a public defender

In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

1. The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
2. The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
3. The rules for exemption from registration are putrid and hollow.
4. The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
5. The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
6. The retroactive application of the registration requirements, which are already being successfully challenged.
7. The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:

There was an odd confluence of events in Hartford Superior Court yesterday: an expert witness testified in the trial of police officer Robert Lawlor, who is accused of fatally shooting a suspect, while at the same time Dwayne Powell was in court for his second appearance in the shooting of a Hartford police officer.

And when the odd confluence combines with the full moon (did you look at the moon today? absolutely gorgeous), we get knee-jerk behavior. This time, the knee jerk behavior is calls for mandatory-minimum sentences for assault on an officer:

“We want the community to know that any comments and or actions that advocate the assaulting or the killing of a police officer should not and cannot be tolerated by the very society we serve,” [Officer Richard Rodriguez, president of the Hartford police union] said. An assault on a police officer is an attack on “the very fabric that holds society from falling into chaos,” Rodriguez said.

Robles and two other state legislators who attended Monday’s rally said they’d propose and work to pass legislation enhancing the penalties for those who assault police officers. The legislative session opens in February.

“Being assaulted is not, I repeat not, part of this job,” Rodriguez said, adding that police officers would like to see a minimum mandatory prison sentence for those who assault police officers.

Now, before you jump on my back and call me a commie sympathizer let me assure you that I do not condone violence, whether it be against a police officer or any other “normal” person. If I had my way, we’d all wear tie dye and listen to the Dead all day long. I think a majority of police officers are good, conscientious people trying their best to keep order in our hectic cities.

But let’s not get carried away either. [A look at an absurdity in the statute and more after the jump]

[Alternate post titles: So long and thanks for all the blog fodder; This just in: The Law now has a weak pulse]

So, it’s probably unnatural and unhealthy to be so giddy upon learning that Gov. Rell has decided not to seek re-election, but as most of you know, I can’t stand the woman. And that’s putting it mildly. I let out an audible yell yesterday when Ann Nyberg tweeted that she wasn’t going to run. My colleagues looked at me, much like they always do, like I had three heads. So maybe my disdain of the American Idol Governor knows no bounds.

But there’s good reason. After all, she has singlehandedly done so much to create such a disregard for the law and the rule of law, that sometimes I wonder who is worse: the law-breaking “criminals” she sought to protect our white community from or the law-ignoring bureaucrat.

She was the most dangerous of the “tough on crime” pols: sweet, nurturing, grandmotherly. She would lull everyone into sleep with her gentle affect and then decree the most outrageous acts of lawlessness this State has seen this decade.

First, there was Cheshire. Oh boy was there Cheshire. The brutal crimes in a white suburban neighborhood served not only to rouse the Governor from her mid-term siesta, but also had the side-effect of completely blinding her to common sense, and well, the rule of law. So the first thing she decided to do (well, sort of) was ban parole. That lasted for 4 months and resulted in severe overcrowding and a tremendous burden on state resources. That’s when Colin McEnroe coined the moniker “The American Idol Governor“. I still can’t get enough of that. She then proposed some truly scary and not very well thought out “reforms” of the criminal justice system, some of which unfortunately made it into law. Then she wanted CT to have a three-strikes law, in the face of all scientific research on its uselessness. Then came the unhinging, aka, “The David Pollitt Project“. I’m not even going to touch that. And finally, the veto of the death penalty abolition bill.

I write all of this, not to disparage her, but to remind myself and you  – voters all – of the absolute effing nonsense we’ve had to put up with these past few years. Will any of the people who’ve announced they’re running for Governor be any better? They almost have to, don’t they, because it can’t get much worse than this.

So while I wish her well in her personal life and hope that her health remains strong, I will not be sad to see her become former Governor Rell. I’m not sure there was a person less equipped to take on that job.

And now, on to the big question. What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.

After an excruciatingly long 11-hour debate that was peppered with vacuousness, cherry-picking and childhood stories, the CT Senate finally got around to voting on whether the State should abolish the death penalty. This historic vote ended in favor of abolition, but just barely. A 19-17 vote in the wee hours of the morning sends the abolition bill to the Governor’s desk. 6 Democrats [5 really, unless you absolutely want to count Joan Hartley of Waterbury] broke ranks to vote against the bill, but the majority got the one vote they needed from a Republican Senator, who voted for the bill.

