a public defender

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A very faithful reader sent along this humorous decision from the Court of Appeals of Texas, Seventh District. It’s not from today, or yesterday, but a day almost 4 years ago. Yet, it is funny enough for me to pass along.

Here’s the excerpt from Lexis:

Assistance of court-appointed counsel was not rendered ineffective by the fact that counsel was on the indicting grand jury. Apart from bald assertion of conflict, defendant failed to show how attorney could have represented him more effectively.

As they say, only in Texas. At least it wasn’t a death case.

When do police officers have the power to carry a weapon, patrol the streets and make arrests, but yet cannot be questioned for their actions? When they’re University Police. Back in May, a 16-yr old boy was arrested for riding his bike on a sidewalk. He was then charged with breach of peace and briefly held in jail.

When his public defender sought disciplinary records for the officers making the arrest, she was told that the records were private and did not have to be disclosed.

While some elite liberal arts schools are nestled amid woods and cow pastures, Yale occupies the heart of a city racked by poverty and crime. Its police department was founded in 1894 when two New Haven cops, assigned to campus, resigned and became special constables for Yale. Today the department has 80sworn officers — roughly a fifth the size of New Haven’s. Its officers have a visible presence downtown and members of the bike patrol are frequently seen, it turns out, pedaling on city sidewalks.

As a private police force, Yale argues, it is exempt from open-records laws. In 1992, New Haven formally relinquished any oversight it may have had. Today, Yale hires, fires, promotes and disciplines its own officers and neither city nor state provides retirement benefits.

Despite that independence in hiring, Yale Police is almost identical to New Haven police in all other aspects. They drive similar cars, wear similar uniforms, have the power to make felony arrests all over the State, receive similar training, follow the same state regulations and even take the same oath.

Yet, they are private and their records are not subject to release. Similar challenges have occurred in other parts of the country, almost always resulting in no success:

The courts, so far, have taken a narrower view. In Georgia, Virginia and Massachusetts, attempts to gain access to campus crime records have failed, but legislatures in all three states have since introduced sunshine laws to bring more transparency.

By hiding behind the shield of student privacy, the schools are jeopardizing public safety, says S. Daniel Carter, vice president of Security on Campus, a national watchdog group. “Our concern lies with making sure communities are informed about crime and what’s being done to protect them,” he said.

This matter has been appealed to the FOI Commission. The mighty power of Yale is being tested.

“Falling on the sword”. This is a phrase you will hear often if you are a criminal defense lawyer. What it generally refers to is owning up to your mistakes during your representation of a client, at a later habeas corpus proceeding. In other words, take responsibility for any errors you made during trial - big or small.

Unfortunately, the only ones you ever hear use this phrase are the good ones; the ones that hardly make mistakes and if they do, they’re minor and don’t really affect the outcome of a trial. The hacks - the ones that routinely plead clients out without investigating, or give bad advice or are just plain clueless never use this phrase. Perhaps their guilty conscience pricks them.

Skelly seems to be one of the good guys. He writes here at length about the inner turmoil he experienced when called to testify at a former client’s federal habeas.

He wanted to help; he really did. The problem was he didn’t do what the client said he did and like any ethical lawyer, he couldn’t lie.

My former client’s federal petition claimed that back in 2002, prior to his guilty plea, I told him that he did have a particular plea bargain, and that I lied when I told the trial judge that he did not. I testified that I did not tell him that he had a plea bargain. I testified that once he and I rejected the state’s first offer, there was no other plea bargain. Offer, counter-offer, and second counter-offer, sure, but no acceptance from the state, no meeting of the minds, no deal. I testified today just I said in open court that day in 2002, at the moment when my old client’s words turned from “not guilty” to “guilty,” there was no plea bargain. His current counsel referred to that statement as my “perception.” I replied that the state appellate courts also had reached the same perception. And I had tried so to stay pleasant! When the insinuation was that I lied either to my client, to the state trial judge, or to both, well, maybe I bristled just a bit more than I intended to.

