ct state law

The child abuse exception to [privilege]

May 12th

If the law were a series of Hollywood blockbusters, undoubtedly the highest grossing series of movies of all time would be the ones that featured the exceptions carved out in long-standing law to accommodate the prosecution of alleged child abusers. You’d start with the original, “The Child Abuse Exception to Confrontation”, with which the ~~writers~~ judges hit a goldmine. Then I’d recommend moving to “The Child Abuse Exception to Prior Bad Acts”, and by now with a well-worn formula that keeps the entire plot intact but simply changes the name, a la The Hangover 2, The Child Abuse Exception to Privilege. There’s a rumor that there is a madlibs game in the works “The Child Abuse Exception to _____”. Ultimately, the plan is to release a director’s cut box set compendium under the title “The Child Abuse Exception to The Law”.

This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.

The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).

Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.

Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.

In Connecticut, the privilege statute is 52-146s, which states:

(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.

(c) Consent of the person shall not be required for the disclosure of such person’s communications:

(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;

So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:

Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent for any subsequent disclosures.

The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.

The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:

Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into § 52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.

The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.

In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.

The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.

Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.

Yeah, no chilling effect, for sure.

Significant CT Supreme Court cases

Mar 28th

Posted by Gideon in ct state law

6 comments

Justice Old White Dude 1, Justice Old White Dude 2...

The Connecticut Judicial Branch, in keeping with its image of being speedy and up-to-date with news and technology, just posted a new link on its website. The link is to the celebrations held in honor of the 100th Anniversary of the Connecticut State Library and Supreme Court building, which was November 10, 2010. So, you know, only 5 months late.

There actually is interesting information on that site, including really old photographs of really old dudes with names like Samuel Prentice and Silas Robinson and Elisha Carpenter, who, apparently sat on wooden chairs at floor level. No wonder it was called the Supreme Court of Errors. Now there’s an appropriate name, if there ever was one.

There’s also this lovely link to a list of all Connecticut Supreme Court (I’m just going to call it that, okay? Let the Court of Errors thing go. Act your age.) Justices, dating back to the ubiquitous and inimitable Tapping Reeve. [And if someone can explain to me just what the hell is going on with the layout of this page, I'll buy you a drink.]

But – and what I’m getting to – is this nifty little list created by world-renowned Connecticut Appellate Lawyer Wesley Horton, of some “significant” CT Supreme Court decisions.

Being someone who once went to treatment for list-addiction, I cannot but permit myself a sip o’ the ole vice and present a list of my own and invite you to do the same. So, finally, here’s a list of the most significant Connecticut Supreme Court cases, in my opinion. Obviously, since no one really gives a shit about civil cases, there are few on this list.

1. State v. Golding – holding that unpreserved errors of Constitutional magnitude can and should be reviewed by appellate courts

1a. State v. Kitchens – effectively reversing State v. Golding above and making it near impossible to get any review of any sort of unpreserved claim of Constitutional magnitude.

2. Kerrigan v. Comm’r of Public Health – gay marriage is a-okay!

3. State v. Geisler – delineating a 6-part test to evaluate claims under the State Constitution.

4. State v. Stoddard – Police are required to timely inform suspects in custody of legal counsel’s attempts to contact them and render legal assistance.

5. State v. Oquendo – declining to adopt the restricted meaning of seizure under Hodari D. and holding that Connecticut’s Constitution provides greater protection.

6. State v. Randolph – reinstating the old common law rule of favoring a strict preclusion of “propensity evidence” in non-sexual assault cases.

6a. State v. DeJesus – actually putting ink on paper to say that, in sex assault cases, once a sex offender, always a sex offender.

7. State v. Marsala – under the State Constitution, there is no such thing as a “good faith exception” to the exclusionary rule.

8. Sheff v. O’Neill – something about racial segregation and schools and who the hell knows. They’re still fighting over this one, nearly 20 years later. (No, I’m kidding. This case is very big deal.)

9. State v. Courchesne I – a death penalty reversal based on statutory construction and “plain meaning” of words written on paper, which led the legislature to pass CGS 1-2z, which essentially says mean what they mean.

10. Lozada v. Warden – that whenever the right to counsel attaches (in this case in post-conviction hearings), that right is the Sixth Amendment guarantee of the effective assistance of counsel. Prosecutors hate this one.

11. Kelo v. New London – something about eminent domain and taking and – seriously, all I remember about this is that after SCOTUS’ opinion, some justice had almost had his house taken by eminent domain or something?

12. State v. Nelson, State v. Griswold – the name should give you a hint.

13. State v. Littlejohn – proving the old adage that a criminal defendant can waive whatever the hell she wants, including the statute of limitations.

14. Kohlfuss v. Warden – there is a double jeopardy provision in the State Constitution. It’s right there, umm, taking the shape of the Due Process Clause.

15. State v. Carpenter – holding, somehow, that recklessness (as required for manslaughter) is a subcategory of specific intent (required for murder).

16. State v. Morales – entitles the defendant to a jury instruction when the police fail to preserve potentially useful evidence.

17. State v. Ledbetter; State v. Marquez; State v. Outing – slowly but surely coming in line with the modern scientific thinking on the uselessness of eyewitness identification.

I’m sure there are others you find significant. Let’s hear them in the comments.

[PS: I was really, really tempted to add another: She Who Must Not Be Named v. DiNardo, for my good friend Ryan. But I give him enough crap about it already.So I leave it to you, mischievous reader, to suggest it in the comments.]

Wrong time, wrong battle

Mar 28th

Posted by Gideon in clients

5 comments

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

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

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

__________________________________________________

¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

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State police want to arrest judge who refused to sign arrest warrant

Mar 25th

Posted by Gideon in cops

32 comments

Unless the victim was also arrested. You can’t make this shit up. And if it were April 1st today, I might laugh it off as a clever joke. But it’s not and apparently neither is this.

Here’s the lowdown, from the two meager paywall inhibited articles that I could find. State Trooper from Salisbury, CT (where watching paint dry is exciting) Mark Lauretano apparently submitted an arrest warrant for a man who got into a bar fight with someone else. The “victim” of the fight (meaning the guy who got beaten up worse), was obviously not arrested, as these things go. Judge Klatt, upon reviewing the information in the warrant declined to sign it, apparently until the “victim” was also arrested.

Judge Klatt, a former prosecutor from ~~Death Valley~~ Waterbury, CT, should have known better. You simply do not refuse the State Police what they want. So instead of, I don’t know, reviewing the information again to see if maybe the Judge had a point, Lauretano does the logical thing and is now seeking an arrest warrant for the Judge herself*.

Because, you know – no, actually I don’t know. He claims that:

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

The fact that Judge Klatt is currently holding onto a valid arrest warrant for the accused and refusing to sign it until and unless she receives an arrest warrant for the victim is coercion and a violation of criminal law.

Actually, I prefer to call it “not engaging in selective prosecution”.

