ct state law

Free-ish

Jan 12th

Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.

Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:

whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.

Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.

The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.

Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).

How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.

Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.

Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?

The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.

CT death penalty nothing but arbitrary

Jan 9th

Posted by Gideon in ct legal news

1 comment

Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.

The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:

Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:

It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.

It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.

The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:

not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.

For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.

Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.

The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:

1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.

That sounds awfully like the State’s expert agrees with the defense expert.

The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.

DOJ finds widespread racial profiling in East Haven

Dec 31st

Posted by Gideon in cops

No comments

the land of steady racism

Almost exactly one year ago, I wrote about the town of East Haven, CT hurtling towards “sundown town” status, caused largely by alleged institutional racism and bias towards minorities – lately specifically Latinos. In that post, I mentioned that there was a federal civil rights lawsuit pending and that the Civil Rights Division of the Department of Justice had opened an investigation into these alleged discriminatory practices of the East Haven Police Department. This past week, the DOJ issued its report in the form of a letter [PDF] sent to the East Haven mayor and boy is it damning (media coverage here).

Some of its key findings:

The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).

In making these stops, the DOJ found that the EHPD targets Latino drivers and employs tactics not used against non-Latinos:

Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

The DOJ further charges that the EHPD haphazardly employes immigration policies against Latino drivers and points out that the EHPD and East Haven have had a long standing problem with policing of minorities, citing a recently concluded federal lawsuit which alleged discrimination against African Americans (Jones v. Town of East Haven, et. al.).

The most shocking thing about all of this (or the least surprising, depending on how naive you are) is that the DOJ got all the above information from the EHPD itself: from 2 years’ worth of police reports and interviews with officers and community members.

The institutional coddling of these discriminatory practices is mind-blowing. From the news report:

East Haven may be unique, if only because of a tangle of politics and the close friendship between East Haven’s Republican mayor, Joseph Maturo Jr. and his chief of police, Leonard Gallo.

Maturo was originally mayor from 1997 to 2007 and he hired Gallo as chief in 1998. But Gallo was put on administrative leave by Maturo’s Democratic successor as mayor, April Capone, in 2010, a result of the allegations of racial profiling and excessive use of force by East Haven Police.

After Maturo won in the November elections, he almost immediately returned Gallo to full duty as chief — an astounding move given the ongoing civil rights and grand jury investigations into police actions during Gallo’s tenure.

And more:

The 23-page report released Monday by the U.S. Department of Justice Civil Rights Division cited top police officers for “creating and condoning a hostile and intimidating environment for anyone seeking to provide relevant information in this investigation.”

“We also learned that Chief Gallo had warned staff that the Department of Justice had agreed to provide him with the names of individuals who cooperated with the investigation,” according to the civil rights report. And that, federal officials insisted, was completely and utterly untrue.

How bizarre is this institutional protection? EHPD officers told DOJ officials (that’s the fucking Federal Department of Justice Civil Rights Division, in case we were unclear) that the DOJ officials’ safety could not be guaranteed by the EHPD when they went on ride-alongs. Ponder that for a second.

The DOJ found an abject lack of any internal policing mechanisms and that the EHPD hadn’t ever bothered to compile the statistics to see if racial profiling existed with its department, something that’s required by C.G.S. 54-1m. In addition, the DOJ noted that a large number of entries into the EHPD’s database seemed to be missing ethnicity data or the data seemed to be misreported.

EHPD is at a crossroads: either admit that there are problems and work toward fixing them or deny it all and face lengthy and costly lawsuits brought not only by civilians, but also the Department of Justice. As a new year dawns, one can only hope that concern for the safety of officers and the constitutional rights of its residents rises above deep-seated racism and pride.

racial profiling

Witnessing bullshit

Nov 22nd

Posted by Gideon in ct state law

5 comments

That eyewitness identification is a troublesome area of the criminal justice system is well known to regular readers of this blog. That the movement toward long overdue reform is lethargic and a source of much consternation to me is well known to the readers of this blog. So, it presented a bittersweet moment when I learned that the Connecticut-centric NPR show “Where We Live” was going to do an episode on the problems of eyewitness identification and the enacted legislative reforms. That the complexities of this issue cannot be given – heh – justice in a one hour time slot goes without saying, but there is something to be said about this seeping into the collective general consciousness. So, all for the better, I suppose.

Until a caller called in with a comment toward the end of the show (which you can listen to in its entirety here). The caller “Wayne” offered a personal anecdote, which I paraphrase below:

I’m a cab driver in New Haven and back in 1979, I had transported an individual, who it turned out had just committed a murder. So, as a witness, I was called to testify at the trial and identify him. Now, when I had transported him, he was a thin fellow, riddled with a drug addiction, unkempt, mousy and had that lean and hungry look. After getting 3 squares a day, regular sleep and no sunlight for a year at the taxpayer’s expense, he looked like a different man. He’d put on weight, had grown hair and was looking well-fed. I couldn’t recognize him at all. I couldn’t see the person I had transported a year earlier, so when asked to identify the passenger, I figured, heck, it has to be that guy sitting next to the defense attorney, looking quite out of place in a suit. So I pointed in that direction. Luckily, there was other evidence and he was convicted.