Scott points out an obvious mistake here - calling him a “liar”. That certainly is not the way to get a former attorney to help.  Scott also asks: why don’t habeas attorneys try to contact the trial attorney in advance? Talk to them?

It’s a darn good question. In all the habeas cases I’ve handled, I’ve made it a point to try and contact the trial attorney before filing the Amended Petition for Writ of Habeas Corpus, so as to weed out any frivolous claims (or claims that there is just no support for). Unfortunately, not all attorneys do that and on the flip side, not all trial counsel are willing to co-operate. There are some that just won’t return phone calls. Why they don’t get that if they do return the phone calls, there’s a good chance the habeas will go away, I don’t understand.

Anyway, habeas is an extremely uphill battle and in only the right circumstances - in the rarest of rare cases - does a petition get granted. It isn’t the State that the defendant is battling, it is the standard. Strickland sets the standard so high, that in most ineffective cases, it is almost impossible to meet, unless the error is so blatant and glaring that even a judge cannot ignore.

But in those cases, don’t count on help from counsel. They don’t know what “falling on the sword” means.

Intriguing news out of SCOTUS today. The IAC during plea bargaining case, Arave v. Hoffman, reported with much fanfare here, may not go forward after all. Per Scotusblog (via SL&P), attorneys for both sides have asked the Justices to vacate the Ninth Circuit opinion and dismiss the case as moot. Defendant’s motion is here [pdf] and the State’s response is here [pdf]. It really is curious. It seems that the defendant wants the relief imposed by the federal habeas court: vacate the death sentence and impose life.

Hoffman was convicted of first degree murder in 1993 and sentenced to death in an Idaho court. Almost a decade later, a federal habeas court vacated the death sentence for ineffective assistance of counsel during the penalty phase of the trial. The habeas court rejected a separate ineffective assistance claim relating to pre-trial negotiations, when Hoffman’s attorney advised him not to accept the state’s offer of a life sentence on the mistaken theory that Idaho’s death penalty scheme would later be found unconstitutional. A Ninth Circuit panel reversed on the pre-trial claim in mid-2006, requiring the state to release Hoffman unless officials offered him the original plea bargain. Idaho appealed, and the Court granted certiorari on November 5.

In the motion to vacate and dismiss, Hoffman’s lawyers say the inmate wished to withdraw the pre-trial ineffective assistance claim in order to proceed with the resentencing originally ordered by the federal habeas court for the penalty phase ineffective assistance claim. According to the motion, a status conference is set for December 13 before an Idaho state judge. Joan Fisher of the Federal Public Defender’s office in Idaho wrote that Hoffman made his decision “[a]fter extensive consultations with counsel,” and that his “trial and habeas counsel fully concur with his decision.”

I wonder what made him decide to do this. It’s not like the State was arguing that the death penalty should be re-imposed. Anyone have any ideas?

It’s disappointing that this may not be heard. The issue was truly interesting and I would have liked to see what today’s justices had to say about it.

The big news of the weekend thus far, for me at least, has been the announcement by the NYCLU that it is filing suit in New York, alleging Constitutional violations by the State for its failure to provide adequate resources to public defenders.

From the press release:

“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. “We filed this lawsuit today as a last resort, in response to the constitutional deficiencies identified by a commission appointed by Chief Judge Kaye to evaluate our public defense system, and the failure of lawmakers to compel the state to repair what is clearly a broken and unjust system.”

The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York.

It is extremely annoying that it has to come to this. New York could have, at the very least, learned from Connecticut. It was a CCLU and ACLU lawsuit in Connecticut - Rivera v. Rowland - that forced the legislature to increase funding by millions and double the number of positions in the system. The settlement of that lawsuit led to a wholesale revamping of the public defender’s system in CT, with better pay, more positions, more training, lower caseloads. This was in 1999. Now, almost 8 years later, New York is facing the same crisis.

It is great, on the other hand, because this will undoubtedly force New York to take action. New York is one of only 6 states remaining that have no statewide responsibility or oversight mechanism for public defense and remains among a minority of states, including Alabama and Mississippi, that have failed to join the movement toward full state funding.

