Category Archives: fifth amendment

This month at the Supreme Court: blockbuster session

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not an actual judge

not an actual judge

I’m reviving a series I briefly dabbled in, back in 2008, called ‘This Month‘, which serves to preview the cases assigned for oral argument in the CT Supreme Court in the upcoming month. I may also include cases of special interest in SCOTUS, depending on whether I’m in the mood. I’ve also added a permanent link to this post in the sidebar, alongside the above picture, so you can find it at any time. The link will be updated every month to the most current ‘this month’ post.

The reason for reviving this is this upcoming April term, in which the court is scheduled to hear at least four cases that can have significant and profound impacts on the state of individual rights in Connecticut: State v. Kelly; State v. Brown, Brown v. Commissioner and State v. Santiago, impacting, in turn, the Fourth, Fifth, Sixth and Eighth Amendments.

The following is the listing of criminal cases scheduled for oral argument in the CT Supreme Court by date.

Monday, April 15 @ 10:00am: State v. Richard Annulli. [Briefs available here.] The defendant was charged with several sex related crimes. During the trial, he wanted to cross-examine the complaining witness to show that she was lying by questioning her about another separate instance in which she allegedly lied to the police in order to get someone else arrested. The trial judge, after hearing what that evidence would be, disagreed with the defendant’s characterization that she “lied” and thus did not permit the defendant to question her about that. The Appellate Court affirmed the conviction and the Supreme Court will review whether his Sixth Amendment right to confront one’s accuser was violated by the trial court. There is also a claim that the evidence was insufficient, but that’s going nowhere.

Tuesday, April 16 @ 10:00am: State v. Jeremy Kelly. The link to the left is to a separate post for this case. I don’t often engage in hyperbole but it is my opinion that this is one of the most important cases the CT Supreme Court will have to deal with for a while (except that other case coming up on April 23). This case involves the ability of the police to seize or detain groups of people when they have a reasonable suspicion to stop only one person out of that group. The implications of permitting such an “automatic companion” rule are staggering, especially for policing in minority neighborhoods, given the dubious “stop and frisk” tactics that are already employed there.

Wednesday, April 17 @ 10:00am: State v. Brown. [Briefs available here.] One of the fundamental concepts of the privilege against self-incrimination is that you have the right to remain silent. The police, pursuant to Miranda v. Arizona, generally advise a suspect of his rights. So, if a person chooses to invoke his rights and remain silent, that fact cannot be used to show that he is guilty. See Doyle v. Ohio. The question in Brown is whether post-arrest silence can be used against the defendant if the defendant first puts on evidence that he was co-operative with police and answered their questions. Has he, in essence, “opened the door” to harmful questioning? Once he does that, can the prosecutor show that when asked by the police how much he (in this case) had to drink, the defendant remained silent? The Appellate Court said yes and the Supreme Court will decide if that important protection of Due Process has an exception of these circumstances.

Interestingly enough, on the very same day, the United States Supreme Court will hear oral argument in Salinas v. Texas, in which the issue to be decided is whether the pre-arrest silence of a suspect can be used to show his guilt. [Greenfield has more here.]

Wednesday, April 17 @ 11:00am: State v. Stephen J.R. [Briefs available here.] The defendant, who was accused of sexually abusing the minor victim on four occasions, was charged with eight counts of sexual assault in the first degree and eight counts of risk of injury. At trial, the victim testified that the defendant abused her on “three or four” occasions and that she was forced to engage in two sexual acts each time. The defendant subsequently was convicted of all sixteen charges. He argues that the victim’s testimony was too vague to support the guilty verdicts on all sixteen charges, as she described generally what happened each time the abuse occurred but did not differentiate between the incidents. In addition, the defendant contends that the trial court, after conducting an in camera review of the records of the department of children and families pertaining to the victim and her family, improperly failed to fully disclose all of the relevant records. Finally, the defendant asserts that the prosecutor, during closing argument, improperly appealed to the emotions of the jury and thereby denied him a fair trial.

Thursday, April 18 @ 10:00am: O’Neil Brown v. Commissioner. [Briefs available here.] A case that will decide the applicability of Padilla v. Kentucky here in Connecticut. Padilla said that it was a lawyer’s responsibility to advise a defendant about any immigration consequences of a guilty plea. While Padilla was an important case for defendants going forward, the question here is whether it applies retroactively to people whose convictions are final and who may be awaiting deportation. While SCOTUS has said no, Chaidez v. US [PDF], they have also said that states are free to provide retroactivity under state law, Danforth v. Minnesota. Further, last year the Connecticut Supreme Court also said too bad you’re shit out of luck to a guy who sought to vacate his 1999 conviction because he was facing deportation in 2010 and no one told him that he could be deported. He relied on CGS 54-1j, but the Court said no, that only provides relief within the first three years. So O’Neil Brown is critical for defendants who may have pled guilty without any knowledge of the negative deportation consequences of that plea.

