fifth amendment
Degrees of kinship and same-sex incest? ARO 2/11/08
Feb 12th
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.
Logging in to the 5th
Jan 25th
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
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Is Manslaughter an LIO of murder?
Dec 23rd
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:
- Specific intent to cause death
- Of another person
- 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:
- Circumstances evincing extreme indifference…
- recklessly engage in conduct
- create a grave risk of death
- 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).
Failure no more
Dec 12th
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?
0 for 11: Appellate Court ARO 12/5/07
Dec 5th
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.
Changes to Federal Rule 29?
Nov 30th
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?
Appellate Court ARO 10/24/07
Oct 24th
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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“Banned words” accuser sues judge
Sep 20th
The accuser in the “banned words” trial [previous coverage here and here] has sued the state court judge who ruled that the words “rape”, “sexual assault” and “victim”, among others, couldn’t be used during the trial. She filed suit in Federal Court and things aren’t looking up.
“I have serious reservations about whether this action was commenced for the improper purpose of forcing Judge Cheuvront to recuse himself … or for the improper purpose of generating pretrial publicity,” U.S. District Judge Richard Kopf of Lincoln wrote in his order.
Kopf warned the 24-year-old Bowen and her attorneys that “sanctions may be imposed for failure to show cause.” The sanctions could include dismissal of the case, fines or “such other sanctions as the court deems proper.”
Kopf said in his order, “There is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job, particularly when that state judge is presumably trying to do nothing more than protect the rights of a citizen who may have been wrongly accused of rape.”
Kopf also expressed his doubts about whether the lawsuit “has any legal basis whatsoever.”
“For example,” he said, “I cannot find any precedent for a suit of this kind.”
As I’ve stated before, I don’t think it’s that big a problem to ban the use of the word “rape”. The same act can easily be conveyed with the use of the words “sex”, “without”, “consent”, “against” and “will”.
The very reason that the accuser wants to use the word “rape” is why the judge banned its use. Because it is loaded, it is a powerful accusation and it does inflame passions. Besides the fact that it is a legal conclusion.
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