a public defender

There’s no legal principle called “this conviction is stupid”, so we lawyers call it “the statute is unconstitutionally vague”. All that means is that the Average Joe would have no idea that his conduct was illegal, so the statute is unconstitutional.  Now be honest: were you aware that holding someone’s arm who didn’t want to come with you for a second or two would expose you to 20 years in jail? I mean, we’d all be criminals. That’s how most of my dates start.

To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he]  had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness  doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law  enforcement. . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some  inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the  common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.’’

The statute

The statute in question is CGS 53a-94 (a), Kidnapping in the Second Degree. It is short and simple: you’re guilty of kidnapping when you abduct somebody. Which the court squares with its finding thusly:

We disagree with that conclusion because, although the defendant’s restraint of the victim was brief, it was coupled with unusually strong evidence of his intent to prevent the victim’s liberation.

Now this is just silly. The court seeks to justify its absurd holding on the actus reus portion of the statute by citing to the evidence of mens rea. Well, what if there weren’t any evidence of intent? Would it be unconstitutionally vague in that scenario? What if he hadn’t said anything and simply walked up to her and grabbed her by the arm? For a few seconds? Every prosecutor worth his or her salt would infer that he intended to kidnap her.

In the present case, any potential for vagueness of § 53a-94 (a) as applied to the defendant’s conduct, standing alone, was counteracted by the  overwhelming evidence that he possessed the requisite specific intent to prevent the victim’s liberation. The events of July 23, 2002, were not the  victim’s first encounter with the defendant; rather, he was convicted of attempting to kidnap the victim only four days earlier.

I’m paraphrasing here, but: “Well, I mean it was obvious he intended to kidnap her. So what if his follow-through was pathetic and feeble. As long as he said he wanted to, that’s good enough for us.”

I’m not even going to get into the blurred lines between attempt and the completed act here. It will make my mind explode and probably yours too.

There are two dissents here, but let not the lovers of the rule of law get their hopes up. There is nary a word in the dissent about the substance of the majority’s holding; rather the dissent is on the remedy to be afforded: the majority reinstates the conviction, the dissenters want a new trial. This just makes me sad. Very sad.

Maybe the Court hasn’t been abducted by aliens. Maybe they were when they wrote Salamon and only just have been returned to their bodies. That’s the only thing that can explain this.

Or the fact that CT isn’t the liberal hippie state with liberal activist judges that everyone seems to think it is.

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The irony of this all is that it is prosecutors who far more often commit egregious acts during the course of trials. It is prosecutors who engage in misconduct impropriety more often than defense attorneys. Yet, prosecutors are immune from civil liability.

Police departments cannot be sued unless there was no probable cause for an arrest. The so-called “forensic experts” in child sex cases can coax a victimization out of a rock, yet there are no consequences for them when the “allegation” is later proven to be utterly false.

No, it is everyone’s favorite punching bag and scum of the Earth, the criminal defense lawyer, who must expose himself to criminal liability for doing the very thing that the Constitution mandates: defending the accused.

It’s not like there aren’t avenues for discipline of defense lawyers who engage in offensive behavior: prosecutors and judges are free to file grievances if they think the lawyer has crossed the line: this results in suspensions and disbarments.

But to create a whole new category of criminal offense for merely giving the jury a reason to question the credibility of complainants? Might as well do away with the whole “trial” thing, no?

While lawyers have called this bill unconstitutional, Burchett said it is the right thing to do.

“If I was member of the legal community, I would quit wrapping myself up in the Constitution and start thinking about what’s right,” said Burchett.

I could say many things here, all sarcastic, all witty, all derisive, but I don’t think anything I can come up with can top the sheer stupidity emanating from every pore of that statement, so I shall let it stand on its own.

H/T

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In 2008 alone, more than 40,000 people were arrested in New York for low-level marijuana offenses — and 87 percent of them were black of Latino. When you consider that white people are more likely to use pot than African Americans, the problem here becomes even clearer.