Assuming, of course, that the reason the judge didn’t sign the arrest warrant was because she personally knows the defendant-elect, this highlights a problem that we in the defense field have long observed: that arrests in these and domestic violence and violation of protective order cases are always one-sided. Man and girlfriend get into fight and it’s always only the man who’s arrested. There’s a running joke that the way to “win” a fight is to get injured just slightly more than the other guy. They’ll never arrest you if you come out looking like the worse of the two. You see it in self-defense cases, too.

But that’s neither hither nor thither. Let’s take a look at what the good Trooper accuses the judge of doing: coercion and “hindering a police investigation”.

Coercion, CGS 53a-192, states:

(a) A person is guilty of coercion when he compels or induces another person to engage in conduct which such other person has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which such other person has a legal right to engage, by means of instilling in such other person a fear that, if the demand is not complied with, the actor or another will: (1) Commit any criminal offense; or (2) accuse any person of a criminal offense; or (3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair any person’s credit or business repute; or (4) take or withhold action as an official, or cause an official to take or withhold action.

(b) It shall be an affirmative defense to prosecution based on subdivision (2), (3) or (4) of subsection (a) of this section that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other person to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior or making good a wrong done.

(c) Coercion is a class A misdemeanor except, if the threat is to commit a felony, coercion is a class D felony.

Ugh. Best I can tell, Lauretano feels like Judge Klatt is compelling him, or inducing him, to abstain from engaging in conduct that he has a legal right to engage in (arresting the defendant-elect). But there also has to be a showing that he’s afraid that if he does not arrest the “victim”, he will himself be the victim of a crime, be accused of a crime, his secrets will be exposed or the judge will “take or withhold action as an official”, whatever the hell that means.

[Update: As astutely pointed out by Gamso in the comments below, the irony is that Lauretano's actions more closely fit the definition of coercion than the judge's. Compelling the judge? Check. Conduct that the judge has a legal right to abstain from engaging? Check. Instilling in the judge the fear that if the demand is not complied with he will accuse her of committing a crime? Check. Subsection (b) might apply to him, but as we all know, an affirmative defense is not a bar to prosecution. Methinks the trooper may not want to play this game much longer.]

So if not coercion, then what else? “Hindering a police investigation” isn’t a crime. There’s no such thing in CT. There’s “Hindering prosecution” and “interfering with the police”. I’m going to assume it’s the latter. CGS 53a-167a states:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

(b) Interfering with an officer is a class A misdemeanor.

Interfering with an officer can – and does – mean many things in Connecticut. A Judge acting in furtherance of her duties cannot be one of them. If that were to be the case, then any and all warrants must be signed by judges, otherwise they’d all be interfering with officers.

I’m glad that Salisbury has nothing else going on that a State Trooper wastes his time applying for an arrest warrant for a judge for 2 misdemeanors and also makes a statement to the press.

I wonder what’ll happen if another superior court judge refuses to sign this warrant for Judge Klatt’s arrest. Ad Infinitum.

[*Obviously, this is all based on the limited information we have so far. If it turns out that the judge refused to sign the warrant for reasons that are less than kosher, then we have a different story on our hands.]

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Reasonable gibberish

Mar 22nd

Posted by Gideon in criminal law principles

23 comments

(alternate tagline: because juries never convict anyone anyway)

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

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

This is, of course, the model jury instruction. I request one that’s substantially different and lifted from State v. Jackson, which I’ll get to in a minute. But look at that definition above. The first sentence itself is so meaningless and confusing that I bet everyone who hears it spends the next 5 minutes trying to figure out just what it means and thus misses the exposition. Emphasizing the word “reasonable” simply leads people to say “proof beyond a reeeasonable doubt”, without any further clue as to how that is to inform their decision. Furthermore, what the hell is a reasonable doubt anyway? Chicken, egg, etc.

The real problem, though, comes when we start defining what “reasonable doubt” isn’t. This indoctrination and confusion starts with jury selection. Prosecutors in these parts read from a script and the script has this explanation:

Now, you may have heard of the phrase proof beyond a reasonable doubt. If you’re selected to sit on this jury, the judge will give you the exact definition, so I’m not going to do that. What I can tell you is that proof beyond a reasonable doubt isn’t proof to an absolute certainty or 100% proof. That’s an impossible standard. [Insert joke about packing up bags and going home or setting a 9am tee time.]

Of course, when the juror-of-average-intelligence follows up with the logical question of, well, if it isn’t 100%, then how much is it, we are all too quick to disavow any statistical attachment to reasonable doubt. We can’t put a number on it. You’ll know it when you see it, just like obscenity and chicken sexing. This loosey-goosey definition of reasonable doubt leads to the same pitfalls when applied to criminal law as it does when applied to obscenity. It means different things to different people.

The “not absolute certainty” instruction also, in my opinion, seeks to lessen the state’s burden in a sneaky, roundabout way: the logical conclusion is that a juror will remember that and say to herself or her fellow jurors: look, we don’t have to be absolutely certain. Close enough is good enough. And you can’t really argue with that, because we don’t know what the standard is in the first place. Scott, writing in the post I linked to above, says it better:

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them. We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them. It’s not their fault. Not in the slightest. It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

And it is precisely this imprecise and vague meaning of reasonable doubt that the State craves. Research into the psychology of jurors has shown that people are predisposed to convicting someone who is on trial, that jurors are more often likely to side with the State and their show of power. It’s an “us vs. them” mentality and this vague definition teases that out and exploits them. Reasonable doubt is replaced with “I think he did it and if I don’t have to be absolutely certain he did, then this feeling is good enough”. No matter how hard you try, it is extremely difficult to overcome this bias in jury selection and argument, because there’s nothing contrary to argue. You can’t stand up there and give them another definition that makes it clear to them just how high the State has to jump to convince them.

Back to Judge Blue, then. In his valiant attempt to bring sanity to and make concrete this most important concept in criminal justice, he penned the following instruction, which is a slight variation of the charge on reasonable doubt recommended by Justice Ginsburg of the Supreme Court of the United States in Victor v. Nebraska, 511 U.S. 1, (1994). It is a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts:

The state has the burden of proving each and every element necessary to constitute . . . the crime charged. And I’ll instruct on those elements later in my charge. The defendant does not have to prove his innocence in any way or present any evidence to disprove the charge against him. The state has the burden of proving the defendant’s guilt beyond a reasonable doubt. Some of you may be aware that in civil cases jurors are told that it’s only necessary to prove that a fact is more likely true than not true. In criminal cases, the state’s proof must be more powerful than that: It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

The irony is that, in State v. Jackson, the defendant appealed, arguing that this instruction diluted the State’s burden. I suspect, however, that it was appealed only so as get the seal of approval from our Supreme Court, which it did.

Is this definition perfect? No, but it is a step in the direction of providing a concrete explanation of standard to which jurors must hold the State. “Firmly convinced” is a phrase that has more meaning than “a real doubt, an honest doubt”. A juror can ask herself: Am I firmly convinced of this man’s guilt? It’s easier to answer than “Do I have reasonable doubt?”