Read it again if you’re sitting here thinking “well, what’s the problem?”. The problem is that this witness admitted that he had no idea whether the defendant was indeed the same person who he had transported a year ago, but pointed at the guy sitting in the courtroom anyway, thereby making an in-court identification that jurors could – and would – rely upon to convict him.

Putting aside the desire that witnesses be honest and forthcoming about their inability to recall the defendant as the perpetrator – they rarely are – this highlights a recurring problem for which there may be no solution. In most criminal trials, there is one person sitting across from the jury who just doesn’t belong to the scene. There is one person who best resembles a Microsoft photoshop faux pas: the defendant. Either he isn’t wearing a suit, or wearing one that’s ill-fitting or is wearing the same shirt that the juror saw him wear during voir dire, or he’s just…sitting there. Looking out of place. Uncomfortable.

And everyone can see it. Even the witness. And that makes identifications in court essentially meaningless. Because, when asked to identify the perpetrator, who else is the witness going to pick out? The prosecutor who’s just been asking him questions? The defense attorney who’s been objecting? The judge? Don’t be silly.

I’ve been thinking about this all day and I’m not sure that there’s a solution. But there is a problem. And the problem is that it turns bad memories into good ones. It turns hunches into convictions. It’s the same problem with juries: the defendant’s here, he’s arrested, he must be guilty. Innocent people don’t just end up in trial for no reason. If the system has got him, it’s got the right guy.

We can control this to some extent during pretrial hearings on the suppression of identifications, but in trial, there’s no apparent remedy. It’s yet another failing that we have to live with and work to overcome.

A different approach

Nov 22nd

Posted by Gideon in ct legal news

No comments

For those of you who have followed the recent history of capital punishment in Connecticut and the struggle over abolition, I will quote a few paragraphs. Tell me if it sounds familiar:

[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.

In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.

But we have done nothing. We have avoided the question.

And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.

It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.

Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing. Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

versus:

We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.

Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling support for abandoning our decisions in Ross and Webb.

The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.

Says Kitzhaber:

Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.

The time has come. Who will have the courage to utter these words and take a different approach?

Legally carrying a weapon is a crime

Aug 18th

Posted by Gideon in cops

28 comments

wait, does that count as Arson?

Look, I dislike guns. I dislike them a lot. I don’t believe that people kill people, rather that guns – the objects from which projectiles are discharged at a high rate of velocity, thereby permitting them to enter the bodies of individuals, causing fatal damage to bodily organs – kill people. I’d rather there weren’t any, or at the very least, we had stringent gun control laws.

But do you know what I dislike more? Stupid laws and even stupider interpretation of laws that criminalize perfectly legal conduct. Somehow, despite my strict personal opposition to guns, it is still legal to carry a licensed firearm in Connecticut. In public. Openly.

Yet, for some reason, the state’s “top criminal justice official” – a made up title if I ever heard one – wouldn’t recommend it. Why, you might logically ask, is it not a good idea? For the same reason that photographers across the country are being arrested for videotaping police encounters with civilians: because no one knows the law (see also this post by Balko on an issue similar to the one in the instant post).

I’m not making this shit up.

Mike Lawlor, already featured in one post today for his sage legal prognostications, offers up another:

“In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”

That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.

“Almost by definition”? Oh, really? Challenge Accepted! Here‘s the relevant Breach of Peace statute:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

Openly carrying a licensed weapon into a public place doesn’t fit subsections (1), (2), (3), (4), (5) or (6). You know what that means? It’s not, by definition, a breach of peace. But maybe he was tired from all that prognostication and encountered a “slip of the tongue”. Maybe what he meant was “Creating a Public Disturbance”. Contrived Challenge Accepted! Here‘s the statute:

(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

I’m no legal scholar, but I see three strikes there. Yerrrrout! (I don’t…just…don’t ask.)

What Lawlor is essentially saying is that one shouldn’t legally carry a legal, licensed firearm in public, which one legally can do, because cops are stupid and don’t know that law and you’ll get falsely arrested for perfectly legal activity. So he’s doing you a public service, really. It’s like telling people not to walk around with large, brown plastic glasses and a 70s pornstar mustache because people may mistake you for a child molester and then you’ll get arrested and whatnot.

But, you might protest, it’s only Lawlor, a former legislator and now a bureaucrat. That’s not evidence of anyth-:

When asked in a phone interview last week if people are allowed to openly carry firearms with a permit, state police spokesman Lt. J. Paul Vance said, “Good question.”

“Does it frighten people? Yes,” he said. “There is no standard quick answer to this question.”

-Oh. Notice how he quickly answers the question “yes” and then says there’s no standard quick answer. This is dangerous because it’s indicative of a “winging it” style of policing. “Arrest first; find crime later” seems to be the motto. And we all know what happens once you get trapped in the quagmire that is the criminal justice system.

The simple solution, of course, is to make it illegal to openly carry a weapon in public:

Lawlor, a former lawmaker, said that personally he was no fan of guns but said he wasn’t inclined to have a discussion in the legislature over changing the law. It would be a difficult sell for gun rights activists, who he conceded raise some valid points. If taking out a gun is illegal under any circumstances, why would people carry them, he asked.