Monday, April 22 @ 10:00am: State v. Pires. The issue in this case is whether the defendant properly invoked his right to represent himself and whether that right was violated. The Appellate Court said no and the Supreme Court will review that decision.

Monday, April 22 @ 11:00am: State v. Mitchell Henderson. In 1993, the defendant was found guilty of several crimes and due to his extensive criminal record, was also found to be a persistent serious felony offender and a persistent dangerous felony offender, both of which triggered a greater punishment than normal. As a result of this, his sentence was lengthened or “enhanced”. In 2007, our Supreme Court decided that any such “enhancements” must be based on facts that are found by a jury beyond a reasonable doubt, rather than by a judge. So Henderson argued that his enhanced sentence is illegal because the facts weren’t found by a jury. The Appellate Court said no, the 2007 rule doesn’t apply backwards. The Supreme Court will now review.

Tuesday, April 23 @ 10:00am: State v. Eduardo Santiago. [Briefs available here.] This is the other big one this month, which will decide whether the prospective repeal of the death penalty is Constitutional or whether the entire death penalty needs to be scrapped or whether the repeal needs to be repealed. Keep in mind that the hearings on the racial and geographic disparity in the application of the death penalty are still pending.

Wednesday, April 24 @ 10:00am: State v. Milner. Here’s another fascinating case (and the last one of) this term. Milner was placed on probation in 2005. Sometime later, he was charged with a new crime and as a result of that, also charged with violating his probation. He apparently had a hearing on the violation of probation (VOP) first and a judge decided to revoke his probation and sentence him to jail. He appealed that judge’s decision. While that appeal was pending, he pled guilty to one of the new charges that formed the basis for the violation of his probation. He didn’t appeal that conviction (he couldn’t, really, because you typically can’t appeal from a guilty plea), but he did challenge its legality by filing a habeas corpus petition. The Appellate Court held that it wasn’t the same, his conviction was final and so his pending appeal (from the VOP) was moot. The Supreme Court will decide if that’s the case.

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If you have the briefs in any of these cases, please email them to me. If you’re going to see oral argument in any of these cases, please leave a comment with your observations.

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Image via. License details there.

 

 

 

 

A prior restraint on due process

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[Fair warning: the only things I know about the First Amendment are what I learn from reading Popehat and Randazza and that it's a good thing.]

See updates below.

A story that I first read here at Reason last week is increasingly gaining steam and it is this: In the pending case of the People of Colorado vs. James Holmes, the trial judge entered a pre-trial order ‘Limiting Pretrial Publicity’ as well as several “gag” orders preventing prosecutors, defense attorneys and law enforcement officers from discussing certain details of the case with the press.

In July 2012, a reporter at Fox News named Jana Winter published a “scoop” about a diary penned by the Aurora suspect James Holmes. Here is what she “revealed”:

“Inside the package was a notebook full of details about how he was going to kill people,” the source told FoxNews.com. “There were drawings of what he was going to do in it — drawings and illustrations of the massacre.”

…

A second law enforcement source said authorities got a warrant from a county judge and took the package away Monday night. When it was opened, its chilling contents were revealed.

…

Both of FoxNews.com’s sources said the intended recipient of Holmes’ notebook was a professor who also treated patients at the psychiatry outpatient facility, located in Building 500, where the first suspicious package was delivered. It could not be verified that the psychiatrist had had previous contact with Holmes, who was a dropout from the school’s neuroscience doctoral program and had studied various mental health issues and ailments as part of his curriculum.

So, recently, James Holmes’ attorneys filed a motion with the court seeking to disclose the source of the leak. The gag order, of course, applies only to the parties to the proceeding and most certainly not to the press, see Nebraska Press Association vs. Stuart. For a judge to prohibit the press from writing about a public case would be a prior restraint on speech and that is almost universally prohibited.

Continue reading →

Reciprocal discovery: should we have to?