Make no mistake: this is not a panacea. Caseloads will still be high, public defenders will still be understaffed, berated and maligned. However, they will be in a better position to fight those charges and the charges brought by the State against indigent defendants.

For more, read the ABA’s report entitled “Gideon’s Broken Promise” and The Spangenberg Group’s report to NY’s Indigent Defense Commission.

In an exciting move, SCOTUS today granted cert. in a capital habeas case [petition here, opposition here] to decide whether someone can receive ineffective assistance during the plea bargaining process. The actual facts are slightly more complicated, but as Scotusblog notes, the basic question (which was added later by the Court) is what is:

the remedy that [is] available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial.

Most of the commentary and discussion in the blawgosphere has centered around whether ineffective assistance during the plea bargaining process is a valid IAC claim, where the defendant then goes on to receive a fair trial. The answers that I have seen thus far have been no. I will respectfully disagree. The answer should be: “yes”.

For example Crime and Consequences says:

The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

There are several problematic things about that paragraph, but today I’ll deal with just the last. Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.

plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.

Blackledge v. Allison, 431 U.S. 63

Then we come to Hill v. Lockhart. In Hill the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”, relying on McCann v. Richardson, 397 U.S. 759, 771 (1970) (all defendants facing felony charges are entitled to the effective assistance of competent counsel). Really, there cannot be another conclusion.

In this case, the attorney misadvised the defendant about taking an offer. Consider a situation where the attorney fails to inform the defendant of an offer that he would have taken. Regardless of whether the ensuing trial was fair or not, the defendant was not informed of the availability of a plea bargain. How can he be said to have provided effective assistance if he failed to inform the defendant of a favorable resolution of the criminal prosecution? How can you say that the trial would have occurred in the first place?

So what then, is the remedy, if it is found that the attorney was ineffective? It has got to be specific performance. But for the ineffective assistance of counsel, the defendant would have taken the offer. He must be put back in the position he was in when the offer was made and given the option to either take the offer or reject it and proceed to trial.

“Poor lawyering” in the pre-trial process cannot be negated by an otherwise fair trial. Maybe I’m just spoiled by CT law. See Copas v. Commissioner of Correction, 234 Conn. 139.

The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation - the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.

This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right - although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.

I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.

The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.

Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.

No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.

There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!

Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.

I hate when they do that.

On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se - raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.

By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.

Image license info here

One of the things I consistently see in stories about the Jena Six is this quote:

After being represented by a public defender who did not call witnesses in Bell’s defense, an all-white jury convicted him

Over time, details of the incidents have emerged, but none of the trial itself. The most fleshed out paragraph about the trial and representation by counsel is this:

Despite this, when Mychal Bell, the first youth to go to trial, refused to take a deal in exchange for testifying against his friends, he was quickly convicted by an all-white jury. Bell’s public defender Blane Williams, visibly angry at Bell and his parents because the youth did not take the deal, called no witnesses and gave no meaningful defense.

So we know that the jury was all white and the defense called no witnesses. What is only now being revealed is that the jury pool was all white. Which included a friend of the victim’s father.

But let us turn to the matter of this attorney. I find it extremely difficult to believe that his attorney would not call any witnesses because he was angry. For one, if there were witnesses whom the defense could have called independently and the attorney made it clear that he wasn’t going to call them, my experience tells me that the defendant would have said something (maybe not, but so little is known at this point…). Surely there’s a transcript out there somewhere.

But a defendant doesn’t always have to call witnesses. The State bears the burden of proof and the defendant can choose to leave the State to its burden. This is a frequent jury instruction and almost always a question during voir dire in a criminal case.

It is counter-intuitive, for sure. You have been accused of doing something, you tell your side of the story. If you have a defense, an alibi, you will present it. Prospective jurors, upon question, usually state that they understand why the defendant can choose not to present a defense. But do they believe it? I think the Jena Six coverage has a hint of that. He didn’t call any witnesses!?! is the incredulous tone.

