evidence

Oh you ungrateful defendants!

May 13th

If there were a job where the only requirement was to give pithy (sometimes catchy, but usually poor) titles to Connecticut Supreme Court decisions, I would take that job and assign the title of this post to State v. Sanseverino (II), issued yesterday. Sanseverino II is a very curious decision of the State Supreme Court.

Because, you see, it is the Mighty Defendant who has the power of soothsaying. The meeky and tiny state cannot be taken advantage of, fooled or otherwise made to lose a conviction, no matter what the circumstances.

Avid and attentive readers of this blog will remember that last year, the CT Supreme Court issued a duo of decisions reversing course on decades of kidnapping law. In State v. Salamon and State v. Sanseverino (I), the CtSC ruled that the law of kidnapping was always that the State must show the use of force greater than that required for the commission of another crime and that they’d gotten it wrong for 30-odd years. For example, a kidnapping conviction couldn’t stand alongside a sex assault conviction where the only “restraint” was that required to commit the sex assault. Mr. Salamon got a new trial and Mr. Sanseverino got an outright acquittal. In doing so, the Court wrote:

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Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.

Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:

In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.

But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.

In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.

But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:

Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial. As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)

Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.

Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.

[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.

It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute. It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time: when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize. We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.

Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision. This assertion bothers me for a few reasons. First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes. I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping. Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!

Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.

So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case. The concurring opinions aren’t any better. All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).

The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:

[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.

He also sums up the problems with the “luck” argument quite succinctly:

If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.

It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.

(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)

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It depends on what “unlawfully remains” means

Mar 20th

Posted by Gideon in ct state law

2 comments

Lookin' goooood!

So the other day, I went to Miranda’s house. While there, I noticed she had a new iPod Nano. The thing looked damn good. So I thought I’d get myself one. Then I remembered that I was a public defender and I didn’t make much money. So I started thinking. What if I took it and didn’t tell her? What if I took it and didn’t return it? What if I took it and then I thought better of it and put it back, all without her knowing?¹

What crime would I be guilty of? (Yes, I am that nerdy.)

There is an easy answer and a difficult question. The easy answer, of course, is Larceny in the Sixth Degree, a C misdemeanor. The difficult question, however, is whether I am guilty of Burglary.

The burglary statutes have several common elements. Judging by the title of this post, you know which one I want to focus on. Here’s the entire Burglary 2nd statute:

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(a) A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.

Since Miranda invited me to her house, I am not there unlawfully. She is a person other than a participant and is actually present (she’s toolin’ around in the basement), so that element is satisfied. The only question then is whether I remained unlawfully with the intent to commit a crime therein.

The usual explanation of “remains unlawfully” uses the example of someone who enters a public building, like a bank, lawfully and then hides and waits for it to close for the day. He is then there unlawfully:

A person “enters or remains unlawfully” in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.’ (Emphasis [omitted].) General Statutes § 53a-100(b). . . . ‘A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.’ (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. [Emphasis added.] Miller v. Grossman Shoes, Inc., [186 Conn. 229, 237 (1982)]. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100(b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” State v. Grant, 6 Conn. App. 24, 29-30 (1986).

So the license to be in Miranda’s house could have been revoked. But does she need to do it explicitly? The Connecticut Supreme Court says no:

in State v. Reyes, 19 Conn. App. 179, 192-3 (1989), the Appellate Court held that “[e]vidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual ‘unlawfully remained’ within the meaning of the statute.”

State v. Allen, 216 Conn. 367 (1990). So I guess it’s clear that when I formed the intent to deprive Miranda of the iPod, I had the intent to commit a crime. But did I remain unlawfully? In both Reyes and Allen, the homeowner was faced with the defendant and could see the illegal actions of the defendant, thus having the opportunity to “implicitly” withdraw permission. What if Miranda had no idea that I was thinking about taking the iPod? Is that sufficient to complete an implicit withdrawal?