Put another way: In 2008, the police made more pot arrests than in the 12 years of Mayor Koch, plus the four years of Mayor Dinkins, plus the first two years of Mayor Giuliani. In other words, in one year, 2008, Bloomberg made more pot arrests than in 18 years of Koch, Dinkins and Giuliani combined.

Think about that for a New York minute. And then think about the fact that of those 40,000 odd people, 34,800 odd were black or hispanic.

The Mayor’s office defends this tactic, of course, as a variation of the “broken windows” theory and points to a 35% reduction in crime since 2001. What this position ignores, however, is that the arrests are severely racially skewed. What they’re policing are black and hispanic neighborhoods and people in those neighborhoods, not drug users. The downside of such a tactic is that it forces minorities to have a disproportionately greater amount of contact with the criminal justice system, it reinforces stereotypes and long-held notions about the relationships between minority communities and the police and of course, those ever growing arrest and conviction records.

[Of course, this is not the only area in which the law enforcement and criminal justice system exhibits racial disparity.]

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Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Comparing the conclusion reached by SCOTUS in Smith on the first factor to Maine’s SORNA law (and reality), the court finds that SORNA is indeed punitive in nature because it imposes an affirmative disability:

These provisions, which require lifetime registrants, under threat of prosecution, to physically appear at their local law enforcement agencies within five days of receiving a notice by mail, place substantial restrictions on the movements of lifetime registrants and may work an “impractical impediment that amounts to an affirmative disability”.

Here, however, quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint that is neither minor nor indirect.

The court then evaluates the other factors, finding some to be in favor of the state, some neutral and some in favor of the defendant. But viewing them as a whole, the court cannot escape the conclusion that enhancing a defendants registration requirements which were imposed as part of a sentence before the change in the law necessarily violates the EPF clause.

There is no dissent, but there is a concurrence by one Judge who would have gone further than the majority. He cites an Indiana Supreme Court decision, Wallace v. State (2009), which also held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the EPF clause of the Indiana Constitution. The Wallace court concluded:

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view— advancing a non-punitive interest—points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

So now we have two 2009 decisions holding that the retroactive application of SORNAs violates the EPF clause of the Federal constitution and a State constitution with identical language. This seemingly goes against SCOTUS’ holding in Smith, but I think that opinion was wrong and was very narrowly tailored. Will they revisit it? I’d love them to.

I wonder how such a challenge would play out in Connecticut. In the currently existing jurisprudential landscape, the prospects seem dim. Our Appellate Court has seemingly characterized Megan’s Law requirements as “collateral”, thus rejecting the notion that a defendant needed to be advised of the registration requirement at the time of plea and sentencing and the Supreme Court has held that Megan’s Law in CT is not punitive in nature at all. [Google Scholar doesn't seem to have a link to that decision, so the link is to a later decision that discusses and expands on the same ideas.] That Supreme Court decision, however, was in 2001 and since then there have been new versions of Megan’s Law here in CT. I think the time might be ripe for an all out assault on this piece of legislation.

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So it seems that the entire crux of their decision to prosecute was based on the lack of a “satisfactory” explanation from Mr. Clarke as to how he got the gun and why he waited two days to turn it in. Nevermind the fact that the same police department distributed a leaflet encouraging people who find guns to bring it to the police station.

Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There's this fellow who's going to jail for beating up an intruder and then this awfully sad story.]

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Life without parole for the very worst juvenile offenders is reasonable, constitutional, and (appropriately) rare. In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect their citizens and hold these dangerous criminals accountable. Forty-three states, the District of Columbia, and the federal government have set the maximum punishment for juvenile offenders at life without the possibility of parole. By the numbers, support for its use is overwhelming. Nonetheless, its continued viability is at risk from  misleading lobbying efforts in many states and court cases that seek to substitute international law for legislative judgments and constitutional text.

Emboldened by the Supreme Court’s Roper v. Simmons decision, which relied on the Eighth Amendment’s “cruel and unusual punishments”  language to prohibit capital sentences for juveniles, anti-incarceration activists have set about extending the result of Roper to life without parole.

If they succeed, an important tool of criminal punishment will be eliminated, and all criminal sentences could be subjected to second-guessing by judges, just as they are in capital punishment cases today.