He said he prefers the way the law is written now, where it is on the gun owner to behave responsibly.

“You want to have a gun? Fine, but you have to accept the responsibility that goes with it.”

Funny that he exhorts gun owners to behave responsibly, but doesn’t care about the illegality of the arrests that ensue from that responsible, legal, behavior.

« Hide It

Ayyy!

Aug 16th

Posted by Gideon in ct legal news

No comments

making impropriety cool since 1974

It’s prosecutorial misconduct week here at “a public defender” and I’ve finally come across a decision that invokes no other reaction than the aforementioned Fonzie “ayyy!”. In fact, it’s how I imagine the three judges who signed on to the opinion reacting when faced with all the instances of egregious misconduct and yet rendering a decision that – yet again – condoned and sanctioned the behavior.

This time, in State v. Albino, the Appellate Court cannot but agree that the numerous instances of unacceptable behavior, that they gingerly call “improper”, crossed the bounds of acceptable lawyering, yet somehow they find a way to affirm, because the defendant was convicted of murder, after all and he was really, really guilty.

Here’s but a sampling of the key misconduct. From referring to the decedent as a victim and the crime as murder:

The defendant first contends that the prosecutor acted improperly when he ‘‘repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms ‘victim,’ ‘murder,’ and ‘murder weapon’ throughout the trial …’’ The defendant contends that the prosecutor referred to Rivera as the ‘‘victim’’ thirty-one times, referred to his death as ‘‘murder’’ five times, and referred to the firearm as the ‘‘murder weapon’’ eight times during closing argument. He directs us to similar occurrences during the prosecutor’s questioning of trial witnesses where he alleges that the prosecutor referred to Rivera as the ‘‘victim’’ twenty-seven times, referred to his death as ‘‘murder’’ twelve times, and referred to the firearm as the ‘‘murder weapon’’ six times. We agree that in a case such as this, where the defendant has asserted a self-defense claim, it is improper for the prosecutor repeatedly to use the words victim, murder and murder weapon throughout the trial.

To arguing that in order to believe the defendant, the jury would have to find all the witnesses were lying:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The defendant next contends that the prosecutor violated State v. Singh, supra, 259 Conn. 693, when he argued that in order to acquit the defendant, the jury would have to find that every other witness ‘‘was wrong.’’ He argues that there is ‘‘no distinction between a prosecutor using the word ‘wrong’ or ‘mistaken’ instead of ‘lying’—all are equally improper.’’ The state argues that there is a distinction when such words are used during closing argument. We agree with the defendant.

To improper attempts to bolster the credibility of witnesses:

First, the defendant claims that the prosecutor improperly asked several of the state’s witnesses on direct examination and on redirect examination if they were telling the truth or if they were prepared to tell the truth. This, he argues, was an attempt by the prose-cutor to bolster or rehabilitate the credibility of these witnesses before the witnesses were impeached. The state argues that each of the witnesses had testified that they had pending criminal cases and that they did not want to testify in the present case. The questions posed relating to their truthfulness, it argues, merely were attempts to confirm that despite their reluctance to testify, they still were prepared to tell the truth. We conclude that the questions posed on direct examination were improper attempts at bolstering the witnesses.

and finally to finding that these instances were “central to the critical issues of the case”:

We next consider the fourth Williams factor, the centrality of the improprieties to the critical issues in the case. See id. The defendant argues that ‘‘the prosecutor attempted to obtain a conviction by having the jury consider not the evidence and the charge, but instead, by persistently characterizing [the] defendant’s actions as murder and Rivera as a victim, by bringing in sympathy for Rivera and [by] inflaming the jurors’ passions, by repeatedly emphasizing that his witnesses were credible, by denigrating defense counsel and by arguing that every single witness was lying if [the] defendant was innocent.’’ The state concedes that ‘‘the alleged improprieties affected the central issue in this case, which was whether the defendant murdered the victim or acted in self-defense, but not significantly so.’’ We conclude that the improprieties were central to the critical issues of the case.

And yet, these improprieties didn’t deprive the defendant of his right to a fair trial bec-ayyy! Of course, the Court doesn’t bother to name the offending prosecutor, nor does the Court either impose sanctions or refer the matter to the Grievance Committee for sanctions for this conduct it finds to be improper. The lesson here? Go ahead and do all this stuff we said was improper, because in the end, criminals are criminals and we aren’t going to do anything other than mildly chastise you in a way that will preclude anyone from ever connecting you to this behavior and really, you put a really bad guy away, so we should be giving you a damn award.

Ayyy!

http://www.youtube.com/watch?v=Q_Y0gT-ab90

« Hide It

The Barney Fife exception: all in good faith

Aug 15th

Posted by Gideon in cops

2 comments

The Constitution requires that criminal defendants be provided with a fair trial, not merely a “good faith” try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense. That ineptitude, however, deprived respondent of his guaranteed right to due process of law.

