dumb laws
Get off my lawn and into my jail, damn meddling kids
Aug 24th
I’m a little late in “reporting” on this, but it’s worth pointing out. The esteemed Heritage Foundation has issued a new report/study/propaganda piece/Robert Ludlum laugh-a-thon titled “Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens”. That title is just as long and unwieldy as some of my titles, which tells you much about the substance (hint: it’s useless).
There’s so much rhetoric in this report that misses the point of not sentencing kids to life in prison that it makes my head spin (and as a by-product, makes the report very difficult to take seriously).
Here’s a sample:
All for $53
Apr 12th
Down under, the very curious tale of Judge Marcus Einfeld is unfolding in tragic fashion. The judge, a 70 year old champion of human rights, is now facing 2 years in jail – all for thinking that he could get out of paying a $53 (£36, really) fine for going 6 miles above the speed limit (yes, they have “strict” cops in Australia to0).
It wasn’t even really about the money – it seems he could afford that – but rather about those dastardly points that get added to one’s license for traffic infractions. Apparently he was close to whatever limit there is and risked losing his license. So he did the simplest thing he thought of at that moment: told the judge that someone else was driving his car:
This is a stickup!
Apr 2nd
you so cute...now gimme your money!
Times are tough. Everyone is going through an economic crunch and we all need money. The State needs money, you need money and I most certainly need money (what, you think this blog comes for free?).
So it was surprising when almost $2 million was stolen a few weeks ago, without many batting as much as a single eyelid. To make it worse, the money was stolen from victims! Victims of theft and fraud, I might add.
So who is this criminal with such audacity? Who is this person or entity that engaged in such a daring daylight heist? Why, the State of CT of course.
Last week, the CT legislature, as part of the Governor’s budget bill, passed legislation co-opting $2million from the Client Security Fund. The client security fund is a fund into which all 36,000 lawyers are required to pay $110 per year. There’s also a proposal to alter the Attorney Occupation Tax to remove the exemption for state employees. More after the jump.
Lege ponders bill to ignore Fed’l Constitution
Mar 30th
Alternate title: CT legislature considers bill seceding from these United States of America.
State Republican Senator Dan Debicella apparently hasn’t heard of the Federal constitution, or doesn’t care that it exists. That can be the only logical explanation for his sponsorship of this bill, which effectively overrules Kennedy v. Louisiana.
The proposed bill would make a sexual assault, under section 53a-70, 53a-70a or 53a-71 of the general statutes, of a child under thirteen years punishable by death.
Now, for those of you with extremely short memories *cough*Debicella*cough*, Kennedy held that:
Look ma! No hands intent
Mar 24th
Imagine you’re sitting at a dinner table with some friends. You pick up a fork to eat some salad. Suddenly, cops come bursting into your house and arrest you for the murder of your friend who’s sitting across the table. You’re convicted and then the Supreme Court upholds your conviction because you took the first step in a series of actions that could lead to murder.
Welcome to the world of Michael Cyr [pdf]. Except he wasn’t eating dinner with a fork, but rather sitting in his car, drunk, with the key firmly in his pocket. He started the engine with a remote starter and then sat in the driver’s seat, with the key in his pocket. He wasn’t going anywhere, but that didn’t matter to the CT Supreme Court.
So what, you say, he was sitting in the car, with the engine on. It’s reasonable to assume that he meant to drive it drunk. But that’s just the problem. The Supreme Court held that the State does not have to prove intent in cases like this. So he could have been sitting to stay warm, or to sleep in his car. In fact, he could have been trying to avoid driving drunk. But none of that matters. He turned on the engine and sat in the driver’s seat. Therefore, he is guilty of driving under the influence.
The law of DUI in CT is just as ass backwards as this decision. Read from Cyr itself:
When is an assault not an assault?
Mar 10th
When it’s a strangulation. Yes, as of 2008, the Connecticut legislature has created the crime of “Strangulation” (I’d link to it, but it isn’t up on the website yet).
Is it redundant? What does it really mean? Let’s find out! The first step, of course, is to conduct an elements analysis. There are two degrees of strangulation, both felonies. Let’s start with Strangulation in the First Degree:
(a) A person is guilty of strangulation in the first degree when such person commits strangulation in the second degree as provided in section 53a-64bb and (1) in the commission of such offense, such person (A) uses or attempts to use a dangerous instrument, or (B) causes serious physical injury to such other person, or (2) such person has previously been convicted of a violation of this section or section 53a-64bb.
