a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.

Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.

Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).

Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.

Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping - a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.

Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint - a B misdemeanor.

The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend - and that voice of prosecutorial reason Joshua Marquis - in making its point.

As if child sex cases weren’t difficult enough, there are a couple of disturbing developments (at least here in CT) in this arena.

The first, covered well by Norm, is a proposed change to the Connecticut Code of Evidence. Norm explains:

Proposed Section 8-10 of the Rules would permit a statement made by a child to be admissible in lieu of live testimony if the following circumstances were met: First, the court would have to find the statement trustworthy; next, the statement was not made in preparation for litigation; third the child either testifies and is subject to cross-examination or is otherwise unavailable.

I hope the Rules Committee members were giggling when they cooked this up, at least that would show they have not altogether abandoned reason. Decoded, the rule will result in trials without child witnesses; defendants will simply have to confront a cold statement.

What is most disturbing (among a lot of other disturbing things) is that last part of the third circumstance: the unavailability of children. As anyone versed with the law knows, unvailability does not mean physically unavailable; reluctance to testify qualifies. The scary part is that this unvailability requirement essentially permits the introduction of inculpatory and incriminating statements with zero opportunity to cross-examine.

Sixth Amendment? What sixth amendment? Imagine this: There will be trials conducted in which a child can accuse someone of sexual assault and never have that assertion challenged by anyone. This is truly scary stuff, folks. Lock your doors and never, ever be in the presence of children, for one allegation is all it can take to ruin your life.

One would think this is squarely covered by Crawford. The problem, however, arises in defining what is a testimonial statement. By adding this requirement, SCOTUS has provided wiggle-room (whether intentional or not) to prosecutors to introduce statements that realistically should not be admitted.

As Norm correctly points out, any time there is an initial allegation of sexual abuse, the wheels of the criminal justice start turning. Anything after that - the interviews by doctors, social workers, forensic pathologists, are for the purpose of determing who abused the child and how, not if. There are mandatory reporting requirements and the allegations are duly conveyed to the State, which duly institutes a prosecution. But yet, there has to be a determination by a trial judge, faced with a young child and their outraged family, that these statements were made with a prosecution in mind. This is extremely subjective and almost always results in the statement being admitted.

So we end up with trials where a videotaped statement by the victim is admitted into evidence and the defendant has been forced to forfeit his right to confrontation. The word of the victim is now gold and goes unchallenged. Convictions are almost a foregone conclusion and obscene sentences the norm.

This is a very, very troublesome situation and I sincerely hope that the defense bar is fighting it tooth and nail. What do you guys do to combat these situations? What’s the best tact?

Previous posts:

• Why kids lie (and they certainly do)
• CT Senate passes harsh “Jessica’s Law” and “tender years” exception
• CT persists with “tender years” bill despite Crawford
• “tender years” and Crawford
• Tender Years II
• “tender years” exception to hearsay

The Kwame Wells-Jordan trial in New Haven has had it all: false confessions, recanting co-defendants, a near-fight between the state’s star witness and the prosecutor, a cop who has since retired amidst scandal and expert testimony on false confessions.

In the end, it looks like the system worked. A jury returned not guilty verdicts yesterday on all counts. Wells-Jordan was charged with being an accessory to assault, robbery in the first degree and conspiracy to commit robbery. The victim, Herbert Fields, was shot dead during this robbery by another man, who plead guilty to murder.

The recantation and coercion:

But when Johnson [the co-d] testified during the Wells-Jordan trial, he recanted his police statement. Michael Holmes, who police believed was the third person involved in the robbery but was not charged, also contradicted his taped statement.

Wells-Jordan did not testify on his own behalf, but his aunt and legal guardian, Julia Sykes, testified she and her nephew underwent lengthy, high-pressure interrogations in September 2006 and two months later, the day he was arrested.

Skyes, Johnson and Holmes said [now retired, but still embroiled in scandal police officer] Willoughby told the three teenagers a lie in an effort to get them to confess: that their handprints were on Fields’ car. That handprint really belonged to [someone else].