Those, of course, are the (somewhat) famous opening lines to Justice Blackmun‘s dissent in Arizona v. Youngblood, which held that in order to affect due process of law, law enforcement’s actions in destroying potentially exculpatory evidence must be caused by some “bad faith”. The Court, of course, never explains “bad faith”, which results in a race to the bottom to designate all police misconduct as “incompetence” and “inadvertence”, thereby circumventing the Fourteenth Amendment.

Consider, for your entertainment, the very recent case of Martin v. The State of (Where Else?) Texas. In Martin, the defendant was pulled over by Deputy ~~Fife~~ Jennings for failing to signal a left turn. Upon approaching the vehicle, the Deputy smelled “marihuana” and then observed a furtive gesture which led to a patdown, which led to the Deputy feel something like a razor blade (wait for it) which led to the discovery of ~~marihuana~~ methamphetamine (don’t even ask). Martin, within two weeks of his arrest, sent a subpoena to the police department, asking them preserve the video of the dashboard camera. A year later, at the suppression hearing, there obviously was no video, or I wouldn’t be writing this post. Here’s a summary of the police procedure and operation of the dashcam:

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video.

And why did no one know if there was video and why did Jennings not preserve it to find out if the incident had been videotaped? I’ll let him tell you:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Q: And why was it not preserved?
A: Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value.
…
Q: But, apparently, your opinion is . . . that if you feel that it doesn’t have evidentiary value, you don’t have to turn it in or you don’t have to preserve it, or whatever, correct?
A: Yes, sir, that was my understanding at the time.
Q: So it’s very possible that . . . you just decided in your mind that it didn’t have any evidential value, that . . . you didn’t preserve the video?
A: Yes, sir.
Q: And the only way to know if there was a video that properly recorded the events of that evening would be if you had preserved that video, correct?
A: Yes, sir.

Is your head spinning? It should be. He didn’t know what was on the video, yet determined that there was no evidentiary value, so he destroyed the tape and thus the only method of determining if it did, indeed, have evidentiary value. All in violation of department policy.

As for that subpoena? Well, Jennings says he never received it, even though it was served at his department and by golly we damn well take his word for it:

The district court could have reasonably inferred from this testimony that there is a department policy giving officers discretion to determine whether the tapes have evidentiary value and that Jennings did not violate that procedure by determining that the videotape in this case did not.

Finally, Martin argues that bad faith can be inferred from the failure of the department to comply with either the subpoenas that were issued or the letter that Martin wrote requesting preservation of the evidence. Regarding the letter, the district court would not have abused its discretion in crediting Jennings’s testimony that he had not seen it prior to the suppression hearing[...]

Well, I’m glad that we have so much faith in an incompetent, bungling, apparently clairvoyant police department. Because, really, it would be too much to ask of Deputy Fife to just possibly walk the videotape over to the evidence room. Poor guy has his hands full deciding whether something smells like pot or feels like a razor blade when it’s in fact meth. We shouldn’t tax him much more.

Now, of course, that was in Texas and not in Connecticut, which roundly rejected Youngblood‘s “bad faith” rule in State v. Morales. In Connecticut, you can get a jury instruction telling the jury to draw an adverse inference from the police’s failure to preserve potentially useful evidence:

Fairness dictates that when a person’s liberty is at stake, the sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant has received due process of law. Rather, our constitution imposes certain obligations on the state to ensure that the criminal trial is “a search for truth, not an adversary game.” United States v. Perry, 471 F.2d 1057, 1063 (D.C. Cir. 1972); State v. Wright, 87 Wash. 2d 783, 786, 557 P.2d 1 (1976).

That’s authored by Justice Berdon, with whom I want to have babies.

H/T: Radley “A link is worth a thousand pageviews” Balko.

Here’s an alternate image to the one above:

insert uncomfortable laugh track

« Hide It

Sanctioning misconduct

Aug 15th

Posted by Gideon in ct legal news

6 comments

In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial ~~misconduct~~ impropriety” rarely, if ever, impose punishment.

I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.

But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.

But I digress.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

As if this coddling and protection of prosecutors wasn’t infuriating enough, the laissez faire attitude toward such impropriety gets even worse with the complete failure of any entity to impose sanctions on that prosecutor. It is a common refrain heard around the criminal justice system that prosecutors are rarely – if ever – held accountable for their “extremely troubling” acts of misconduct. I mean, c’mon, if a court isn’t even going to name them, then do you think there’s ever be any sanctions imposed?

That’s the subject of a powerful article in the CT Law Tribune by former Chief Disciplinary Counsel Mark Dubois, who comments on Lenarz and the failure of courts to correct this misbehavior:

One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.

Professor (I took one of his classes once, so he’ll always be “Professor” to me) Dubois then points out something that I was unaware of, that’s rather surprising:

Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.

Here’s the relevant Practice Book section:

(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:

(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:

(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;

Prof. Dubois interprets that to mean that once a court has found misconduct and imposed no sanction, the Grievance Committee must not take further action against the prosecutor. But I don’t see where in the rule it says that the Committee cannot proceed with disciplinary proceedings against the prosecutor based on the record created by the appellate decision. I’m assuming the professor knows more than I do in this area, so I invite him to correct my mistake.

