Category Archives: prosecutors

Supreme Court hates disabled people and eats children for lunch. Probably.

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[Update 3: See follow-up post here.]

[Update 2: see the end of the post for the TL;DR version.]

That’s the general feeling you’d come away with if you’d read any of the media coverage of State v. Fourtin [PDF], a recent decision in which the court reversed the conviction of Fourtin for allegedly sexually abusing a woman with cerebral palsy1[yes, there's no denying that what Fourtin did is skeevy as hell].

Never one for actually reading the damn opinions in detail, much less understanding what they mean, the press has unequivocally taken to proclaiming [we made ThinkProgress and HuffPo!] that the court has ruled that the victim must prove that she physically resisted to prove lack of consent. Just look at the headlines: “Court Requires Disabled Rape Victim To Prove She Resisted, Calls For Evidence Of ‘Biting, Kicking, Scratching’2” and “Richard Fourtin Case: Connecticut Court Sets Accused Rapist Free, Says Handicapped Victim Did Not Resist”. [Hello, search engine optimization keywords!]

Well, putting aside that whole burden of proof thing being on the State, the short answer is yes and no. The court didn’t rule that victims in general must physically resist in order for there to be lack of consent. This is not some regression back to 1950s misogynist court decisions. To imply this is idiotic and an intentional lie.

But what the court did say is that under the statute that the prosecutor decided to charge Fourtin with violating, yes, if in fact the victim was capable of physically making her lack of consent known, then a person cannot be found guilty. A more accurate headline would be “Court Requires Prosecutor To Prove That Victim Is Physically Unable to Communicate Unwillingness to Consent Because That’s What The Prosecutor Alleged A Man Did’. If you’ve got more than a 2nd grade reading comprehension level, you will already have noticed that that’s not the same as “victim must prove resistance otherwise can be raped”.

So let’s break this down. Here’s the relevant statute that the prosecutor chose to prosecute:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless;

So what does physically helpless mean? Let’s go to another statute! Continue reading →

Death on death’s doorstep

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[You should've seen the alternate title I had lined up for this post: Death's Final Countdown.]

In the early morning hours of April 11, 2012, the people of Connecticut, through their elected legislature, decided that they would no longer permit their own to be put to death with the imprimatur of official state action. For those like me, who are abolitionists, it was only half a victory: the measure was prospective only. So while we rejoiced, we did so with caution and measure, because there were still 11 men who could be executed by the State and at least two more who could legally join them on death row.

Even before the ink that formed the Governor’s signature on the “repeal” bill was dry, chatter was building that there would soon be a push to make the repeal retrospective as well. Despite the clear language that this piece of legislation applied only to future crimes, many were skeptical that such a measure could pass constitutional muster. After all, what is more “arbitrary and capricious” than deciding who lives and dies based on a date?

Soon, we will find out if those skeptics were indeed correct. The Connecticut Supreme Court has granted a motion for reconsideration in the death penalty appeal of Eduardo Santiago (who was one of the 11 on death row, but whose death sentence the Supreme Court reversed [PDF] on other grounds in June). Instead of going straight to another penalty phase hearing, Santiago’s lawyer asked the Supreme Court to rule whether the death penalty is even a legal option in his case, given the repeal. The Supreme Court agreed to do so.

There’s also a similar motion pending in the case of Richard Rozkowski, who’s currently awaiting another penalty phase hearing. I wouldn’t be surprised if that were joined with the Santiago appeal at some point.

Meanwhile, the trial of the death penalty on charges of racial and geographic bias continues undeterred this week, despite the abomination that is McCleskey. Professor John C. Donohue’s study here in CT isn’t the only one to find great bias in the application of the death penalty. See this recent paper on a study of one county in California.

Frankly, the conclusion that the death penalty needs to be taken off life support is inescapable to me when viewed the prism of stories like that of Terrance Williams, where 5 jurors signed a letter stating that they were unaware that the alternative to death was life without the possibility of release; or that of Robert Wayne Holsey, whose lead attorney confessed that he drank a quart of vodka every day during the trial, and yet the 11th Circuit upheld [PDF] the death sentence, because nothing would’ve made a difference.

Will it be taken off life support? Or will it be allowed to live, weakened, cowering in a corner, yet poisonous and infecting us all? We’ll find out soon enough.

A quart a day keeps effectiveness at bay.

 

 

Think of the children

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The classic strawman, the underlying justification for any legislation appearing to be tough on crime, the go-to argument for riling up mobs in your favor is to implore people to, please, think of the children.

The “children” at issue are not just any children: they’re your children and mine, those sweet innocent babes who just want to eat ice cream and roll in the mud and take cute pictures with the family dog. Those naive children whom we must protect at all costs from the dangerous monsters that lurk around the corner and wait in shadows. Unless, of course, these children commit crimes themselves, in which case we do think of them: we think of them as juveniles. One day, they’re the future of the nation, the next they’re shackled in the back of a prison van, drenched in their newly acquired status as irredeemable delinquents, the scourge of society.

Juveniles have long been the forgotten sector of the criminal justice system. Practicing in juvenile court is barely a step above practicing in family court. Representing them is akin to being a social worker and no self-respecting defense lawyer voluntarily wants to go into juvenile court and looks down on those who do. Until now. After the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, the plight of juvenile defendants is finally seeing the light of day and taking center stage in a long-overdue discussion about just what, exactly, we are doing to our children. These two cases are notable not only for their respective holdings, but also for mainstreaming the scientific consensus on the development of the adolescent brain.