Now, stretching the hypos to the limit, what if the iPod is on a table next to the back door and I see it on my way out of the house? What if I take the iPod Nano and take one step, which places me outside her dwelling? Am I still guilty of burglary?

The question then becomes, in my opinion, what is meant by “remains”. The general statutes provide no guidance and I’m not going to bother looking at the legislative history, so let’s look at a dictionary instead (plain meaning, etc. etc.):

–verb (used without object)
1. to continue in the same state; continue to be as specified: to remain at peace.
2. to stay behind or in the same place: to remain at home; I’ll remain here when you go to the airport.

The word “remains” definitely connotes the physical act of staying in the same place, or occupying the same physical area as you were prior to the act or incident or temporal marker.

But for how long? Surely, I “remained” in her house for one second as I pocketed the iPod Nano. But the complete act was that of “leaving”, not remaining. The crime was completed by the time I picked up the iPod and placed it in my pocket, as distinguished from Reyes and Allen above, where the crime continued for a longer period of time.

So is there a temporal requirement inherent in “remains”? Can the “remaining” be for a second? A nanosecond? Is that absurd and unworkable?

And what of the scenario where I pocket the iPod Nano, hang around for a few minutes looking at pictures on a fridge and then decide that I was being silly and put it back, Miranda none the wiser.

Have I committed a burglary? I think the answer would have to be yes.

Thoughts?

1. Miranda does not have a house, nor has she invited me in ever, nor have I ever formed the intent to commit a crime therein even if I have ever been therein invited for social engagements. Short form: It’s a freakin’ hypo, you nutjobs!

photo credit: Fribirdz

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Depends on what “actually present” means

Mar 15th

Posted by Gideon in cheshire

3 comments

Last year, in the wake of the Cheshire murders, the legislature got it into their heads that our current Burglary statutes weren’t sufficient to prosecute the act of a home invasion¹. While not true, they felt there had to be some response to the murders and as a result, passed the home invasion statute.

There isn’t much difference between the Burglary statute and the “home invasion” statute. But let’s take it one step at a time. Here are the elements of the home invasion statute:

A person
Enters or remains unlawfully
In a dwelling
While a person other than a participant
Is “actually present” in that dwelling
The “offender” has the intent to commit a crime
AND
In the course of committing “the offense”
either commits or attempts to commit a felony
against “the person” of 4 & 5 above
OR
the “offender” is armed with explosives or a DW or a DI
“course of committing” is either an act or attempt
or in flight thereafter.

More, including a poll, after the jump.

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Now that, when read as a sentence, may not seem to be a complicated statute, but after breaking it down into its elements, raises some questions:

What does “actually present” mean and what are its limits?
What is “the offense” referred to in element 8?
And what of elements 9 and 10?

What of elements 9 & 10? Does an offense against “the person” literally mean an offense that involves the physical person of the homeowner? Does it limit it to things like kidnapping, assault, sex assault? Or would it even include a situation where there is no physical contact or attempted physical contact between the offender and the homeowner, say, a larceny? In other words, is it sufficient for the offender to enter a house where someone is present, take some valuables and leave, without ever threatening or even seeing the homeowner and still be convicted of home invasion?

If it is, then what is the difference between that factual scenario and what is a classic burglary?

Now, of the title of this post, “actually present”. On one hand, it is pretty self-explanatory. Actually present means just that. The person is actually present. Of course, if this were not the case, then elements 8-11 would be useless. But we know that law is not made when the facts fit squarely within the parameters of the statute. In order to test the statute, we must operate on the fringes.

So here are three scenarios. Use the poll to indicate which of the three (or any combination thereof) you would consider to be a home invasion with the elements of this statute:

Scenario A: The offender has completed the larceny of an empty dwelling and is exiting through the front door, just as the homeowner is walking up the driveway to the front door. Their “meeting” is outside the four walls of the home, but on the property. There is no physical contact, as the offender simply runs away.