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The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine. Continue reading →

To pick or not to pick: learning the unlearnable

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While lawyers may debate the effectiveness of jury selection, none will doubt the importance of it. The problem is, no one knows how to do it well. Some may think they do, but really, they’re just getting lucky. For the task is an incomprehensible one: to get 40-60 complete strangers to open up to you about their personal feelings and beliefs, to somehow get a sense of whether they’re in your favor or against all without mentioning the specific facts of the case at hand. As Mark Bennett says in his lecture on jury selection (more on that in a second), what we really want to do, as lawyers, is to take each juror aside and say “Psst, here are the facts. For me or against me?” and obviously we can’t. So we have to dance a dance in which we ask general questions in order to boil this stranger down to some stereotypes and make a best guess. It’s a pretty hopeless practice, made worse in jurisdictions where judges are the only ones asking questions or where there is no individual voir dire.

[To be sure, as currently practiced, jury selection is easier for prosecutors. They're not interested in learning about the person or getting them to open up; they merely want to reinforce the strong desire in people to follow the lead of authority and affirm the bias that most jurors have toward conviction. But, it can be argued, that practice is divergent from the prosecutor's true charge: which is to seek justice, not obtain a conviction. Sure, you can pick a jury by stating a general proposition of law and then asking if the juror can follow the court's instruction, but there's nothing functionally different between that and picking the first 12 jurors that walk in the door, something that I've suggested to prosecutors over the years, but for some reason they never take me seriously.] Continue reading →

Fists of fury: shod off

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you wanna come a little closer when you tell me I’m not dangerous?

Bruce Lee, David Carradine, Chuck Norris, The Karate Kid and Jackie Chan would be extremely unhappy with the Connecticut Supreme Court’s decision in State v. LaFleur [PDF], which held, quite sensibly, that bare hands, while possibly quite dangerous, cannot be an “instrument” under CGS 53a-3(7). The definition of dangerous instrument in the statute is:

“Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a “vehicle” as that term is defined in this section and includes a dog that has been commanded to attack, except a dog owned by a law enforcement agency of the state or any political subdivision thereof or of the federal government when such dog is in the performance of its duties under the direct supervision, care and control of an assigned law enforcement officer;

So the question, simply, is whether a fist is a dangerous instrument. In order to get to the correct answer, the court has to get around several declarations in prior caselaw about what a dangerous instrument really is. For example: Continue reading →

Reasonably close

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Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship. Is there any doubt about what this sentence means? To you and me and regular practitioners of the English language, perhaps not. Which is why I was surprised to read this Maryland Court of Appeals (it’s another one of those states with a non-conventional name for its Supreme Court) opinion [PDF] holding that the above quote, while probably accurate, isn’t something juries need to know per se. In Carroll v. State, the defendant appealed, arguing that the jury instruction was unconstitutional because the trial court refused to tell the jury that the state had to prove every element of every crime beyond a reasonable doubt.

You know, that thing that In re Winship makes explicit. Because apparently when it comes to convicting A Very Bad Man, close enough for government work is the appropriate standard.

Here is the instruction given by the trial court in its entirety: Continue reading →

He fled and took all logic with him

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State v. Ward [PDF], issued by the CT Supreme Court yesterday, presents the ubiquitous problem of how to contort the law and the plain meaning of words to ensure that an obviously guilty person stays convicted. Showing their abhorrence for “technicalities”, the court does the astonishing: it re-imagines itself as a lexicographer and unilaterally changes the definition of a simple four-letter word.

The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.

This brings us to the intersection of the notions of justice and due process. For justice requires that someone who commits a crime like this shouldn’t go unpunished, no matter how long it takes to find and prosecute them. Victimization remains forever and the penalty must be paid. Due process, on the other hand, demands that prosecutions be brought in a timely manner and that individuals not be required to answer for crimes allegedly committed decades earlier due to the inherent problems of missing witnesses, eroded memories and evanescent evidence.

This is why the law provides not only for a statute of limitations in almost all felony cases, but also for an “out clause”: a tolling of that statute under certain restrictive circumstances. For the uninitiated, the statute of limitations states:

(b) No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed.

The tolling provision states:

(d) If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against such person at any time within such period, during which such person resides in this state, after the commission of the offense.

Clearly, in the matter of Ward, the prosecution was not initiated within 5 years of the commission of the offense. So the only question that remains is whether the limitations period has been tolled. To answer that question we need to ask if Ward “fled” the state.