Just last week, in a more convincing fashion, the State House of Representatives voted to abolish the death penalty as well. It is now up to one superficially loveable woman to decide whether our State will continue to impose this most barbaric of punishments. Almost anyone who pays any attention in CT agrees that the Governor will most likely veto this bill, having stated her preference for the death penalty ad nauseum over the last few weeks.

But those same people may forget that this isn’t just any Governor we’re talking about. This is the American Idol Governor, who seems to make her decisions based on opinion polls and votes. Well, there couldn’t have been a bigger vote than this. Connecticut’s elected members of the legislature voted a combined 107-73 in favor of abolishing the death penalty. Now she has a much tougher decision than anyone, perhaps including her, imagines. Don’t worry, I’ll help her make that decision in an upcoming post.

There must be something about this date. May 13 is now host to two significant death penalty events in Connecticut. On May 13, 2005, the State executed Michael Ross, after about a year of wrangling on his part to make it happen. Today, the CT House of Representatives voted 90-56 in favor of a bill abolishing the death penalty.

The debate on the floor of the House spanned 5 hours and had you been watching you would have seen and heard a cornucopia of arguments. Representatives stood up one after another and offered arguments either for or against the bill that ranged from the passionate to the disingenuous to the downright bizarre.

At the end of it, however, only one thing was certain: the great engine that is the abolition movement just turned over and inched slightly forward. The Constitution State is one step closer to making New Hampshire the only state in the expanded Northeast to still have the death penalty.

Of course, there are two obstacles to actual abolition forthcoming: a vote in the State Senate and then the Governor’s desk. My sources haven’t yet given me a sense of whether there are enough votes in the Senate for passage of this bill, but the Governor has already made her feelings known:

“I have always said that I support the death penalty because I do believe that there are some crimes that are so heinous that the death penalty is the only option,” Rell told reporters at the state Capitol complex. “I believe in the death penalty.

Rell dismissed arguments made by opponents.

“I don’t consider it revenge,” Rell said. “It’s justice.”

Of course, her position is likely to change if a QU/UConn poll is released shortly that shows the state’s residents favor abolition (credit for the joke goes to Ryan).

I guess I should mention that the bill is prospective only, but that makes me seem like a wet blanket.

As I mentioned in my last post on bills that died, there was mix of good and bad among the bills that passed through the judiciary committee and have a chance of making it into our statute books. Leave it to me, your trusty intrepid CT legal reporter, to tell you which bills are good and bad.

Bills I’d like to see pass:

• An act concerning disease prevention in the correctional system
• An act concerning Larceny (increases the monetary thresholds for larcenies)
• The prospective death penalty abolition bill
• An act changing the distance from schools/public housing projects, etc within which drugs sellers are subject to additional penalties. The change is from 1500 feet to 200 feet!
• An act requiring the Risk Assessment Board to determine what, if any, provisions of the AWA to adopt and to determine a risk assessment procedure.
• An act establishing a permanent sentencing commission.
• An act making the possession of 1 oz or less of marijuana an infraction.
• An act eliminating the requirement that defendants need a prosecutor’s permission before seeking a sentence modification.
• An act concerning the attorney occupational tax (exemption state employees from paying the tax)

Bills that really shouldn’t pass:

• An act increasing the penalty for engaging an officer in pursuit
• An act making the failure to report a crime an A misdemeanor punishable by 1 year in prison.
• An act extending collection of DNA to people convicted of misdemeanors.

I think that’s it! Did I miss anything? Did I miss your favorite bill? Let me know in the comments.

It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

Alternate title: CT legislature considers bill seceding from these United States of America.

State Republican Senator Dan Debicella apparently hasn’t heard of the Federal constitution, or doesn’t care that it exists. That can be the only logical explanation for his sponsorship of this bill, which effectively overrules Kennedy v. Louisiana.

The proposed bill would make a sexual assault, under section 53a-70, 53a-70a or 53a-71 of the general statutes, of a child under thirteen years punishable by death.

Now, for those of you with extremely short memories *cough*Debicella*cough*, Kennedy held that:

One of the more disturbing provisions being considered by the Lege in adopting the Adam Walsh Act here in Connecticut (and this provisions mirrors one in the actual AWA, I’m told) requires…well read it for yourself:

(d) Any person who is a registered sexual offender under the laws of any other state who enters this state and fails to notify the Commissioner of Public Safety in writing not less than forty-eight hours prior to entering the state of the information required under this section or falsely reports such information shall be guilty of a class D felony.

Oh yes. There is nothing missing from that sentence. If you were looking (and correctly so) for a qualifying clause in that language that required an individual to establish a residence here before being subject to “registration” you didn’t find it because it’s not there. It’s in the proposed subsection (c).