Even if that is the case, it certainly does not divest the court of its authority to refer the matter to the Grievance Committee for disciplinary proceedings. And we all know that never happens:

A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.

This indifference approach to ethical violations in the most grievous of settings is another symptom of a system that places finality above all else, that condones the erosion of individual rights and liberties in favor of a more authoritarian society. With the legislature unable to act, it will be up to the Courts – well populated with former prosecutors – to bring accountability in an impartial way. If the Chief Justice is indeed serious about restoring faith and integrity in our justice system, she might want to go further than characterizing the conduct as “extremely troubl[ing]” and actually hold those people who undermine that same integrity responsible.

Don’t hold your breath.

« Hide It

I know it when I see it

Jul 26th

Posted by Gideon in ct state law

No comments

obscene

Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

was unconstitutionally overbroad and vague on its face and unconstitutionally vague as applied to him, and that the evidence was insufficient to support the trial court’s finding that he had violated the condition.

The Court summarily dismisses his overbreadth argument, citing a long line of SCOTUS decisions (see Virginia v. Hicks) holding that such an analysis is appropriate only if First Amendment rights are implicated. And there’s the puzzling thing. In its decision, the Court takes great pains to point out – over and over again – that Stephens is not making a First Amendment challenge to the special condition of probation barring his possession of adult pornography. The only challenges made are under the Constitutional right to privacy, which are just as easily dispensed with:

For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.

The Court finds – as it should – that possessing nude photographs constitutes possessing sexually explicit material, but there is an important – and useful – holding when it comes to the second prong. Although the Court holds that the materials possessed by Stephens fall squarely within core meaning of the special condition, and thus there was no violation of his right to privacy, the condition itself may not pass constitutional muster in a different case:

[When] a statute provides insufficient general guidance, an as-applied vagueness challenge may nonetheless fail if the statute’s meaning has a clear core. . . . In that case the inquiry will involve determining whether the conduct at issue falls so squarely in the core of what is prohibited by the law that there is no substantial concern about arbitrary enforcement because no reasonable enforcing officer could doubt the law’s application in the circumstances.’’ (Citations omitted; internal quotation marks omitted.) Farrell v. Burke, 449 F.3d 470, 493–94 (2d Cir. 2006). Under the foregoing standard, we cannot conclude that the special condition prohibiting the defendant from possessing ‘‘sexually stimulating material deemed inappropriate by a [p]robation [o]fficer’’ provided sufficient, general guidance for law enforcement purposes.

Given the jurisprudence in this area and the Court’s proper application of it, it really bothers me that a First Amendment challenge was no raised, especially given the holding of Stanley v. Georgia:

He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

…

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

Without this First Amendment challenge, it is Connecticut law that conditions of probation that prohibit the mere possession of adult pornography by an adult are valid. And the materials don’t even have to be obscene.

Putting aside the Constitutional aspects of this case, it is worth pondering whether such conditions really have any value or are counter-productive? Would we rather have an adult male relieving his sexual tension while viewing adult pornography, or would we rather that this tension bottle up and percolate and perhaps dangerously spill over into action that may endanger those around him?

Are we at the point where we’re approving any and all restrictions on these modern-day witches without rational thought and forethought? There are legitimate reasons – whether you’re on probation or not – to prohibit the creation, possession and dissemination of child pornography. I can see that. The possession of adult pornography, in the words of Justice Stewart, is not that.

Whew. Made it through a porn post without a single mention of 2 Girls 1 Cu-dammit. Don’t Google that. It’s for your own good.

« Hide It

For your eyes only: prosecutors really can’t look at privileged documents

Jul 17th

Posted by Gideon in criminal law principles

5 comments

From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.

Just how egregious was this violation of the attorney-client privilege? Judge for yourself:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege.

This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:

The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.

What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We must state, however, that we are extremely troubled by the prosecutor’s conduct in this case. Although the privileged documents were not in the form of letters or e-mails, it could not have been more obvious on the face of a number of the documents that they were intended to be communications to the defendant’s attorney. For example, one of the documents stated near the top of the first page that ‘‘[t]he following material is confidential and I would ask that you review it. If this is a case you believe you would have success in defending, I would like to schedule [an] appointment to discuss it.’’ Another document was entitled ‘‘Strategy Issues’’ and stated in the first sentence: ‘‘I think that in the short term, especially for the court appearance on June 8, 2004, that our objective should be threefold . . . .’’ The first two sentences of another document provided: ‘‘We were asked by our original attorney . . . to keep a log of any events that we thought might pertain to this case. This document is the result . . . .’’

Oh. Well, I’m sure the prosecutor acted as he would have if he hadn’t read them and didn’t alter his strategy at trial as a resu-what’s that?

Indeed, the record strongly suggests that the prosecutor may have revealed the defendant’s trial strategy to witnesses and investigators. In addition, consciously or unconsciously, the prosecutor’s knowledge of the defendant’s trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record. Again, the record strongly suggests that the prosecutor drew on his knowledge of the privileged communications when examining the accusing witness in Docket No [XX] to anticipate and thereby neutralize what otherwise might have been a devastating cross-examination of that witness.