There were two interviews between Wells-Jordan, his aunt and the police, the latter resulting in the false confession. The circumstances surrounding the confessions involved the usual “we know what’s best for you, so if you tell us you did it, you won’t be a defendant” spiel.

The expert:

You must’ve heard the phrase “Don’t knock it till you’ve tried it”. Some police departments have now tried it and may be sorry they knocked it. The Day has this article on the pilot program to videotape interrogations and the surprising (to some) results.

“The police are waking up to the fact that this is not the enemy, that it can be their best friend,” [Judge Kevin P.] McMahon said.

The police have long resisted being compelled to videotape interviews but apparently are seeing good results when they participate voluntarily.

“There has been, for quite a while, a positive reaction to it, but a recognition that we have to be careful and do it right,” said Kevin T. Kane, chief state’s attorney. Kane said there are many issues yet to be resolved, such as creating transcripts of the interviews, preserving the records and training investigators. He said one consideration will be whether the camera inhibits suspects from talking or investigators from using normal or lawful investigative techniques, two reasons police had resisted videotape in the past.

So how are some departments feeling about this?

The time for videotaping has come, said detective Lt. John Varone of the Groton Town Police Department. His department will be included in the second wave of the pilot program and will share its resources with departments east of the Thames River. In the home invasion/murder case, which Varone declined to discuss specifically, police used a camcorder. Eventually, the department’s interview room will be revamped to accommodate state-of-the-art video equipment.

“I think some of the defense attorneys are in for a huge, huge letdown when we do this,” Varone said. “Now they’re not going to be able to challenge us and say we tricked them (the suspect).”

Ugh. This is not a game of Gotcha!, Lt. Varone. I don’t wake up every morning hoping that some cop tricked my client somewhere so I can challenge the confession. We want transparency. The point of videotaping interrogations is precisely to see what cops are doing and to make sure that they don’t get a false confession because they’ve got your sights set on one man and can’t look beyond their nose.

Defense attorneys have long called for mandatory recording of interrogations.

“I think it adds transparency to the process that benefits everybody, both the defense and the state,” said New London attorney Matthew G. Berger. “It removes doubt about what happened.”

Public Defender extraordinaire Tom Ullmann wants to videotape interviews with witnesses.

“Juries are not stupid,” he said. “They don’t understand why this stuff can’t be taped. And from a police perspective, if you did the job correctly and you’ve got someone making a statement and have the whole interview process recorded, it’s going to be reliable.”

Ullman said juries will now be able to see “what police really did.” The courts have allowed police to use trickery and false statements during interrogations, he said, “but I think there is much more problematic stuff that goes on that would stop, such as (the police) suggesting what photo to pick out of a lineup.” In New Haven, Ullman said, the public defenders had a case where the detective whispered “numero dos” to help the eyewitness pick the correct photo.

I don’t know how The Day got this next bit of information, but it sure is juicy:

Defense attorneys regularly ask judges to suppress statements that are not recorded. On Wednesday, attorneys Richard Emanuel and Douglas Nash filed a brief with the state Supreme Court to overturn the conviction of Julian Lockhart, who was convicted in the beating death of Robert Glidden in Durham in 2002. The attorneys claim in the appeal that “the electronic recording of interrogations, advisements of rights and statements is constitutionally required when the interrogation occurs at a place of detention and recording is otherwise feasible.”

I bet that’s a State Constitution claim.

Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.

What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.

In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.

So they disbelieved the eyewitness. Zero credibility. They acquitted.

Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)

So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.

Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.

The Georgia Supreme Court issued a 4-3 opinion today, essentially affirming Troy Davis’ conviction. Troy Davis, you will remember, was granted a stay of execution by the Georgia Board of Parole and received a letter of support from The Pope.

