Category Archives: habeas

Erroneous release for 13 years leads to reincarceration

In yet another story that highlights the many cracks in the criminal justice system that a man can fall through, Cornealius “Mike” Anderson was recently taken into custody to begin serving a 13 year sentence for armed robbery, precisely 13 years after he was convicted of it.

While the story may sound like a comedy of errors, it really does raise important questions about the criminal justice system and its primary purposes of punishment and rehabilitation and which one should take precedence.

Anderson, who filed appeals and remained out on bond, was never taken into custody to start serving his sentence when all his appeals were denied. In an interview with ‘This American Life‘, he says:

he saw it as a sign from God, so he decided to transform his life. He went to school, became a master carpenter, got married, built his home, opened several small businesses and had four children. Anderson volunteered at his church and coached his son’s football team.

This is somewhat akin to the stories of Judy Lynn Hayman and Marie Walsh, except those two were actively on the run from their sentences.

Anderson, on the other hand, remained put:

The Harmless Writ: whether you get due process depends on how guilty you are

In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ [of habeas corpus] “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.” The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights.

The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which, if withdrawn, “risk[s] injury to an important interest in human liberty.”

Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty.”

Taken, once again, from this law review article [PDF]. To those who don’t know, a petition for writ of habeas corpus is a post-conviction1 avenue to challenge the legality of their incarceration.

As the legendary Judge Weinstein quoted in his report on 500 habeas corpus cases:

The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

Because, at one point in time, in this country and this legal system, we valued the process as much as the outcome. We placed emphasis on doing things correctly, because we possibly recognized that we all weren’t so blissfully immune from the powerful crosshairs of a runaway government. To that end, judges across the various states and in the federal system were given broad authority to hear these “habeas petitions” challenging the legality of convictions.

Concomitantly, they were given broad powers to fashion remedies, because the harm caused by a violation of a Constitutional right must be made whole as completely as possible.

In Hilton v. Braunskill, Chief Justice Rehnquist wrote

Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

So, for example:

Riggs v. Fairman, 399 F.3d 1179 (9th Cir.2005), a district court has considerable discretion in fashioning a remedy tailored to the injury suffered from the constitutional violation, and a court must consider the unique facts and circumstances of a particular case; Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla.2002), a court granting a writ of habeas corpus may also issue an injunction in aid of the writ; Gall v. Parker, 231 F.3d 265 (6th Cir.2000), a habeas court has broad discretion in fashioning habeas relief; Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992), a district court may exercise its broad authority in habeas cases to grant any relief it deems necessary, including 638*638 permanent discharge of a successful habeas petitioner; Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), federal courts have largest power to control and direct the form of judgment entered in cases brought up on habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.1981), where appropriate, a habeas court may grant injunctive, declaratory and mandatory relief; Hobson v. Murray, 485 F.Supp. 1340 (E.D.Va.1980), federal courts are not narrowly restricted in fashioning an appropriate remedy on granting petition for writ of federal habeas corpus relief but instead, the court is charged to dispose of the matter as law and justice require; U.S. ex. rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3rd Cir.1973), immediate and unconditional release is not the only remedy available in a habeas corpus proceeding.

Gentry v. Deuth. In Connecticut, this power, which derives from the habeas corpus court being a “court of equity” is identical to the power of the federal court. There are a set of statutes in this state, duly enacted by the legislature, that create special “habeas corpus courts”2 In CT, the legislature deemed it efficient to consolidate all these petitions in one courthouse in Rockville and assign 2-3 judges there to hear and dispose of all these cases. When I say “habeas court”, I’m referring to a judge assigned to sit as a habeas judge by the administration of the judicial branch. Once a judge has been administratively assigned to assume that role for a period of 2 or 3 years3, the judge takes on the duties, responsibilities and powers of the habeas corpus court which are given to it either by the common law (all the quotes above) or by statute, which states:

(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require.

Emphasis added by me. Because as of today, that bolded portion is functionally excised from the law books and placed in the metaphorical trash heap which the CT Supreme Court is doing a fine job of filling with your and my individual rights and liberties.

In a decision today [PDF] in H.P.T. v. Commissioner that is one in a long line of utterly confused and confusing decisions about what, exactly, one must do in order to correct a Constitutional wrong when it comes to bad advice given by an individual’s lawyer, the court effectively divests these “habeas corpus” courts of their long-standing and inherent power to fashion the appropriate remedy.