Scott has fun with that last sentence, so I won’t go into it. Of course, there is nary a mention of the primary reason for eliminating LWOP for kids: their rate of brain development, their tender age and the elimination of any hope for someone so young. I’ve written about this before and anyone with a working knowledge of Google can find multiple studies that have found that adolescents’ brains are still developing into their late teens and early twenties. There is a callous disregard for the mental state of the kid and absolutely no quarter given to the notion that they may not have been able to fully appreciate the impact of their actions. In that sense, they’re treated the same as mentally challenged defendants.

This is not to say that because they’re “juveniles”, there should be no punishment, but there certainly should be serious thought given to a punishment that doesn’t give a kid the chance to atone for a mistake made decades ago, with a growing mind.

I’m not even going to touch any socio-economic factors here.

Oh, Heritage Foundation, if you’re going to issue such a report, at least make sure you check your grammar before unleashing it on the world.

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So he said he had lent the car to an American friend, Professor Theresa Brennan. Satisfied, the magistrate dismissed the case, and the judge walked free. In just such a way, King Oedipus believed himself to be in the clear when he left Corinth.

If he – I mean the judge, not King Oedipus – had said that he had lent the car to an Australian government secret agent whom he could not name without rendering him vulnerable to attack by terrorists, Marcus Einfeld might still be enjoying his place at the top of the heap, admired by all.

Yes, of course, there was a problem. And the problem was an insurmountable one. Professor Brennan was dead and had been dead for three years. And it didn’t stop there:

He said he didn’t mean that Theresa Brennan. He meant another Theresa Brennan. A Greek chorus at this point might have said that the judge was anything but a natural liar, because he lied so very badly, just like most of us.

Further proofs of his amateur status followed in quick succession.

Finally, in a skein of inventions that we needn’t bother to unravel, he managed to implicate his own mother, aged 94, when he claimed to have been using her Toyota Corolla that day, so he couldn’t have been at the wheel of his silver Lexus.

Alas, there was security camera footage to prove that his mother’s Toyota Corolla had not emerged from the garage of her apartment block between daylight and dusk. We were left with the thought picture of a team of trained investigators examining a whole day’s worth of CCTV footage to establish that a Toyota Corolla had remained stationary throughout. With that thought picture, and with the thought picture of a man of true stature with his life in ruins.

Here was a man, much accomplished, who had devoted his life to the uplifting of the downtrodden. A man of virtue, honesty and equality. Yet, in what might be the final chapters of his storied life, he stumbled and fell. Fell so hard over something so trivial. And now he’ll spend at least the next two years of his life pondering a simple lie and the disastrous consequences.

Ibsen wrote a play about that, called The Wild Duck. None of this means that lying is a virtue. Almost always, it’s a vice to be avoided. But it’s a universal vice, and its prevalence is the very reason why any properly functioning legal system has a harsh law against perjury, because a court is where the lies have to stop, or there can be no justice.

Certainly, a justice system should not encourage lies and lying, but what occurs to me as well is that we are not well served by a rigid judicial system where there is no room for judicial discretion. I don’t think it is debatable that a judge in Einfeld’s position should have lied repeatedly (and so poorly) to avoid paying a simple ticket, but there seems to be no room for consideration of his lifetime’s worth of work. Does he deserve to spend 2 years in jail, even for being a judge who lied? I think the answer has to be a resounding “no”.

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The Client Security Fund money is held in a trust to reimburse victims of lawyer fraud and embezzlement. The fund has $7.8million currently, but approximately $5.8million of that is currently tied up in claims. That leaves the $2million that the State just “took”.

I’ll let minds greater than I explain. Associate Justice of the CT Supreme Court wrote an op-ed on this a few weeks ago, but apparently no one in the legislature gave a damn:

The transfer also will leave the fund with no cushion against pending claims. At the end of 2008, the fund had a balance of about $7.8 million available against $5.8 million in pending claims. The actions of the governor and legislature place the fund at risk of being unable to fully pay claims if there is a large scale defalcation or an appreciable number of defalcations in the future.

