Category Archives: prosecutors

Prosecution by installment: the King Bruce theory

King Bruce of Scotland, you will recall, was a king driven into exile by those damn British. During the course of this, he was taking refuge in a cave, defeated, when he chanced upon a spider which was unable to spin a web, presumably having nothing to do with the fact that it was Scottish and hence drunk. So it tried and failed and tried and failed until it finally succeeded, which gave the Good King Bruce an epiphany that if you try enough times you will eventually succeed at what you want. He then promptly defeated the British and Scotland has been an independent country ever since but he doesn’t get nearly all the credit that Mel Gibson does presumably because he wasn’t wearing blue war paint.

I know what you were thinking. Pervert.

Just last week, the Connecticut Appellate Court issued an opinion [PDF] endorsing the ‘King Bruce’ theory of prosecutions: try as many times as you want. But in order to understand the opinion in State v. Brundage II, you have to start at the beginning with State v. Brundage I.

In the beginning, Brundage was a creep. Over a period of roughly 8 years, he allegedly sexually assaulted his then-girlfriend’s daughter. The girlfriend ended the relationship in 2003 and the girl finally reported the abuse in 2007.

He was charged by the prosecution with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury to a Minor. Out of all the possible crimes available to them, these are the two they chose to proceed on. Brundage, on cue, got convicted and was sentenced to a long time in jail.

Except he appealed, claiming that the criminal charges were actually barred by the statute of limitations. On appeal, the prosecution and the Appellate Court agreed that all charges for all incidents occurring prior to 2003 were barred and could not be prosecuted:

What if they gave a prosecution and the prosecution took its ball and went home?

lucy

From the ‘don’t-try-this-at-home-kids‘ department, a truly flabbergasting story out of Illinois of hubris, hissy-fits and the Double Jeopardy Clause.

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing.

No, that’s not hyperbole or “insider-talk”. They literally did nothing. From the Illinois Supreme Court opinion:

According to the report of proceedings, “the jurors were duly sworn by the clerk.” The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

“[The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.

T

HE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard?

[Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we’ll take a ten-minute break.”

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

“[Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they’ve indicated their intention not to present any evidence or witnesses. Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges.”

Here, let me help you with your jaw.

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I'd love to see them. Further, if you're a legislator, request updated statistics from OLR - specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.