This supreme court, for some reason, has gotten it into its head for over a decade now, that impartial habeas courts whose job is to determine whether a person has been “accorded due process”, not to sit and once again decide “whether he is guilty” are the wrong jurists to determine just what is to be done once they have decided that there was no due process.

A habeas court, generally, decides three things:

  1. Was there a Constitutional violation?
  2. Was there harm to the individual?
  3. How do we fix it?

There is absolutely no precedent whatsoever for questions 1 & 2 to be decided by one court and question 3 to be answered by another court altogether. And yet here we are in CT where this is precisely what has happened.

Here’s what the court wrote:

the proper remedy remains the same in most cases, namely, remanding the case to the trial court, which is vested with the discretion to [return the individual to pre-harm status]

Except, as we have seen just above, it is the habeas court, not the trial court that is “vested with the discretion”.

In order for its proposition, this opinion in H.P.T. cites only two cases4. One is its own opinion from last year in Ebron v. Commissioner, which is based primarily on a (deliberate?) misreading of Lafler and Frye and Lafler itself. The problem is that the SCOTUS cases of Lafler and Frye deal with setups where the trial court and the habeas court are one and the same, which is clearly not the scenario here in Connecticut.

So, in this opinion today, the CT Supreme Court has, without being asked to or without any due consideration, effectively repealed a statute duly passed by the State legislature. It has done so for one reason and one reason only:

In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court.

In other words, because the trial judge will know if he’s a really bad guy who needs to be locked up. The beauty of having an independent court not only evaluate the harm, but then also direct the remedy is that by virtue of being independent, the court has no stake in the game. It is not being asked to second guess or explain its own decision making.

Remember that the trial judge is the one that presided over the case when it was initially pending. This is the judge who may have ruled on discovery requests and, more importantly, conveyed plea bargain offers to the individual’s lawyer. This is the judge who was informed of the vagaries of the case and the strength of the evidence of guilt, or lack thereof. This is a judge who has formed an opinion of the individual’s guilt.

The supreme court says today, in stark contrast to centuries of habeas corpus jurisprudence, that guilt is relevant to determining whether an individual should be afforded the protection of the Constitution against illegal convictions.

The court affirms that as long as someone is guilty, it doesn’t matter how that conviction was obtained.

A Constitutional harm is being weighed not against the principle that was violated or the actual harm caused to an individual, but against the character of that person.

What this decision today does, is give rise to a scenario where questions 1 and 2 above may be answered in the affirmative and question 3 may be answered by a judge with an emotional stake in the outcome who might proffer a middle finger by way of remedy.

We may end up with a situation with absolutely no relief for a proven Constitutional violation. A harm without a remedy is no harm at all.

This court has managed to take the “best and only sufficient defense of personal freedom” and turn it into a harmless piece of paper.

—–

Sherman Screwed Skakel: New trial ordered

Well. This is something I never thought I’d type, but Michael Skakel has just had his convictions reversed and a new trial ordered [PDF] by former Appellate Court judge Thomas Bishop1, who was designated to preside over and adjudicate Skakel’s petition for writ of habeas corpus.

The allegations revolve mostly around Skakel’s representation by famed celebrity lawyer Mickey Sherman, in that Skakel alleges that Sherman did a terrible job representing him.

See, the Constitution not only requires that you have a lawyer, but that you have a lawyer who is competent and whose performance is within the norm2.

And that makes sense: what good is a lawyer if the lawyer performs terribly, is asleep and incompetent and completely mucks up your case? The lawyer must be required to act in an universally acceptable way.

So Skakel alleged that Sherman did many things wrong. In support of his allegations, he presented the testimony of three very respected Connecticut lawyers, all of whom seemed to have some very choice things to say about Sherman’s performance.

In a very lengthy, detailed and thorough opinion, Judge Bishop finds in Skakel’s favor on most of the serious allegations of ineffective assistance.

In other words, Sherman did a piss poor job of representing Skakel and that piss-poor representation deprived Skakel of his Constitutionally protected right to effective assistance of counsel and there is a reasonable likelihood that his piss-poor representation led to Skakel’s conviction.

