In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments.  The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.

This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?

I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.

Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual.

In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” Roper, 543 U. S., at 575. The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. Id., at 568; Kennedy, supra, at ___ (slip op., at 27–28); cf. Solem, 463 U. S., at 292. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at ___ (slip op., at 30–36); Roper, supra, at 571–572; Atkins, supra, at 318–320.

The Court then goes through all the research and data relied on in Roper on the mental development of juveniles to support its holding that LWOP serves no penological purpose for this category of defendants:

because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures,including peer pressure”; and their characters are “not as well formed.” Id., at 569–570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of-fenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Then the court ties together two threads: 1) that offenders who do not kill are categorically less deserving of the most serious punishments and 2) that LWOP is the second most serious punishment permissible. Thus, it concludes, juveniles who do not kill and are sentenced to LWOP have a “twice diminished moral culpability”.

The Court recognizes the fact that for juveniles – who have a diminished moral culpability – a sentence of LWOP is a death sentence and is unfair as it categorically denies them the opportunity to be rehabilitated and to atone for their mistakes and to prove that they are worthy of being given an opportunity to reintegrate into and contribute to society:

A sentence of life imprisonment without parole, how-ever, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community,the State makes an irrevocable judgment about that per-son’s value and place in society. This judgment is not appropriate in light of a juvenile non homicide offender’s capacity for change and limited moral culpability.

Which, if any, of the foregoing quotes excerpting the Court’s reasoning would be inapplicable to juveniles who have committed homicides? Certainly, I don’t disagree that it would be a tougher sell, but given the various rehabilitative and psychological factors underpinning the basis for the Court’s decision, one can make a strong legitimate argument that LWOP for all juveniles violates the Eighth Amendment ban on cruel and unusual punishments [and I'm not the only one to notice this potential]. The converse of that argument – that juveniles who kill are just incorrigible enough and irredeemable enough to warrant spending the rest of their natural lives in jail despite their particular characteristics and the development of their brains – doesn’t hold water, especially when viewed in light of the quote above.

Excited as I am by this historic decision, the potential for application of Graham to all juveniles has me doubly excited. Are you?

A Connecticut aside: the issue of whether LWOP for juveniles who commit a capital felony is cruel and unusual was considered and rejected by the Connecticut Supreme Court in post-Roper, pre-Graham 2008:

The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility,  necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders. We disagree.

Maybe then, but perhaps no longer? Quoth Justice Stevens:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete…Standards of decency have evolved since 1980. They will never stop doing so.

I’m going to miss him.

Jordan Brown is 12. At the time of the death of Houk, he was 11.

I repeat. Jordan Brown is 12. And a judge ruled that he can be tried as an adult. A state in these United States is about to prosecute an eleven year old as an adult murderer.

Here is a file picture of him, taken from CNN. Look at it. This cherubic 12 year old now faces life in prison. The rest of the post after the photo and the jump.

That this decision – to deny a transfer to juvenile court – is an abomination is an understatement. This decision makes Brown the youngest child charged as an adult anywhere in America.

The reasoning for doing so is even more shameful.

Since being charged with the murder of his father’s fiance, Jordan Brown, through his defense attorneys, has asserted his innocence.

Largely because of those denials, a Lawrence County judge ruled Monday that Brown, now 12 years old, will stand trial as an adult.

In his 17-page decision, [Judge Dominick] Motto ruled that the defense failed to meet its burden, in large part because Brown’s continued denials in the crime show an unwillingness to take responsibility for his actions, a necessary factor in rehabilitation.

Motto said that point was established by both forensic psychologists in the case — John O’Brien, who testified for the prosecution, and Kirk Heilbrun, the defense’s expert — who testified in de-certification hearings Jan. 29 and March 12

That the burden is on the defense to show that the child is capable of rehabilitation and is not a danger to society is absurd. The state of the law belies a fundamental misunderstanding about the nature and manner of the child psychology and the development of the human mind.

But again, this is an 11-12 year old we’re talking about. The law in Pennsylvania is that anyone above the age of 10 (10!!!) can be tried as an adult. In Connecticut, the threshold is 14.

To compound the travesty that is the untenably low age threshold and the burden on the defense to show something that should be presumed, the Judge then relies on the lack of “acceptance of responsibility” of an 11-12 year old to justify his decision to treat him like a full-grown adult. This is  judicial cowardice of the worst kind.