Huh? Okay, let’s look at Strangulation in the Second Degree (53a-64bb):
(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.
Here’s what I don’t understand. How do you commit strangulation in the second degree without using a “dangerous instrument”? Especially in light of the fact that hands (or fists or feet or limbs) may be “dangerous instruments”:
Proof that sex offenders make people act crazy (with update)
Feb 13th
Title Bout: Ohio v. USA
Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.
A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering.
And thus, the tug-of-war between the Federal Government and the State of Ohio begins. Whose requirements prevail? Or will it all be disregarded because the object of this “war” is to get a heinous, evil, dangerous, disgusting, despicable sex offender to register his whereabouts? Some counties in Ohio have had the testicular fortitude to tell the Feds to stick it, but unfortunately not the county in which Doe resides.
If the budget deficit exceeds $1bn, it must be bizarro-world
Feb 6th
Ever since the Governor announced her proposed budget earlier this week, the cost-cutting proposals have received a lot of scrutiny both in the press and on the web. So it is only in this troublesome climate that eliminating a measure that would reduce incarceration costs can be considered a cost-saving measure.
One of the things she mentioned in her speech was that, in order to save money, 130 “obsolete” laws would be repealed. An interesting idea, to be sure, until you look at one of the statutes on that list. That would be Conn. Gen. Stat. 54-125d. If you’re too lazy to click on the link, I’ll tell you what it is: the deportation parole statute.
Man-Min sentences for juves: no (constitutional) problem
Jan 27th
It was a longshot, but by definition, it means that it was worth a shot. The CT Supreme Court recently held in State v. Carrasquillo that mandatory-minimum sentences for juvenile offenders don’t violate the Eight Amendment to the Constitution. This properly should be considered a companion case to the “Life without parole is not cruel and unusual” decision from a few months ago (my post on that decision here).
Like the previous case, the defendant in this case relies heavily on Roper v. Simmons. The defendant argued that juvenile possess characteristics different from adults that make the application of a mandatory-minimum sentence unconstitutional. The defendant did not argue that juveniles cannot be sentenced to 30, 40 or even 50 years in prison, but that a sentencing scheme that deprives a judge the ability to take into consideration the mental development of a teen and sentence less than 25 years is cruel and unusual punishment.
Once again, the court relies on a tested phrase to justify its decision: death is different. Roper spoke only to death, not to any other punishment and thus is inapplicable.
This, in my opinion, is too literal a reading of Roper. While Roper may have dealt only with the death penalty, the studies cited in Roper should have some applicability in the general field of juvenile punishment.
Appellate Court freshens the air
Dec 4th
Distraction?
Rear view mirror ornaments seem to be a big problem in Windham County, CT. Three months ago I wrote about a Superior Court decision from last December, in which the court found that C.G.S. 14-99f(c) permitted cops to pull drivers over because, well, the cop thought that the air freshener was obstructing the driver’s view. I thought it was a pretty bad decision at the time, and wrong on the law, and today I see that the Appellate Court sees this as an area of potential litigation.
In State v. Cyrus (a different case from the one I blogged about), the Appellate Court upheld the granting of a motion to suppress
What does “regularly” mean?
Aug 7th
Sex offender probation again. It doesn’t stop bothering me and it shouldn’t stop bothering you either.
One of the standard conditions of sex offender probation is the requirement that the probationer not go within 1-2,000 feet of a park, school, playground, library, etc (the so-called “residency restrictions“).
Connecticut does not have statewide residency restrictions and only three towns have enacted ordinances with penalties consisting of only fines.
Instead, in CT, you will see a standard condition of probation for sex offenders that is essentially a residency and work restriction. However, it is not worded quite as strictly as the residency restrictions and thus, in my opinion, is rather vague.
The standard condition reads something like this: “Probationer shall not go to any park, playground, school, [etc..] or any other place that is regularly frequented by minors under the age of sixteen.”
It’s that last bit that is especially problematic, because, in essence, any place could be a place frequented by minors under the age of sixteen. Take the movie theater, for instance.
The problem arises with actually proving a violation of the condition and whether a movie theater is a place that is regularly frequented by minors under the age of sixteen.
It seems to me that “frequently” the State proceeds to VOP hearings with the assumption that a movie theater is a place regularly frequented by minors and this assumption is rarely, if ever, effectively challenged by the defendant.