It is, of course, easier for the courts to “let it be”, but I take that as an instruction to judges, not lawyers. We should routinely object to that nonsense definition I first quoted. Read it again. Tell me if any of it makes sense to you. Can the word “reasonable” be used any more times in a single paragraph? Reasonable men and women having reasonable doubts about reasonable hypothesis.

It is reasonable to think that reasonable people will reasonably be confused by this. And it is reasonable to think that it reasonably leads to reasonable men being convicted for lack of reason.

Reason does make cowards of us all.

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They may take my freedom, but they will never take my cell phone

Mar 15th

Posted by Gideon in ct state law

No comments

The title only really works if you imagine it being uttered by Mel “before he went crazy – or maybe he always was” Gibson essaying the role of William Wallace in that stirring monologue near the end that is actually said to have never happened (There’s some trivia for you).

But it is indisputable that some of the lunacy that has infected the good actor’s mind has seeped into the brains of certain state legislators, for how else would one explain a new proposed bill that would make talking on a cell phone punishable by imprisonment?

Raised Bill 6366 would make the penalty for a second violation of the no-talking-on-cell-phones-while-driving law up to three months in jail:

(h) Any person who violates subsection (b), (c) or (d) of this section shall, for a first violation, be fined one hundred dollars, and, for a second or subsequent violation, be fined not more than five hundred dollars or imprisoned not more than three months, or both.

It would also give the police the immediate authority to suspend a driver’s license for a period of 24 hours, without a hearing, or due process, which up until now were within the exclusive kangaroo jurisdiction of courts and the Department of Motor Vehicles.

I’ll get back to the “3 months in jail” provision in a bit, because there are other problems with the bill as drafted that also merit attention. For example, the bill makes it illegal to talk on the phone or send text messages, but does not make it illegal to hold “a hand-held mobile telephone to activate, deactivate or initiate a function of such telephone”.

There is an exception for a “hands-free” device which:

means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

So, it would seem, I can answer a call, put the phone on speaker and talk away to my heart’s content. Or can I? It is also illegal to have “engage in a call” in one’s “immediate proximity”:

(7) “Immediate proximity” means the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.

Whaaa? So can I use the speaker function, or can’t I? The bill also makes it a rebuttable presumption that anyone who holds a phone to, or in the “immediate proximity” of his ear is engaged in a call. The presumption can be rebutted by one proving that there was indeed no call taking place.

And of course, the bill also makes it clear that getting pulled over for this violation does not give police the authority to seize or forfeit the phone.

Nifty little trick there. It places the burden of proof – of innocence – on the accused and then forces that accused to give up his fourth amendment right to be free from illegal search and seizure in order to prove that innocence.

The only way that someone can prove that they were not engaged in a call is to take out the phone and show the officer that they were not, indeed, making a call. But courts have held recently that there is some grounds for a right to privacy in one’s telephone, thus triggering the Fourth.

[Although, this particular "problem" is taken care of by Raised Bill 961, another bill on talking-while-driving, which directs the police to seize the cell phone for a period of 48 hours. I suggest that each one of you create a password on your cellphones and calmly remind the officer that he is violating your fourth amendment rights and that he obtain a warrant prior to seizing the cell phone.]

Of course, the biggest problem with this bill is that it creates criminal liability for acts that are so poorly defined and that really should not be the subject of criminalization.

Making one of the potential penalties 3 months’ imprisonment brings with it the attendant rights of anyone who is exposed to a deprivation of liberty. Which means due process, the right to counsel, etc. And that means greater resources and more time wasted on something that really even the police themselves can’t be bothered to police. In other words, I smell pretext.

H/T: Capitol Watch

The Limp Writ Redux

Mar 4th

Posted by Gideon in ct state law

3 comments

Because the State of Connecticut has nothing else to worry about *cough3billiondollardeficitcough*, it’s time for the legislature to entertain bills on all sorts of nonsensical subjects, including one that’s every “dumb on crime” legislator’s favorite whipping boy: Habeas Corpus reform. The bill is exactly the same as the one proposed last year (no, I haven’t done an actual word-by-word comparison, but it looks pretty damn identical to me), so instead of wasting my time crafting an entirely new response, I’m going to follow the learned legislators’ lead and copy and paste my detailed response from last year. But don’t be fooled into skipping past it. It’s awesome and I’m pretty sure I put a lot of hard work into writing it a year ago. That this bill has once again been presented to the legislature is not any indication of the need for habeas reform; rather it is a testament to the improbably short-sighted and bull-headed nature of our elected representatives for whom it is more important to appear as if they’re doing something worthwhile than to actually do it.

—

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:

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

Section 1. (NEW) (Effective October 1, 2010) The provisions of sections 2 to 6, inclusive, of this act apply to any application for a writ of habeas corpus filed on or after the effective date of this section that is brought by or on behalf of a person who (1) claims to be illegally confined or deprived of his or her liberty as a result of a conviction of an offense, as defined in section 53a-24 of the general statutes, or a motor vehicle violation for which a term of imprisonment may be imposed, and is challenging the validity of the conviction or sentence imposed, [...]

Yes, this bill would be effective immediately and apply to all new habeas petitions and apply retroactively. So if an inmate decides to file a petition tomorrow for a conviction obtained in 2004, the SOL would apply. Is the concept of notice so novel to the legislature that they cannot grasp the implications of this? Increase litigation 10-fold.

Sec. 2. (NEW) (Effective October 1, 2010) Except for the remedies of appeal, petition for a new trial, sentence review in accordance with section 51-196 of the general statutes or sentence reduction or discharge in accordance with section 53a-39 of the general statutes and the authority of the sentencing court at common law to correct an illegal sentence, the remedy of habeas corpus as provided in sections 1 to 6, inclusive, of this act shall be used exclusively in lieu of all common law, statutory or other remedies available prior to the effective date of this section for challenging the validity of a conviction, sentence or commitment.

This is a frightening provision. Perhaps unintentionally so. What it does, immediately, is eliminate the Writ of Error Coram Nobis. WECN (I made up that abbreviation; you are free to use it) is an extraordinary remedy to be applied only when no other avenue is available. Combine that with the forthcoming section on the statute of limitations for the Great Writ and the effect is that for some people, there will be absolutely no avenue to seek redress for a Constitutional violation.

In addition to that, this section also seeks to eliminate the statutory Motion for New Trial (not to be confused with the Petition for New Trial), which must be filed shortly after a verdict of guilt. This gets a +5 on the “more litigation” scale.

Serenity now.

Sec. 3. (NEW) (Effective October 1, 2010) (a) No application for a writ of habeas corpus challenging the validity of a conviction, sentence or commitment shall be brought except within: (1) Three years after the date that the sentence was imposed or the commitment ordered, or (2) one year after the date of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the denial of a petition for a writ of certiorari to the Supreme Court of the United States or issuance of said court’s final order following the granting of such petition; whichever is later.

This is the big kahuna. The SOL is introduced into state habeas corpus petitions, where none existed before. But note the end of that provision: the SOL is one year from the denial or granting of cert by SCOTUS. So if the United States Supreme Court grants an inmate’s petition for certiorari, the SOL still continues to run! Bueller?! Bueller!???!? What. The. Fuck.?