The Court (at least 4 of the 6 members who sat on this panel) is rightly outraged at these actions by the prosecutor. So much so, that the Court creates a new rule: that there is a presumption of prejudice when inherently confidential materials are disclosed to the prosecutor, intentionally or otherwise, and that presumption is rebuttable only by clear and convincing evidence. The Court then places the burden squarely on the trial court to sua sponte conduct an investigation into this violation and fashion an appropriate remedy that would right the wrong.

The Court concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice[.]

You can read the nearly-3-times-as-long dissenting opinion here, which basically argues that the majority is creating a new rule and that the violation wasn’t that bad because we really must assume that a prosecutor who receives these materials, reads them and then alters his trial strategy to counter the defendants did so unintentionally and in good faith and oh, I don’t know. I stopped reading after the 10th page or so.

I think it’s particularly telling that the majority opinion was written by the Chief Justice. CJ Rogers has been on a mission since being appointed chief: a mission to clean up the image of the judiciary and the legal profession. It’s abundantly clear that this isn’t an opinion about criminal law, albeit that is the mechanism for the ruling, but rather about the integrity of the profession, the fairness of the courts and the sanctity of our clearly defined roles and the rules that we must abide by.

« Hide It

An ode to the Kitchens sink: a tragicomedy

Jul 17th

Posted by Gideon in criminal law principles

4 comments

Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

We’ve all been there: the trial has just concluded, you’ve delivered the closing argument that you spent many nights working on and frankly, you’re exhausted. The judge starts giving the long, boring instructions to the jury – you know what I mean – which they’ll rely on to analyze the evidence and apply it to the law of the land. You tune out, your eyes glaze over, you just want a damn drink.

And in the midst of your reverie, the judge instructs the jury that the defendant has the burden of proof beyond a reasonable doubt to prove his innocence. Since you were preoccupied with visions of a drunken sleep, you didn’t notice. The jury, obviously, convicts, since there was no defense case in chief. You are upset, the client is led away and you go home to curl up in the fetal position and bemoan juries predisposition to convict.

Then your client appeals and the sharp, astute, awake appellate attorney notices the erroneous instruction. Oh no! This was instructional error! The judge gave the jury incorrect instructions! But you didn’t object! And so the error wasn’t preserved! Are we doomed?

Recognizing the problems that would arise with turning a blind eye to this obvious mistake of Constitutional magnitude that impacted the right to due process and a fair trial, the appellate courts in Connecticut issued a decision back in 1989: State v. Golding. The Golding decision created a 4-pronged test to deal with scenarios like these:

The record is adequate to review the alleged claim of error;
The claim is of constitutional magnitude alleging the violation of a fundamental right;
The alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
If subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

(note that Golding applied to all errors of constitutional magnitude, not just jury instructions). This test worked – albeit not perfectly – but it worked. Obvious errors that implicated constitutional rights received the appellate review they deserved. But the State, cloaked in its self-righteous veneer of finality over justice, was unhappy. It fought for years to reverse Golding, because dammit any trial is a fair trial. And if your lawyer is asleep at the wheel, or just plain misses something, you must pay for it.

Most defense lawyers weren’t that worried about the Court overturning Golding because, well, how could they? How could they justify punishing a defendant for an obvious Constitutional error? How could they justify depriving a defendant of his/her right to due process and a fair trial?

Blame the lawyer, that’s how. This year, in a trio of cases – State v. Kitchens, State v. Akande and State v. Mungroo – the Connecticut Supreme Court made jaws drop by holding that if a lawyer fails to object to the exact same language of a jury instruction that is later challenged on appeal, the defendant is deemed to have waived the right to appeal that error. Part of the reasoning is that it will be considered a tactic on the part of the lawyer to not object to that erroneous instruction. Like we’re all that smart.

Yes. So under my scenario above, the appellate lawyer cannot argue that the defendant’s right to a fair trial was violated, because the lawyer did not object to the incorrect reasonable doubt instruction. Think of it as that portion of a wedding vow where the officiant looks at the crowd and asks if anyone objects to the union and warns them to speak now or forever hold their peace.

Now, the example I gave is an extreme one – hopefully no matter how asleep you are, you would notice that the defendant doesn’t have to prove a damn thing. But what of other less noticeable errors? What of erroneous instructions that a particular lawyer just wasn’t aware of? But that’s apparently a tactical decision.

The burden this places on the defense lawyer is tremendous – and misplaced. The court has an independent obligation to ensure that the jury is instructed correctly. This removes that obligation on the trial court, which, after all, is in charge of courtroom procedure, evidence and instructions, and places it on the shoulders of the defense lawyer. And what if the lawyer is just plain wrong and incorrectly agrees to the erroneous instruction? How do you make a defendant pay for that lawyer’s mistake? And why must that defendant wait years and years for vindication that may never come? Why has the Supreme Court abrogated its basic function: to ensure that justice is delivered in Connecticut courtrooms and to preserve the Constitutional right to due process and fair trials? The Court seems more interested in arguing that defense lawyers will choose to knowingly ignore Constitutional errors so as to set up appellate claims – something that is highly unethical and detrimental to the client.