In addition to reducing reserves, the governor and legislature have also violated the trust of members of the bar, who have paid the annual fee with the expectation that it would be used, as noted in the Superior Court rules, “to promote public confidence in the judicial system and the integrity of the legal profession” by reimbursing clients in rare instances when an attorney has violated the trust established within the attorney-client relationship.

The fact that a theft or embezzlement of funds by an attorney is, however, a rare event is of little comfort to a client who learns that he has been the victim of such an act. It will be even less comfort for the client to learn that his losses may not be reimbursed fully because the governor and legislature have seen fit to use those funds for purposes that were never intended.

Norm Pattis (who apparently thinks this blog isn’t good enough to link to) wrote about this weeks ago, and recently made a call to arms:

I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.

It looks like Norm’s plea has been heard…by lawyers. The Connecticut Bar Association and a bunch of who’s who of CT lawyers sued the Governor on Monday seeking a return of that money.

The lawyers claim that it’s illegal to take the $2 million because it is generated by fees for the specific purpose of aiding clients — and was not collected via general taxation for use in the overall budget.

As worded in the suit, the plaintiffs claim that taking the $2 million violates the “constitutional separation of powers” among the three branches of government. “The payments made to the fund by [lawyers] were not levied or collected by the Legislative Department, were not assessed, paid or collected as a tax, and cannot retroactively be expropriated as tax revenues for deposit in the general fund,” the suit claims.

“We think it’s absolutely unconscionable” to take money from “this segregated fund for people who are victimized by that small minority of lawyers,” said Ernest F. Teitell, a favorite of Scott Greenfield.

The outrage has been sufficiently expressed elsewhere, so I’ll spare you the anger. But, for those in CT, there’s more. A little prosecutor birdie told me yesterday that the legislature is now considering increasing the Attorney Occupation Tax to $640 and removing the exemption for State employees. Until now, people like me and those on the other side of the courtroom were exempt from paying this silly tax (I mean, is there a neurosurgeon’s tax? A dentist’s tax? C’mon people..) because we don’t get hired by clients.

Now the plan is to exempt us from the exemption and make us all pay it. There is no way to defray this cost or to pass it on to our hundreds of clients. There’s no offsetting for us in the public sector. I know that people in the private sector have been complaining about this tax for years. But don’t some (if not most) firms pay the tax on their associates’ behalf? I certainly can’t go to my supervisor and ask him/her to pay it for me.

This certainly seems like kicking a group when it’s down. I fully expect that the prosecutor’s union will make several concessions when it renogotiates its contract in the coming year (and that applies to all public defenders pursuant to the parity statute). Maybe we’ll go back to 35 hours; maybe we will be forgoing raises for the next 3 years. Whatever it is, I know there will be a loss that we will have to absorb. On top of that you’re going to make me pay $640 per year?

Maybe we should start collecting that $25 per indigent client and use it to pay for our Attorney Occupation Tax. Unless the legislature gets to that first.

[Note that I received this tip on April Fool's Day, so it might be an elaborate joke by some prosecutor, but it does sound plausible.]

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“[t]he Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

According to the Court, “[t]he death penalty is not a proportional punishment for the rape of a child.” The opinion, which was joined by the court’s four more liberal judges, went on to state, “The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.” The opinion concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”

Now that seems pretty cut and dry, unless of course, there is some argument that the Federal Constitution applies to Louisiana but not Connecticut, because Connecticut was never a part of the United States due to some error back in the day and hence is its own duchy.

Either that, or Debicella got some bad advice. Thankfully, the rest of the legislators in the judiciary committee seem to have heard of Kennedy, since there’s been no action on the bill since it’s proposal in January.

For more on Kennedy, see Sex Crimes’ resource page.

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The resulting definition that long has been in use has its origins in State v. Swift, 125 Conn. 399, 403, 6 A.2d 359 (1939), an appeal in which this court approved the following jury instruction explaining what it meant to operate a vehicle: ‘‘A person operates a motor vehicle within the meaning of [the] statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.’’