The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution. The alternative – that every individual who has committed, or thinks he has committed, a crime is required to stay at the scene of that crime and await the inevitable arrival of Constable Fife with open arms is absurd and illogi-I’m sorry, hang on. The Supreme Court wants to say something:

The defendant contends that the trial court improperly determined that he ‘‘fled from and resided out of this state’’; General Statutes (Rev. to 1987) § 54-193 (c); because the state did not present any evidence to show that he was aware of a criminal investigation against him and that he fled in order to avoid prosecution. In response, the state contends that the term fled does not require an intent to avoid arrest or prosecution and that any absence from the jurisdiction, regardless of intent, tolls the statute of limitations. We agree with the state that the plain language of § 54-193 (c) does not require a defendant to leave the state with the intent of avoiding prosecution.

…

Section 54-193 (c) contains no mention of a requirement that the defendant must have fled for the purpose of avoiding prosecution. Thus, the plain language of § 54-193 (c) supports the conclusion that it does not require that a defendant has fled with the intent to avoid prosecution.

[(c) is now (d)] Oh. I see. So you are saying that all perpetrators must stand vigil at their crime scenes until police arrive to arrest them. Are they required to provide confessions too? Maybe we should make it a law for all criminals to videotape their criminal activity and then mail the aforementioned tape to the nearest police department and turn themselves in within 24 hours.

The fact that the Court agrees with the State that the verb “to flee” as used in the statute has no intent requirement renders the phrase meaningless. They might as well take it out of the statute and simply say “if the person has left the state…” because the existence or possibility of a prosecution is irrelevant.

We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.

Okay, hang on. I’m confused. What? You just got done saying that it didn’t matter why the person left the state. Then you use the wishy-washy word “may” in the next paragraph to include that scenario that you just dismissed as irrelevant1. WHAT ARE YOU SMOKING AND WHERE CAN I GET SOME?

Certainly, the defendant herein, as a result of his conduct in the victim’s home, had reason to believe that an investigation would ensue.

Ay, there’s the rub. He’s a Very Bad Guy and he’s Obviously Guilty so he should’ve known that a prosecution would naturally ensue from his actions.

Granted, a man who rapes a woman at knifepoint in her home, deposits his DNA everywhere and just saunters off cannot plausibly claim that he “just went home” and so the court, in an “ends justify the means” sort of way can reasonably be forgiven for calling bullshit on his claim that the statute had run.

But this doesn’t – and shouldn’t – give the Court license to rewrite the meaning of the word in the statute that affects not only Ward, but every other criminal defendant in the state. The court has added a judicial gloss to the meaning of the statute in a way that was completely unnecessary and unfortunately served to eviscerate the protections offered by it, despite its fervent protestations to the contrary:

We reject the defendant’s argument that construing § 54-193 (c) in a manner that does not require an intent to avoid prosecution renders the term fled meaningless. As we have explained previously herein, a defendant must absent himself from the jurisdiction with reason to believe that an investigation will ensue as the result of his actions in order for there to be an application of the tolling provision. There may, indeed, be situations in which a person is traveling through Connecticut and leaves the jurisdiction without reason to believe that an investigation would ensue as a result of his or her actions. For instance, if a motorist was driving on a dark road at night and hit what he reasonably believed to be a bump in the road without stopping, only later to learn that he had left the scene of an accident, he may not have fled the jurisdiction within the meaning of § 54-193 (c). We are confident that our interpretation of the statute does not render the term fled meaningless.

God this court is schizophrenic. From the earlier “may” we now come to a “must”, thereby cementing that a reasonable belief that an investigation will ensue is an integral part of the determination of whether the defendant “fled”. The court then provides the most laughably absurd example of how that requirement would serve to protect an “innocent” person, but still cannot bring itself to say that its own fictional defendant, in its fictional example of the application of the statute that they have just defined “must” get the protection it confers. All it can say is “he may not have fled the jurisdiction”, because logic.

For this judicial determination of “he should have known because, look, he’s really guilty” is a prior judicial determination of guilt before the fact-finder is called upon to make that very same determination. Through what lens are we to make this determination of a “reasonable” belief? From the perspective of the defendant at the time of the commission of the alleged offense? At the time of arrest?

This “interpretation” may not have rendered the term “fled” meaningless, but it sure has made it completely incomprehensible and useless.

There’s a lesson to be learned here, kids: bad cases make bad law, always.

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1Unless, of course, you’re using the word “may” in the sense of “is permitted to”. As in “you may serve me my coffee now”. In which case, I suggest the use of the more direct and precise “shall” or “will”.

This is the song I first thought of when I read this case. There are some obvious similarities, but I’ll leave it to you to figure them out: