We were fooled. Years later, with years of practice and actual experience under my belt, I’ve come to the conclusion that while the system may still be the “best” in the world, it is only so by comparison to the others that are currently in existence (and even that I doubt, but since I’m no comparative law scholar, what do I know?). That makes me sad, both for the systems of other countries and our own.

There are two indelible truths about the system here in the US: it is the criminal conviction system and finality is king (an idea that deserves a fuller post; upcoming).

And when you combine those two inescapable conclusions, you get Lee v. Lampert (pdf). Lee, you see, got stuck in that quagmire that is AEDPA. Lee, you may also see, has proven that he is actually innocent of the crimes of which he stands convicted. And yet, because he missed the statutory, non-jurisdictional, arbitrary deadline for filing a federal habeas corpus petition, he will get no justice.

The case is troubling for several reasons, but mostly it serves as an example of the ridiculous and arbitrary nature of filing deadlines. Lee, who filed his first Federal habeas petition, will not get the benefit of the “innocence exception” to the statute of limitations.

On the other hand, if Lee had filed a successive or second Federal petition and could show that he was actually innocent, the missed deadline would be forgiven. If Lee had procedurally defaulted in State court, he could avail himself of the actual innocence exception and receive review and relief.

But since Lee timely filed a State petition and this was only his first Federal petition, his actual innocence means nothing to the judges on the Ninth Circuit.

AEDPA is poor legislation at its finest. When courts can rely on flimsy statutes of limitations and even flimsier rationales to look an innocent man straight in the eye and say “sorry, you didn’t make your innocence argument before end of business today, so you’re SOL”, something’s gone horribly wrong.

A distaste for those caught elastic arms of the law, a false reliance on notions of “finality” and a “conviction at all costs” culture has brought us to this nauseating point.

the actual innocence exception arises from the judiciary’s equitable discretion, not the Constitution. Murray v. Carrier, 477 U.S. 478, 496 (1986) (“Accordingly,  we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”) (emphasis added); Schlup, 513 U.S. at  314-17 (not mentioning constitutional concerns while formulating exception); id. 324-27 (not mentioning constitutional concerns in holding that Sawyer standard was too strict for actual innocence inquiry); House, 547 U.S. at 536-38 (not mentioning constitutional concerns while formulating exception). We   decline to rule otherwise and instead follow Ferguson: AEDPA’s statute of limitations without an actual innocence exception does not violate the Suspension  Clause. Consequently, we conclude that there is no Schlup actual innocence exception to override AEDPA’s statute of limitations. Lee’s habeas petition is thus  time-barred and must be dismissed.

Since there now seems to be a Circuit split, one can only hope that SCOTUS has the courage to look an innocent man in the eye and say “finality be damned, justice shall be served”.

Via C&F, Gamso too.

He died in 2007, more than 40 years after the shooting. The Commonwealth, already having exacted 26 years from Barnes, now 74,  for the attempted murder, now seeks to exact some more for the eventual death of Ofc. Barclay.

Barnes’ second trial for the act of shooting Barclay began today in Philadelphia. The Commonwealth will attempt to prove that the gunshot wound suffered by Barclay in ’66 – which left him wheelchair bound – caused the urinary tract infection in 2006 that ultimately killed him.

The defense will seek to show the jury that the Commonwealth cannot prove the causal link, relying in part on the fact that Barclay, despite being confined to a wheelchair:

was able to drive a specialized car, walk with braces, earn a college degree, marry and divorce three times and perform sexually, had been in three car accidents and had fallen out of his motorized wheel chair twice during the 41 years that he lived after being shot

Mark Bennett, in a comment to Scott’s post above, asked in 2007:

I must be missing something, because those articles don’t even discuss this question: How does a conviction for attempted murder not jeopardy-bar a prosecution for murder when the victim dies?

A very important question, for it should be quite obvious that whatever the terminology attached to the formal charge, the act for which Barnes is being exposed to further punishment is the same: that he fired a weapon with the intent to cause the death of Ofc. Barclay.