Now, it’s possible that Bell’s attorney should have called witnesses - I don’t know what the evidence presented was - but it disturbs me a little that people automatically look at it unfavorably. It is a dilution of the burden of proof and we must believe that.

The second thing I wanted to say (I guess as a response to this question by Prof. Berman) is that we should study this case for the racial disparity in the charging process, keeping in mind that this is not a one-off thing. Racial disparities in charging and sentencing are wide spread and are being documented more and more. As this CSM piece points out:

Nationally, black youths are significantly more likely to be tried as adults than are white youths, according to a January report from the National Council on Crime and Delinquency. The same report states that while black youths make up 16 percent of the general adolescent population, they make up 38 percent of the approximately 100,000 youths being held in local and state detention facilities.

The irony, some say, is that mass outpouring of support in cases like the Jena 6 may, in fact, obscure the real issues, where many criminal-defense lawyers can point to examples of prosecutorial zeal when dealing with black defendants.

“The public at large basically thinks that these cases are aberrations, and that’s one reason why so much attention is paid to them,” says Professor Nunn. “It’s the idea that it’s the redneck sheriff doing this and not the way we sort of stack the odds against black criminal defendants. We can point to a few bad apples, say, ‘See, it’s them,’ and the rest of us feel great because we’re demonstrating how we disagree with racism.”

Wow. This post has reached Greenfield-esque proportions, so I’ll stop now.

We all know the story of the Texas lawyer who fell asleep during a capital trial, but now Scott points to one in New York. Unfortunately, as was the case with the Texas appeal, the court in NY also found that it was not ineffective, because, in essence, the lawyer did some “lawyering”.

Here’s another *ahem* reason the petition was denied: the judge that heard the petition for a new trial was the same judge that presided over the trial itself.

Scott does a good job, as usual, of pointing out how stupid this decision is, but misses one important question: What was the same judge doing hearing the petition for a new trial? If the defendant had filed a petition for writ of habeas corpus, the judge should have recused herself. Precisely for the reason that no judge will admit that there was a sleeping lawyer in the courtroom and they did not catch it, should this judge have not been presiding over this hearing.

I don’t know much about the NY post-conviction process, so maybe someone can clue me in. Was this a petition for writ of habeas corpus? If not, is that available to this defendant?

Either way, judges do the darnest things.

A public defender in Ohio was held in contempt and jailed on Thursday for asserting Gideon’s mandate. After being appointed on Wednesday to represent Jordan Scott, the public defender Brian Jones told the presiding judge that he could not start trial on Thursday because, well, he’d had less than 24 hours to prepare for trial.

Jones correctly stated that he could not possibly prepare for trial and present an adequate defense in 24 hours. The public defender’s office has a written policy that it will not try cases in which it has been appointed 24 hours prior to trial.

Portage County Municipal Court Judge John Plough ordered a Portage County Sheriff’s deputy to remove Jones from his courtroom in front of his client, spectators and courthouse employees.

When Jones brought up the existence of that policy in court Thursday, Plough told Jones it wasn’t the time for “speeches” and asked if Jones wanted to make an opening statement. As Jones continued to explain the situation, saying he had a “pre-trial matter” to bring up, Plough interrupted him.

“What pre-trial matter? Trial is starting right now,” Plough said, refusing to hear Jones’ arguments about the matter and again asking him if he was prepared to move forward.

That a Petition for Writ of Habeas Corpus was denied is not news - it is to be expected - but that it made this morning’s Courant is certainly news.

Richard Lapointe, convicted 20 years ago of killing his wife’s grandmother, will not get a new trial.

In a written decision in Rockville Thursday, Superior Court Judge Stanley T. Fuger denied the request for a new trial, which means Lapointe will remain behind bars for life, plus 60 years, without the possibility of parole.

Fuger said the evidence put forward by Lapointe’s attorney was much like his 83-page petition - “exceeding in extraneous detail, yet lacking in key substance.” And more than one-third of the 177 exhibits presented at a hearing July 16-20 for a new trial were completely irrelevant to the case.

