Category Archives: ct state law

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.

The Limp Writ

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:

Wishful Wednesday

In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

Individual Skill-ing

Just when I was on the precipice of not writing any further on the individual voir diredebate“, I got sucked back in. So here is this half-baked post with some references to studies that you may consider the written equivalent of diarrhea and a few other thoughts that are slightly more well-formed.

First, having already disproven the notion that Connecticut is the only state in the country that conducts individual voir dire, I point you, discerning reader, to some studies that highlight the relative benefits of ISVD. In 1999, then Federal Judge Gregor Mize wrote a paper about an experiment he conducted wherein he questioned jurors individually, regardless of whether they’d self-identified any biases in the “introductory” phase of voir dire.  Here is his conclusion:

In view of these results, one cannot help but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions. The sometimes shocking, and always noteworthy, quality of the statements given  above, have caused me to require that I interview all silent venire members. I am convinced that even if individual questioning took up significant  amounts of time (which it has not for me), it would be well worth expending the effort in order to avoid juror UFO’s and the consequent danger of  mistrials caused by impaneling biased or disabled citizens.

In 2003, he followed it up with another paper: “Be cautious of the quiet ones.” Voir Dire, 10, pp. 1-4.

In Judge Mize’s research, in the criminal trials, 1 in 5 of the silent jurors offered a highly relevant comment in individual voir dire that was withheld during group voir dire; at least one, and up to four, silent jurors were then struck for cause in 27 of the 30 criminal trials. Silent jurors in criminal trials withheld being the defendant’s fiancé, being related to the police, being predisposed toward the police, being predisposed against the police, having self or someone close shot with a gun, having lied in group voir dire, and religious convictions conflicting with duties as a juror.

In the civil trials, 1 in 10 of the silent jurors disclosed a highly relevant comment in individual voir dire, which translates into one significant disclosure for every two civil jury trials. Silent jurors in civil trials withheld having been represented by an attorney in the case, being in an auto accident one month before being called in an auto accident case, overhearing others discussing frivolous lawsuits, predispositions against the plaintiff, and predispositions against the defendant.

In both civil and criminal trials, silent jurors withheld medical conditions/hardship, financial hardship, and limited English proficiency.

The most common excuses jurors gave for failing to answer questions in group voir dire were shyness, embarrassment, and a belief that their answers weren’t very important.

Judge Mize concluded that individual voir dire is an indispensable means of identifying juror bias.

In 2005, Dax Urbszat published another study entitled The challenge for cause: Does it reduce bias in the jury system? I am unable to locate a free copy of the paper on the interwebs, so you’ll have to make do with this excerpt and summary:

Urbszat (2005) recently conducted three studies examining the effectiveness of voir dire in identifying jurors with bias or prejudice in a case. The challenge for cause was found to be ineffective in identifying and rejecting biased jurors. In addition, when the jury pool remains inside the court during voir dire, jury pool members were less likely to admit being prejudiced, and less overall rejections occurred. Individual voir dire, conducted outside the presence of other jurors, increased admissions of prejudice.

In addition, since the original series of posts, I did informally ask several local attorneys who have experience both in the Federal system and in other States, and to a person they all affirmed that they would prefer individual voir dire over group. But that is neither here nor there since I am anonymous/pseudonymous and it is only anecdotal.

However, I may not even have written this post, were it not for oral argument today in Skilling v. United States (transcript) before SCOTUS. There are two issues before the Supreme Court, both interesting in very different ways. The first is of relevance here. Skilling claims that his “trial was unfair” (and I’m paraphrasing) because of the immense pre-trial publicity his case received that rendered it impossible to empanel an impartial jury, especially given the manner in which voir dire was conducted. For a case of this magnitude, an entire jury was selected in just 5 hours, with limited questioning by the judge and even more limited questioning by the attorneys. Their primary reliance was on a 14 page questionnaire that each potential juror had filled out well in advance of jury selection. It is especially important to note that in Skilling, the voir dire was individual voir dire (and this is the much vaunted Federal “quick pick” system).

In Skilling, 60 percent of the jury venire affirmatively acknowledged in the responses to questionnaires that they would be unable to set aside their deep-seated biases or doubted their ability to do so, or that they were angry about Enron’s collapse, an anger that was manifested in the vitriolic terms in which Skilling was referred to repeatedly both in the questionnaires and in the community more generally.

Here, in CT, a similar trial is underway in New Haven. I mentioned this in a previous post and it seems that this trial is the gunpowder that has ignited some calls for doing away with ISVD. Any such reliance on highly-publicized trials is misguided. As with the Skilling trial, there is an overwhelming percentage of people called to serve who immediately are disqualified due to the immense publicity in the press and the overwhelming emotions the case evokes. That, in of itself, takes up a lot of time. In the Hayes case in New Haven, it is my understanding that only 14 jurors have actually been questioned on their suitability, with 4 of them being selected to serve. The rest have either been excused for hardships or for cause.

And yet some would have us pick a jury in a capital case which evokes the strongest of emotions in a matter of hours. I wouldn’t do it if my life were on the line, would you?

And if you cannot answer the above question in the affirmative, then we must stop calling for a truncated process when the lives and freedom in question are of those who trust us with them.

