Category Archives: ct state law

All drivers are dangerous and the police are the Borg

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

[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

[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

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.

It’s not looking good.

“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?

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

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

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.