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if the applicant establishes due diligence in presenting the claim and:

(1) The applicant establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) The applicant alleges the existence of newly discovered evidence, including scientific evidence, that could not have been discovered by the exercise of due diligence by the applicant or the applicant’s counsel prior to the expiration of the three-year period for the filing of an application for a writ of habeas corpus, is not for impeachment purposes and would establish that the applicant is actually innocent of the offense or offenses for which the applicant was convicted or committed;

(3) The applicant’s claim for relief is based upon a new interpretation of federal or state constitutional law by either the Supreme Court of the United States or the Supreme Court of this state that is retroactively applicable to cases on collateral review; or

(4) The applicant establishes that the evidence on which the claim is based was in the exclusive possession of the state and not otherwise available to the applicant, was not disclosed prior to the expiration of the time periods set forth in subsection (a) of this section, is favorable to the applicant and is material to the applicant’s guilt or punishment.

Due Diligence. I don’t know what that means. Do you? cough*morelitigation*cough. Subsection (2) is so mind-numbingly stupid that I can only fairly criticize the “not for impeachment purposes” clause. The legislature is purporting to tell a court of equity what types of evidence it may consider? The litigation meter just went to 100.

Subsection (3) is also evidence that this bill was drafted by a prosecutor non-lawyer. The United States Supreme Court has, on several occasions, applied new interpretations of criminal statutes retroactively [I once wrote a brief on that damn issue].

On the more litigation front: Who decides all this anyway? Does a Court? If a court decides this, is it prior to the filing of the Great Writ, or after? Or is it in purgatory? Is counsel appointed? Is counsel appointed provisionally? Can this be appealed? If it is appealed, is counsel provided? There is a right to counsel, after all. Oh yay!

Suspension of the Writ

Read the following section and tell me how this is not a suspension* of the Great Writ for some:

Sec. 4. (NEW) (Effective October 1, 2010) (a) A claim for relief raised in an application for a writ of habeas corpus, or in an amended application, shall be barred and no court may decide the claim if:

(1) It was raised and decided, either on the merits or on procedural grounds, in any earlier proceeding; or

(2) It could have been raised but was not raised:

(A) At any time prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment;

(B) In a direct appeal from the proceeding that resulted in the applicant’s sentence or commitment; or

(C) In a previous habeas corpus proceeding challenging the same sentence or commitment.

I’ll give you an example of the idiocy of 4(1): an inmate files a sentence modification and his grounds for the modification are that his conviction is illegal and thus he should have no sentence at all. A trial court, rightly, says, “sir, you are crazy, go file a habeas”.

Mr. Not-So-Smart-Inmate goes to habeas court where it is barred because it was decided on procedural grounds in a prior proceeding. This is so flatly contrary to mountains of state and federal Constitutional law that I have half a mind to go to the public hearing on Monday and just scream into the microphone, following the advice of Anouilh.

You want even more litigation? I’ll give you more litigation:

(b) Notwithstanding the provisions of subsection (a) of this section, a court may hear a claim if:

(1) The applicant demonstrates good cause for his or her failure to raise the specific claim in the earlier proceedings and sets forth sufficient facts to demonstrate a reasonable likelihood that, if the facts are viewed in a light most favorable to the applicant, the claim or claims will succeed on the merits. For purposes of this subdivision, an applicant demonstrates good cause by identifying an objective factor external to the defense that impeded his or her ability to raise the specific claim during the earlier proceedings, or by proving the ineffectiveness of counsel in failing to raise the specific claim prior to the imposition of sentence in the proceeding that resulted in the applicant’s conviction or commitment, or on direct appeal;

A) Who is going to decide, prior to deciding the merits of the claim, whether there is a “reasonable likelihood that the claim will succeed on the merits”? A judge, that’s who. So…why…I mean…umm…what?

B) Is counsel going to be appointed? Or is this going to be pro-se? And what if a judge decides that the claim can proceed because there’s a reasonable likelihood that it will succeed and then denies it?

C) Demonstration of good cause that there was an objective factor: who decides this? A judge – repeat A and B above. Make sure you lather well.

D) Ineffective assistance of counsel is good cause to proceed, but who decide – oh what the hell, I can’t play this game anymore.

Sec. 5. (NEW) (Effective October 1, 2010)

(b) The ineffectiveness of any counsel who represented the applicant in an earlier habeas corpus proceeding shall not be a ground for relief in a second or subsequent application.

100 magic brownies to whoever points out how unconstitutional and stupid this is in the funniest way possible. To those that may not understand it, I provide a big hint: Right to Counsel = Right to Effective Assistance of Counsel. Quod Erat Demonstrandum .

This post has gone on long enough so I won’t reproduce Section 6, but I will tell you that it is merely another “gatekeeping” provision. That makes it, what, the 3rd? We screen the screen that screens the claim, deciding whether to get to a full hearing. Each stage is appealable (and believe me, it will be appealed). Wouldn’t it be simpler to just have the damn hearing?

The bottom line

Yes, there’s a bottom line. And that is this: this bill “streamlines” habeas corpus procedures in the State of Connecticut in the same way Mount Everest placed atop the Space Shuttle would streamline it. Which is to say, not at all.

I wouldn’t be surprised, if this bill passed, that the State would have to provide greater resources to the State’s Attorney’s office and the Public Defender’s office to litigate every step of the process. And at the end of that litigation, most of this garbage bill would be struck down as unconstitutional anyway.

Many of the “provisions” of this bill are already law: procedural default, cause and prejudice, motions to dismiss, motions for summary judgment. Moving these restrictions from their proper place – during the pendency of the proceedings – to a newly created space prior to the institution of proceedings is nothing but another way to increase litigation and create backlogs and nightmares where none exist.

My version of a “habeas reform” bill

What? You thought I didn’t have an idea of my own? I thought you knew me better than that.

Section 1. The right of access to the Great Writ shall be inviolate.

Section 2. All State’s Attorneys charged with defending against petitions for writs of habeas corpus are required to file Motions to Dismiss and Motions for Summary Judgment in all applicable cases.

Section 3. All Special Public Defenders, appointed to represent inmates in petitions for writ of habeas corpus, shall be paid a flat fee per case, regardless of whether a hearing is conducted on the merits of the petition or not.

Section 4. A second or subsequent petition challenging the same conviction that was challenged in a prior habeas petition adjudicated on the merits shall be automatically subject to a motion to dismiss. If the petitioner, through counsel, can establish that there exists good cause for raising new claims challenging the same conviction, then the petition shall be permitted to proceed. Otherwise, it shall be dismissed.

Fin.

[The opening paragraphs of this post have been lifted, word for word, from this law review article. The principles are articulated so well there, that it would be a shame for me to try and reproduce them in my meandering style.]

*Yes, I realize I’m being a bit dramatic here. But.