I refuse to cite from the majority opinion because it is just so vile. But, in the interest of making this post somewhat productive and instructive, I will cite only this one paragraph that provides some sort of guideline:

We conclude that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.

As far as I can see, here’s what we need to do:

File a motion with the trial judge for a written copy of the proposed jury instructions prior to the start of jury selection. In fact, demand them. Cite Kitchens over and over again.
Make a record every time you ask the Court for the written instructions.
Ask for a continuance of at least 48 hours if you receive the instructions during the evidence portion of the trial. Realistically, you need that much time to absorb, understand and critique the instructions.
Make a record of what else you have to do in the midst of trial and why you need that time.
Demand the time. Make a record and use the words “I will not have had a meaningful opportunity to review the instructions if you do not grant this continuance, Your Honor”.
The court will not usually grant you this time; expect that.
Share the instructions with other lawyers. Ask them to read them and provide feedback.
Start keeping a repository of your own instructions.
Always submit your own proposed instructions in writing.
Always ask the Court to give your version of the instructions, no matter how closely they track the Court’s.
Always object to the Court’s instructions and suggest that the Court give yours instead.
Make sure you don’t have something stupid or wrong in your proposed instructions.
Make a record that you have not shared your proposed instructions with your client, that he is not trained in the law and he is relying on you to get it right.
State on the record that your client is not waiving any right to review of errors contained in the jury instructions.
State on the record that you have perused the Court’s proposed instructions to the best of your ability and that there are no errors that you are intentionally not bringing to the Court’s attention.
Pray that the Court gets it right.

The State and the courts of this State don’t seem to give a damn about its citizens Constitutional rights. Now, more than ever, we defense lawyers are the only ones that stand between the individual who has all the might of a government thrown against him and a summary, lawless judgment being pronounced. This is not the time to tuck our tails between our legs and scamper off. Fight. Stand up and assert our rights. Your rights. My rights. Because if we don’t, soon, there won’t be any left.

———-

And because every post of this length needs a video, here’s a song about rhymes (language decidedly adult):

« Hide It

What do we want from our system?

Jul 10th

Posted by Gideon in criminal law principles

6 comments

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead. He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]

I blue myself

Jun 9th

Posted by Gideon in ct state law

4 comments

I know what you were thinking. Pervert.

As I snarked (yes, it’s a verb now) on Twitter last night as Governor Malloy delivered his end of the session speech to a joint session of the legislature, yesterday was the first time since 1990 that a Connecticut governor uttered the words “criminal justice reform” and I didn’t want to throw something at the television.

The reason for this new-found restraint isn’t the deep meditation I’ve been practicing, but rather the reality that the legislature did indeed pass some sensible reforms this year. As the nation turns red, Connecticut turned blue, not only in the criminal justice arena but others as well. There was the paid sick leave [full coverage here] bill, the transgender identity bill and the in-state tuition for undocumented students bill. But as is the case with politics generally, there were many things left undone. Here’s a roundup of the criminal justice bills that passed and those that didn’t.

First, the good bills that passed:

Decriminalization of possession of less than half an ounce of marijuana.
Risk Reduction Credit: the first piece of “smart on crime legislation” to pass the legislature this year (scroll to section 22), this bill provides for 5 days per month of credit towards a reduction in the overall sentence of an inmate. It seems similar to a “good time” bill, but it really isn’t, because there are several offenses that are ineligible for this risk reduction credit and the credit applies only to inmates who participate in programs and maintain good behavior.
Home confinement for DUI and drug offenders: as advertised. Scroll to section 26 & 27.
Electronic Recording of Custodial Interrogations: finally a videotaping of interrogations bill and yet it feels so incomplete. This bill applies to people accused of capital felonies and Class A & B felonies only. Plus, it doesn’t go into effect until 2014, because apparently, in the 21st century, it’s far to burdensome for police departments to buy a goddamn videocamera and record something. Still, better than nothing.
Eyewitness ID reform: another half-measure as the bill now requires double-blind identification procedures “where feasible” but leaves sequential procedures for a “task force” to study. Study what, exactly, I don’t know.
An Act Concerning Competency To Stand Trial: I haven’t fully perused this bill yet, but it seems to make some changes to the restoration to competency procedure.
Prevention of Prison Rape: this is a terrific bill designed to prevent rape in prisons, which is a real problem. Read the NH Advocate for more.

Bills that should have passed but didn’t:

Reducing the radius around schools, within which drug offenders face enhanced penalties, from 1500 feet to 200 feet: This was another great bill that died at the last second, with time running out. This would’ve made another “smart on crime” change, reducing the enhanced penalty zone around schools to 200 feet. As it currently stands, at 1500 feet, major cities have almost no spots that aren’t within that radius of a school. In New Haven, there’s only one: in the middle of a golf course. Too bad. Maybe next year.
An Act Making It Clear That It’s Legal To Record Police Officers: This bill, ostensibly proposed in the wake of the Luis Luna fiasco, had great momentum, passing the Senate last week, but then it languished on the House calendar and was never put to a vote.
An Act Concerning Speedy Trials: another smart bill that sought to prevent the problem of people being incarcerated pre-trial for longer than the maximum punishment. Unfortunately, it didn’t get as much as a sniff in either the House or Senate.
An Act Concerning Sentence Modifications: a favorite of inmates, this bill would’ve removed the current requirement that all inmates serving sentences of 3 years or more need the permission of a prosecutor to even have their modification request heard by a judge. Essentially the bill would’ve removed prosecutors’ ability to cock-block. It didn’t get far.