To say that in order to be treated as a juvenile, a child must display the kind of emotional maturity that most adults in the system are unable to display well into their 40s and then use the lack of that adult development to justify treating the child as an adult is mind-bogglingly contradictory and stupid.

The prosecutor gets no points, either. He, seemingly honestly, states:

“This is something that you wouldn’t even think of in your worst nightmare, that you’d have to charge an 11-year-old with homicide,” [Lawrence County District Attorney John] Bongivengo told a local CNN affiliate in Pittsburgh when Houk was killed in February 2009. “It’s heinous, the whole situation.”

This statement rings hollow. If this is your worst nightmare, John Bongivengo, then do something about it. If the decision is truly with the court to decide whether to transfer the case back to juvenile court, then side with the defense in urging the judge to do so. Don’t file a brief and argue that your relatively inexperienced “expert” correctly concluded that there is “very limited” capacity for juvenile treatment.

I understand the reasons for permitting juveniles to be tried as adults in the most serious of crimes. You do adult things, you face adult consequences. But to bring an 11-year old under aegis of such legal chicanery is appalling.

In most murder prosecutions – and certainly in death penalty prosecutions – vengeance is a driving factor. Punishment and revenge rule the day. But this is not the place for it and certainly an 11-year old is not a worthy object of the collective wrath of the adult criminal justice system.

It is a tragedy that Houk died and her unborn child along with it. But allowing this prosecution to continue does nothing but add to the utter destruction these people’s lives have already experienced. There is no need for vengeance here, but rather for the stern understanding displayed by a disappointed parent toward an unknowing, developmentally undeveloped adolescent.

When the law provides for him to be punished as juvenile for the next 10-11 years of his life, seeking to have as 12 year old incarcerated for the remainder of his natural life smells of nothing but shameful bloodlust.

As an 11-year old, Jordan Brown would still be in middle school. Maybe he just started noticing girls. Maybe he still wants to be a policeman or firefighter. He probably hasn’t stopped growing. And here we are, the best justice system in the world, condemning him to the possibility of spending the rest of his life in jail.

If this isn’t cruel and unusual, I don’t know what is.

There’s so much rhetoric in this report that misses the point of not sentencing kids to life in prison that it makes my head spin (and as a by-product, makes the report very difficult to take seriously).

Here’s a sample:

Life without parole for the very worst juvenile offenders is reasonable, constitutional, and (appropriately) rare. In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect their citizens and hold these dangerous criminals accountable. Forty-three states, the District of Columbia, and the federal government have set the maximum punishment for juvenile offenders at life without the possibility of parole. By the numbers, support for its use is overwhelming. Nonetheless, its continued viability is at risk from  misleading lobbying efforts in many states and court cases that seek to substitute international law for legislative judgments and constitutional text.

Emboldened by the Supreme Court’s Roper v. Simmons decision, which relied on the Eighth Amendment’s “cruel and unusual punishments”  language to prohibit capital sentences for juveniles, anti-incarceration activists have set about extending the result of Roper to life without parole.

If they succeed, an important tool of criminal punishment will be eliminated, and all criminal sentences could be subjected to second-guessing by judges, just as they are in capital punishment cases today.

Scott has fun with that last sentence, so I won’t go into it. Of course, there is nary a mention of the primary reason for eliminating LWOP for kids: their rate of brain development, their tender age and the elimination of any hope for someone so young. I’ve written about this before and anyone with a working knowledge of Google can find multiple studies that have found that adolescents’ brains are still developing into their late teens and early twenties. There is a callous disregard for the mental state of the kid and absolutely no quarter given to the notion that they may not have been able to fully appreciate the impact of their actions. In that sense, they’re treated the same as mentally challenged defendants.

This is not to say that because they’re “juveniles”, there should be no punishment, but there certainly should be serious thought given to a punishment that doesn’t give a kid the chance to atone for a mistake made decades ago, with a growing mind.

I’m not even going to touch any socio-economic factors here.

Oh, Heritage Foundation, if you’re going to issue such a report, at least make sure you check your grammar before unleashing it on the world.

Like the previous case, the defendant in this case relies heavily on Roper v. Simmons. The defendant argued that juvenile possess characteristics different from adults that make the application of a mandatory-minimum sentence unconstitutional. The defendant did not argue that juveniles cannot be sentenced to 30, 40 or even 50 years in prison, but that a sentencing scheme that deprives a judge the ability to take into consideration the mental development of a teen and sentence less than 25 years is cruel and unusual punishment.