Before I go any further, some background: Skakel is some rich and politically powerful dude (“a Kennedy cousin”) who was 15 years old when his neighbor – a 15 year old girl – was found bludgeoned to death. About 23 years later, in 1998, a grand jury was convened and in 2000 Skakel was charged with the murder.

Although a juvenile at time of the murder, he was tried as an adult. But lest you think this is a case of one brand of justice for the rich and one for the poor, let me explain to you that Skakel got screwed.

They’ve fucked him at every step. 15 at the time of the murder and should legally have been in juvenile court? No worries, we’ll just rule that sure that may be but now he’s an adult so he should be tried as an adult. Easy. Oh what’s that, you say? The statute of limitations ran out 20 years ago? No problem, we’ll just create a brand new rule out of our asses whole cloth that statutes of limitations don’t expire if the legislature changes statutes of limitations while they’re still running. Or something. Did we throw enough legal words at you so now you’re confused and have no idea what we said? Yes? Good. Go away. Don’t look here any more.

So, no. He hasn’t gotten preferential treatment from Connecticut courts. In fact, if anything, it seems to be almost the opposite3.

Judge Bishop finds that Sherman was ineffective in some pretty serious ways: first, that he failed to argue to the jury that there was someone else who had committed the crime – Thomas Skakel, Michael’s brother. Judge Bishop has this to say:

Attorney Sherman’s failure to point an accusatory finger at T. Skakel was and is inexplicable. Given the evidence of T. Skakel’s culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel.

He further finds that there was an independent, detached reliable alibi witness Dennis Ossorio, who would’ve testified that Skakel was at his house around the time of the murder. This was not investigated or presented to the jury.

Equally damning is the Sherman’s failure to undermine the state’s star witness: Gregory Coleman who alleged that Skakel had made some specific confessions to him about murdering Moxley. Judge Bishop found that there were several other witnesses who would’ve testified that Coleman was a liar, proud to be a liar and that some of the described encounters with Skakel never occurred.

Sherman’s handling of the trial and his attitude throughout can best be summed up by this quote of Attorney Michael Fitzpatrick, one of Skakel’s experts:

Sherman’s failure…was a significant strategic error born of an overabundance of self-satisfaction with his [performance]

Here’s something I didn’t know: after closing arguments, but before the judge instructed the jury on the law, the trial judge had to specifically instruct the jurors that several comments made by Attorney Sherman were improper and they should ignore those comments. I can tell you that I’ve never seen that happen in relation to a defense attorney’s closing argument.

The real question, of course, is whether this will survive appellate review. I think the fact that it clocks in at 136 pages already gives the ruling a strong chance of survival4. Think of the work it will take to undo it. It’s possible – and if there ever was a case where it would happen, it would be this – but I think it’s somewhat unlikely. Further bolstering its chances are the other parts of the ruling where Judge Bishop finds either that Sherman did nothing wrong or that he did, but it didn’t affect the trial.

However one cannot come away without the sense that Sherman’s performance was so below par that it fundamentally affected the reliability of the outcome and called into question the fairness of the trial.

And that is something we should all be concerned about, whether the defendant is a Kennedy cousin or just your cousin.

—–

The playing field is uneven

As written before, one of the greatest lies sold to the American public was Brady v. Maryland: that the prosecution has an affirmative burden to turn over exculpatory material. The problem, of course, is that they are also the ones who get to decide what is “exculpatory”, which has routinely been defined as evidence that would tend to negate the guilt of the defendant or undermine the credibility and believability of the government’s witnesses.

But just as easily as overzealous prosecutors take this exculpatory information, put it in a folder marked “work product” and pretend it doesn’t exist, do they hide witness statements that point to someone completely different and let an innocent man get convicted of murder and end up on death row.

Meet James Dennis, in whose case a federal judge begins a lengthy opinion [PDF] thusly:

James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit. I will grant Dennis’ habeas petition, vacate his conviction and death sentence, and require the Commonwealth to retry Dennis within 180 days or let him free.

Disentitling your rights

In doing the math for this post on the rate of success in the CT Supreme Court, I ran across this opinion, again by the Chief Justice, in the matter of State v. William Brabham [PDF]. It’s one of those opinions that’s a slow boil, so I put it on the backburner, until my outrage was sparked again1 by this recent opinion from the CT Appellate Court in Saksena v. Commissioner [PDF].

