a public defender

Much as been written and said about Boykin v. Alabama since Justice Douglas wrote the decision in 1969. At best, it is a necessary safeguard to ensure that guily pleas, the bulk of the resolutions in the criminal justice system, are made voluntarily. At worst, it is a prophylactic.

A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 (1973).

State v. Groppi. The Boykin canvas is limited to three Constitutional aspects: First, is the privilege against compulsory self-incrimination.. . [s]econd, is the right to trial by jury… [t]hird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra].

In fact, the Boykin canvass is now part of most state statutes or rules of court. Here, in CT, it is codified in Conn. Prac. Bk. S. 39-19, which provides:

The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:

1. The nature of the charge to which the plea is offered;
2. The mandatory minimum sentence, if any;
3. The fact that the statute for the particular offense does not permit the sentence to be suspended;
4. The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
5. The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

But even there, strict compliance is not required:

You are Paul Clarke. You live in a small town in England. You’ve had a run-in or two with the law, but nothing serious. One day, you find a black bag a the end of the garden. You think it’s a bag of rubbish (garbage, for you non-Brits). You open it and inside find a shotgun. Being civic minded (plus a little lazy), you take the gun to the police a few days later and turn it in.

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

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

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

Someone needs to explain to me why this case ever made it to SCOTUS. Actually, I have several questions:

1. What are you asking for, exactly?
2. Is this a case of getting too greedy or too literal?
3. Did anyone consider the ramifications of an unfavorable decision in this case? (Let me spell it out for you: it could spell complete evisceration of a well-established and solidly pro-defense line of cases starting with Santobello)
4. How do you get selected to argue in front of SCOTUS and then produce a complete clunker [pdf] (and not just one counsel – both!)?
5. Does anyone think either lawyer has any clue as to what is being asked of them?

I fear that Puckett might win the battle, but lose the war. That would be bad news for all of us.

After reading the oral argument transcript of Montejo v. Louisiana today, I decided to refresh my memory of the Fifth Amendment Right to Counsel (starting with Miranda). In particular, I was curious to see if anyone had written a paper about the evolution (if any) of this right to counsel. I haven’t come across anything yet, but I did stumble across this.

It is an FBI law enforcement bulletin from 2002, which describes in some depth the 5th and 6th Amendment Rights to Counsel and their respective scopes. It’s a good refresher, if nothing else. Though you do have to wade through the “tips to law enforcement”.

Enjoy.

How many defense attorneys does it take to screw up a case? Or better yet, how badly malfunctioning does a public defender system have to be to get a court to blame it for delays in the criminal justice system?

Back in March, the Vermont Supreme Court issued a very curious opinion reversing a conviction for failure to prosecute in a timely fashion. The Court held that the three-years spent by the defendant awaiting trial violated his right to a speedy trial. Which would be fine if that were all to the story.

The reason for the delay? The defendant’s various public defenders.

In arriving at this decision, we acknowledge that much of the delay in prosecuting defendant resulted from the inaction of several of the assigned counsel who represented defendant during the three years he awaited trial.  As we discuss in detail below, however, the inaction of assigned counsel does not relieve the state of its duty, through implementation of the criminal justice system, to provide defendant with a constitutionally guaranteed speedy trial.  Indeed, the defender general’s office is part of the criminal justice system and an arm of the state.  When, as in this case, a defendant presses for, but is denied, a speedy trial because of the inaction of assigned counsel or a breakdown in the public defender system, the failure of the system to provide the defendant a constitutionally guaranteed speedy trial is attributable to the prosecution, and not defendant.

The Court finds that

irrespective of the reason for the delay, egregious delay in bringing an incarcerated defendant to trial must be factored against the state in a speedy-trial analysis because, as the Supreme Court emphasized in Barker, it is ultimately the government’s responsibility to bring a defendant to trial in a timely matter.  See 407 U.S. at 529 (holding that “the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial”)

You can read the facts for yourself, but what is important to recognize here is that Vermont is not the only state facing such problems with its public defender system. Normally, a lawsuit would be the appropriate way to remedy the lack of funding, but this certainly may make some ears perk up.