Several questions immediately spring to mind: What is regularly and whose regularly is it? Does it mean that the majority of patrons at a particular location are teens? Or do a particular set of teens (say the teens in that particular town) regularly go there? And what is “regularly”? 4 days a week? 51% of the patrons?
In addition, how does one really know that the teens who “frequent” that place are under the age of sixteen? No movie theater I know of checks ID and keeps a record of the age of each patron. No movie theater compiles these statistics. So how does one really know?
As anyone who has been outside in the last 15 years can attest (at least anecdotally), a 15 year old girl doesn’t look 15 anymore and there may be scientific evidence to back this up. There are even courses being taught about this general idea. So a girl that one may assume is 19 is actually 15. Indeed, some of our clients wouldn’t be in the messes they’re in if there was a sure-fire way of telling a girl’s age just by looking at her.
Keeping on with the movie theater example, does it matter if a majority of the patrons are adults, but a majority of those present are minors? Movie theaters are well known to be hang-outs for teens, but do they count?
Further, what’s the timeframe? Is it historical or within the last year or month or week or simply on the day that the defendant decided to go watch a movie?
These conditions are so vague, that I think a successful argument can be made that they do not provide adequate notice to a probationer that a non-enumerated place such as a movie theater is off-limits.
Shouldn’t the burden be on the State to actually prove that the movie theater is indeed a place which minors under the age of sixteen regularly frequent? And I mean prove by some sort of scientific evidence, not the eyeballing of an employee, not matter how long the employee has worked there.
In my opinion, such prosecutions must be zealously challenged and defended. Has anyone tried anything like this? Has anyone had any success? See any problems with my theories? How do you defend against these VOP hearings?
A big win for war on drugs
Jul 17th
Last week, the 2nd Circuit delivered a crushing blow on the war on drugs sanity and common sense. The Second held (for the first time, it is worth nothing) that sharing drugs is “illegal distribution” of drugs.
Police raided [Wallace's] apartment and recovered from Wallace’s bedroom 1.5 grams of cocaine base, a number of ziplock bags, 91.22 grams of marijuana, an AK-47 semi-automatic assault weapon and $460 in cash.
After receiving Miranda warnings, Wallace told police the drugs were for his personal use and, sometimes, for his friends. He said the gun belonged to his father and was kept for protection. He also said the bags were for dividing up the drugs so his friends would not know how much he had and “use it all up.”
No big deal, said the Second Circuit. The act of giving it to someone else makes you a drug dealer – regardless of whether you receive something in return (such as money).
[Judge] Jacobs said the word “distribute” in the statute means “to deliver” and the word “deliver” means “the actual, constructive, or attempted transfer of a controlled substance.”
The court rationalized that Congress, in passing the statute, did not include anything about “consideration” in exchange for the drugs, therefore they meant to treat “passing a joint” differently than hoarding all that pot and smoking it yourself, dammit – I hate you.
In doing so, the Court has now lumped international drug smugglers together with the two 30-year old kids who never grew up, sitting in one of their mothers’ basement, sharing a joint*. Clearly, this is something that Congress definitely intended. I mean, those two guys are capable of causing so much mayhem – think of all the runs to the grocery store to grab all the munchies they can! Will anything be left for the rest of us!? Is nothing sacred anymore!!!?
Unintentionally, doesn’t this create more incentive for people to buy their own drugs instead of mooching off of someone else? So, perhaps, there will be more people buying drugs than before. You better believe it when I tell you that the next time you come over, you can not share my stash. BYOP.
*Yes, I’m beating a dead stereotype. Sue me.
Corpse and (grave)robbers
Jul 10th
The story, ofcourse, is about the three yoots from Wisconsin who were charged with sexually assaulting a 20 year old girl. Problem was, she was already dead.
The Appellate Court in Wisconsin got it right (as appellate courts are wont to do) and declared that this, obviously, cannot be a crime, since the woman was not alive.
The Supreme Court of Wisconsin, in all their wisdom (as is their wont) reversed. [I guess I should be happy that this phenomenon doesn't seem limited to CT, but I ain't crackin' a smile.]
The sheer stupidity of the decision itself aside, the Supreme Court once again ignored the forest for the trees (as is their fundamental birthright). I’ll let Scott explain:
But there is a deeper failing in this decision. While the Wisconsin Supreme Court focused on the question of whether a corpse can give consent (both an absurdity by definition and facile solution when faced with a hard choice), they failed to consider the far broader ramifications of the definition of a “person”.