Scenario B: Exactly the same as the above, but there is a brief scuffle between the two.

Scenario C: The offender is walking out the back door of the house and is seen by the homeowner who walks in the front door.

Scenario D: The offender, seeing the homeowner opening the front door, leaves via the back door. The offender is not seen by the homeowner.

Scenario E: The offender leaves through one door, while the homeowner walks in another. Neither sees the other.

All of those may qualify as “home invasion” or none of them may. It all depends on how elements 8, 9, 10 & 14 get along. The purpose of the home invasion statute, of course, is:

protection against invasion of premises likely to terrorize occupants

Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1971), p. 32. Oh wait. That’s the purpose of the burglary statute (State v. Greco, 216 Conn. 282, 296). Anyway, assume that it is the same for home invasion.

If the homeowner is not at home during the “invasion” but arrives during the exit, would that be likely to terrorize the occupant? I think the answer is yes. But what of the scenarios where the homeowner is unaware of the presence of the exiting offender? Perhaps, because there may not be a functional difference between that and the asleep homeowner who doesn’t know of the presence of the intruder.

Yes, I recognize that these scenarios are a bit fanciful, but that’s what Sundays are for. Have at it:

[poll id="28"]
1. The home invasion statute is nothing but a 5 year sentence enhancement for a burglary where a person is present.

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When is an assault not an assault?

Mar 10th

Posted by Gideon in ct state law

5 comments

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”:

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

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

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

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

And here’s Assault in the Third Degree:

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

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

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

Then explain this subsection of both strangulation statutes:

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

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

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

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

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

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Someone else did it: the law of third-party culpability

Feb 26th

Posted by Gideon in criminal law principles

2 comments

This post was initially titled “knock me over with a feather” because the CT Supreme Court actually granted [concurrence] a habeas corpus petition today on the grounds of ineffective assistance of counsel. But to go on and on about that would be petty and I am not a petty person, so I’ll restrict my glee to these opening sentences and instead focus on the merits of the claim instead: that trial counsel was ineffective for failing to present testimony from 4 neutral eyewitnesses who would have supported the third-party culpability defense.

If nothing else, this decision serves as a primer on the law of third-party culpability, so it’s more for me than you.

As with everything else, the inquiry starts and ends with relevance:

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‘‘The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.’’ (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000)

‘‘Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.’’ (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 304, 907 A.2d 73 2006). ‘‘In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s determination. A trial court’s decision, therefore, that third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination that the proffered evidence is relevant to the jury’s determination of whether a reasonable doubt exists as to the defendant’s guilt.’’ State v. Arroyo, supra, 284 Conn. 609–10.

What is a “more than bare suspicion”? I’ll tell you when I see it. But I do know what “more that bare suspicion” isn’t:

Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 827, 810 A.2d 281 (2002) (no evidence to support third party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn. App. 526, 531–32, 914 A.2d 1049 (insufficient evidence to substantiate third party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905, 920 A.2d 308 (2007); Santiago v. Commissioner of Correction, 87 Conn. App. 568, 591–92, 867 A.2d 70 (third party statements did not contain sufficient substance to support viable third party claim), cert. denied, 273 Conn. 930, 873 A.2d 997 (2005); Alvarez v. Commissioner of Correction, 79 Conn. App. 847, 851, 832 A.2d 102 (insufficient evidence to support third party culpability defense when petitioner called only one witness at habeas hearing who did not even observe shooting), cert. denied, 266 Conn. 933, 837 A.2d 804 (2003); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684, 751 A.2d 398 (testimony not sufficient to raise third party culpability defense because supporting witnesses’ statements were inconsistent), cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

So now you know. Sort of.

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NAS: Bullshit!

Feb 19th

Posted by Gideon in dna

4 comments

The NAS just called “bullshit” on many of the forensic techniques used in labs across the country, ranging from fingerprint, blood splatter, hair, arson and fiber analysis to bullet comparisons. The only technique escaping this harsh critique is DNA analysis, which has been the subject of voluminous study and testing.