If you needed more proof of the fact that our “Constitutional rights” are but a mirage, provenanced from the goodwill of those entrusted with the enforcement and application of those rights. They are more grants of favor by judges than inexorable and inimical fundamental rights.

How else would you explain the frequency and ease with which violations of these fundamental rights are dispensed with, overlooked and excused?

Take, for example, the aforementioned Brabham. Brabham was, to be sure, a lout. He was also an absconder. He wasn’t, shall we say, the most honest person. He was charged with larceny and burglary, so he decided to do what seemed logical: run. Then:

After the jury returned its verdict, but before sentencing, the defendant posted bond and fled to London, England. As a result, the defendant failed to appear for sentencing on September 22, 2000. He later was rearrested and returned to Connecticut. The defendant’s sentencing  was set for March 26, 2004, but before that date, he once again posted bond and fled to London, England,  and again, did not appear for sentencing. The defendant again was rearrested, and on November 18, 2008, he was sentenced to a total effective sentence of fifteen years imprisonment. This appeal followed.

On appeal, he claimed, among other things, that the State had failed to prove his guilt beyond a reasonable doubt and the judge had failed to properly instruct jurors. So these arguments, if successful, would undermine the reliability of the conviction, implicating due process.

But he ran. And we don’t like people who run. And the fact of his running apparently outweighs the reality of his conviction being unconstitutional. There is such a thing as the fugitive disentitlement doctrine.

What it means, basically, is that if you’re charged by the State and a jury convicts you, no matter how erroneously or unlawfully, your illegal, tainted conviction will stand because fuck you. No one shows up the State and gets away with it.

Keep in mind that Brabham wasn’t on the lam when this appeal was heard: he was in custody serving an obscenely inflated sentence2. There is an argument to be made that a defendant who is on the run isn’t entitled to an appeal while he’s on the run. Fair. I disagree in principle, but in effect, I might be inclined to agree. This is not that case. Here, he’s in the State, sentenced to an outrageous sentence (see footnote 3 above).

The court listed the 43 rationales for “fugitive disentitlement”. They are:

(1) the judgment on review may be impossible to enforce because the prisoner has escaped, (2) the  prisoner’s escape disentitles him to call upon the resources of the [c]ourt for determination of his claims, (3) dismissal will [discourage] the felony of escape and [encourage] voluntary surrenders, and (4) dismissal will [promote] the efficient, dignified operation of the courts.

The court rejects the first three rationales and instead adopts the FDD for that fourth reason “efficient, dignified operation” of the courts.

Seriously. Are you laughing yet? I don’t even know what that means. The court then makes up some nonsense about how since he was gone for so long, a few exhibits went missing so they can’t rule on whether the state actually proved beyond a reasonable doubt that he was guilty of breaking into some dude’s office. Seriously. Do you see what we have to deal with here in Connecticut?

[Yes, okay, he shouldn't run. Yes, okay, there has to be some disincentive. But those rationales were rejected by the Court.]

But that’s not all. That merely brings us to Saksena v. Commissioner, which I mentioned above. That’s a habeas corpus case in which the opinion lists the only claim as being that he was not properly advised of immigration consequences pursuant to Padilla v. Kentucky. Until you look at the footnotes4. Footnote 1 says:

The petitioner also claims that the habeas court erred when it proceeded to trial without him present in contravention of his due process rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, Practice Book § 23-40, and General Statutes § 52-470. For reasons set forth in this opinion, we conclude that any error by the habeas court in proceeding to trial without the petitioner present was harmless.

My laughter has turned to tears. In case you don’t get the irony in this, let me spell it out for you.

Habeas Corpus is Latinese for… you have the body. It is a Latin phrase literally commanding the warden to present the physical body of the petitioner and answer why his conviction is legal.

I swear to God sometimes I think I’m living inside an Onion article. In Saksena, he was transferred to ICE custody for deportation purposes and was held in MA. They’d transport him to CT for his trial if the CT judge ordered it, but the CT judge refused to do so5. So, Saksena’s “bring the body” trial was held without the body.

And of course, the Constitutional violation doesn’t matter because he was guilty anyway.

 

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

An arraignment is a critical stage

It seems almost silly to me to have to blog about an opinion that declares that yes, an arraignment is a critical stage in a criminal proceeding. But this was apparently a matter of first impression in Connecticut courts and there is a dissent and the state has been pushing this issue for years, so it might be worthwhile as my civic duty. We’ll see.