If the word “person” is to include corpses, it opens a wide world of criminal conduct that no one intends. Consider the criminal liability of the anthropologist in Wisconsin, messing around with people’s bones. A “person” can be the victim of a homicide. A corpse cannot, at least before this decisions. What now?
Scott is absolutely correct. Wisconsonians (please don’t correct me if that’s wrong, I don’t give a damn), prepare to be convicted of murder for killing a dead man. Does Wisconsin have the death penalty? That would be the ultimate ironic punishment. Put to death for killing a dead man.
Sometimes I wonder if these Supreme Court judges write such opinions just to give us fodder. It has to be. There can be no other rational explanation.
As to the act of necrophilia itself…eh, I don’t have an opinion either way. I mean, aren’t vampires supposed to be sexy?
Castle doctrine come home to roost
Jul 1st
You may have heard, you may not have. A Texas grand jury has decided to “no-bill” Joe Horn (no, not that Joe Horn). Prosecutors sought to indict Horn after Horn killed two men who were fleeing after committing a burglary.
Except it was not his own house. Wouldn’t you know it, such a thing is permitted in Texas. The relevant statutes are here. I’ll pare it down for you:
A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property. Actually, upon further reading of the statute, it seems that this last one is not a requirement. So, in Texas, you can kill someone you believe is robbing your neighbor without having the neighbor’s permission to protect his house. Don’t we all feel like men now?
Bennett thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you why.
Let’s take the “immediately necessary” portion of the statute. Here’s why this was not immediately necessary: He was on the phone with police who were on their way to the scene.
“I’ve got a shotgun; you want me to stop him?” Horn asked the dispatcher.
“Nope. Don’t do that,” the dispatcher replied. “Ain’t no property worth shooting somebody over, OK?”
Horn was clearly upset by the dispatcher’s response.
“I’m not gonna let them get away with it,” he said. “I can’t take a chance getting killed over this, OK.”
Despite the dispatcher’s protects, Horn said “I’m gonna shoot! I’m gonna shoot!”
The 911 dispatcher warned Horn to stay inside at least a dozen separate times, telling him, “An officer is coming out there. I don’t want you to go outside that house.”
He did not heed that request. He went outside and shot the two men in the back – firing three shots. Police arrived seconds later.
They weren’t on his property, they weren’t coming to his property. He was in no imminent danger.
Let’s look at the other element of the statute, that he reasonably believe that the neighbors asked him to watch over their property. The statute reads “has requested”, not “would have requested”.
“I really don’t know these neighbors,” Horn said. “I know the neighbors on the other side really well … I can assure you if it had been their house, I’d already have done something.”
Sure, today the neighbors may be glad (or perhaps not), but the question is did they give him permission at the time? Seems not to be so.
Then there’s the unfortunate matter of race. Both victims were illegal aliens of the hispanic persuasion. Horn is white. Harris County is predominantly white. I wonder what the makeup of the grand jury was?
[As an aside - where are you, victims' advocates? Every news story is parading the fact that one of the victims here was a criminal. So if they're criminals their lives aren't worth the same as others'? That's what really, really annoys me about this...]
Others may disagree – and it may seem incongruous coming from a defense attorney – but I don’t care. I don’t like the castle doctrine and I’m even more leery of using deadly force to protect property. I’ve always had trouble with this legal quirk and I always will.
As the police dispatcher said, no property is worth taking someone’s life and certainly not in cold-blood like Horn did.
I wrote and rewrote this last sentence several times as I tried to sympathize with Mr. Horn, just as I do with a majority of my clients. Don’t get me wrong, I would defend him to the best of my ability, but I’m not going to like him or feel bad for him.
Perhaps I’m just blinded by my hatred for this doctrine, but I can’t find it within myself to see his point of view. Maybe some other day, but right now I can’t. If that makes me a bad person or bad lawyer, so be it. What a slap in the face to the justice system and our notions of due process.
There’s pretext and then there’s pretext
Jun 22nd
Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)
There’s pretext and then there’s this.
The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):
No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.
The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.
First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.
Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:
“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”
The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”
Mr. Gamache is placed under arrest for DUI.
This is not just a CT phenomenon. From footnote 2 of the opinion:
The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d 804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).
Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,
Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.
The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.
So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.
The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.
I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.
This is a hunch in sheep’s clothing.
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