Having already been punished once for that act, how is it permissible for the Commonwealth to seek to punish him again? I decided to delve into the quagmire of Double Jeopardy law, a muck from which I’m not quite sure that I’ve yet emerged. Nonetheless, I found this quote from a LawProf in another article covering the start of the trial:

Temple University Law Professor Jim Strazella says he believes the charges are permissible, and don’t violate any double jeopardy laws.

Since there is no further explanation in that article, or any other that I could find, you are left to my devices and I am to yours.

The fifth amendment to the United States constitution declares that no person  shall be subject for the same offense to be twice put in jeopardy of life or limb . . . . This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784 (1969).

One of the protections flowing from the double jeopardy guarantee is that against a second prosecution for the same offense after acquittal; North Carolina v. Pearce, 395 U.S. 711, 717 (1969); or conviction. Illinois v. Vitale, 447 U.S. 410 (1980).

The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184 (1957). The most famous double jeopardy case is Blockburger v. United States, which laid out the test for determining if multiple convictions arising out of the same incident violated the prohibition against double jeopardy:

[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304 (1932). This analysis ‘precludes examination of the evidence.’ Illinois v. Vitale, 447 U.S. 410, 416 (1980). Instead, an examination of the elements of the two crimes is essential. Brown v. Ohio, 432 U.S. 161, 166 (1977).

Quoth Justice Stevens, in Illinois v. Vitale:

In Harris v. Oklahoma, 433 U.S. 682, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U.S. 684. Since it was theoretically possible that a different felony could  have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711 (REHNQUIST, J., dissenting). However, the entire Court agreed that it was required by the Double Jeopardy Clause.

Of course, it is the interpretation of state law by a state court that controls and under PA law, attempted murder may not be a lesser included offenses of murder. There is a line of cases that suggests that the treatment of those crimes intended by the legislature plays an important role in determining whether they are the same for double jeopardy purposes. Perhaps the differing sentencing ranges for attempt and the completed act (for murder at least, at least here in CT) may give some weight to that argument.

Stepping back from the legal mumbo-jumbo, there is a certain appeal to the argument that Barnes should not be permitted to reap the benefits of a lesser sentence merely because Barclay did not die immediately.

This, however, is not unavailing, especially in light of the fact that the Commonwealth was willing to have Barnes plead to a lesser degree of murder, exposing him to a potential maximum sentence of 10 to 20 years, with credit for 16 years already served.

The Commonwealth is not interested in the legal issues here, especially when you consider the fact that Barclay’s body wasn’t autopsied for 7 months and after Barnes had been charged with murder. To me it seems more like grandstanding and putting on a show in light of the death of a member of law enforcement. Which is fine, except Barnes has already paid a pretty steep price for that very crime.

[As you may have noticed, my DJ analysis was pretty half-baked. That's because I am unwilling to embark on writing a brief on this subject just yet. If I've missed a key case, I'm sure you'll let me know about it.]

Cats are popular. They’re even more popular on the internet, which was, as we all know, invented just for cats. Every day is Caturday [here's the ED version of Caturday, which means it's totally NSFW. I mean it, really. Not. Safe. For. Work].

Sometimes, though, the internet bleeds into real life (shocking, I know). And such has been the case the past week, with three stories – two local – involving cats and crime.

First, this tragi-comic tale of Gregory Lesco, who killed the family cat after it ate his pet bird (no, I”m not making that up):

Police say Lesco told them he was doing dishes when the bird flew from his cage to join him and the cat, named Pepper, jumped up and grabbed it. He said he hit the cat in the head with a baseball bat and then suffocated it with a rug.

He says he struck the cat to try to get it to drop the bird, and then suffocated it because he couldn’t afford to take it to a vet to treat its injuries.

Mr. Lesco, not to be confused with the equally bizarre Matthew Lesko, is charged with one count of Animal Cruelty, which happens to be a class D felony, punishable by 5 years in jail.