Once again, the court relies on a tested phrase to justify its decision: death is different. Roper spoke only to death, not to any other punishment and thus is inapplicable.

This, in my opinion, is too literal a reading of Roper. While Roper may have dealt only with the death penalty, the studies cited in Roper should have some applicability in the general field of juvenile punishment.

The argument in support of the defendant’s claim is this:

[N]ew technologies have revealed significant differences between the adolescent brain and the adult brain, including differences in psychosocial functioning. [A]dolescents are more readily influenced by their peers and have different attitudes toward risk and risk taking, with less orientation toward the future than adults. [T]he defendant was a typical  teenager who still exhibited methods of thinking characteristic of an adolescent. [A]lthough the legal system considers a defendant’s actions in light of what a reasonable person would do under the circumstances, an adolescent’s actions should be measured against what a reasonable adolescent would do under the circumstances.

If an adolescent cannot fully comprehend the actions he has taken, if he is prone to growth and further understanding of his actions and development of his moral compass, then a mandatory-minimum sentence of 25 years, to be imposed in every single case, regardless of what the individual circumstances are, can start to seem cruel and unusual.

By mandating that a juvenile automatically be sentenced to 25 years, we are snuffing out any chance at rehabilitation; any glimmer of hope that the adolescent mind grows and learns and can become a contributing member of society is snuffed. Much like the life that the juvenile took away, his life will also be wasted.

There is a significant difference between an adolescent spending 10 years in jail and being released at 25 and spending 25 years in jail and being released at 40. What is he to do at 40, having spent half his teenage years, his entire 20s and 30s in prison? Will he have any tools or skills to succeed in life? Will he know anything of life?

Some cases might definitely warrant long sentences of juvenile offenders. But certainly not all, and that is what this statute does. It does not discern between the still forming adolescent mind that has a chance to fully develop a sense of right and wrong and one that has and makes a decision cognizant of the consequences.

So yes, there’s this ACLU study that I mentioned two weeks ago, basically confirming what anyone with two eyes and half a brain and a somewhat peripheral involvement with either the criminal justice system, local politics or the news could tell you: minority kids are arrested at a far higher rate than white kids in Hartford schools. And not just Hartford schools, but West Hartford and East Hartford.

It’s true. How do I know it’s true? Because my clients today were these kids yesterday. Clients who are beat up in the local media as having “long criminal records” and “juvenile records”. Well, yes, yes they do. Because, as per this ACLU study, minority kids are more likely to be arrested for the same offenses than white kids. And round and round we go.

Here are some results for those who are interested:

In West Hartford and East Hartford, students of color are arrested at school at a rate far out of proportion to their numbers. In 2006-07, for example, African American and Hispanic students together accounted for 69 percent of East Hartford’s student population, but experienced 85 percent of its school-based arrests. Likewise, the same year, in West Hartford, African American and Hispanic students accounted for 24 percent of the population, but experienced 63 percent of arrests.

In West Hartford and East Hartford, students of color committing certain common disciplinary infractions are more likely to be arrested than are white students committing the very same offenses. For example, over the two years for which data are available, African American students involved in physical altercations at school in West Hartford were about twice as likely to be arrested as similarly situated white students. And during the  same time period, in East Hartford, both African American and Hispanic students involved in disciplinary incidents involving drugs, alcohol, or tobacco were ten times more likely to be arrested than were similarly situated white students.

In all three school districts, very young students are being arrested at school. For example, in Hartford, during the two years for which data are available, 86 primary-grade students experienced school-based arrest. A majority of these were seventh or eighth graders, but 25 were in grades four through six, and 13 were in grade three or below.

WHForums sums up the Board of Ed’s reaction thusly:

The ACLU says:  The numbers demonstrate that children of different races and ethnicities are treated differently. (Implicit:  Institutional racism.  Look in the mirror).

WHPS says:  Oh, that’s a problem if it’s true.  Good thing we know it’s not true.  (We will not look in the mirror, but thanks).

So what now? It seems as though the country has moved very quickly toward criminalizing everything and getting the police involved at the slightest provocation. Back when I was a kid (a long, long time ago), you’d get into fights with other kids, your parents would get called, they’d kick your rear and then you’d make up with the other kid. Police involvement was out of the question. Now, for fear of lawsuits or whatever, the cops are summoned at the drop of a hat. The first and foremost step should be:

Whenever possible, SROs should impose lesser sanctions, such as ticketing, rather than arresting students.

