wait, does that count as Arson?

Look, I dislike guns. I dislike them a lot. I don’t believe that people kill people, rather that guns – the objects from which projectiles are discharged at a high rate of velocity, thereby permitting them to enter the bodies of individuals, causing fatal damage to bodily organs – kill people. I’d rather there weren’t any, or at the very least, we had stringent gun control laws.

But do you know what I dislike more? Stupid laws and even stupider interpretation of laws that criminalize perfectly legal conduct. Somehow, despite my strict personal opposition to guns, it is still legal to carry a licensed firearm in Connecticut. In public. Openly.

Yet, for some reason, the state’s “top criminal justice official” – a made up title if I ever heard one – wouldn’t recommend it. Why, you might logically ask, is it not a good idea? For the same reason that photographers across the country are being arrested for videotaping police encounters with civilians: because no one knows the law (see also this post by Balko on an issue similar to the one in the instant post).

I’m not making this shit up.

Mike Lawlor, already featured in one post today for his sage legal prognostications, offers up another:

“In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”

That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.

“Almost by definition”? Oh, really? Challenge Accepted! Here‘s the relevant Breach of Peace statute:

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

Openly carrying a licensed weapon into a public place doesn’t fit subsections (1), (2), (3), (4), (5) or (6). You know what that means? It’s not, by definition, a breach of peace. But maybe he was tired from all that prognostication and encountered a “slip of the tongue”. Maybe what he meant was “Creating a Public Disturbance”. Contrived Challenge Accepted! Here‘s the statute:

(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

I’m no legal scholar, but I see three strikes there. Yerrrrout! (I don’t…just…don’t ask.)

What Lawlor is essentially saying is that one shouldn’t legally carry a legal, licensed firearm in public, which one legally can do, because cops are stupid and don’t know that law and you’ll get falsely arrested for perfectly legal activity. So he’s doing you a public service, really. It’s like telling people not to walk around with large, brown plastic glasses and a 70s pornstar mustache because people may mistake you for a child molester and then you’ll get arrested and whatnot.

But, you might protest, it’s only Lawlor, a former legislator and now a bureaucrat. That’s not evidence of anyth-:

When asked in a phone interview last week if people are allowed to openly carry firearms with a permit, state police spokesman Lt. J. Paul Vance said, “Good question.”

“Does it frighten people? Yes,” he said. “There is no standard quick answer to this question.”

-Oh. Notice how he quickly answers the question “yes” and then says there’s no standard quick answer. This is dangerous because it’s indicative of a “winging it” style of policing. “Arrest first; find crime later” seems to be the motto. And we all know what happens once you get trapped in the quagmire that is the criminal justice system.

The simple solution, of course, is to make it illegal to openly carry a weapon in public:

Lawlor, a former lawmaker, said that personally he was no fan of guns but said he wasn’t inclined to have a discussion in the legislature over changing the law. It would be a difficult sell for gun rights activists, who he conceded raise some valid points. If taking out a gun is illegal under any circumstances, why would people carry them, he asked.

He said he prefers the way the law is written now, where it is on the gun owner to behave responsibly.

“You want to have a gun? Fine, but you have to accept the responsibility that goes with it.”

Funny that he exhorts gun owners to behave responsibly, but doesn’t care about the illegality of the arrests that ensue from that responsible, legal, behavior.

Explains State Rep Hewitt, a proponent of the bill:

“If I walked out of this door right now and I was arrested for rape with an eyewitness and there was DNA found on the scene of that rape — God help me I wish they would take my DNA.

I’d wish the same too. And you know what? They do. It’s usually titled ‘Motion for Non-Testimonial Evidence’ and is always granted, because there’s no basis to object. Then the police take a buccal swab of the defendant, do some science-y magic and decide if you’re the guy. It. Happens. All. The. Time.

Said another:

Rep. Don Clemons, D-Bridgeport, said it was the rape and murder of his son’s mother more than 30 years ago in Bridgeport that makes him inclined to support the bill. He said from 1978 to 1982 there were eight women abducted from Bridgeport and later found strangled and raped. To this day, those cases remain unsolved, he said.

“When I saw this piece of legislation Rep. Hewett produced, it brings back haunting memories,” he said, but he added that the measure could provide resolution for the families affected by those crimes.

And so you’d think there was no hope for individual freedoms and liberties in the Constitution State. But there is. And his name is Peter Tercyak, D-New Britain. Which brings us to the greatest quote ever:

Personally I’ve long argued that we won’t be robbed of our liberties at gun point. We will freely give them up one at a time to solve one problem at a time with our hearts being tugged by one truly horrible story at a time,” he said. “That’s why we’ve coded our liberties as we have.

Take a minute and read it again. Isn’t it beautiful?

After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.

So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.

I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?

“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”

Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”

That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.

Close enough for government work.

The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.

How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.

Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.

And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.

It may be close enough for government work, but when it comes to justice, there should be no such thing.

is that a gun in your hand or are you just happy to see me?

This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:

That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.

Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.

He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.

Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:

Allegedly, Graber is being charged with “interception of an oral communication” under Maryland’s “wiretap” law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to “intercept” with an “electronic device,” in this case the microphone attached to Graber’s prominent helmet camera, an oral communication in private conversation.

But that isn’t what Graber’s really being prosecuted for.  He’s being prosecuted for contempt of cop.  For embarrassing a cop.  A cop, and a department, that richly deserve the embarrassment they’ve gotten, and the embarrassment they’re going to receive.

Because the charge against Graber is utterly unfounded.  The definition of “oral communication” under Maryland’s wiretap law requires that the conversation be “private,” which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy.  Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996).  According to the Maryland Attorney General’s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.

It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:

Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.

I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.

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.