Subsection (d), that I just quoted above, mandates that anyone entering the State, for whatever reason, notify Public Safety 48 hours in advance. This is so silly it’s scary. There are no exceptions for emergencies or unplanned trips or anything. At all.

So if you’re required to register in CA, and are driving through from Yankee Stadium to Fenway Park to see the Yankees sweep the Red Sox and you take I-95 or the Merritt or I-91 or I-84 (all of which pass through Connecticut), you have to call public safety.

If you’re travelling only in NY and the highway you’re on has been shut down due to a nuclear spill and mutants are running wild and you have to divert through CT briefly to avoid becoming a mutant yourself, you have just committed a felony.

In fact, an argument can be made that if you’re flying from NY to CA and the plane makes an emergency landing at Bradley international airport in Windsor Locks, you have just committed a felony.

The rationale, as I understand it, is that the previous “undue delay” requirement wasn’t enough

I only just realized that there’s a bill currently in the legislature implementing the Adam Walsh Act. Folks, this is some nasty, scary shit. For the first time in my life, I think I might be moved enough to call my legislator to oppose this. I will have plenty of posts on the AWA in the coming days, but for now, here’s the bill.

but the Judiciary Committee is in full swing again and is considering several important bills again. Here’s a listing of the bills up for public hearing today, with some links to submitted testimony. I’ll have more on specific bills as they progress.

S.B. No. 348 (COMM) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS. (JUD)

S.B. No. 349 (COMM) AN ACT CONCERNING THE PENALTY FOR POSSESSION OF A SMALL AMOUNT OF MARIJUANA. (JUD)

S.B. No. 357 (COMM) AN ACT CONCERNING EYEWITNESS IDENTIFICATION. (JUD)

S.B. No. 537 (COMM) AN ACT PROVIDING COMMUNITY REINTEGRATION SERVICES TO END-OF-SENTENCE INMATES. (JUD)

S.B. No. 543 (COMM) AN ACT CONCERNING SENTENCE REVIEW Modifications. (JUD)

Now, now, rest your beating heart. I don’t really oppose abolition of the death penalty (don’t be silly). It is merely this abomination of a bill that I oppose. This bill was scheduled for a public hearing today, but given the gruesome weather we had, the hearing has been postponed to Wednesday.

The bill calls for prospective abolition of the death penalty. It is precisely this hackneyed idea that I cannot in good conscience support. Here is the pertinent new subsection of the bill:

Sec. 5. Subsection (a) of section 53a-46a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) A person shall be subjected to the penalty of death for a capital felony committed prior to the effective date of this section only if a hearing is held in accordance with the provisions of this section.

That’s one of the most absurd pieces of legislation that I have seen in a bit. There are currently 10 (11?) members of CT’s death row and there are many, many more “capital” prosecutions currently pending in the State of CT. None of those would fall under this new bill and all of those defendants would still be subject to the death penalty.

Ever since the Governor announced her proposed budget earlier this week, the cost-cutting proposals have received a lot of scrutiny both in the press and on the web. So it is only in this troublesome climate that eliminating a measure that would reduce incarceration costs can be considered a cost-saving measure.

One of the things she mentioned in her speech was that, in order to save money, 130 “obsolete” laws would be repealed. An interesting idea, to be sure, until you look at one of the statutes on that list. That would be Conn. Gen. Stat. 54-125d. If you’re too lazy to click on the link, I’ll tell you what it is: the deportation parole statute.

Folks, don’t ever again say I don’t call things. I called this.

Finally, it seems that legislators might be getting “smart” on drugs and drug crimes. And no, the impetus isn’t a wake up call on the inherent unfairness of the drug crimes and the racially disproportionate impact they have. It’s the economy, stupid.

Sen. Toni Harp, chairwoman of the powerful appropriations committee, and Senate Majority Leader Martin Looney hope economics will succeed where other arguments have failed in convincing their colleagues that the costs of prosecuting and punishing pot smokers is an expense Connecticut can no longer afford.

“We’ve got to take a strong look at what we want to pay for as a state,” said Harp, D- New Haven, who with Looney is co-sponsoring a bill that would punish low-level marijuana users with a fine, not a criminal charge.

“To waste our resources on this small problem is not a good use of the people’s money.”

Now, they’re not going as far as I would go, so simmer down (and you know who you are). The proposed bill would decriminalize possession of less than one ounce of marijuana – essentially what Massachussetts did this past November. People found using that small an amount would be fined: akin to a parking ticket.