But let’s start with basics, since basics are where things go wrong most of the time. In Connecticut, when you get arrested, you have to be arraigned. You’re brought before a judge, usually within 48 hours of your arrest, and either a finding of probable cause is made (if it’s an “on-site” arrest) or not if the arrest was made by warrant. That’s it. There’s no grand jury indictment, despite the State’s best efforts.

So what happens at arraignment? Several things:

1. If you have retained a private attorney, that attorney should enter an appearance on that behalf and actually appear there with you.

2. If you have not or cannot retain a private attorney you can make an application to be represented by the public defender, who will then stand with you when the judge calls your name.

3. Your bond is reviewed and set.

4. 3 above affects your liberty: do you stay in custody or do you bond out?

Now lets imagine that a bond is set, but you cannot post that bond, meaning that you remain in custody – in jail – throughout the entire time your case remains pending.

You have a due process liberty interest in pre-sentence confinement credit. Which means that all the days you spent in jail because you could not post bond, are counted as part of your sentence.

It has to be that way, otherwise there would be an equal protection violation and liberty would depend on how much money you have.

So while you sit in jail, waiting for your sentence, you’re “accumulating” “credit”. And then you get sentenced and that credit is applied to your sentence, that is, subtracted from it and viola! It’s as if you started serving your sentence on the day you first were held in lieu of bond.

And if it were only that easy, we wouldn’t be there.

Because what complicates things is multiple cases. Some more background: the only way DOC knows you’re in custody is if there’s a bond set on you. So you need to have bond set in every file that you’re in custody for. Where it gets a little hairy is if you post that bond on the first case, but then can’t on the second.

Example: You get arrested for getting into a bar brawl and are charged with Assault 3rd, a misdemeanor. The court sets bond in the amount of $1000, which you promptly pay, so you’re “out on bond” in the street, living at home. Let’s say three weeks later, the guy you got into a fight with passes you on the street, you lose your shit and you take a gun and shoot him. He’s not injured (we’re a family blog, after all) but you’re arrested and charged with attempted assault in the first degree – a Class B felony – and now a judge sets bond in the amount of $100,000 which you can’t post so you’re held in jail.

Remember, DOC thinks you have only one charge, but actually you have two. Lets say a 6 months go by and the victim in the attempted shooting relocates to Indonesia and the State is going to drop that case. But the barfight has other witnesses so they want you to plead guilty to a misdemeanor and a sentence of 6 months in jail.

Great, you think. I’ve got 6 months in the bank! I’ll plead, they’ll apply the credit and I’ll go home today. Done.

Errr. No. DOC never had you in jail for that case, so there’s no credit to apply to your sentence. You have to do 6 months in jail to satisfy that sentence.

Well, now what? You blame your lawyer, obviously! He should’ve known and if he’d done his job I wouldn’t be here!

That’s exactly what happened in Odilio Gonzalez v. Commissioner [PDF]. Gonzalez argued that if his lawyer had simply asked the court to raise his bond a nominal amount on the barfight charge when he got picked up on the shooting charge, DOC would’ve recognized the existence of that case and he would have started “earning” credit. Had that happened, he’d have been a free man 6 months earlier.

Simple, right? No. Because the State, in its infinite wisdom, has for years argued that there is no right to have a competent lawyer advise you in regards to bond matters. That your bond is not a critical stage in a criminal proceeding and that there is no Constitutional right to have proper advice.

Luckily the court didn’t buy that, instead arguing what I’ve just laid out above. It concluded:

In the present case, it is clear that ‘‘potential substantial prejudice to the [petitioner’s rights inhered]’’ to the arraignment proceedings and the petitioner’s counsel had ‘‘the ability . . . to help avoid that prejudice  . . . .’’ Jackson v. Miller, supra, 260 F.3d 775. Specifically, because the petitioner’s counsel failed to timely request that the petitioner’s bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required.

The petitioner was thus denied an essential liberty interest as the result of his counsel’s deficient  performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner’s bonds on the first two cases. The fact that counsel’s performance  affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel’s ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings.

Of course, we shouldn’t blame the state. Logic isn’t their strongest suit. Although I suspect they’d feel very differently if their liberty was on the line and their lawyer forgot to have their bond raised.