SROs must arrest students only as a last resort – only where arrest is absolutely necessary
to protect school safety or for the initiation of juvenile justice proceedings.

And most importantly, we a society and as a government have to admit this. Admit that we are arresting minorities at a greater rate; admit that we are doing this under the guise of “public safety”, but in reality it is profiling. Only when we admit it can, we then take substantive steps to correct it and a lot of the underlying criminal justice problems. As long as we keep up our current rate of incarceration of minorities under the pretense of “tough on crime”, we will continue to have studies like this, that will slap us in the face.

We have to take greater responsibility, as a community, for those that live amongst us. We have to truly understand the underlying socio-economic factors before we can even begin to tackle the greater problems.

So stop lying to us. We know it’s true. You know it’s true. You know we know it’s true. So stop. It doesn’t help anyone, least of all the children that have an introduction to the criminal justice system, a taste of what their life is going to be like, at a very tender age. We don’t need it.

It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.

They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved. He even describes with some detail a car he saw driving away from the house.

Obviously, this is not the part of the video where he “confesses”. Just listen to the voice of the 8 year old boy. It’s disgusting that they’re doing this.

I am quite curious about the prosecutor’s motive in releasing this truncated video. Any thoughts on that? It seems like a PR ploy, but I can’t quite figure out their angle. Are they bowing to media pressure? Are they trying to show the public that this was a conniving young boy? Portray him as a liar?

Whatever their motives may be, the bottom line is that the police should not have interrogated him for hours without the presence of an adult.

Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.

I would be rather surprised if a judge admits this confession at a trial – and if by some miracle it is admitted – I would be even more shocked if an appellate court permitted the conviction to stand.

A shame, really, that this kind of shit still goes on.

An AP report with some clips of the video is below; the full raw feed is at this link.

[youtube]http://www.youtube.com/watch?v=OuZ0AkqSILM[/youtube]

The defendant, in making his argument, relied heavily on Roper v. Simmons:

The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility, necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders.

The Court, however, reads Roper as narrowly as it was written: for death cases only. But the court doesn’t dismiss the claim outright – in fact, it seems as though the judges on the panel may agree that LWOP is not appropriate for juvenile defendants.

They cite, favorably, all the studies cited in Roper about the development of the juvenile mind and disfavorably compares the rates of juvenile incarceration in the US to that of other countries:

We recognize that the overwhelming majority of countries around the world do not permit the imposition of a mandatory life sentence on a person under the age of eighteen; see Amnesty International, Human  Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States (2005) p. 106 available at http://www.amnestyusa.org/countries/usa/clwop/report.pdf (only fourteen countries permit life sentences for juveniles, either with or without possibility of release); and that the Supreme Court indicated in Roper that international practices are relevant to this constitutional question. Roper v. Simmons, supra, 543 U.S. 578. Moreover, we agree that the large number of juveniles serving life sentences in the United States as compared to those few other countries that permit such a sentence raises deeply troubling questions. See Amnesty International, supra, pp. 1, 106 (estimating that there are 2225 juveniles serving life sentences in United States, but only twelve in rest of world).

However, Justice Katz follows several other state and federal courts that have dealt with this question in deciding that this is an issue left to the legislature:

The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The eighth amendment affords heightened significance to the ‘‘diminished culpability’’ of juveniles, but the reasoning of Roper does not extend to the present case. Accordingly, in the absence of a constitutional prohibition against the imposition of a life sentence without the possibility of release, the wisdom of this sentencing scheme remains with the legislature.

As advances are made in the study of brain functioning of adolescents [see, for example, this amicus brief in Roper], challenges such as these will continue to grow. Hopefully the legislature can cut this off by carefully and honestly considering the continued viability of LWOP for juvenile offenders. After all, they are the ones with the most hope of rehabilitation.

But what is the age at which one says, no, no child of these many years can or should be prosecuted at all? Arizona, apparently, sets the bar at 8. Because police in AZ just arrested an 8 year old and charged him with the murder of his father and a friend of the father.

Eight. The boy is eight. He probably knows what has happened, but has no idea why or what the consequences are. Can children of eight form the necessary intent to commit a crime?

But that’s not all from this story. There doesn’t seem to be a requirement of having a parent present during an interrogation, because the cops got a confession. From an eight year old boy. Eight.

police got a confession, but the boy’s attorney, Benjamin Brewer, said police overreached in questioning the boy without representation from a parent or attorney and did not advise him of his rights.