Okay, this really irks me. It isn’t a hearing for a new trial. It is a hearing on a Petition for Writ of Habeas Corpus. How hard is it to get the story straight? Yes, that’s the eventual result, in that if the conviction is found to be unconstitutional as a result of a violation of the Sixth Amendment guarantee of effective assistance of counsel, then the remedy is a new trial, but this is not a petition for a new trial. [Jamie Spencer expressed the same frustration with incorrect reporting a few weeks ago.]

To get Lapointe’s case heard, [his lawyer] Casteleiro had to prove that Lapointe’s counsel was ineffective during his original trial and in his bid for a new trial, which meant he had to prove that Lapointe’s counsel’s errors were so serious that he was deprived of a fair trial.

I guess that’s what he had to prove, but this shorthand seems quite inadequate. What he had to prove was that the trial attorney’s performance was below the standard of a reasonably competent criminal defense lawyer and that but for his deficient performance, the outcome would have been different (he would have been acquitted).

See? That wasn’t hard. Sixth Amendment jurisprudence 101.

Two - count ‘em! - two reversals (among other denials) from the Appellate Court today. The first, State v. Phillips [pdf], revolved around whether the trial court erred in denying a motion for new trial following a hearing that revealed evidence of possible racial bias on the part of a juror.

Four of the jurors testified that they believed juror B to be racially prejudiced against the defendant, who is a black man. Juror H, a black man, testified that juror B, a white man, made racist remarks to him. Juror H also reported that juror B told him that ‘‘when he saw [the defendant] he made up his mind that [the defendant] was guilty because of his demeanor. . . . He said when he first saw [the defendant], he knew—he knew that he was guilty.’’

According to juror H, juror B made reference to the fact that a person alleged to be part of the crime was Puerto Rican and to the way that ‘‘those people treat their women,’’ and also made a comment to one of the jurors of Vietnamese origin. Juror B also asked juror H why he had big feet. Juror H stated that juror B was very difficult to interact with and that it reached the point where juror H did not want to attend court any longer. In response to the judge’s question whether juror B’s conduct influenced his verdict, juror H stated, ‘‘yes, trying to get him to see the other part of the case.’’ He also said that ‘‘it was a compromise on my behalf.’’

Juror K, another black member of the jury, testified that he believed that juror B was racist. He said, ‘‘you didn’t hear the word n**** in that room, but you could feel it.’’ Juror M, the jury foreperson, testified that juror B made inappropriate comments of a racial nature during deliberations, including asking the black jurors questions that did not belong in the jury room, questions that he did not ask of the other jurors. Juror M also testified that juror B’s particular racial bias against the defendant presented some confusion in the room that may have affected the jurors’ ability to deliberate openly and fairly. Juror M said, ‘‘I think that we came to the decision that we could no longer go forward [and that] was because of the . . . I believe and we all believe . . . the racial bias by [juror B] in the room.’’ Juror R confirmed that one of the jurors made racially motivated comments and that his conduct caused the other jury members to ask him whether ‘‘he had racial problems.’’

When he testified at the postverdict hearing, juror B acknowledged the racial overtones throughout the jury’s deliberations. He testified that two members of the jury called him a racist. He said that during deliberations, he commented about the defendant’s demeanor at a certain stage in the trial and that as a result, ‘‘I was told I was a racist because black people and people of minority are more apt to demonstrate with their hands and to say things like that.’’ Juror B also believed that indirect threats were made to him. Juror B testified that juror K at one point said ‘‘something along the lines [of], ‘Boy, if this was a basketball game, I’d beat the shit out of him,’ or something like that.’’

The trial court found that there was no evidence that Juror B’s conduct affected the deliberations or the verdict. The Appellate Court held that the trial court had applied the wrong standard. Instead of requiring actual prejudice, it should have limited its inquiry to objective evidence of racially related statements and behavior. The court should then have decided whether that evidence amounted to racial bias against the defendant on the part of one or more jurors, which would have automatically warranted a new trial.