EyeID explains:

According to the court, statements by a slew of witnesses who claimed that they had lied at trial under police pressure were insufficient to support a finding that a different result would likely be reached if the case were subjected to a new trial — in a case in which the only evidence presented was the apparently coerced testimony of the same witnesses. As a result of this inexplicable finding, the Georgia Supreme Court refused to stand in the way of the execution of a man who insists he is, and whom many believe to be, innocent.

Here’s a sampling of the recantations:

I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night.
[…]
After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.

and another:

I nodded and repeated what they said, whether it was true or not…. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail.

It really is remarkable that the Ga. Supreme Court did not find that these recantations would result in a different outcome if Davis were granted a new trial.

An absolutely mind-boggling and repulsive decision.

Joshua Mauldin’s legal problems just got a bit more complicated. After being charged with (and confessing to) microwaving his infant for 10-20 seconds, prosecutors are now seeking to have introduced at trial evidence that he had oral sex with his wife in the interrogation room at the police station.

His defense to the charged crime is insanity in that his acts were the result of hallucinations, which he has suffered from since he was 10. Prosecutors want to introduce the tryst as evidence that he is lucid and does not suffer from hallucinations.

Assistant District Attorney Xochitl Vandiver said jurors should know about the alleged sexual encounter between Mauldin and his wife, Eva Marie Mauldin, because it reflected his state of mind. “That piece of information is relevant to the defendant’s guilt,” Vandiver said.

Relevant how? It reflected his state of mind at the time he received oral sex, but what does that have to do with his state of mind at the time that he microwaved the baby?

Sadly, it seems that the judge might entertain the state’s request:

Judge Susan Criss, presiding over the trial, declined to make a formal ruling Monday on whether the couple’s police-station liaison would be admissible during trial. However, she warned [defense counsel] Cammack that he would need case law to back up any argument that the encounter should be kept from jurors.

Case law? How about the Rules of Evidence, specifically the one dealing with relevance? EvidenceProf has the correct analysis, in my opinion:

‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Now, if defense counsel’s argument was that the defendant was catatonic and never lucid, this evidence could potentially be relevant.  But defense counsel’s claim seems to be that the defendant was usually lucid but that he suffered from occasional hallucinations, one of which allegedly occurred when he injured his daughter.  I don’t see how proving that the defendant was lucid days later when he allegedly had oral sex with his wife, however, is relevant to whether he was hallucinating when he injured his daughter.

I agree. This is nothing but an attempt to portray the defendant as having a bad character - evidence that should be inadmissible, without need for supporting case law. How this is not akin to the widely deplored “slut defense”? In fact, if anything, this is less relevant than subsequent sexual conduct of a victim in a consent case.

Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.

That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.

1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.

2. Weapons focus:

The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.

This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.

However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.

3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.

4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.

5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?

So what is to be done? One method - the example used in the paper - is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.

Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.

I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.

What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.

I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.

(Courtroom sketch: Wired News/Norman Quebedeau)

In my post discussing the demise of Miranda, I approvingly quoted the author’s mention of videotaping confessions as a possible solution. Scott writes today and warns us not to get too invested in videotaped confessions and why they may not be the answer. He is correct in that videotaped confessions are not very helpful and may end up providing the final nail in the coffin of a factually innocent defendant who goes to trial.

Scott’s post seems to focus only on confessions, as opposed to videotaping the entire interrogation(s). That’s the mistake. If we tape the entire interrogation instead, though, these reservations may not exist. Here’s a report from The Justice Project which argues that entire interrogations must be videotaped. After all, it is the interrogation that Miranda seeks to safeguard. So why should its “replacement” focus only on the confession?

It is the interrogation that needs to be videotaped to provide a complete picture of the voluntariness of a confession. Of what use is a confession only? That is principally the same as a written statement. By that point, the defendant has been broken down and tricked, cajoled or threatened into confessing. If he seems resigned on videotape while delivering his confession, it may be a product either of his guilt overwhelming him or of fatigue and submission.