The report [executive summary] finds fault with almost all aspects of forensic science: from the lack of standards and scientific scrutiny of “accepted” techniques like bitemarks to a lack of any uniform certification standards.

As a result, there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.

Lawyers can and have gone to town questioning experts on the “reliability” and “scrutiny” of their methods, but this report provides another powerful tool in exposing (in some instances) the pure speculation of this type of expert evidence:

The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as “match,” “consistent with,” and “cannot be excluded as the source of” — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.

In addition, any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible — quite the contrary, said the committee. Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.

The recommendation is not to “junk” all this science, but rather to develop it and to acknowledge and admit its limitations:

Margaret Berger, a professor at Brooklyn Law School and a member of the panel, explained: “We’re not saying all these disciplines are useless. We’re saying there is a lot of work that needs to be done.”

Said U.S. Court of Appeals Judge Harry Edwards, co-chairman of the panel: “There are a lot of people who are concerned, and they should be concerned. Forensic science is the handmaiden of the legal system. . . . If you claim to be science, you ought to put yourself to the test.”

For more reading, go here, here and here. Scott has his take here.

A red Herring, masked by Ma(r)sala

Jan 17th

Posted by Gideon in ct state law

11 comments

I’m awfully late to this dance, but as a criminal law blog, I might as well shut down completely if I don’t post about Herring. As you may be aware, this past week SCOTUS held in a 5-4 decision that mere negliglence doesn’t require the suppression of evidence obtained as a result of a 4th Amendment violation.

Some have called it the death of the exclusionary rule (or certainly the death knell) and others don’t think it’s such a big deal.

The underlying premise of this decision can be traced, in part, to the “good faith” exception enunciated in United States v. Leon. In Leon:

The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Herring furthers that proposition by holding that mere negligence of a police department does not trigger the exlusionary rule and thus the evidence seized as a result of an arrest made based on a mistake should be admissible.

If you’re not from CT, you can weep now. Those of you in CT don’t have any reason to be particularly concerned about Herring. This is because, in CT, there is no “good faith exception” to the exclusionary rule.

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19 years ago, our supreme court considered Leon and its application in CT and decided that under the CT constitution, there is no such thing. The issue came before the august tribunal after two rounds of apeals and an adoption of Leon by the Appellate Court, in State v. Marsala. In Marsala:

the trial court issued a written decision in compliance with the directive of the Appellate Court to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480 (1989)

The Court then turned to the question du jour: Whether Article 1, Section 7 of the Connecticut Constitution provides for a good faith exception. Justice Shea and the full panel of supreme court justices simply declined to adopt Leon. Writing for an unanimous court, Justice Shea opined:

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447 (1987); State v. Brown, 199 Conn. 47, 51 n.3 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12 (1983).

The Court relied heavily on the dissent in Leon and the subsequent criticism of it to reject the good faith exception:

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionaryrule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” 12 Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not designed “to punish the errors of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1 W. LaFave, supra, § 1.3(d), p. 55.

Over the years, I have become embroiled in several discussions with opponents of the exclusionary rule, whose primary argument is far too simplistic and myopic: The Fourth Amendment itself says nothing about the exclusion of evidence obtained via a violation of itself.

I have a hard time responding to this because on its face it makes no sense. To take the stance taken by the anti-exclusionists, one would have to believe that the Fourth Amendment reads something like this: the right of the people to be free from unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, except if you violate this provision, we will scold you, but not really do anything about the violation, so it’s okay, go ahead and subject the people to unreasonable searches and seizures. So, violate this provision. It is what future generations will call a “technicality” and really, we can’t let those criminals go free on a technicality, can we?