The bills that shouldn’t have passed and didn’t:

An Act Designed To Make a Mockery of The Great Writ: This stupid bill keep getting proposed every year and every year it gets tougher and tougher to beat it back, for some reason. This year it made it out of committee, but thankfully died before a vote in either chamber. I’ve written extensively on why this is a bad, stupid, dangerous bill.
An Act Equating a Motor Vehicle With A Fiream: Here. I’ll let you read the summary: ‘To make the penalty for the offense of manslaughter with a motor vehicle while under the influence of intoxicating liquor or any drug, or both, consistent with the penalty for manslaughter in the first degree with a firearm and provide for a rebuttable presumption that any person who causes the death of another person while operating a motor vehicle under the influence of intoxicating liquor or drug, or both, did so evincing an extreme indifference to human life in a manner that constitutes manslaughter in the first degree.’ The penalty for manslaughter with a firearm? 45 years. That’s forty five. Thankfully this abomination, after passing the Senate (!), stalled in the House.
The DNA upon arrest bill: I wasn’t aware of this, but the bill passed with a great amendment: it applies only to those accused of serious felonies and who have been convicted of a felony in the past and haven’t provided a DNA sample. So, basically, it means no change in the law. [Link is to the House Amendment that was approved by the Senate, essentially the relevant portion of the bill.]
Establishing a ‘gun offender’ registry: this was a novel idea but didn’t make it far.
Thanks to Capitol Watch for reminding me about the stricter penalties for cell phone use while driving bills that apparently went quietly into that gentle night.

The bill I wish never passes, so we can keep talking about it forever:

The Ryan McKeen loves Susan Bysiewicz bill: This would have eliminated the hotly contested “active practice” requirement for someone wishing to be Attorney General. The House passed it, the Senate didn’t vote.

You can find a very unhelpful list of all the bills passed here. If any of you so much as thinks about mentioning ‘d____ p______’, I will /kickban you.

For those who don’t get the title of this post or the hilarious picture of Tobias Funke, here’s context:

CT decriminalizes pot

Jun 7th

Posted by Gideon in ct state law

6 comments

yes, officer, this weed is mine.

Connecticut’s legislature today voted to decriminalize the possession of less than half an ounce of marijuana. For those who don’t know, the picture above is of half an ounce of pot. That’s a lot.

In celebration of the impending signing of the bill by the Governor, I am conducting an experiment: this post is being typed while I am completely high¹. I have Pink Floyd playing in the background, Half Baked on the television and my good buddy Jim Breuer mumbling on the telephone.

The bill makes it an infraction to possess less than half an ounce, resulting only in monetary fines and confiscation for said pot, presumably for the officers to smoke.

[Former Judiciary Committee co-chair and current criminal justice advisor to the Governor Mike] Lawlor said many of the 2,000 people each year who are convicted of possessing less than a half ounce of marijuana do complete one of the several programs that wipe their record clean upon completion.

But the conviction being on a permanent record is not the only problem, he said.

“In this day and age, the minute you get arrested that’s public record and remains a public record… That’s there forever,” he said. “When employers Google your name that will pop up.”

“Those are records they have to explain the rest of their lives” when applying for jobs, financial aid for college and when attempting to join the military, [Judiciary Committee co-chair] Fox said. “This [bill] would change that.”

Also: it’s pot. But of course, the Repubs brought out the “gateway drug” argument³. So, after typing this post I’m going to raid my mom’s medicine cabinet, pop some percocet and then head down to the corner to score some meth¹. Brb.

And now here’s a picture, shamelessly stolen from the Hartford Advocate, followed by a video. Suggest your own theme song for this awesome event in the comments. Man.

wait, what...?

¹No, don’t be stupid. I’m writing this post drunk, as usual. I’ve never partaken of illegal drugs.²
²Not within any active statute of limitations, anyway.
³No, seriously. Smoke responsibly. Don’t smoke and drive. Don’t smoke and tweet.

ct state law

Free-ish

CT death penalty nothing but arbitrary

DOJ finds widespread racial profiling in East Haven

Witnessing bullshit

A different approach

Legally carrying a weapon is a crime

Ayyy!

The Barney Fife exception: all in good faith

Sanctioning misconduct

I know it when I see it

For your eyes only: prosecutors really can’t look at privileged documents

An ode to the Kitchens sink: a tragicomedy

What do we want from our system?

I blue myself

CT decriminalizes pot

search the blog

recent comments

recent posts

terms of use

Meta

syndication

stats

Categories

ct state law

search the blog

recent comments

recent posts

terms of use

Meta

syndication

stats

Categories

Tags