Category Archives: fifth amendment

To pick or not to pick: learning the unlearnable

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.]

Fists of fury: shod off

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:

Reasonably close

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:

He fled and took all logic with him

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.

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:

Three’s a crowd

It takes two to tango, goes the famous saying, and despite what 70s sitcoms try to tell you, three is most definitely a crowd. This is even more so in the criminal justice system, where there are two parties to every prosecution: the individual accused and the rest of the citizenry, on whose behalf the accusations are made.

But in recent years there has been a move – and to some extent rightfully so – toward giving the individual victim more input and a greater voice in the process. But the basic structure has – and should – remain the same: State v. defendant. In a sense, it is the State as a whole that has been victimized; the collective peace, law and order. Our laws, which are rules we have agreed to in order to maintain a semblance of morality and structure, are designed to protect the orderly functioning of society. We give up certain rights in order to have others.

So it’s good to see a court even as conservative as Connecticut’s top court acknowledge and reaffirm this. Today, in State v. Gault, the CT Supreme Court held that a victim is not a party to a criminal case.

It is a ‘‘basic tenet of the criminal justice system that prosecutions are undertaken and punishments are sought by the state on behalf of the citizens of the state, and not on behalf of particular victims or complaining witnesses.’’ State v. Barnett, 980 S.W.2d 297, 308 (Mo. 1998), cert. denied, 525 U.S. 1161, 119 S. Ct. 1074, 143  L. Ed. 2d 77 (1999). ‘‘A criminal prosecution is a public matter and not a contest between the defendant and his victims, or their relatives.’’(Internal quotation marks omitted.) Id. It is axiomatic, therefore, that ‘‘[t]he parties to a criminal action are the [state], in whose sovereign name it is prosecuted, and the person accused’’; Dix v.  Superior Court, 53 Cal. 3d 442, 451, 807 P.2d 1063, 279  Cal. Rptr. 834 (1991); and not the crime victim(s). State  v. Harrison, 24 P.3d 936, 945 (Utah 2001).

It is important to note that while the decision, viewed most simplistically, is a ruling against a victim in a privacy case, there are broader, more important implications here. It is a ruling for due process and the rights of a defendant and that of society as a whole to have an orderly determination of the matter of guilt or innocence of one of its citizens. That the victim in this case was raped or kidnapped is irrelevant to the story. She might as well have been a he and he might as well have been defrauded out of $1,000,000.

The very thing that the victim in Gault sought to do was considered and rejected by the legislature in 2007, for much the same reasons that the supreme court rejected it today. To permit to enter into the fray a third party, whose interests are already ostensibly represented by an existing one, but not tempered or checked in any way by concerns of judicial economy, fairness, due process and – sometimes – justice, would be to take an already chaotic system plagued by allegations of disparity and unfairness and turn it into even more of a quagmire.

An ode to the Kitchens sink: a tragicomedy

Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought

it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved

And so the court issued
its seminal holding
in the case of
State v. Monica Golding

The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed

In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl

And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent

And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective

Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”

If you do not object
or even stand silently by
as erroneous instructions
the jury must apply

If you do not state
with exacting precision
the specific problems
with the court’s instruction

The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might

The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed

You must be prescient
You must be attentive
because the Court has become
anal retentive

And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?

Ask for copies
and then ask for time
and if you forget
just remember this rhyme

One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.

And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:

What do we want from our system?

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding  it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead.  He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in  the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner  must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable  fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]