Then yesterday, I saw this post by Rick Horowitz about a Michigan law that makes it a crime for cats to fight. Since there’s no room in cat jails, they stick the owners in human jails instead:

The City of Kalamazoo, Michigan, apparently has some fairly weird laws on the books regarding animals.  For example, it is apparently a misdemeanor — not an infraction, but a misdemeanor with a real criminal record and a real jail sentence as a potential punishment — not that a simple thing like a criminal record could ever impact anyone’s ability to get a job or a professional license — a misdemeanor to own a cat that fights with other cats.  In addition to making it apparently illegal to have a cat that fights with other cats, Kalamazoo also charges owning a dog that barks as a misdemeanor.

I don’t know if that last bit is true, but the charges will be dropped if the cat behaves herself. The cat’s plan is working. Next step: world domination.

And finally, this morning, we get news of a honest-to-goodness cat burglar. No, I mean that literally. A woman who burgles cats (and there’s another awesome cat picture after the jump so don’t you dare not click through):

A Connecticut woman has been arrested on allegations she stole people’s pet cats in several towns and put them up for sale on a website.

Stonington Animal Control Officer Rae Jean Davis wrote in an arrest warrant application that she believes Michelle Courter of Stonington set traps for numerous cats and placed ads for them on petfinder.com.

The woman says that she had no idea how the cats got there, or in the alternative, she was holding them for a friend. Really, I think the cats are behind this too. They’re brainwashing her into selling them, so they can spread far and wide. Perhaps as far as Kalamazoo, MI, because they have to answer the call to war made by their comrade there.

In addition to Animal Cruelty, she’s also been charged with, umm, theft of companion animal. By the way, in these animal statutes, it’s really interesting how dogs are given primacy. “Dogs and other companion animals”. Maybe this is why the cats are revolting.

So there you have it. It’s Official Caturday Week Day. Should any of them go to jail? Get a fine? Have a gaggle of cats meow incessantly outside their bedroom door?

Cat-ch you later!

No, silly cat, everyday is Caturday.

Jordan Brown is 12. At the time of the death of Houk, he was 11.

I repeat. Jordan Brown is 12. And a judge ruled that he can be tried as an adult. A state in these United States is about to prosecute an eleven year old as an adult murderer.

Here is a file picture of him, taken from CNN. Look at it. This cherubic 12 year old now faces life in prison. The rest of the post after the photo and the jump.

That this decision – to deny a transfer to juvenile court – is an abomination is an understatement. This decision makes Brown the youngest child charged as an adult anywhere in America.

The reasoning for doing so is even more shameful.

Since being charged with the murder of his father’s fiance, Jordan Brown, through his defense attorneys, has asserted his innocence.

Largely because of those denials, a Lawrence County judge ruled Monday that Brown, now 12 years old, will stand trial as an adult.

In his 17-page decision, [Judge Dominick] Motto ruled that the defense failed to meet its burden, in large part because Brown’s continued denials in the crime show an unwillingness to take responsibility for his actions, a necessary factor in rehabilitation.

Motto said that point was established by both forensic psychologists in the case — John O’Brien, who testified for the prosecution, and Kirk Heilbrun, the defense’s expert — who testified in de-certification hearings Jan. 29 and March 12

That the burden is on the defense to show that the child is capable of rehabilitation and is not a danger to society is absurd. The state of the law belies a fundamental misunderstanding about the nature and manner of the child psychology and the development of the human mind.

But again, this is an 11-12 year old we’re talking about. The law in Pennsylvania is that anyone above the age of 10 (10!!!) can be tried as an adult. In Connecticut, the threshold is 14.

To compound the travesty that is the untenably low age threshold and the burden on the defense to show something that should be presumed, the Judge then relies on the lack of “acceptance of responsibility” of an 11-12 year old to justify his decision to treat him like a full-grown adult. This is  judicial cowardice of the worst kind.

To say that in order to be treated as a juvenile, a child must display the kind of emotional maturity that most adults in the system are unable to display well into their 40s and then use the lack of that adult development to justify treating the child as an adult is mind-bogglingly contradictory and stupid.

The prosecutor gets no points, either. He, seemingly honestly, states:

“This is something that you wouldn’t even think of in your worst nightmare, that you’d have to charge an 11-year-old with homicide,” [Lawrence County District Attorney John] Bongivengo told a local CNN affiliate in Pittsburgh when Houk was killed in February 2009. “It’s heinous, the whole situation.”

This statement rings hollow. If this is your worst nightmare, John Bongivengo, then do something about it. If the decision is truly with the court to decide whether to transfer the case back to juvenile court, then side with the defense in urging the judge to do so. Don’t file a brief and argue that your relatively inexperienced “expert” correctly concluded that there is “very limited” capacity for juvenile treatment.

I understand the reasons for permitting juveniles to be tried as adults in the most serious of crimes. You do adult things, you face adult consequences. But to bring an 11-year old under aegis of such legal chicanery is appalling.

In most murder prosecutions – and certainly in death penalty prosecutions – vengeance is a driving factor. Punishment and revenge rule the day. But this is not the place for it and certainly an 11-year old is not a worthy object of the collective wrath of the adult criminal justice system.

It is a tragedy that Houk died and her unborn child along with it. But allowing this prosecution to continue does nothing but add to the utter destruction these people’s lives have already experienced. There is no need for vengeance here, but rather for the stern understanding displayed by a disappointed parent toward an unknowing, developmentally undeveloped adolescent.

When the law provides for him to be punished as juvenile for the next 10-11 years of his life, seeking to have as 12 year old incarcerated for the remainder of his natural life smells of nothing but shameful bloodlust.

As an 11-year old, Jordan Brown would still be in middle school. Maybe he just started noticing girls. Maybe he still wants to be a policeman or firefighter. He probably hasn’t stopped growing. And here we are, the best justice system in the world, condemning him to the possibility of spending the rest of his life in jail.

If this isn’t cruel and unusual, I don’t know what is.

the metaphor, stupid

Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.

[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]

The habeas corpus effective suspension and evisceration bill

Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.

Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.

But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.

The second premise of the state’s position is all the more confusing and confounding. To allay the fears of the few who rightly questioned the evisceration of such an important and time-honored Constitutional right, the state has inserted several “exceptions” into the bill that would apparently provide a mechanism whereby petitioners can get review of meritorious claims despite missing the statute of limitations and/or having filed prior habeas corpus petitions.

But the onus in all of those exceptions falls squarely on the shoulders of indigent, incarcerated inmates. When asked, for example, how the inmate could make a showing that there were facts that would lead a court to believe there was a chance that the petition was meritorious, the CSA replied that the petitioner could submit an affidavit of facts, that a court would then consider.

And just how is an inmate to do that? Counsel would not be appointed at that stage, so the petitioner would have no access to resources to effectuate such an affidavit. How is he to send people out into the community to investigate the merit to his claims? How is he to present them in a legally effective manner to a judge? Courts routinely insist that defendants and petitioners should not represent themselves and yet here we place this onerous burden, even in cases alleging actual innocence on an incarcerated inmate.

Not one legislator pointed out, much to my dismay, that the Courts would have the same amount of work, just clothed in a different garb. Instead of ruling on the merits of the petitioner’s claims, the court would rule on the merits to decide if there was merit. And then presumably rule again? The fact that this will only lead to more litigation should be obvious to everyone.

Also to my dismay, not one legislator challenged the sound-bite claim that victims are routinely dragged out to habeas corpus hearings, many years later and forced to face a retrial of sorts. In fact, at around 1:03:00 on the video, Judiciary Committee Co-Chair Mike Lawlor parrots the State’s position that “we can trot thousands of victims in here” who are notified that there is a habeas pending and they may be called to testify. Does it sound terrible? Yes. Does it happen? Almost rarely.

In fact, I can’t think of any case that I know of where the victim was called to testify at the habeas trial. There is maybe one scenario in which a victim may be called to testify. Perhaps this is something for which statistics cannot be kept. Still, someone should challenge this fearmongering argument, because it will quickly fall apart, instead of blindly accepting it as true. It simply is not true.

And as an aside, even if a victim is called to testify at a habeas trial, we should not use that as an excuse to curtail the basic Constitutional right to challenge the legality of one’s conviction. The slight inconvenience experienced by any such victim should necessarily take a back seat to the monumental interest in determining whether a person has been unlawfully and illegally deprived of his liberty.

The residency “you hate children or you love terrorists” restrictions bill

The testimony on this bill starts at around 03:14:10 on the video. The main testimony in support of the bill comes from State Rep. Rebimbas. Now, she does not represent my district, I hadn’t heard of her existence prior to Monday and I’ve never, ever spoken to the woman. I’m sure she does a fine job representing her district.

But.

Either she’s horribly assisted by aides who gave her incorrect information, or she misspoke or she intentionally fudged so many things to the committee that it made my head spin.

Two big points here as well: 1) The 2000 feet residency restriction zone is not overly restrictive; and 2) Sex offender recidivism is the highest.

Those who are regular readers of this blog know that residency restrictions are a pet peeve of mine (I even have a category dedicated to it). They are ineffective, useless and only tend to drive sex offenders underground.

At 3:41:00 (approx.) she says that 2000 feet is not overly restrictive “because it’s less than half a mile”. Putting aside the fact that 2000 feet is not less than half a mile, 2000 feet would put Connecticut into the group of most restrictive states. Per this 2007 OLR report, most states have residency restriction zones less than 2000 feet. The only states with a restriction of 2000 feet are Alabama, Arkansas, Iowa (whose County Attorneys issued this statement in 2006 against residency restrictions) and Oklahoma. So 2000 feet would be the most restrictive legislation in the country.

At approx 03:47:00, a legislator hits upon the biggest problem with the residency restrictions in urban cities. There’s a map of places covered by a 1500 feet restriction in the city of New Haven. The only place in the entire city of New Haven that is not within 1500 feet of a school or daycare is in the middle of the Yale golf course. Increase that radius to 2000 feet and there’s nowhere in any of CT’s large cities where sex offenders could reside. (See this post for another map and more on this.)

You should also listen to her evasive bullshit response to Rep. Holder-Winfield at approx 03:53:02 on the question of which, if any, states had restrictions greater than 2000 feet.

What’s the upshot of that? Sex offenders move into rural areas. Mike Lawlor joked at one point that he’s not sure how the rural legislators would feel about that. We all know how Southbury crapped the bed when one sex offender moved in. Imagine a whole busload of them.

In her long winded and vacuous answer to the question about where these sex offenders would go, the Rep. responded by repeating the easily refuted claim that sex offenders are very likely to reoffend and that “we’re protecting the children”. I’m not sure how many times I’m going to have to cite to the studies that show 1) that 95% of sex crimes are committed by people known to the victim and 2) that sex offenders have very low recidivism rates.

When pushed (at 03:55:03) about her numbers on recidivism, she didn’t have any handy, but “her numbers show that there are high recidivism rates”.

Look, I’m not sure if she knows all the answers or what. The point here is that this is dangerous legislation and should only be discussed, much less voted upon, with the full knowledge of the facts. Legislators needs to read all the studies in this area, arm themselves with accurate and reliable facts and then have a long and honest discussion about whether residency restrictions are needed in Connecticut.

The reality is that there already do exist residency restrictions and those are in the form of conditions of probation. When a defendant is on probation, they own him. They control what he wears, what he breathes and more importantly where he lives. Every client that I have, who is convicted of a sex offense, has some form of residency restriction built into his conditions.

Poorly thought out laws should have no place in our penal code, much less ones proposed based on knee-jerk fearmongering. Trotting out the children to pass terrible legislation is akin to the “if you’re against the war, you’re for the terrorists” mantra.

We must refuse to cower blindly to imaginary fears.

It seems that the Supreme Court of the good state of Connecticut (SCOC, which you may pronounce S-Coc if you so please) is having fits. Specifically fits with our kidnapping statutes. Almost from the day they, in a moment of rare weakness, decided to bring some sanity back to the overbroad application of the statute, they’ve been backpedaling furiously, as if to atone for their one sin.

In that original decision, they decided – rightly in my opinion – that kidnapping is more than just mere restraint required for the commission of another felony. So if I held you down and forced you to read this post, I’d be guilty of torture, but not kidnapping.

Then they tinkered with the remedy, because how could one justify letting defendants go? Of course you can’t.

And now, this past week, comes the granddaddy of them all: State v. Winot (leave the why not? jokes for later, please).

This is a case that has been two years in the making. It was argued in January of 2008. Yes, that’s TWO-THOUSAND-EIGHT. And what perplexed them so? Judging by the decision, the vexing question was how to uphold this conviction with a straight face. 730 days later, I don’t think they’ve managed it.

The facts

She began to walk faster, but the defendant forcibly took her right arm. When she asked him to let go, he refused, yelling, ‘[n]o, it’s too wet out here;  you’re getting in my car today.’ He tried to pull her toward his car, but she resisted, pulling back in the opposite direction. To get him to release her,  the victim then leaned over to bite the defendant, at which point he quickly let go and rushed back to his car. In doing so, the defendant was almost hit by a maroon car. Upon being released, the victim ran home and told her mother what had transpired. The entire incident lasted only a  few seconds.

That’s less time than it took you to read that first sentence. He took her right arm, she pretended to bite him, he let go. A matter of seconds. Got that?

The challenge

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.

The Constitution was intended to be many things: a guide, a charter, founding principles and at the very least a set of instructions for those that sought to build a just and fair country from the ashes of rebellion.

What it was never intended to be was a blanket, and a wet one at that. Unfortunately, state Sen. Tim Burchett, R-Knoxville, TN (hey! stop rolling your eyes) didn’t get that particular memo.

So, in his Tennesseean way, he has introduced a bill making it a felony for criminal defense lawyers to make “unproven insinuations” about crime victims during the course of a trial.

Lawmakers said it isn’t fair for attorneys to try to make criminals out of victims during a trial. However, some attorneys believe this notion is unconstitutional.

The discussion for the new law came about after a couple in Knoxville was tortured and killed in 2007. The parents of Channon Christian listened to the graphic details in court last year and said defense attorneys insinuated their daughter used drugs.

“They criminalize the victims. They are in the grave. They have no defense,” said state Sen. Tim Burchett, a Republican from Knoxville.

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

I'm not as think as you stoned I am

(Title sung to the tune of “If you’re happy and you know it…” What? It’s 11:00pm. Buzz off.)

While much of the news media and indeed the blawgosphere has been preoccupied with the news that NYC isn’t really a big, bad and dangerous place, curious little attention has been paid to another story out of New York: that under Mayor Bloomberg, drugs arrests have spiked and that blacks are 7 times more likely to be arrested for drug offenses than whites.

Thanks to Matt at Change.org (a blog you should be following if you aren’t already), we learn that a new study (and a related NYT article) has been published analyzing the incidence of drug related arrests in the Big Joint:

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.]

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Kansas v. Hendricks. The factors are:

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.

Fast forward a number of months. Where do you think you are now, Paul?

Awaiting sentencing for possession of a shotgun Sentenced to 12 months suspended, that’s where. An offence which carries a mandatory-minimum penalty of 5 years. Jack of Kent, a British blougger, has written extensively on this case and it’s well worth the read (via the deadly Charon). As with all strict liability crimes and crimes that involve mandatory-minimum sentences, the befuddling question here is the exercise of discretion to prosecute Mr. Clarke. While the police were unwilling to comment on the case, Jack of Kent was able to enter into a lengthy e-mail exchange with the Crown Prosecution Service, who explained their decision to prosecute thusly:

Paul Clarke claimed that he found the shot gun in his garden and decided to bring it to the police station. Evidence showed that he was in possession of the gun and the cartridges for some days earlier and that at that time he did not try to contact the police, for them to collect the weapon. He could not explain why he waited some days before bringing the gun to the police station and why he did not contacted the police for them to come and collect the gun.

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.]