I will reserve judgment on whether the VT Supreme Court was right or wrong, but I get the sense that what the VT Supreme Court tried to remedy was what happens to every client in almost every system (albeit not to this extent), and that everyone accepts as the price of doing business.

Well, everyone except the legislature and the voting public, who are generally outraged that things take so long to go to trial. Maybe they shouldn’t take so long? Or maybe we shouldn’t be creating so many new laws and calling for “hard on crime” policies that clog our systems and lead to overworked public defenders.

Apparently, it is not a violation of due process in the state of CT if there is not an adequate factual basis for a plea stated on the record. See Paulsen v. Manson, 203 Conn. 484 (1987). Who’da thunk it?

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

A new paper asks the very question: Has Miranda become ineffective? Not because it’s not needed anymore, but because police departments are finding ways to get around it while achieving the same results. The conclusion is pretty bleak:

So how well do Miranda’s safeguards fare overall? I believe that we have a Miranda rule that is somewhat limited in reach, that sometimes locates warnings and waivers within the heart of a highly-structured interrogation process, that provides admonitions that many suspects do not understand, and that appears not to afford many suspects a meaningful way to assert their Fifth Amendment rights. As a prophylactic device to protect suspects’ privilege against self incrimination, I believe that Miranda is largely dead. I would welcome compelling evidence to the contrary (or proof that California is a complete outlier), but I do not believe such evidence exists.

This paper does an excellent analysis of the Court’s decision in Miranda and subsequent decisions that defined gutted its meaning and scope:

But a primary virtue of Miranda is, in theory, giving clear guidance and bright line rules to police, judges and prosecutors, thus avoiding difficult individualized assessments. Thus, it is not so much that the Court has retreated after Miranda but rather that the one-size-fits-all safeguards put in place by the Miranda Court could never have functioned as intended. Or perhaps it would be more accurate to say that a far higher proportion of defendants than the Court initially anticipated have been left uninformed and unempowered by form warnings.

So whither Miranda? Will it provide more benefit to abandon Miranda? The paper suggests legislative action:

One possible outcome might be legislation that directly regulates the police and affords greater protection to suspects than Miranda currently offers, perhaps in conjunction with a modified system of warnings. A legislature might, for example, require warnings in very simple language and instruct police to give them prior to any suspect interviews or interrogations. It could require that all interrogations be videotaped, a movement that is slowly gaining ground.

H/T: Appellate.

Update: I should have checked before posting. SimpleJustice also has some thoughts.

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.

The 5th Amendment’s protection against self-incrimination certainly has been a hot topic in the blawgosphere. I’m going to bring it into the tech age, with this story about a man invoking the privilege and not giving up the password to his super-encrypted hard drive.

Boucher was crossing the border when he was pulled over for a secondary inspection. Of the 34,000 or so image files on Boucher’s computer, several appeared to have names suggesting explicit child pornography, so the agents wanted to see them. However, they were encrypted so they needed him to provide the password. They were stored on a partition of his hard drive, mysteriously called “Drive Z”. He entered the password himself and they saw some child porn, so he was duly arrested.

As per norm, they took the computer and created a mirror image of the drive. Unfortunately, they didn’t have the password to the encrypted files on “Drive Z” and now, a year later, they still don’t. Using all their high-tech skills, they haven’t been able to crack through the PGP encryption and now want him to fork over the password.

He invoked the 5th. On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling him to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

The judge, one of the very few that have upheld an invocation of the 5th, used an analogy from Supreme Court precedent.

It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.

The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you.

It seems that legal scholars agree that there is a privilege in the password, but his using it at the border waived it.

“In a normal case,” [Orin] Kerr [who posts at Volokh] said in an interview, “there would be a privilege.” But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.

My question is: Why is it a waiver for him to use the password once? I don’t know enough about 5th Amendment waiver jurisprudence, but when a witness invokes the privilege, it is usually done on a question by question basis. What if Boucher here is telling the truth that these may have been inadvertently downloaded and “went along” to prove to the agents that he was “innocent”? Then when he discovered that he was looking guilty, he didn’t want to “help” them anymore.

Certainly, Miranda rights can be asserted even after a waiver. So why not this?