In the vast amounts of time that I have to myself, dragging the wheel as an indentured servant of The Man, I have thought about ISVD. Perhaps it is my feeble mind that cannot escape the conclusion that ISVD is a tool to be cherished by the true believer in the fairness of the system. Perhaps it is the lack of dollar signs impeding my vision that does not let me see reason. Perhaps none has been given.

Further thoughts on ISVD

I don’t have time for a pithy title, so pardon me. I just wanted to add a few more thoughts to my post from last night on Norm Pattis’ call for the elimination of ISVD (by the way, Norm responds to my post here).

Here are a few things that still bother me, and this is perhaps at the root of it all. I have yet to see a reason for abandoning individual voir dire in favor of group voir dire other than “ISVD is time consuming and a waste of money”. Fine, reasonable and some not-so-reasonable minds can disagree on that (although I will note that I have seen references in studies to others that have concluded that the statement is not true; I just haven’t been able to locate such studies yet).

What bothers me about this, especially coming from a defense attorney, is this: it is not my job and not my function to point out ways to “speed up” the system. Clamoring that it needs to be done only furthers the perception that some percentage of the public has about the cumbersome (hah) nature of the criminal justice system. Those of us who practice in the criminal courts in Connecticut: prosecutors, judges, defense lawyers, even Norm, know that for the most part, that is simply not the case.

A year is really not a long time for a serious felony case to go to trial. And so to propose a change that may very well inure to the defendant’s detriment seems unseemly coming from a defense lawyer.

Perhaps we have all been at this too long; perhaps we are all jaded. Perhaps we begin to view trials from the lens of our own lives: “I’m on trial for the next month so I have to postpone my vacation”, or “I can’t start trial here, judge, because I’ll be stuck in Tolland for the next two months”.

But for those of us who are the only voice these defendants have against the might of the state to stand up and say, yes, the process that the State employs to accuse, try and convict my client is long and cumbersome is just plain ugly. If the State has chosen to prosecute my client, the cost of that prosecution is not my concern. Let the State pay as much as it takes to meet their burden. And if that involves selection of jurors one by one, then so be it.

If the State legislature, in its wisdom, chooses to abolish ISVD because of cost, then let it be so. I will go along, as I will have to. But I will not be complicit in its abolition for the reason of money.

Let us not forget that while these may be a few weeks out of our time that we feel may be better spent elsewhere, for most clients this is a once in a lifetime event, on the outcome of which hinges their very freedom and liberty. I am incapable of stating to my client, incarcerated awaiting trial, that we won’t be able to question jurors individually to determine if they harbor any biases that would make them unsuitable to judge his actions (or lack thereof) because it takes too long and costs too much. That is not, and cannot be, my function.

Norm says that I am wedded to the idea of ISVD because I have known no other. That I have no experience in Federal Court. I will neither confirm nor deny that, just because I don’t want to. But to reject my argument against group voir dire on the basis on one man’s personal experience in ISVD and group voir dire simply smacks of the pot calling the kettle black.

The framers of Connecticut’s Constitution saw it fit to make the right to question jurors individually inviolate. Perhaps that is because they recognized that the workings of the criminal justice system should not be constrained by questions of cost or time. After all, what is a few weeks when the potential penalties are decades of imprisonment.

No matter how many times you say it, or how many times you reference my mother, you will not change my opinion that individual voir dire, by its nature, can be a more effective tool of jury selection than group voir dire.

Give me a reason to change my mind. But make sure the reason isn’t that it’s too costly or time-consuming. As a criminal defense lawyer, I don’t care and neither should you.

Cumbersome bloviating misrepresents

Consider my gears ground. I’ve been resisting jumping in to counter the incessant stream of anti-individual voir dire noise emanating from Norm Pattis over the past month or so. I first saw a post on his blog, which was then reproduced in his column in the Connecticut Law Tribune and finally copied and pasted into this opinion piece in the Courant yesterday.

Norm, for some reason, has been crusading against the “cumbersome” and “wasteful” process of individual voir dire that we employ here in CT. What happens, simply, is this: a jury panel is brought into a courtroom, is read some preliminary instructions by a judge and then members are asked to identify if they have any hardships or other reasons why they cannot serve on a jury. Those who do not identify any such impediments are temporarily asked to retire to a room, while those that raised their hands and quickly individually questioned to determine the reason for their inability to serve. A large percentage of these people are quickly dispensed with and then people are brought out individually from the “able to serve” pool to be questioned to determine their suitability for serving on the particular case.

The length of individual voir dire varies greatly: a simple misdemeanor or less-serious felony jury can picked within a day. Murder juries can take over a week or so. Capital juries naturally take longer.

I have long argued that individual voir dire is preferable to group voir dire. Human nature is such that we are more likely to be honest in our beliefs when we are not being compared to those “similarly situated” to us. Besides, really the only purpose for group voir dire is to indoctrinate jurors and educate the jury, a point which Norm claims is one of the abuses of individual voir dire.

But there are several other problems with his position. He starts with this paragraph:

In every other jurisdiction nationally, juries are selected in a group voir dire. Questions are put to potential panelists to see whether they can be fair and impartial in the case for which they may be selected. The group method permits folks to sit with their peers to answer questions about bias or prejudice. A jury can be picked by this method, even in a case of some complexity, in a matter of hours.

That’s just patently false.