Adoption of that definition established, and subsequent cases confirmed, that the term ‘‘ ‘operating’ encompasses a broader range of conduct than does [the term] ‘driving.’ ’’ State v. Haight, supra, 279 Conn. 551. After a number of decisions made clear that sitting at the wheel of a nonmoving vehicle with the engine running constituted operation; see, e.g., State v. Wiggs, 60 Conn. App. 551, 554–55 (2000); State v. Marquis, 24 Conn. App. 467, 468–69 (1991); State v. Ducatt, 22 Conn. App. 88, 93, cert. denied, 217 Conn. 804 (1990); the question arose whether the definition could be satisfied when a defendant had been seated in a vehicle that neither was in motion nor had its motor running. See State v. Haight, supra, 552. In Haight, this court concluded that it could. Specifically, we held that the evidence was sufficient to sustain a prosecution under § 14-227a (a) when the defendant was found sleeping in the driver’s seat of his legally parked vehicle, with the key in the ignition9 and the headlights illuminated, but without the motor running. Id., 547. We explained: ‘‘The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle. . . . Each act therefore constitutes operation of the vehicle under the definition set forth in Swift.’’ Id., 553.

So, if it’s illegal to sit in a car, with the key in the ignition, without the motor running, Cyr stood no chance. The Court has really outdone itself this time and its illogical reasoning in this case is evident. The Court is jumping through untenable hoops to reach this absurd conclusion. Imagine if this line of cases were pro-defendant. The horror.

What, exactly, would not constitute “any act which alone or in sequence will set it motion the motive power of the vehicle”? Opening the door? No, I don’t think so. Walking to the car? Perhaps.

What this does, in reality, is remove any incentive for people to not drive. Why would you sit in your car when you can be convicted of DUI just the same as if you drove home? I mean, if you can’t even turn on the battery to get some heat, what’s the point?

So what is one to do, besides abstain from drinking? Turn on the heat and sit in the passenger seat with the keys in the trunk? Perhaps, but I wouldn’t bet my law license on it. Leave you keys with you, but you can’t turn the car on. Preferably sit in the back seat and always keep a blanket around or take your chances with the weather.

I think “activist” is a fair term here.

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defendant contends dangerous instrument, as defined by General Statutes § 53a-3 (7), cannot include a body part . . . . We conclude that an ordinary object may be a dangerous instrument. Therefore, each case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. . . . The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury

State v. McColl, 74 Conn. App. 545, 553-54, cert. denied, 262 Conn. 953 (2003). So, what then, is the difference between 53a-64aa(a)(1)(A) and 53a-64bb? Is there?

Let’s move on from strangulation for a second and look at its step-brother Assault. The Assault statutes are strikingly similar to the strangulation statutes. Here’s Assault in the Second Degree:

(a) A person is guilty of assault in the second degree when: (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm

And here’s Assault in the Third Degree:

(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person

So why these separate statutes? What does strangulation give you that assault doesn’t? Couldn’t strangulation in the first degree fit within assault in the second degree? Or is it that with strangulation, there is no real injury? When you choke someone, is there any quantifiable injury that can be demonstrated and testified to? So if we assume that the difference is that there is no demonstrable injury, then it gets even curioser when you look at the penalties:

Strangulation in the first degree is a C felony, whereas Assault in the 2nd degree is a D felony and strangulation in the second degree is a D felony whereas assault in the third degree is an A misdemeanor. So it is conceivable that, on the backs of domestic violence, the legislature deemed it necessary to punish choking more harshly than regular, plain ole assault. Ridiculous, but conceivable.

Then explain this subsection of both strangulation statutes:

(b) No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information. For the purposes of this section, “unlawful restraint” means a violation of section 53a-95 or 53a-96, and “assault” means a violation of section 53a-59, 53a-59a, 53a-59b, 53a-59c, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-61 or 53a-61a.

What. the. hell. does. that. mean? No, really. What does it mean? It means that the state can argue to the jury that the defendant, who choked the victim causing no long-term injury (serious or otherwise) is either guilty of assault or unlawful restraint or strangulation, but not all three. Huh?

The language also doesn’t necessarily lead to a merging of the convictions, as with some other offenses, but explicitly states that one cannot be found guilty of all three, but can be charged with and prosecuted for all three. Maybe it’s late and I’m stupid, but I just don’t get it.