As for Herring, I think my position is a little closer to the doomsdayers than it is to the laissez-fairers. I suspect many defendants will be the victims of “negligence”. But if you’re in CT, you don’t have to worry about this. Unless you’re a fatalist and decide to notice that the entire bench at the time of Marsala is no longer there and we now have 7 new justices who might want to revisit it.

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When does police coercion make a confession involuntary?

Dec 25th

Posted by Gideon in confessions

15 comments

We're gonna get what we want, see?

Here’s the quick answer: almost never. If you’re still interested, read the rest of the post. Be warned, though. It is long.

I realize this is a slightly heavy topic for Christmas Day, but such are the conversations I have over lunch. What precipitated this line of thought is this Kansas Supreme Court decision, up for cert. before SCOTUS in the coming weeks.

In Morton, the Kansas Supreme Court held that the [police officer]‘s deliberate misleading of the defendant led to her confession being involuntary. The officer lied to Morton about her need for an attorney during the interrogation and lead her to believe that all he had were clarifying questions. The KS Supreme Court held thusly (more on Morton and CT law after the jump):

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All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.

However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.

SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.

In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:

Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.

I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.

It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:

Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State v. Shifflett, [199 Conn. 718, 728 (1986)].

So, um…torture?

Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.

Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.

An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.

So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.

Merry Christmas!

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The reasonable man goes to a public place

Dec 19th

Posted by Gideon in ct legal news

14 comments

So in light of my previous post (and the police’s strange contention that a liquor license makes a closed bar a public place), I decided to look up the public indecency statute and figure out what a public place actually means.

Here’s the answer:

I don’t know what the hell the police are talking about.

The public indecency statute, C.G.S. 53a-186, defines public indecency as:

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(a) A person is guilty of public indecency when he performs any of the following acts in a public place: (1) An act of sexual intercourse as defined in subdivision (2) of section 53a-65; or (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person; or (3) a lewd fondling or caress of the body of another person.

So, having sex in a bar and in the lobby of hotel would probably qualify. The statute also defines “public place”:

For the purposes of this section, “public place” means any place where the conduct may reasonably be expected to be viewed by others.

Ah. The reasonable man would make an appearance here. Is the closed bar of a hotel a place where people may reasonably be excepted to be viewed by others? That’s the question, isn’t it? One can make the argument that no reasonable person would expect to be viewed by non-invitees in an area that is closed to the general public. Or one could argue that a bar and the lobby of a hotel are always places where one should be expected to be viewed by others.

But what does all of this have to do with the liquor license? The state’s control over liquor is in Title 30 of the General Statutes. There’s no mention of “public place”. Not even in the annotations. I will note that whether a location is a public place is a question of fact for the jury to decide.

So I didn’t figure out what the police meant, but I did learn some interesting things. For example, here are the rules on taking a bottle of wine from a restaurant:

A restaurant patron shall be allowed to remove one unsealed bottle of wine for off-premises consumption provided the patron has purchased such bottle of wine at such restaurant and has purchased a full course meal at such restaurant and consumed a portion of the bottle of wine with such meal on such restaurant premises. For the purposes of this section, “full course meal” means a diversified selection of food which ordinarily cannot be consumed without the use of tableware and which cannot be conveniently consumed while standing or walking.

Someone put a lot of thought into it.

What about the mini-bar, you say? There’s gotta be some law about that! And right you are:

(a) A hotel guest bar permit, available to a hotel permittee, shall allow the retail sale of alcoholic liquor located in registered hotel guest rooms. The annual fee for a hotel guest bar permit shall be fifty dollars for each hotel room equipped for the retail sale of alcoholic liquor.

(b) A hotel guest bar shall: (1) Be accessible only by key, magnetic card or similar device provided by the hotel to a registered guest twenty-one years of age or older; and (2) restocked no earlier than nine o’clock a.m. and no later than one o’clock a.m.

So if you go to a hotel room and they come to restock the bar at 8am, you can call them a criminal. Tell ‘em Gideon said so*.