A google search for videotaped interrogations provides a wealth of information: some as far back as 2002 from Chicago and some more recently from California.

There is, of course, the initial hurdle of resistance from law enforcement to overcome, but as with lineup and ID procedures, the wall is slowly starting to crumble. As of April, 2006, there were 450 law enforcement departments nationwide that required videotaping of interrogations. From Northwestern Law, here [pdf] is a list of agencies in the country today employing some form of videotaping and here [pdf] is a fantastic report (that I intend to read in-depth) from 2004 chronicling police experiences with videotaping interrogations. The New York County Lawyers’ Association has published this report [pdf] calling for interrogations to be videotaped. It analyzes statutes and regulations in various states.

In Connecticut, a pilot program was approved last year for certain jurisdictions. I haven’t heard anything about it or how it is working. Anyone who knows want to chime in? Did any jurisdictions actually sign up for the pilot program? [Previous coverage here and here.]

Once concern from law enforcement is that it may be difficult to videotape interrogations in all circumstances. I don’t think that’s true. If a suspect is arrested in a remote area, cops have two options: (1) use the in-car video system or (2) wait till you get to a police station. What am I missing here?

If the entirety of an interrogation is recorded - videotaped - then it certainly would give the viewer an accurate picture of the voluntariness of an eventual confession.

The only obvious problem that I can see is defining when such a recording must commence. Is “custody” too late in the game? What if there is an audio recording of initial contact and then video recording of an interrogation? I guess the answer will depend on what studies show to be first time that coercive tactics are used. I haven’t done enough research to provide a reasonable answer, but I think it is one that can be answered.

Videotaped interrogations may not be a panacea, but I think they will be a hell of a lot better than what we have now.

photo credit: werewegian

This fantastic piece in New York Magazine explores studies analyzing the lies that children tell, the reasons behind them and the frequency with which they are offered. The results are interesting, but the reasons behind the lies are fascinating.

It starts very young. Indeed, bright kids—those who do better on other academic indicators—are able to start lying at 2 or 3. “Lying is related to intelligence,” explains Dr. Victoria Talwar, an assistant professor at Montreal’s McGill University and a leading expert on children’s lying behavior.

By their 4th birthday, almost all kids will start experimenting with lying in order to avoid punishment. Because of that, they lie indiscriminately—whenever punishment seems to be a possibility. A 3-year-old will say, “I didn’t hit my sister,” even if a parent witnessed the child’s hitting her sibling.

So why do kids lie and do so unabashedly?

By the time a child reaches school age, the reasons for lying become more complex. Avoiding punishment is still a primary catalyst for lying, but lying also becomes a way to increase a child’s power and sense of control—by manipulating friends with teasing, by bragging to assert status, and by learning he can fool his parents.

Thrown into elementary school, many kids begin lying to their peers as a coping mechanism, as a way to vent frustration or get attention. Any sudden spate of lying, or dramatic increase in lying, is a danger sign: Something has changed in that child’s life, in a way that troubles him. “Lying is a symptom—often of a bigger problem behavior,” explains Talwar. “It’s a strategy to keep themselves afloat.”

This resembles a typical defense in which the victim/accuser is a child. Defense attorneys will seek to discover a motive; strife in the child’s life might give a clue as to whether the child is fabricating an injury. But for the most part, this investigation has been based on anecdotal evidence and just plain common sense. Find a motive, unravel the lie.

Given, however, the increasing role of science in the courtroom, I wonder if studies such as this have a place in any defense. Surely a study such as this to back up the defense’s claim that a child is lying would seek to legitimize what might otherwise be viewed by the jury as a vile effort to push blame onto a small child, who we view as pure and honest.

[One] experiment was not just a test to see if children cheat and lie under temptation. It was also designed to test a child’s ability to extend a lie, offering plausible explanations and avoiding what the scientists call “leakage”—inconsistencies that reveal the lie for what it is. [The child]’s whiffs at covering up his lie would be scored later by coders who watched the videotape. So [the tester] accepted without question the fact that soccer balls play Beethoven when they’re kicked and gave [the child] his prize. He was thrilled.