They’ve caused us to re-examine our treatment of these damaged, troubled 14, 15, 16 and 17 year olds and have shone a spotlight on the ugly legislation we have in our states that mistreats these children. Continue reading →

The new criminal justice experts: the public

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The criminal justice system is made up of several, mostly unequal parts. At the top of the food chain sit the prosecutors, lording over all that they survey, with supreme control over the futures of thousands of individuals. Then come the judges, who are increasingly former prosecutors who echo the demands of the current prosecutors. Lagging behind – a long way behind – are criminal defense attorneys, whose roles have been sidelined to bleating and begging for a break here and a break there. We, the CDLs, are fast becoming used car salesmen. The defendant is somewhere there, in the mix, usually an unseen and amorphous blip on the radar on the horizon, hardly ever a thought in the negotiating process.

But there are two others who, from behind the scenes, feed into and subconsciously manipulate a once well-regarded (even if only by those who were a part of and beholden to it) justice system: the ill-informed general public and the media who control their puppet strings by refusing to provide any measure of nuance and education in their sensationalist stories about every case that happens to cross the docket (my previous media diatribe here).

(Former) Judge Nancy Gertner, writing for WBUR, makes a compelling argument that the media irresponsibility is much to blame for the current state of affairs in the justice system:

A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We’ve all seen it: there is almost a formulaic nature to the reporting of criminal cases in the “news”: a massive headline when someone is arrested for a crime with information taken mainly from the arrest warrants, with little to no mention of the range of sentences or a critical view of the facts as presented by police.

[This, on the other hand, sets up an interesting conflict: people seem increasingly suspicious of police activity as a whole and are cognizant of the creeping police state in general, yet blindly buy and accept whatever accusations are reported in individual, specific cases. I'm sure there's a term for it, I just can't seem to remember it.] Continue reading →

State has no guidelines or policies for seeking death

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The first day of the ‘racial and geographic disparity in the death penalty‘ trial ended pretty abruptly today, after the testimony of just the Chief State’s Attorney Kevin Kane. After being peppered with questions about his time as the supervisor of the New London State’s Attorney’s Office and his decisions to seek the death penalty in some cases and not in others, both sides apparently agreed to forgo questioning of all the other 13 chief prosecutors and some former ones in exchange for a stipulation.

While I’m not particularly clear on whether I’m in agreement over forgoing the questioning of the prosecutors and subjecting their decision making to scrutiny, the stipulation gained is a pretty damning one:

That from 1973 until today no written or oral guidelines or policies have been used by states attorneys or chief states attorneys to make decisions on an initial charge, whether to seek the death penalty or whether to reduce a charge.

There is no oversight by chief states attorney over decisions make by states attorneys on whether to seek the death penalty.

Each states attorney makes decisions on charging capital felony and seeking death based on criteria that is appropriate in their case.

Essentially, each judicial district is an island unto itself and each chief prosecutor makes the decision to seek the death penalty based on his or her own view of the aggravating and mitigating factors and his own personal opinion as to the seriousness of the case. While Attorney Kane, as I predicted yesterday, maintained that his decisions were based on the statute itself and factors contained therein, the bottom line remains inescapably that the decision to seek the death penalty is entirely arbitrary. Continue reading →

Racial disparity to finally take center stage

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Starting tomorrow, the geographically and racially arbitrary application of Connecticut’s death penalty will be put on trial in a makeshift courtroom in the state’s only maximum security prison, which, in a twist of unintended irony, is called Northern.

The disparity lawsuit, which I’ve written about for years now, will focus on whether the decision to seek the death penalty in Connecticut courts is influenced by race (duh) and geography (hello, Waterbury). Not surprisingly, this will be a battle of experts: John Donohue, hired by the Office of the Chief Public Defender and some other guy hired by the Office of the Chief State’s Attorney. Here‘s [PDF] the latest version of the study prepared by Donohue and read this prior post for a summary. The New York times created this nifty graphic summarizing the findings of the study:

The trial is also expected to feature the testimony of various State’s Attorneys from across the state as they try to explain their justifications for seeking death in one case as opposed to life in another. There will be mountains of obfuscation and chest-thumping and people will get their backs up, as they are wont to do when their decisions are questioned in the light of racial biases. There will be plenty of explanations provided for choosing one case over the other, perhaps an appeal to the specific emotional tugs of one case or the personal horror of another and lots of indignation and calls to the prosecutors’ sense of duty and justice. And that’s all well and good, but them facts are the facts and it seems that – intentional or otherwise – a systemic bias does exist in this state: you’re more likely to have the death penalty sought against you if your victim is a white female and certainly more so if the crime you commit happens to be within the geographic boundaries of the Judicial District of Waterbury.

No amount of hand-waving or imploring that these are “just good folks conscientiously applying the law” should be allowed to overshadow and hide the fact that the system punishes those whose ethnic status is anything other than “white”.

It is important to remember that a bias need not be explicit: that there need not be an explicit preference for one gender or one race over another. Rather, some biases are insidious and work subconsciously and those, after all, are the most dangerous biases of all.

What this trial is not about, however, is whether the death penalty repeal in Connecticut is to be applied retroactively. That was explicitly rejected by the judge as an additional claim in this lawsuit because goddammit it’s dragged on long enough already or something. Not like that’s probably the most important issue that our courts are going to have to address in the near future or anything. But judicial efficiency and all that.

That the death penalty is sought – and applied – in an arbitrary fashion should really come as no surprise to anyone following this area of jurisprudence with just a little bit of brain power, but will the law – which is always notoriously last in these situations – finally catch up? We’ll find out starting tomorrow.

Three’s a crowd

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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.