There’s much, much more. Like the non-profit golf tournament permit, or the broker’s permit and the awesome nightclub permit.

*Don’t be daft. Don’t say that.

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The forest for the trees, or: the purple heart for the prejudice

Dec 18th

Posted by Gideon in criminal law principles

14 comments

Believe me now?

One standard jury selection question in criminal trials asks prospective jurors whether they’d give more weight to witnesses who hold some position of authority: most frequently police officers. The underlying theory is simple: testimony and evidence should be judged on its own and not accorded more weight simply because it comes out of the mouth of someone we have grown up being taught to trust.

Given the status and honor accorded military personnel in this country, one might make a reasonable argument that the same level of trust and deference applies to former servicemen/women. Which is why juries must be cautioned in the same way. Apparently, one judge doesn’t see it like that. Here’s the story:

Federal prosecutors charged Hinkson with attempting to hire his one-time friend, Elven Joe Swisher, to kill an IRS agent, a prosecutor and an Idaho district judge. Swisher testified against Hinkson while bedecked with a Purple Heart.

Turns out Swisher was never awarded the medal, and by the conclusion of trial, it became clear he perjured himself about his military service. Yet Tallman, a law and order judge, refused defense requests for a new trial.

A split panel of the 9th Circuit reversed, and this week an en banc panel heard reargument.

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You can read the story for yourself to learn about the contentious and, at times, hilarious oral argument. [Summary: judges bickering]

I will spare you the pontification about the right to a fair trial and the poisoning of the jury and the opportunity to confront your accuser and show him to be a complete liar. Because that stuff is just so basic.

What struck me about this story is the apparent cluelessness of the prosecutor:

Department of Justice attorney John De Pue appeared in court wearing the Distinguished Service Medal. “Why are you wearing the Distinguished Service Medal?” Pregerson asked.

“Because I earned it in the Army,” De Pue said.

“Because you’re impressing us, right?” [Judge] Pregerson replied. “And you impressed me when you said that. And if a guy wears a Purple Heart medal it’s going to impress people.”

De Pue never connected his medal to the government’s legal argument.

In a case about whether a witness falsely wearing a purple heart and whether that impacted the jury’s credibility determination of his testimony, this prosecutor wears…a service medal.

The judges questions underscore the importance of giving the defense the opportunity to cross-examine Swisher. It’s natural to ask about something so prominently displayed that almost always has a story attached to it. If Swisher was wearing the purple heart, jurors could reasonably have concluded that he was in the service and did something honorable and brave. One need not be Scalia to guess the impact exposing Swisher as a fraud and a liar would have.

I wonder if he wears it every day. I doubt it. So why did he choose to wear it to oral argument? Did he mean to show the judges that it didn’t mean anything? Or was he wearing it in a show of solidarity with Swisher?

And if he does wear it every day, he’d be lying if he said he didn’t do it to appear authoritative. Which is sort of the point of the appeal. It seems that De Pue missed that and in turn may have succeeded in helping the defense. Either that, or he showed up for the wrong oral argument.

[Update: Of course, the educational portion of this story is that we now know what a fed-a-pult is:

"Maybe this was along the lines of his fed-a-pult," [Judge] Fletcher said. “A fed-a-pult, for those of you who don’t know, is a device to throw federal agents into canyons.”

Don’t ever say I don’t teach you anything again.]

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Judge Wu is so screwed

Dec 4th

Posted by Gideon in evidence

6 comments

Judge Wu must be in quite the quandary. After the quickest about face in modern history, he tried to play it safe by reserving judgment on the defense’s motions to dismiss. He had hoped the jury would make it easy for him by acquitting Lori Drew, but they threw him a curveball (how many cliches can I get into one paragraph?) and acquitted her of only some of the charges. [Obviously this is conjecture on my part. I have no inside knowledge.]

So, the ball was in his Court (okay, two paragraphs). He could still do the right thing and grant the motion to dismiss. Or, rather, it was easy until yesterday.