Seventy-six percent of kids Nick’s age take the chance to peek during the game, and when asked if they peeked, 95 percent lie about it.

Either way, make sure you read the entire story. It’s a fantastic read.

Image by Solar Ikon. License info here.

The title of this post is flippant, but the case it refers to is rather interesting. In State v. John F.M., the Supreme Court reversed the Appellate Court’s reversal of a conviction. John F. M. was convicted of sexual assault in the third degree under the sex with a kindred person subsection. It provides in relevant part:

(a) A person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.

46b-21 provides:

No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.

So you can’t have sex with any of those people either.  John F.M. first raised a sufficiency challenge - that based on the defendant’s testimony, the jury could not conclude that there did, indeed, exist such a relationship (the girl in question was the defendant’s step-daughter) and that the sex assault statute violates the equal protection clause because it prohibits only heterosexual conduct.

The defendant relied, in his first claim, on an 1827 decision of the CT Supreme Court - State v. Roswell, which held that the relationship between the two must be proven by the state other than by the testimony of the defendant. The Court engages in an analysis and discussion of Connecticut caselaw from 1827 onwards that erodes Roswell and overrules it.

Indeed, since Schweitzer was decided, this court repeatedly has reaffirmed the principle that, “cohabitation as husband and wife is [admissible] evidence, and often sufficient evidence, that the parties have been validly married, but does not in itself constitute a marriage.”

The Court also recaps the law on admission of a party:

[S]tatements made out of court by a party-opponent are universally deemed admissible when offered against him . . . so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.

The Court also found that the Appellate Court improperly extended the (overruled) Roswell rule of marital relationships to evidence of parentage.

The Court then turns to the equal protection argument. This, too, it resolves in favor of the state, but in my opinion, their argument is strained and it seems like they are reaching. Result oriented is what these opinions are called.

The claim was that the sex assault statute, which prohibits intercourse between people related in the manner defined in 46b-21, violates equal protection, because the “degrees of kinship” are defined in heterosexual terms.

The Court engages in some statutory construction:

To resolve the state’s claim, we must determine whether the phrase ‘‘degrees of kindred’’ in § 53a-72a (a) (2) incorporates by reference the precise male-female unions enumerated in § 46b-21.

For some reason, it looks at what “degrees” and “kindred” mean and determine that:

Accordingly, § 53a-72a (a) (2) plainly does not incorporate the precise male-female unions enumerated in § 46b-21 but, rather, incorporates only the proximity of relation specified therein, namely, parent-child, grandparent-grandchild, sibling-sibling, aunt/uncle-niece/nephew and stepparent-stepchild. Because § 53a-72a (a) (2) applies equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21, it does not create the allegedly unconstitutional classification and, therefore, does not violate the equal protection clause of the federal constitution.

It does seem absurd that the Statute would prohibit heterosexual relationships and not same-sex relationships, but that statute was likely written before same-sex relationships were much accepted as they are today. To that extent, is it the Court’s job to rewrite the intent of the statute as it is written? The legislature surely could have amended the statute at any point in the past so many years - especially since civil unions have been on their mind - and they did not.

Anyway, it’s interesting.  It takes a statute that is pretty darn specific and broadens its application. I think I got most of it. If I missed something, feel free to leave a comment, Marty.

There’s actually a reversal in the Appellate Court (amongst some affirmances), but I think this post has gone on long enough, so I’ll leave you with a quote. At least there isn’t much chance it will get reversed.

Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial.

Bringing a case that drew national attention to an end, the prosecutor in the “banned words” trial decided not to try the defendant for a third time.

This is the case where the judge banned the use of the words “rape”, “sexual assault” and “victim” (rightly so, in my opinion) and in which the accused later sued that same judge.

Two trials ended in mistrials and after initially indicating that he would try it a third time, the prosecutor announced that he wouldn’t.