This is what happens when the legislature ignores statutes already on the books and creates new ones specifically in response to individual cases or circumstances *cough*homeinvasion*cough*. It leads to silly results like this. Why can’t anyone who chokes someone be prosecuted for assault? I submit they can.

Does anyone know of any challenges to this statute? Any arguments that have been successful?

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The Ohio Justice & Policy Center sued on the offender’s behalf after his probation officer ordered him to place his name on Ohio’s registry of sex offenders, even though the state exempts him from the database because he served his sentence before the registry law took effect in the late 1990s. The lawsuit says the registration requirement violates the offender’s rights and also is unconstitutional because it allows the federal government to trump a state law.

“There is no question he does not have to register under state law,” said Margie Slagle, an attorney with the Ohio Justice & Policy Center. “The feds think they can ignore Ohio’s wishes and make him register. It’s just bizarre.”

But a lawyer for Hamilton County Sheriff Simon Leis, who maintains the county’s registry, confirmed the county has been registering offenders at the request of federal probation officers.

“The bottom line is we have had guys showing up with an order from a probation officer saying, ‘I’m required to register,’” said Dave Stevenson, an assistant county prosecutor. “So we register them.”

And therein lies the Catch-22. If the State registers Doe, it is an illegal act in violation of the laws of the State of Ohio. If the State doesn’t register Doe, he’s in violation of his Federal probation. So who wins? The State or the Feds? Either way, there’s only one loser: the sex offender.

Update: An alert reader asks if Ohio is the only state that is facing this problem. Do any of you know whether other states have faced this issue? Any lawsuits pending? Any AWA expert? CRY, you out there?

H/T: 2L reader

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The statute essentially says that if someone is not a citizen and has a final order of deportation, then the DOC shall refer that inmate to parole for release to INS for eventual deportation.

The purpose of this statute is clear, and in my opinion, pretty useful. If an individual is going to get deported anyway, then why should the State pay for the full period of incarceration? Eliminating this bill would ensure that every inmate who could (and probably should) get deported, will instead be housed at correctional facilities in the State, at expense to the taxpayers. Where are the savings in this? Doesn’t this increase costs? Under the statute (when actually enforced), an inmate serving a sentence of 20 years could potentially cost the state only 10 years of incarceration. Now, there would be no potential savings at all. Either someone mistakenly included this statute on the list or there’s some ulterior motive not having to do with saving money.

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The argument in support of the defendant’s claim is this:

[N]ew technologies have revealed significant differences between the adolescent brain and the adult brain, including differences in psychosocial functioning. [A]dolescents are more readily influenced by their peers and have different attitudes toward risk and risk taking, with less orientation toward the future than adults. [T]he defendant was a typical  teenager who still exhibited methods of thinking characteristic of an adolescent. [A]lthough the legal system considers a defendant’s actions in light of what a reasonable person would do under the circumstances, an adolescent’s actions should be measured against what a reasonable adolescent would do under the circumstances.

If an adolescent cannot fully comprehend the actions he has taken, if he is prone to growth and further understanding of his actions and development of his moral compass, then a mandatory-minimum sentence of 25 years, to be imposed in every single case, regardless of what the individual circumstances are, can start to seem cruel and unusual.

By mandating that a juvenile automatically be sentenced to 25 years, we are snuffing out any chance at rehabilitation; any glimmer of hope that the adolescent mind grows and learns and can become a contributing member of society is snuffed. Much like the life that the juvenile took away, his life will also be wasted.

There is a significant difference between an adolescent spending 10 years in jail and being released at 25 and spending 25 years in jail and being released at 40. What is he to do at 40, having spent half his teenage years, his entire 20s and 30s in prison? Will he have any tools or skills to succeed in life? Will he know anything of life?

Some cases might definitely warrant long sentences of juvenile offenders. But certainly not all, and that is what this statute does. It does not discern between the still forming adolescent mind that has a chance to fully develop a sense of right and wrong and one that has and makes a decision cognizant of the consequences.

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