HT: SOI

Image by thelastminute. License info here.

Scott’s recent post jogged my memory about a problem I had a number of years ago with the generally accepted proposition that manslaughter is a lesser included offense of murder.

Generally speaking, one offense is a lesser included offense (LIO) of another, if you cannot commit the greater crime without committing the lesser. The best example of this, in CT law, is Robbery 1st and Robbery 3rd. They both share identical elements, except Robbery 1st had the additional element of a firearm/weapon. So, it is simple that you cannot commit Robbery in the First degree without first committing Robbery 3rd.

For the most part, I understand this concept. The only area that I cannot seem to get my head around is how manslaughter is a lesser included offense of murder. (Note: This doesn’t mean that it isn’t; just that I don’t get it.)

The best place to start is the statute itself. The murder statute reads:

(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception;

The elements:

1. Specific intent to cause death
2. Of another person
3. Causes death

So, given our Robbery example above, shouldn’t it follow that the Manslaughter statute should contain some of the elements of the murder statute, but not all?

Here’s Manslaughter:

(1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

Sub (1) cannot be an LIO of Murder, because it has an element different than that of murder, viz., the intent to cause injury as opposed to death. Sub (2) is what you get when you mount a successful EED defense to murder, again by negating intent.

Sub (3) on the other hand, is interesting. The elements broken down:

1. Circumstances evincing extreme indifference…
2. recklessly engage in conduct
3. create a grave risk of death
4. causes death

The only element similar to murder is the causation. In both, the acts of the accused have to cause the death of the victim. But that is where they diverge. Murder requires the specific intent to cause the death of another. Manslaughter requires that you act in a reckless manner and essentially don’t care if someone else dies. It’s clear that it is a different element. However, the courts seem to interpret it as a not fully formed element. It’s almost as if we’re saying that recklessness is half-way to specific intent.

So if you have the specific intent to kill someone, you also don’t care if they die. This I get from the acquittal first charge. The acquittal first charge says that you must first acquit of the greater before considering the lesser. However, in several cases, the courts have reversed a conviction on the greater (murder), finding an insufficiency of evidence and then remanded for a re-sentencing on the lesser (manslaughter), on the premise that in order to convict of murder, the jury must have found all the elements of manslaughter.

It is this that I cannot get my head around. So they’re essentially saying that on a scale of 1-3, murder is 3 and manslaughter is 2.5. In order to get to 3, you have to get to 2.5 first.

I just don’t buy it, though. How do you reconcile the intent to kill someone with the lack of regard for whether they live or die? Isn’t it the opposite? If you intend to kill someone, you care very deeply whether they live or die. So how is not caring whether someone lives or dies a step on the way to wanting them to die?

Or does this all make sense to you and I’m just nucking futs.

Sources: State v. Whistnant, 179 Conn. 576 (1980), State v. Greene, 274 Conn. 134 (2005), State v. Carpenter, 214 Conn. 77 (1990).

Mark Bennett’s post on the use of the phrase “failure to testify” in jury instructions, which I mentioned in this week’s Jumpstart, has spawned a vibrant discussion in the blawgosphere. Mark initially asked this question:

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant’s election not to testify — the exercise of one of the rights that we, as defenders, hold sacred — as a “failure”?

Jamie at Austin Criminal Defense followed up with his own post, Anne got involved and the Great Greenfield has his own comments on this and why defendants should or should not testify. Universally, the defense blawgers agree that this makes them cringe; that the word “failure” connotes something negative (much like the use of the word “victim“).

So, Jamie asks, what is an instruction that will pass muster? He offers:

While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.

Before I offer my own, I decided to take a look at CT’s jury instruction on the defendant’s “failure” to testify. It states:

The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.

It seems really good until that last sentence. So have there been challenges to this language? Yep, at least in CT. In State v. Casanova, 255 Conn. 581, 597-601 (2001), the Supreme Court held that ”the charge as a whole . . . was neutral in substance and appropriately guided the jury to a proper verdict,” despite the defendant’s argument that the language ”failure to testify” had a negative connotation. Id., 600.