“They became very accusing early on in the interview,” Brewer said. “Two officers with guns at their side, it’s very scary for anybody, for sure an 8-year-old kid.”

False confessions are sought and obtained with adults – I can only imagine how easy it must have been to get a confession from a highly suggestible eight year old child.

The last thing we need is to start putting eight year olds in prison. There has to be a resolution that does not involve prosecution.

The death of the father and father’s friend is certainly a sad event, but it does not need to compounded by prosecution an eight year old who likely has no clue why what he did was wrong, regardless of whether he meant it or not.

Do the right thing, Arizona. Don’t compound one tragedy with another.

On a side note, what’s the byline from this story? Guns don’t kill people, children kill people?

In the end, it looks like the system worked. A jury returned not guilty verdicts yesterday on all counts. Wells-Jordan was charged with being an accessory to assault, robbery in the first degree and conspiracy to commit robbery. The victim, Herbert Fields, was shot dead during this robbery by another man, who plead guilty to murder.

The recantation and coercion:

But when Johnson [the co-d] testified during the Wells-Jordan trial, he recanted his police statement. Michael Holmes, who police believed was the third person involved in the robbery but was not charged, also contradicted his taped statement.

Wells-Jordan did not testify on his own behalf, but his aunt and legal guardian, Julia Sykes, testified she and her nephew underwent lengthy, high-pressure interrogations in September 2006 and two months later, the day he was arrested.

Skyes, Johnson and Holmes said [now retired, but still embroiled in scandal police officer] Willoughby told the three teenagers a lie in an effort to get them to confess: that their handprints were on Fields’ car. That handprint really belonged to [someone else].

There were two interviews between Wells-Jordan, his aunt and the police, the latter resulting in the false confession. The circumstances surrounding the confessions involved the usual “we know what’s best for you, so if you tell us you did it, you won’t be a defendant” spiel.

The expert:

Dr. Solomon Fulero, the defense expert, testified about – among other things – the Reid Nine Step [Liar, Liar: Norm].

Fulero said police across America, including in New Haven, regularly use psychological techniques to elicit confessions by suspects, true and false.

“The goal is to get somebody to the place where (they believe that) for them to say they did something is better for them than to say they didn’t,” Fulero testified, “even if they didn’t do it.” Fulero said police use “the evidence ploy” in which a suspect is falsely told of evidence against him. “This makes the person think his situation is hopeless and denials will be useless.”

Fulero also said studies show juveniles are more vulnerable to giving false confessions.

The almost-fight:

When Johnson came to Superior Court last Thursday as a prosecution witness, he and Assistant State’s Attorney James Clark became embroiled in increasingly tense question-and-answer exchanges.

After Johnson turned to Judge Bruce Thompson and muttered he couldn’t take much more of Clark and added, “I’m about to hit him,” Clark quickly took several steps toward Johnson and said, “Go ahead, I’m here.”

Thompson immediately asked jurors to leave the room. When they returned, Johnson’s testimony resumed without Thompson saying anything to the jury about what had occurred.

Defense attorney Diane Polan asked for a mistrial, but the judge declined, instead issuing a curative instruction.

The embattled cop:

Former police Detective Clarence Willoughby’s alleged aggressive interrogation techniques were described in Superior Court testimony Tuesday, but he again won the right not to be forced to testify in the trial of Kwame Wells-Jordan.

[Judge] Thompson had previously ruled Willoughby is entitled to use Fifth Amendment protection, but Polan wanted jurors to at least see him exercise that right. The judge agreed with Willoughby’s lead attorney, Norman A. Pattis, that Willoughby’s testimony could jeopardize his own legal case. He is charged with forgery, larceny and making a false statement after allegedly stealing from a fund for confidential informants. He has pleaded not guilty.

The judge sided with Willoughby.

In the end, Attorney Polan’s argument was simple: She told jurors in her closing argument that police didn’t bother to “connect the dots” leading to the real perpetrators because they already had the teenagers’ statements. This is now becoming a familiar refrain, with New Haven Public Defender Tom Ullmann’s charge a few weeks ago.

I bet Law and Order couldn’t come up with a storyline this good.

Anyway, on to the good stuff – and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am – State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am – State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day – State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor – killing in an especially depraved, heinous, cruel manner – had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.