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That’s when the foreperson of Drew’s jury started getting chatty.

“Trust me, I was so for this woman going away for 20 years,” Valentina Kunasz told Threat Level. “However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us.”

Kunasz said despite all the debate outside the courtroom about the prosecution’s use of an anti-hacking statute to charge Drew for violating a website’s terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website’s terms of service should be prosecuted.

“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable.”

There are more disturbing comments here:

“The last message was a huge piece of evidence,” Kunasz said, “but we had no way of knowing whether it was interstate or not. I honestly think that if they gave us a little more solid, hatred-type e-mails or MySpace messages it would have been a lot easier [to convict her].”

This raises the question (we’ll get back to Judge Wu in a second), how did she end up on the jury? Every comment she makes reeks of her making up her mind before listening to all the evidence. And someone who always reads the TOS? Have you read the TOS for this measly little blog? Someone either messed up in jury selection, or someone lied. [Update: Anne Reed - the inimitable Anne Reed - posted about this very question just as I was writing my post. For a more insightful take on how she may have ended up on the jury and six common mistakes lawyers make, read her post.]

Judge Wu, now, has a problem. Does he publicly reject the jury’s express reasoning and their result? If he was skittish to do it before the verdict, these comments certainly wouldn’t have helped. Will he have the conviction (hah!) to face up to the inevitable media blitz if the conviction is reversed? Certainly, the law demands it, but the law also demanded that no testimony regarding the suicide be introduced at trial and look what happened.

Or does he take the easy way – again – and leave it up to a court with a pair (several pairs, perhaps)? Not that this is a particularly appealing to a judge. It’s not secret that judges hate (hate) getting reversed on appeal.

So he’s now faced with a difficult choice. Does he uphold the rule of law, or let the law be shaped by the circumstances of one particular case. It isn’t really a mindbender, but he has only himself to blame for the position he’s in.

Maybe he’ll do the right thing. Maybe.

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Are an informant’s questions testimonial?

Nov 21st

Posted by Gideon in ct legal news

No comments

A co-conspirator is in jail. The police send in a confidential informant, wired, to talk to the co-conspirator. The informant asks the co-conspirator questions about the crime, prodding him, making assertive statements which elicit mono-syllabic responses from the subject.

The State attempts to use the transcription of the tape of that conversation as evidence against the defendant. Clearly, the co-conspirator had no idea that he was talking to someone acting for law enforcement or that his words would be used at trial. The question, though, is whether the informant’s questions testimonial under Crawford and thus inadmissible?

The CT Supreme Court recently faced this question in State v. Smith [pdf]. The Court notes:

In the present case, we view Williams’ recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., ‘‘mm-hmm’’ or ‘‘yeah’’; (2) questions Williams directly posed to Estrella about the crime; and (3) statements Williams made that directly implicated Estrella or the defendant in the commission of the crime.

The Court is quick to decide that the first category is non-testimonial. Deciding whether those that fall into the second category is a matter of context, the Court writes. Despite some leading questions, the Court finds that most of those questions about the crime were to provide context to other questions and were not assertions of fact.

In addressing the final category, the Court finds that the informant was clearly aware that this entire conversation was being taped with an eye to a prosecution. In fact, it was the informant who approached the authorities to obtain favor in his cases. The Court does not hesitate in finding those statements testimonial and since the informant was unavailable at trial, a violation of his Confrontation Clause right.

The defendant still lost on appeal, however, due to our good friend Harmless Error. The Court finds that the informants assertive statements were merely cumulative.

Still, it’s a good start and something to keep in mind in future cases. Where the transcript of any such conversation between the defendant and an informant is dominated by the informant, the CT Supreme Court can be fairly said to have ruled that those statements are testimonial.