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Looney times are here again

Feb 13th

Posted by Gideon in ct state law

3 comments

It’s February after an election year, which can mean only two things: pitchers and catchers report soon and there’s an influx of bills in a new legislative session that make you go “stfu!”. Don’t ask me what stfu stands for. Seriously, it’s 2011.

So in a year where the only focus should be the economy, stupid, there already is no dearth of head scratch inducing bills that have been or are about to be proposed in the State legislature. I bring you these only as I can – with heaping amounts of derision.

So let’s get started:

Proposed S.B. 104: An act concerning the penalty for the sexual assault of a minor. Don’t bother reading it, it’s a proposed bill so there’s nothing more than a statement of purpose. I’ll tell you what the proposal is: one strike. Yes. One strike for people convicted of sexual assault of a minor under “certain circumstances”. That means, under “certain circumstances” you sexually assault a minor, the penalty is life.

I’ll tell you why such boneheaded bills get proposed: publicity and feeding into hysteria. Senator Witkos, who must know that there’s no chance in frozen Connecticut that his bill will pass, has introduced it only so he can look “tough on crime” (which we all know is on the way out and there’s no chance in frozen Connecticut Witkos will ever look ‘smart’ on crime). The implications of a bill such as this are frightening nonetheless. Apart from the severity of the penalty, there will almost certainly be no more plea bargaining for this sort of offense. What’s the incentive? None. Go to trial. Watch the system crumble. Watch children further traumatized. Good times, Witkos.

Proposed S.B. 87: An act concerning the prevention of convicted felons from receiving state social service benefits. If you thought 104 above was the extent of Witkos’ bright ideas, let me disabuse you of that notion. Here is another of his bright ideas. The statement of purpose is laughably uppity: To require that persons receiving state aid are law abiding citizens.

I hope, dear reader, that you have no need for me to list the various ways that this bill is a bad idea and insidious at worst. Whether the chicken came before the egg, the impact of this bill will squarely fall on the minority communities of Connecticut, whom some might argue have the greatest need for social services.

Proposed S.B. 395: An act concerning drug testing for recipients of cash assistance benefits. It seems that Sen. Kane is drinking whatever Witkos is. This bill would require periodic drug testing (yes, let out that sigh right about now) of people on state welfare. Hey, at least it’s no “one strike” bill. A first offense requires an evaluation. A second requires mandatory (!) drug abuse treatment and only a third will strip away benefits. Because there’s nothing like making poor people poorer to get them to stop using drugs.

Proposed S.B. 142: The “DNA upon arrest” bill. The problems with this type of DNA collection are well documented as are my objections to it. (More on this bill here.)

Proposed S.B. 695: The “gun offender registry” bill. Proposed by longtime Senator Looney (now you get it), the bill would create a registry, similar to the sex offender registry, of people convicted of using guns during specified crimes. It helps keep track of gun users or something, apparently.

But I can’t hate on Looney too much, because for every crappy bill like the above, he proposes several good ones. For example, the bill legalizing less than an ounce of marijuana, the bill reducing the “drug free zones” to only 200 feet as opposed to 1500 feet and only during school hours, the bill to videotape interrogations, the bill to automatically make provisional pardons final after 5 years of crime free life (beautifully titled “To allow former offenders a better way to become productive members of society”), the bill making it illegal to detain in pre-trial status people charged with misdemeanors for longer than the maximum punishment (aka the bill “To create a more rational criminal justice system”);

and finally S.B. 788 which would give citizens the right to sue police departments who interfere with a citizen’s right to photograph or videotape events as long as they are not interfering with the police’s ability to perform their duty. Perhaps because of this or this?

Proposed H.B. 6076: The “residency restrictions” bill. Proposed once again by Rep. Roldan of Hartford, this is a reprise of the bill from last year, creating a 2000 foot buffer zone around schools, bus stops, parks, etc., prohibiting sex offenders from living there. You really want a link to my opposition? Fine. Word on the street is that Roldan himself is pretty sure that the bill won’t pass and yet has to introduce it to…I don’t know…avoid talking about the budget?

The Day of New London has more on other silly bills that shouldn’t have even taken seed in the minds of our esteemed legislators, but yet, here we are.

Oh, there’s a death penalty abolition and eyewitness ID reform bill too, but those deserve their own posts.

Guilt by convenience

Nov 17th

Posted by Gideon in ct state law

7 comments

[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]

So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:

“This is America. Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.

“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.

Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.

He was too slow with that training. Because this happened:

In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.

Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.

According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.

Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.

Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:

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

On Oct. 8, Luna appeared in Superior Court on Elm Street to answer to the charge of interfering.

“I approached the prosecutor and he said they would drop my charges and that I would have to pay a fine for creating a public disturbance,” Luna said. Luna said he thought to himself that he shouldn’t have to pay anything, that he hadn’t done anything wrong. But the prosecutor told him he probably wouldn’t qualify for a public defender, Luna said. He said when he asked where he might find a lawyer, he was referred to the yellow pages.

Without the time or money to fight the case, Luna decided to agree to the deal. He was charged with the lesser crime of creating a public disturbance.

When the judge asked if he was guilty, he said no, Luna recalled. “The judge explained I have to plead guilty,” he said. “At that moment when I said I’m guilty, I felt like I was going against myself.”

October 7: Actions perfectly legal and acceptable; not guilty of anything. October 8: Actions perfectly legal and acceptable; guilty of creating a public disturbance.

GA23 - where air goes to die

How did this happen, and why? Luna himself tells us why: because he didn’t have the time or the money to be bothered with it. Confronted with an overwhelming court system in that most overwhelming of courthouses: New Haven’s GA23 courthouse on 121 Elm Street, where the facade is barely hanging on supported by rafters and where throngs of people cram into the hallways like sardines and where air quality has been terrible for years, I’m told.

Luna, with nary an involvement with the system prior to this, was likely confronted with that madhouse like scene and had only one thought: “Get me the hell out of here“. So when faced with the daunting prospect of waiting to fill out an application for the public defender’s office, without any certainty of being eligible for the services of one of my brethren, or thumbing through a yellow pages (really? the prosecutor handed him the Yellow Pages?), he took the easy way out. He pled to something that was dangled in front of him: the all-saving “lesser charge”. An infraction, which is not a crime. It’s a slap on the wrist.

But wrists should only be slapped when someone’s done something wrong. Luna, even as of today, hadn’t. But he bore the sting of that slap just to get on with his life.

And Luna isn’t alone. Given the volume of people that wind their way through the system, it just isn’t possible for everyone to fight their fights. People, like Luna, want to forget their interactions with the criminal justice system like a bad nightmare about that ex who stole all your money.

And the ones that cave in are the ones that have had no prior interaction. The irony is that once you’ve been bitten by the court system, you aren’t shy anymore. You realize that it’s a sham for the most part and that sometimes, they’re just out to get you no matter what. So those with records stand and fight. Sometimes over nothing more than pride, but they fight like they’re Ali.

Those who are first timers fight like they’re Liston.