The second reversal was in State v. Moore [pdf], where the conviction was overturned on the grounds that the trial court erred in not striking the re-direct testimony of a state witness. This state witness was a co-conspirator and after implicating the defendant on direct, changed course and absolved him of any involvement on cross. He stated that he was pressured by the State into fingering the defendant and did so for considerations in his own case.

The state attempted a rehabilitative re-direct, but the witness soon invoked his 5th Amendment privilege and refused to answer any more questions. Re-cross was not possible. The defense objected and argued that the testimony on re-direct should be stricken, because to let it stand without doing so would violate the defendant’s 6th Amendment confrontation right. The Appellate Court agreed.

By now I’m sure all of you have heard about the Judge that dismissed charges of sexual assault filed against Mahamu Kanneh, a Liberian immigrant who was granted asylum in the US, because the State took three years to prosecute. The sticking point was the inability to find a suitable interpreter - one who spoke the dialect “Vai”.

After three years, the judge said enough is enough and dismissed the charges. As details emerged, it became clear that interpreters had been found and used, but one couldn’t handle the facts, another had to leave for a family emergency and one was located on the day the dismissal was issued.

Not surprisingly, the blogosphere (and other places) is full of criticism for the judge. Naturally, I don’t see it that way. However severe the charges may be against him, the bottom line remains that someone was unable to locate an interpreter for three whole years.

If you do not think that the judge was right in dismissing the charges, then you are in favor of indefinite detentions while the State lethargically crawls ahead with its prosecutions.

There is a reason why all states have enacted Speedy Trial statutes (in fact, some have made it part of their Constitutions) and that is to protect against the awesome power of the state to charge and detain individuals for indefinite periods of time while they go about collecting their evidence.

Anyway, back to the story. What made me chuckle was this quote from the prosecutor:

In arguing to save the case, Assistant State’s Attorney Maura Lynch said that dismissing the indictment “after all the efforts the state has made to accommodate the defendant would be fundamentally unfair.”

It really is quite amusing that the State views fundamental Constitutional rights as “accommodating the defendant”. If I had even the slightest inkling that my client was unable to fully comprehend the scope of the legal proceedings against him, I would fight tooth and nail until I was sure that he was able to understanding what was going on.

Thoughts?

The Connecticut legislature is set to vote on a “tender years” exception statute. In spite of the obvious Constitutional hurdle of Crawford, the sponsors of the bill are pressing ahead. This is the text of the proposed statute:

Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if

1. the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
2. the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and
3. either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act.

For the purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.

I have highlighted the problematic portions of the statute. Firstly, what is “apparent authority”? Does a simple command such as: “Come here” constitute “apparent authority”? Does kidnapping constitute “apparent authority”?

Secondly, it only allows to “provide the adverse party with a fair opportunity to prepare to meet it”. It does not require that the opponent of the statement have the opportunity to cross-examine the declarant at the time the statement was given, as required by Crawford.

Finally, what does the legislature mean by “independent nontestimonial admissible evidence”? Does a statement by the victim to her mother count?

It seems that there is a general belief that children under an arbitrarily chosen age are more prone to truthful statements. I am unsure of the veracity of this belief and whether it is supported by empirical evidence. Furthermore, as practitioners will attest, children are susceptible to suggestion - suggestion that is more often than not planted by a parent or someone in a position of authority (or apparent authority ;)).

Hopefully the legislature will take note of Crawford and realize that the statute as written is problematic.

Here [pdf] is the written testimony of the Connecticut Criminal Defense Lawyers’ Association in opposition to this statute.

Here [pdf] is the written testimony of the Chief State’s Attorneys’ Office, which seeks to clarify the difference between testimonial and non-testimonial statements.

Here [pdf] is a general statement in opposition by the Chief Public Defender’s Office.

Here [pdf] is a statement by the Judicial Branch asking that the legislature not move forward with this bill, since the issues are currently being considered by the Code of Evidence Oversight Committee.

Previous coverage:

• “tender years” and Crawford
• tender years exception to hearsay
• tender years II
• tender years III
• “anti-innocence” bills: tender years IV