Understanding that in CT “failure to testify” does not mean anything negative, I offer the following jury instruction in its place:

“Earlier, we talked about the burden of proof. The State bears the burden of proving – beyond a reasonable doubt – that the defendant is guilty of the charges. The defendant has the right to present evidence to rebut those charges. The defendant may choose to do so in several ways: the defendant can present testimony of other witnesses or testify himself. The defendant has an absolute right not to testify. Whether the defendant testifies or not, it does not change the State’s burden of proof one bit. The State still has to prove beyond a reasonable doubt that the defendant is guilty. If the defendant chooses to testify, you will weigh his/her testimony as you would any other witness and determine if it is credible or not. If the defendant chooses not to testify, you will simply consider the evidence presented and determine whether the State has proven guilty beyond a reasonable doubt based on that evidence alone.”

What do you guys think?

More opinions than you can shake a stick at and yet not a single win. Not one good thing for defendants. Well that’s not true. There’s one nice footnote. Let’s get to that first.

In State v. Carmona, the Court denied an appeal from (stay with me here) the trial court’s denial of a Motion to Correct. A Mtn to Correct is CT’s procedural vehicle for raising certain claims before bringing them via a petition for writ of habeas corpus. Mr. Carmona claimed that the State breached his plea agreement and that the DOC’s application of jail credit violated double jeopardy. The trial court (and the State) both said that the habeas court was the appropriate place to raise those claims.

What brings joy, however, is that apparently the State, in the habeas court, claimed procedural default for not raising these claims in the trial court! The State’s position, essentially, was: Can’t go to the trial court because you should go to the habeas court and you can’t go to habeas court because you should go to the trial court, where you can’t go because you….well, you get it. The Appellate Court dropped this gem:

Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.

Next comes State v. Hannah, in which the defendant claimed that the court erred in not admitting two recorded phone conversations that proved his innocence. The court found that the defendant did not create an adequate record by not transcribing the phone conversations, so it could not review the claim. It is notable because some of the participants have nicknames like “Too Cool” and “Wheatie”.

The next loss is State v. David O, in which the defendant claimed prosecutorial misconduct impropriety. The claim was that the prosecutor talked about the law and appealed to the jury’s emotions. You know how this ends.

In the first of the habeas cases (and the summary dismissals), Bowens v. Comm’r, the court found that the habeas court’s decision to deny cert. to appeal was not an abuse of discretion. That’s when I stopped reading. That’s when you should, too.

In another habeas case, Madagoski v. Comm’r, the petitioner claimed that he was denied his right to Due Process because the state didn’t preserve the evidence, namely a van, indefinitely. The Court couldn’t even find that the habeas court abused its discretion in denying cert. to appeal.

Back to the direct appeals. In State v. Ruben T, the defendant was tried before a three-judge panel. He claimed that the panel incorrectly found that he had not proven EED and also erroneously admitted testimony under the state of mind exception to hearsay. The panel found (and was affirmed) that the defendant’s loss of self-control was not caused by ‘‘an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.’’

Back to habeas. In Wooten v. Comm’r, the petitioner raised ex-post facto, equal protection and separation of powers challenges to the retroactive application of a judicial decision interpreting a jail credit statute. Quite summarily denied. Which is disappointing, because there are about 5600 inmates affected by this retroactive application.

Finally, in State v. Valentin, the claim was that the judge inadequately charged the jury on self-defense and on reasonable doubt. The claim was rejected because it was not preserved and it did not rise to one of Constitutional magnitude.

But that’s only 8, you say! That is correct. The other three were disposed of with Memorandum Decisions. Which basically means an opinion wouldn’t have been worth the paper it was written on. Or that they didn’t want to spend the time it would have taken to print the opinion discussing it.

By the way, if you’re a public defender in CT, you need to check out the revitalized New Case News. The powers that be (you know who I’m talking about) have done a terrific job with it.

Today I heard about a proposed amendment to Fed. Rule of Criminal Procedure 29 that will prevent judges from granting MJOAs at the close of the government’s case-in-chief unless defendants agree to allow the government to appeal.

Seems really strange and I haven’t been able to find anything about it. Anyone know anything?

The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.

Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.

No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.

There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!

Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.

I hate when they do that.

On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se – raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.

By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.

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