Confronting swastikas

Nov 20th

Posted by Gideon in evidence

1 comment

You represent a man who belongs to an ethnic minority, charged with shooting a weapon illegally. The state’s main witness is his acquaintance, a caucasian male. He gives some damning and incrimination testimony. Then you notice tatoos on his arm. Swastikas. Do you cross-examine about any bias he might harbor toward a man of color?

That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.

Judge Sack writing for a panel of the Second decided:

Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa

…

The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.

It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.

So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!

[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]

photo credit: Mez Love

The war on drugs: Making friends customers

Oct 21st

Posted by Gideon in criminal law principles

No comments

R U mai fren or mai deelerz?

In another stirring strike for the war on drugs, the Second Circuit last week issued this impressive decision in U.S. v. Luna (but the appeal is really about some guy named Hawkins).

The facts go thusly: Hawkins wanted to buy some drugs from Luna, so he talked to him about buying 5 grams. That sale didn’t materialize. Then, one day, he called Luna and said that two kids from work wanted to get high, so could Luna please sell him some drugs? Luna did.

Five days later, Hawkins called Luna back and said, I know this white kid who’s got a $100 for an eight-ball, but he didn’t have the money, so he’d take the drugs from Luna, get the money from the white kid and bring the money back to Luna. The Court characterizes it as “drugs on credit”. This sale never materialized.

Fast forward to the trial and they are all convicted of conspiracy. Hawkins moves for judgment notwithstanding the verdict and Judge Stefan Underhill grants his motion.

The appellate court, in what seems to be a continuing display of wisdom, reversed. [This decision is not to be confused with the other gem from a few months ago, which makes it illegal to share drugs.]

They acknowledge that the buyer/seller relationship itself cannot constitute a conspiracy to distribute

however, where there is additional evidence showing an agreement to join together to accomplish an objective beyond the sale transaction, the evidence may support a finding that the parties intentionally participated in a conspiracy.

So Hawkins was essentially a “guy”. You know…I have a “guy”. Someone who does drugs and knows where to get you some from. He’s not a dealer, but he has a dealer. He’s the guy in college whose parties you went to because you knew there’d be some pot (or coke or meth..whatever, I’m not judging).

The Court acknowledges that there is no evidence of Hawkins intent with respect to the first transaction, so the entire conspiracy to distribute would be based on the evidence of the second transaction – the white kid whose money he would have to go get. Because if he was getting it on credit, it must mean that he was dealing. After all, it isn’t like “the white kid” could have called Hawkins and said “I want some, meet me here and I’ll give you the money”. The Court also seems taken by the fact that Hawkins programmed Luna’s number into his cell phone.

Right, because I remember every number ever told to me. And even if I could, why would I in this day and age? It’s called convenience, 2nd Circuit, not conspiracy to distribute.

So essentially, those of you who’ve ever bought some for a friend from a “guy” you know, you’re guilty of conspiracy to distribute. Enjoy those 15 years with the Feds.

This just goes to show that you should not do drugs. Not because they’re bad for you or because it’s morally wrong or something, but simply because the Government (and the Courts) don’t like you and will make you pay for it, even if they have to contort like Nastia Liukin to do so.

Troy Davis is “innocent” because…

Oct 20th

Posted by Gideon in death penalty

5 comments

This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].

More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.

He writes:

There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.

I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.

Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.

Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:

Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.

I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.

Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?

Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.

Finally, we get this zinger:

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.

I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.

This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.

Troy’s execution date is coming up soon. Read more about him and make your own decision.

evidence

Oh you ungrateful defendants!

It depends on what “unlawfully remains” means

Depends on what “actually present” means

When is an assault not an assault?

Someone else did it: the law of third-party culpability

NAS: Bullshit!

A red Herring, masked by Ma(r)sala

When does police coercion make a confession involuntary?

The reasonable man goes to a public place

The forest for the trees, or: the purple heart for the prejudice

Judge Wu is so screwed

Are an informant’s questions testimonial?

Confronting swastikas

The war on drugs: Making friends customers

Troy Davis is “innocent” because…

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evidence

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