is easy to forget that at the end of the day, we are in a service industry. As criminal defense lawyers, our job description is limited to the service of another. We are protecting the rights of others, we are helping others make important decisions about their lives and we are, ultimately, representatives of other people.
That this is easy to forget should come as no surprise. Lawyers have famously large egos. But there is a danger in letting the sense of self overwhelm the duty and responsibility that we have.
It is that duty to the client that compels us to treat each case with the attention that we would give to it were we the defendant. There is no greater sin that can be committed by the defense lawyer than misadvising the client.
Clients rely on us to show them the way, to spell out the alternatives and to recommend one over the other, based on our knowledge, skill and experience, keeping their best interests in mind.
It is imperative that we fully inform ourselves of the facts and circumstances of the client’s case and then, and only then, recommend a final course of action.
I am not suggesting that we must force a client to take our advice; the client remains free to make stupid decisions. But the advice that we give clients must be sound. There are some that take the view that our job is to present the alternatives to the client and then accept whatever decision the client makes. I am not of that view. I believe – and certainly I may take some flak for this – that it is our responsibility to do our best to convince the client to choose the course of action that is in his/her best interests, despite the client’s seeming disapproval of that path.
This, however, can only be done if the advice we give is informed. We can only stand behind the advice we give if we are convinced that it is the best alternative and that decision can only be made with a full understanding of all the circumstances and an awareness of the pitfalls of that and every other course of action. If someone else, years down the road, decides that the advice was unreasonable, so be it. No one gets hurt by that and it only helps the client.
Ebron’s lawyer didn’t do that (and to his credit, took responsibility for it). The standard for effective assistance of counsel is woefully low. To scrape by and meet Constitutional scrutiny, a lawyer needn’t do much. But if you’re aiming for the standard, then you’re not really fulfilling your duty. If you truly believe it is sufficient to perform at a minimum level, then there are other areas of law that might be better suited for you. Stop meddling with the liberties and freedoms of fellow men and women.
…
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.
IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.
At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.
The local listserve erupted with comments after the release of the Ebron decision: there were voices from both sides – those that praised the decision and those that lamented the additional burdens it seemingly placed on the defense lawyer (based, it seems to me, on a misreading of the case and the responsibilities it underlines).
Why does IAC evoke such polarized reactions among us? Are we that sensitive? Or is it because we view ourselves as separate and distinct from our clients? Do we believe that the players in the criminal justice system are the State, the judge, the defendant and the defense lawyer? If so, that is a terribly misbegotten view.
This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
I will not lie to help a client, but I will not add my name to the list of those that violate his Constitutional rights.
Bysiewicz in brief
Apr 11th
[Yes, another Susan Bysiewicz as AG post. But these are hit-machines, so I'ma milk this cash cow till it comes home.]
Thanks to the good folks at CT News Junkie, we get to read the trial brief submitted to Judge Michael Sheldon by Bysiewicz’s attorney Wesley Horton [I guess someone at CTNJ went to the clerk's office, got a copy and scanned it, so there's this ugly watermark on every goddamn page].
My conclusion, after reading the brief, is this: Wesley Horton is every bit as good as his reputation and Susan Bysiewicz is torpedoing her own chances. If only she’d get out of the damn way and let Horton work his magic, she’s as good as CT’s next Attorney General.
Her answers to the deposition questions do nothing to help the fine arguments made by Horton. Horton, correctly in my opinion, leads with the argument that active practice means nothing more than admitted to the bar and in good standing.
He argues that the relevant rules of practice in effect in 1890 and even today distinguish between the statuses of lawyers based solely on their ability to practice law in the state: active practice as opposed to suspended or disbarred. He further argues that our courts have recognized that it is not easy to describe “active practice of law” and that a wide variety of functions can be understood to be legal practice:
Attempts to define the practice of law have not been particularly successful. The reason for this is the broad field covered. The more practical approach is to consider each state of facts and determine whether it falls within the fair intendment of the term.
As to the state of facts, this court has consistently held that the preparation of legal documents is commonly understood to be the practice of law. Grievance Committee v. Dacey, 154 Conn. 129, 140-44, 229 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed.2d 404 (1967); State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. 222; Grievance Committee v. Payne, supra, 128 Conn. 325; see also Monroe v. Horwitch, 820 F. Sup. 682 (D. Conn. 1993), aff’d, 19 F.3d 9 (2d Cir. 1994). “The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a variety of subjects and the preparation of legal instruments covering an extensive field.
Statewide Grievance Committee v. Patton. This is an argument that Bysiewicz has made in the past, along with the notable “private practice” charge that she leveled against her “detractors” out of thin air. No one is arguing that “active practice at the bar of the state” literally means appearing in court and arguing in front of a judge or jury. That’s just silly.
But it’s important to note that not only is Horton arguing that she has the requisite years of admission to the bar, but in my opinion, there’s also a concession that the statute requires something more than just being someone admitted to the bar, i.e. you actually have to be engaged in the practice of law, in whatever capacity. This, of course, is in stark contradiction to Bysiewicz’s own answers to the hypotheticals posited by the Repub’s attorney (see link above).
In emphasizing this point, he quotes the Supreme Court of Florida:
Bye bye Bysiewicz
Apr 6th
The transcripts of Susan Bysiewicz’s deposition have been released after her lawyer, the renowned Wesley Horton, conducted a cursory 5 minute search of the relevant law and determined he couldn’t block their dissemination.
“You’ve actually said you’re every bit as qualified as Dick Blumenthal was [in 1991] when he took this position, based upon your legal experience, correct?” Gersten asked during the March 31 desposition.
“Yes,” she answered.
“And you’re aware, aren’t you, that prior to the time Mr. Blumenthal became attorney general, he actually, in contrast to you, appeared in court, correct?”
“Yes,” she said.
“In fact, he tried a bunch of cases, didn’t he?” Gersten said. “You never tried any cases?”
“No,” Bysiewicz said.
Then she was asked a series of ludicrous hypotheticals, the answers to of each of which should have been a resounding no:
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
A few stray thoughts
Mar 23rd
the metaphor, stupid
Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.
[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]
The habeas corpus effective suspension and evisceration bill
Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.
Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.
But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.
The second premise of the state’s position is all the more confusing and confounding.
Sex-y times at the state lege
Mar 18th
It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.
During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).
S.B. No. 33 An act concerning the registration of sexual offenders
This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.
S.B. No. 34 An act concerning computer crimes against children
This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:
or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.
In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.
S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.
Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.
H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.
That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.
The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.
The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.
The “good, I guess”: A violation is only a Class A misdemeanor.
H.B. No. 5533 (RAISED) AAC sexting.
Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.
Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.
The Limp Writ
Mar 18th
Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “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”.
And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.
That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.
Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.
Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:
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