And that’s why Constitutional principles are decided in the cases of people who’ve had long exposure to the justice system – and that’s why these cases are called loopholes, because they only help the “lifelong criminals”. Well, that’s because they’re the only ones with nothing left to lose. So they stand up to the State and extend that middle finger.

Some of the comments on other sites seem to suggest that the prosecutor shouldn’t have extended the offer and the judge shouldn’t have accepted the plea. But I have a hard time faulting the judge. Factual bases for infractions are often sparse and limited. Did the judge know the underlying facts? The story – and Luna – doesn’t tell. What about the prosecutor? Should the prosecutor have known that what Luna did wasn’t illegal? Heck, the mayor and police chief are pretty clear on that. But then again, some seem to suggest that once a prosecutor believes probable cause exists – which is akin to believing there’s evidence of some higher power – then he’s within his rights to push for a conviction. If it’s not unethical, then well, what is it?

Remember that Luna was charged with Interfering With An Officer, which carries a maximum penalty of a year in jail:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

Do Luna’s actions fit within the definition of the crime? Depends on who you ask, I guess. Everyone but the prosecutor: No. The prosecutor (who’s the only one whose opinion counted): Yes/Maybe.

Luna could have been appointed a public defender – certainly the crime is eligible for our services – but maybe he made too much:

(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record.

Maybe he made too little to hire a private attorney. Maybe Luna was stuck in dead man’s land. And now? Now he’s guilty because it was convenient. The system claimed another victim.

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Because restrict does not mean disseminate

Oct 21st

Posted by Gideon in aro

No comments

Everyone knows that a sex offender registry exists. Almost everyone knows where to find it online. People use it routinely, even if just for fun. You log on and you search for your town and you see all the creepy people living around you. You may know some of them.

And almost everyone knows that there’s a second “secret” registry. A registry of a much smaller number of individuals, who are permitted to have their names removed from the aforementioned “public” registry (I put public in quotes because all conviction information, whether on the regular list or on the secret list, is still public and you can walk to your local courthouse or police department and get that information) for a variety of reasons – primarily to protect the identity of the victim. There are about 40 people on this “secret” registry. There are thousands on the “public” one.

In an important decision today, the CT Supreme Court reaffirmed that the “secret” registry must remain secret. In Dep’t of Public Safety v. FOI Commission (concurrence), a unanimous court held that “duh! do not disseminate means do not disseminate!” Of course, this all started not because Nosy Neighbor sought this information, but because a reporter did*.

A reporter for the Manchester Journal Inquirer wrote to the department of public safety and asked not for the name and address of the defendant, but basically everything else: the court of conviction, the name of the judge, the name of the prosecutor and the defense attorney. The department refused, the FOI commission ordered the department to turn it over and a trial court supported the commission’s ruling. Until the Supreme Court ruled. The question, boringly enough, turns on the meaning of the phrase “registration information”. Does that mean only the name and address of the registrant, as the newspaper argued, or everything that the department of public safety is required to catalog and maintain, as they argued?

There is no language in Megan’s Law that restricts the meaning of ‘‘registration information’’ to only some of the information in the registry.

The opinion makes the compelling point that for the “public” registry, all “registration information” is available to the public. One cannot then turn around and say that the same word, when applied to the “secret” registry means something different:

General Statutes § 54-258 (a) (1) provides in relevant part that ‘‘the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. . . .’’ There is no limiting language suggesting that only some of the information in the registry shall be accessible to the public. Correspondingly, General Statutes § 54-258 (a) (4) provides that, ‘‘[n]otwithstanding the provisions of subdivisions (1) and (2) of this subsection, registration information the dissemination of which has been restricted by court order pursuant to section 54- 255 and which is not otherwise subject to disclosure, shall not be a public record . . . .’’

Because the boldface title of § 54-258 refers to the ‘‘[a]vailability of registration information,’’ we must assume that all of its subsections and subdivisions refer to the same information. Thus, we must conclude that, just as the statute provides that all of the information in the registry is accessible to the public with respect to the overwhelming majority of offenders, none of the information in the registry is accessible to the public in the very few cases in which the court determines that the information should be restricted pursuant to § 54-258 (a) (4).

Judiciary Committee co-chair Mike Lawlor, whose remark (no, that’s not a typo) during the debate on the bill is heavily relied upon by the newspaper in support of its argument, is quoted in this Courant report:

State Rep. Michal Lawlor, co-chairman of the judiciary committee and one of the architects of the online registry, said the restricted list is intended to protect victims from further trauma.

He recalled a case in which a child, under the age of 6, was molested by her father. The man went to prison; the child grew up. When the man got out, he rejoined the family and was receiving counseling. In 1998, when the Internet sex-offender registry was created, the man’s name was posted. The daughter was in high school. She was shunned from events for fear that the father would show up. His name was eventually removed from the public list.

Lawlor noted that conviction information remains available through other channels, “but our concern was to keep it off the Internet registry, where it is obviously more visible.”

(*By the way, given the amount of grief I give newspaper reports and their coverage of legal issues, it is only fair to point out that this Courant piece by Josh Kovner is concise, precise and accurate. Well done, Josh!)

It seems that the Court got the legislature’s intent right. And so the “secret” registry lives on, protecting the identities of 40 victims and allowing them and their families a fair chance at reintegrating into society and living productive lives. Now if we could only do something about those thousands others whose names and pictures are readily available at the click of a button.

The obscenity of risk of injury

Sep 6th

Posted by Gideon in ct legal news

2 comments

Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

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

For something that forms the crux of the criminality of actions in this statute, there is precious little guidance on the legal meaning of that phrase and the evidence that is required to sustain proof beyond a reasonable doubt on that element. The only explanation of “likely to impair” is as follows:

The term “likely” and the phrase “likely to impair” are defined neither in § 53-21 (a), nor in any related provision of our General Statutes. In the absence of statutory guidance as to the meaning of a particular term, it is appropriate to look to its dictionary definition in order to discern its meaning in a given context. Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 232, 842 A.2d 1089 (2004). Our review of such sources reveals that, depending on the context, the term “likely” most commonly is understood as an adjective that denotes when particular subject matter will probably come to be or when its chances of realization are more probable than not. Oxford English Dictionary (2d Ed. 1989) (defining “likely” as something “that looks as if it [will] happen, be realized, or prove to be what is alleged or suggested”); The American Heritage Dictionary of the English Language (3d Ed. 1992) (defining “likely” as “possessing or displaying the qualities or characteristics that make something probable”).

In contrast, dictionary sources indicate that the term “possible,” again, depending on the context, primarily has a lower degree of probability or certitude of realization. Oxford English Dictionary, supra (defining “possible” as “that may be [i.e. is capable of being]; that may or can exist, be done, or happen”); The American Heritage Dictionary of the English Language, supra (defining “possible” as something that is “capable of happening, existing or being true” [emphasis added]). The common understanding of the term “likely” therefore ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of “probable,” but that counsels against an understanding of its meaning as merely “possible.” Indeed, at oral argument before this court, the state conceded that it would be “hard-pressed” to contend that the term “likely” reasonably may be understood as meaning “possible.” Accordingly, with no persuasive argument to the contrary, the trial court’s jury instructions that the term “likely” was to be understood as meaning “in all probability or possibility” and “possible or probable,” were improper.

