Category Archives: psa

Grand juries, search warrants, revenge porn – oh, my, or: today at the legislature

For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills1. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.

The Investigative Subpoena One Person Grand Jury Reform Bill

S.B. No. 488 (RAISED) AN ACT CONCERNING GRAND JURY REFORM. (JUD)

A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.

And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.

The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.

What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitly removes a requirement of probable cause and replaces it with this interest of justice nonsense.

What’s worse is that there’s no limitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.

This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.

But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.

george-costanza-couch

The “revenge porn” bill

S.B. No. 489 (RAISED) AN ACT CONCERNING UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE OF ANOTHER PERSON. (JUD)

This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.

Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.

But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.

As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.

As Mark explains, the bills don’t seek to criminalize all pictures posted, only pictures posted that meet certain criteria: nudity, non-consensual.

That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos”2 were illegal.

But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized.3 What would a bill look like? CT’s proposal is:

(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.

I’m just going to list the problems with this in bullet format, because it’ll be easier:

  • The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?
  • “Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?
  • “The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.
  • This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?4

The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media

H.B. No. 5587 (RAISED) AN ACT CONCERNING SEARCH WARRANTS. (JUD)

It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.

As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.

So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.

Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.

If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?

Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.

Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.

Who’s to say they can’t read your emails and go on fishing expeditions to find other things that may be evidence of other crimes? Who’s to say they can read your emails and try to find crimes to fit what they see?

Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.

The Wiretapping/Eavesdropping Bills

S.B. No. 487 (RAISED) AN ACT CONCERNING THE RECORDING OF TELEPHONIC COMMUNICATIONS. (JUD)

This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:

(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;

One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.

H.B. No. 5585 (RAISED) AN ACT CONCERNING SURVEILLANCE OF CELL PHONE COMMUNICATION BY LAW ENFORCEMENT OFFICIALS. (JUD)

Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:

when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.

There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.

So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?

More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?

Now you know. Call your legislator.

—–

Mama said knock you out

ll-cool-j

What can be more frightening to the innocent man walking down a city street, minding his own business, when a bunch of thugs comes out of nowhere, and for no apparent reason, violently strikes that innocent man causing him physical injury?

Nothing, which is why there was widespread panic last year about the emergence of a new activity that further signaled the moral decay of America’s urban youth: the knockout game.

A game in which seemingly innocent people were randomly targeted to be punched in the head for no other reason than apparent boredom on the part of the hooligans.

And so it comes as no surprise that this viral act of violence that has put fear into the minds and hearts of innocent city working folk and has caused our urban areas to become veritable fields of random assaults has brought about a strict new legislative fix: by God we’ll fix ‘em.

The new bill, proposed by legislator and Police Officer Joe Verrengia of West Hartford, CT, would make a “knockout” punch a felony punishable by up to 5 years in jail1. The bill states (and I’ve reproduced the entire section because context is relevant):

(a) A person is guilty of assault in the second degree when:

(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

(2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or

(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or

(5) he is a parolee from a correctional institution and with intent to cause physical injury to an employee or member of the Board of Pardons and Paroles, he causes physical injury to such employee or member; or

(6) with intent to cause the loss of consciousness of another person, he causes such injury to such person by a single punch or kick or other singular striking motion.

As you can see from the entire statute reproduced above, (6) is redundant. We must, of course, concede that “loss of consciousness” is “serious physical injury”. Putting aside caselaw that states that a fist or shoe can indeed be a dangerous instrument (thus covering subsections 2 and/or 3), subsection (6) seeks to carve out a specific subset of subsection (1), i.e. causing of serious physical injury. Subsection (1) has no restrictions on the type of injury (loss of consciousness) or the manner in which it is caused (single punch or kick).

So, simply put, (6) is useless. But that’s not all. The bill would make a conviction of subsection (6) have a mandatory prison sentence of at least 2 years.

The persecution of justice (updated)

i-dont-want-to-live-farnsworth

One of the more important things I write about here at ‘a public defender’ is the notion that “Justice” is a complicated concept. It is not limited to what you are fed through your televisions and it is certainly not a government-centric idea.

Justice takes many obvious forms, such as the apprehension and conviction of a criminal. But limiting the definition of justice to something as simplistic as “good guys vs. bad guys” leaves you with a very narrow worldview and an over-inflated sense of morality.

Justice can mean that the right person was punished and that the punishment was just. Justice can mean standing up for unpopular causes, maybe sometimes precisely because they are unpopular.

The persecution of this nuanced meaning of justice, however, has never been more fervent than in this day of “speak by shouting at others” discourse and base politics that pander to ever-extreme hysterical idiots who have found a sure-fire method of whipping up political points and ire by removing any semblance of complexity from American politics and intellectual discussion.

I speak, of course, of the shameful defeat of the president’s nomination of Debo Adegbile to head the civil rights division at the Department of Justice. Joined by 7 democrats, Republicans torpedoed this highly qualified, lifelong public servant from running the civil rights division because a long time ago, he spent some part of his career working for the NAACP Legal Defense Fund, during which time he worked on a brief seeking to overturn the conviction of “noted cop-killer” Mumia Abu-Jamal.

Erroneous release for 13 years leads to reincarceration

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

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

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

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

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

Anderson, on the other hand, remained put:

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.

Fernandez v. California: remove the objector, won’t be no objection

What problem is?

What problem is?

I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF – pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948)1. The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).

In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied  premises is generally sufficient to justify a warrantless  search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule  ordinarily prohibiting the warrantless entry of a person’s  house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4)  (“[W]hen it comes to the Fourth Amendment, the home is  first among equals. At the Amendment’s ‘very core’ stands   ‘the right of a man to retreat into his own home and there  be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which  . . . the Fourth Amendment is directed.”

That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.

How do you solve a problem like jailhouse informants?

Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer,  but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.

Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.

But how does the science match up? Does it support any of these methods by convincing jurors to disregard the alleged confession?