Lancaster County Attorney Gary Lacey says he decided not to pursue a third trial in a sexual assault case because the judge barred the testimony of 2 key witnesses.

Bowen’s lawyer Wendy Murphy says Lacey’s explanation doesn’t make much sense because the judge barred testimony from those two witnesses before the second trial last summer.

Murphy says the loss of those witnesses didn’t prevent Lacey from trying to prosecute Safi last summer.

Double jeopardy isn’t a bar to retrial after a mistrial, but at some point the state has to decide whether it’s worth pursuing anymore. It seems that this prosecutor reached that point.

On the heels of my post last week about hazardous duty pay comes this decision from the Appellate Court today. In State v. Damato, the Appellate Court affirmed convictions for attempted assault and murder of a prosecutor. The State alleged that the defendant sought to hire someone to hurt a prosecutor who he felt was “riding his son” in an unrelated prosecution. The defendant argued that the State did not prove that he took a substantial step towards committing the murder and assault of the prosecutor. Specifically, he argued that the evidence presented could not establish that he had followed the prosecutor and reconnoitered his residence.

In rejecting the claim, it summed up the evidence as follows:

In the case before us, the jury heard testimony that the defendant wanted to injure or kill [the prosecutor]. The jury also heard [witness one's] testimony that the defendant had told [witness one] that he had somebody follow [the prosecutor] to Steve’s Boston Seafood restaurant and [witness two's] testimony that the defendant provided detailed information about [the prosecutor's] place of residence. [Witness two] testified that the defendant ‘‘mentioned an address . . . he says the name of a house on a dead-end street, across the railroad tracks. . . . [The defendant] told [witness two] where [the prosecutor] lives. . . . He said it was on a dead-end street, across some tracks and accessible by boat.’’ The defendant also told [witness two] that there were bushes on the property that one could go through to get to the house. The jury heard [testimony from the prosecutor that confirmed that the above descriptions were true].

The Court also rejected a claim of instructional error because the jury instruction mirrored what the defendant requested and then went on to reject a claim that the trial court failed to give, sua sponte, an instruction on jailhouse informant credibility because it was up to the defendant to request it. Finally, there was a claim of improper admission of prior misconduct and rebuttal testimony. Both were rejected.

Next up, State v. Nelson. The court rejected a claim that there was insufficient evidence to prove that he conspired to use a knife from the victim’s home in the commission of the robbery. Basically, defendant and co-defendant broke into victim’s house to rob him. While there, defendant used a knife from the house to hurt the victim. The Court said that there doesn’t need to be an express agreement to prove conspiracy and they could have formed the intent while in the commission of the crime. The fact that he didn’t bring the knife with him doesn’t mean anything.

The court also rejected a claim that a 911 recording made by the victim while he was tied up in his car, just after the defendants left him somewhere was improper as it was not an excited utterance. The focus of the claim was that the victim did not have the opportunity to observe what he later spontaneously uttered.

The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is ‘‘whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.’’ State v. Westberry, 68 Conn. App. 622, 631 (2002). In this case, the state presented evidence that [the victim] not only observed but also experienced the events in question.

Another of the defendant’s claims failed because he did not preserve it at trial and Golding review doesn’t apply to evidentiary claims (that the trial court improperly instructed the jury it could consider the 911 call for its substance).

Then there was a habeas denial, which was affirmed: Vidro v. Comm’r. Nothing noteworthy, except for the fact that trial counsel was Norm.

Finally, there’s Kaddah v. Comm’r, in which the Appellate Court goes into the merits of the IAC claim (it was against prior habeas counsel), but then ends by affirming, deciding that the denial of petition for certification to appeal wasn’t an abuse of discretion.

You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?

If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.

According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?

It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.

After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.

This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.

Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.

“Actually, the juries come up with some pretty good questions,” he said.

Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?

There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.

Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?

Terrible, terrible idea. Why must we tinker so?

Image license info here.