State v. Romero. Got that? Likely to impair means “more probable than not” and (heh) more likely than possible. And yet there is precious little on exactly how the State is to go about the business of proving that an act or situation is likely or more probable than not to impair the morals of a child. There, of course, is no requirement that the morals be actually impaired, merely the probability that they might be. This results in nothing more than that which the Supreme Court said it was avoiding in Robert H. above:

In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.

Take the court’s reasoning for its rejection of the defendant’s claims in Romero (and repeated verbatim in subsequent opinions):

Once the jury determined that the anal intercourse and mutual sexual touching took place, as described by D, it is difficult to imagine a finding that this conduct could not be deemed likely–in the context of probably–to impair D’s morals. Put another way, the defendant has made no claim, and we can conceive of no justification for one, that the defendant’s conduct in relation to his abuse of D, conduct which the jury found to have occurred, is not conduct that is “likely to impair” the health or morals of a child.

Leaving aside the obvious examples quoted involving “acts” as opposed to “situations” (for no one should reasonably argue that it should be legal to force a minor into sexual intercourse), consider the slightly more nuanced scenario where a defendant is charged with showing pornography to a 2 year old child, and thus is said to have violated the Risk of Injury statute. How can one, beyond a reasonable doubt, prove that such an act is likely to impair the morals of a minor? Isn’t this essentially taking for granted that any act involving sexual conduct or placing a child in any situation which has a hint of sexual innuendo is always likely to impair the morals?

What is the functional difference between my example of the 2-year old being exposed to pornography and an 8-year old who walks into his parents’ bedroom while they are engaged in intercourse? To those of you who’ve had the misfortune of experiencing the latter, would you say your morals were impaired?

My point isn’t that we should show pornography to 2-year olds, but rather that the State should be put to its burden of proving beyond a reasonable doubt that such acts or situations are likely to impair the morals, rather than simply taking it for granted.

Sex offenders and sex offenses aren’t popular people and crimes and we’re all a bit squeamish about the topics and the ideas. But this is the top of the very, very, slippery slope. If we can’t confront the inadequacies in the state of the law in this area, then how soon is it before the burden starts slipping in other areas of the law?

Or perhaps it is time to revisit the actual statute itself and rewrite it such that it doesn’t require 20-odd years of judicial gloss to make it Constitutionally acceptable.

And doesn’t this all oddly reek of the same logical fallacies underlying the obscenity laws? You’ll know when your morals are impaired, because my morals are the same as yours.

[For a fascinating read on obscenity trials, be sure to look at this article on the trial of Lady Chatterly's Lover.]

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Objects in mirror are as pretextual as they appear

Aug 9th

Posted by Gideon in aro

3 comments

turn left and go directly to jail

Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”

Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”

A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.

Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:

The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.

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

It’s important to be clear, though: the court’s holding is that it is not a violation of the statute to merely hang an object from the rear-view mirror, or from any place on a windshield. What is illegal is to be distracted by that object, and it doesn’t matter whether you were actually distracted, but that you could be distracted. In the instant case, there was no evidence as to any of the latter and so the dismissal was the right decision.

In doing so, the court rejected the dangerous rationale put forth by the State and the dissent, that the mere possibility that an object could distract itself serves as reasonable and articulable suspicion to pull someone over for a motor vehicle infraction. In essence the dissent, penned by now-retired Justice Vertefeuille (who also penned the shockingly bold State v. Snelgrove which abandoned all pretense that propensity evidence is allowed in sex assault cases), essentially seeks to do the same here, by jurisprudentially permitting pretextual stops (despite footnote 10 which claims to the contrary). Take a look at this language:

As a result, I would conclude that it was reasonable for Mattioli to suspect that the chain could swing into the defendant’s view, thereby causing an obstruction to the defendant’s view, or distracting the defendant’s attention with its movement. Accordingly, I would conclude that Mattioli had a reasonable and articulable suspicion that the defendant possibly was violating § 14-99f (c) at the time when the trooper stopped the defendant’s vehicle and that Mattioli could justifiably execute a Terry stop to investigate whether the object did, in fact, interfere with the defendant’s unobstructed view or distract his attention.

Saying that the possibility that an object could distract is saying that an object could distract. Which is saying that it is illegal to have an object hanging from the rear-view mirror or the windshield, which would be exactly contrary to the statute in question.

Anything could give rise to the suspicion that an object might be obstructing or distracting a driver. A GPS device, a handicapped sticker, a parking lot pass, an EZ pass device, an emissions sticker. Do any of these reasonably obstruct a person’s ability to drive? Possibly. But to give carte blanche to the police to pull over any car that has such an object is to condone pretextual stops. And no matter how many times the dissent protests or tries to make it look like it wouldn’t be a pretextual stop, it really would be.

If the dissent had its way, everyone would be stopped. But then again, if you are white haven’t done anything wrong, you don’t have to worry about being hassled by cops, right?

It may be cynical of me to say this, but I believe a major factor in the majority deciding the case the way they did was the relatability of the facts in question: from what I’ve heard of oral argument in this case, several justices joked about the fact that they’ve got objects hanging from their mirrors. It was this familiarity with the realities of driving and normal behavior among a class they could identify with (drivers) that perhaps helped put things in perspective for them. Compare that with the decisions that impact “high crime neighborhoods” and the disjunction between the removed ivory-tower existence of jurists and the realities of every day life are clear. Perhaps this is why we should have justices interpreting our laws who not only are brilliant, but also attuned to the realities of day-to-day life of those who may not be as privileged and fortunate as them.

But I digress. Go forth and hang that awful air-freshener from your rear view mirror. Just don’t look like you’re distracted. Oh, and leave the pot at home.

Some more pics, for the heck of it:

: I’m going to park your ass in jail

: why do you hate the handicapped?

: all of ny state is now guilty of distracted driving

: turn left and go directly to jail

EZ Pass image courtesy.

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Racial ridicule in Connecticut

Jun 7th

Posted by Gideon in ct state law

3 comments

is apparently a crime. C.G.S 53-37 provides:

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

Volokh notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but still troubling considering the First Amendment implications:

This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 convictions since 1995. Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race– or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.

UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action — Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.

Yes. So would I. I’d also add that the statute was enacted in 1949 and hasn’t been amended since. A quick Lexis search reveals only one hit for that statute, and that too in a footnote:

As noted, Section 53a-183 is directly relevant to the issue in this case and provides, in and of itself, a basis for determining that a clear, well-defined and dominant public policy exists prohibiting the kind of conduct which is at issue here. It is worth remembering that there are other state statutes which recognize the particular harm that racially motivated criminal conduct inflicts on society. These statutes include Section 46a-58, which criminalizes cross burning under specified circumstances; 53-37, which criminalizes holding persons up to ridicule on account of race, creed or color; 53-37a, which prohibits the wearing of a mask or hood under certain circumstances; 53a-40a, persistent offenders; and 53-181b, intimidation based on bigotry or bias. Related federal statutes exist as well.

State v. Local 387 of Council 4 AFSCME, 1999 Conn. Super. LEXIS 437 (1999) (which is an interesting case that involves the appeal of a decision to reinstate a corrections employee who was terminated after he called a state Senator and left a message calling him an n-word, after the Senator allegedly referred to corrections employees as criminals).

Anyone? Bueller?

Padilla on sex offender registration, indirectly

May 12th

Posted by Gideon in ct state law

5 comments

Back when Padilla v. Kentucky was decided by the United States Supreme Court, the defense bar was quite excited not only by the relief it afforded criminal defendants, but also by the exciting possibility that the Court might be willing to take an honest look at the fictional distinction between direct and collateral consequences of a plea.

Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.

Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.

While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.

Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.

But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on:

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

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

The arguments in favor of requiring that defendants be aware of the deportation consequences apply just as forcefully to the sex offender registration context. From the dissent in Gravino:

Significantly, in determining whether the direct/collateral consequence dichotomy was useful to determine whether deportation advice was required, the Court stated, “[a]lthough removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the [civil] penalty from the conviction in the deportation context”.

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to divorce . . . from [a] conviction”.

It is difficult for me to understand how the court can, on one hand, admit that “SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes” and on the other easily “divorce the consequence from the conviction”.

While we may not be there yet, the day is not far off when some court will force SCOTUS to revisit their terrible rulings in Smith v. Doe and Dep’t of Public Safety v. Doe, in light of Padilla and the lifting of the veil on direct and collateral consequences.

Gravino was not permitted to withdraw her plea, despite never really being told that she’d have to register for 20 years and she would be in violation of a criminal statute if she failed to do so. Collaterally, two days ago, the Connecticut Supreme Court decided a case in which the defendant was explicitly told on the record that he did not have to register as a sex offender.

In Connecticut, unlike New York, the trial court is required, pursuant to 54-251(a), to inform the defendant that he will be required to register as a sex offender at the time of the plea:

Prior to accepting a plea of guilty or nolo contendere from a person with respect to a criminal offense against a victim who is a minor or a nonviolent sexual offense, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea.

The defendant in that case, however, didn’t seek to withdraw his plea. Instead, all he wanted was to be free of the requirement to register. I think the court more likely than not would have let him withdraw his plea if he so pleased.

Connecticut, of course, also treats sex offender registration as regulatory rather than a punitive measure (State v. Waterman). But eventually, some court will have to accept the fact that these registration requirements place an undeniably heavy burden on offenders – burdens that are created by society in general – and deal with them in an intellectually honest manner.

Right?

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Frankly arresting

May 6th

Posted by Gideon in criminal law principles

4 comments

[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Justice Blackmun, in Franks v. Delaware, quoting Judge Frankel in US v. Halsey. Franks, of course, permits a defendant to challenge the veracity of the statements in a search warrant. If he makes a substantial showing that the affidavit contains intentional falsehoods or material omissions, then he gets an evidentiary hearing to prove..umm..that there are falsehood or misrepresentations or omissions in the affidavit.

But Franks applies only to search warrants. What of the scenario where the officer intentionally lies to get a judge to sign a warrant for an arrest? There has to be judicial review of an arrest warrant and a finding of probable cause. But since we know officers lie, what if an officer lied to get a person arrested? Is there any remedy for that? I’ve been asked this question more than a few times over the last month and was a topic of discussion on the local listserve today, so I figure it’s about time I write a post on it.

There is a remedy, sort of. It’s more of a hollow remedy. In State v. Dolphin, the Connecticut supreme court, without explicitly stating so, applied the Franks analysis to an arrest warrant. As with the search warrant, a defendant attacking the validity of an arrest warrant must prove by a preponderance of the evidence that the falsehoods contained in the warrant, or the material omissions would defeat probable cause:

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

When reviewing whether a Franks hearing is warranted, we recognize that there is a “longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.” State v. Dolphin, 195 Conn. 444, 457 (1985). In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”; and (2) show that the allegedly false statement is necessary to a finding of probable cause. Franks v. Delaware, supra, 155-56. If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. Id., 171-72. Although the Franks decision referred only to false statements in the affidavit, we have held that “material omissions from such an affidavit also fall within the rule….” State v. Stepney, 191 Conn. 233, 238 (1984).

State v. Bergin. So let us assume that there is, indeed, a material omission. A court finds that the warrant, with the material omitted, would not sustain a finding of probable cause. Then what? One could argue logically that when a search warrant is invalid, the fruits of the search are suppressed. If an arrest warrant is invalid, the arrest should be invalidated. But wait:

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Fleming. An illegal arrest does not stop a prosecution nor does it void a conviction. The argument, it seems, is that you’ve committed the crime if you’ve committed the crime and any illegality in actually initiating the prosecution shouldn’t enable you to go scot-free. What does it get you, then? A Franks violation in an arrest warrant gets you a suppression of the fruits of that illegal arrest: a confession, items seized, etc. But it doesn’t change the fact that you have been accused and thus can be prosecuted for the crime.

A Franks violation in an affidavit supporting an arrest warrant does not entitle a defendant to the dismissal of the charges for which he was arrested. Such a violation may require the suppression of evidence or statements obtained as a result of the execution of the warrant but it does not deprive the court of jurisdiction nor does it bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Patterson. This, of course, assumes that there are “fruits” of the illegal arrest. What of the case where there are none? You can easily imagine the scenario where the omission of potentially exculpatory information permits the State to obtain a warrant for the arrest of an individual, thus initiating the criminal prosecution. After that, it’s their decision whether to pursue the charges or not and that power essentially entitles the State to force the defendant to a trial, at expense to himself or to the State, through the office of the public defender.

A Constitutional violation caused by the improper acts of the agents of the State having been established, the jurisprudence in this area provides for no real remedy whatsoever. This is a glaring hole in Constitutional caselaw that can be exploited to harass, threaten and otherwise ruin perfectly innocent people. To acknowledge on one hand that the State has engaged in illegal activity and yet on the other permit the same State to continue to reap the benefit of that illegal activity and to force the defendant to risk a trial or accept a compromise deal vitiates Due Process in the worst way. I have not been able to find a mechanism by which the prosecution itself can be dismissed where a warrant has been found to have been obtained by illegal means. Do you know of any?

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franks v delaware

ct state law

The child abuse exception to [privilege]

Significant CT Supreme Court cases

Wrong time, wrong battle

State police want to arrest judge who refused to sign arrest warrant

Reasonable gibberish

They may take my freedom, but they will never take my cell phone

The Limp Writ Redux

Looney times are here again

Guilt by convenience

Because restrict does not mean disseminate

The obscenity of risk of injury

Objects in mirror are as pretextual as they appear

Racial ridicule in Connecticut

Padilla on sex offender registration, indirectly

Frankly arresting

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13	14	15	16	17	18	19
20	21	22	23	24	25	26
27	28	29

ct state law

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