a public defender

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It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff - and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am - State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am - State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day - State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor - killing in an especially depraved, heinous, cruel manner - had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

Starting…well…today, I am introducing a new feature for my CT friends who are too busy to follow the latest goings on in criminal law in the State. This Month at the Supreme Court! (trademark pending) will summarize the criminal cases scheduled for oral argument with a date and time, if you’re so inclined. Why am I doing this? Because I’m that nice.

So, without further ado (but with a drumroll, please!), here’s the docket for February 2008:

February 5 - Washington v. Commissioner: In Washington, the petitioner seems to challenge the DOC’s retroactive application of those wonderful Harris, Cox and Hunter decisions, which said that jail credit can be applied only once, even though earned on several different sentences. The blurb says there’s a due process claim and I bet it’s got to do with Bouie. Interesting, but not much general appeal.

February 7 - State v. Melendez: This is an interesting one. The state task force and DEA conducted an undercover operation. Part of that was getting an informant suited up with a video cam. The cam caught the informant and Melendez. When the tape was turned over as part of discovery, it was of really poor quality. So Melendez rejected whatever offer was on the table and chose to go to trial. At trial, however, the State engaged in some sorcery and produced a clear copy of the tape. On seeing this enhanced tape, the defendant said that the disclosure was untimely and demanded specific performance of the plea. He claims that the late disclosure deprives him of a meaningful plea bargaining process and that he should be given specific performance, among other evidentiary issues.

February 11 - State v. Griggs: The defendant was charged with assaulting a 77-yr old man that he knew and then leaving him on the floor, struggling, taking the man’s cellphone with him. The claims is whether his failure to help constitutes a substantial step sufficient to convict him of attempt. He sought to have the bill of particulars amended to omit that fact, which the judge denied. Curiously, during jury instruction, the court explained that the defendant’s failure to render assistance to the victim, in and of itself, did not constitute a substantial step planned to culminate in the commission of murder. So, who knows.

February 11 - State v. Simpson: This is a case that implicates the confrontation clause and Crawford. The accuser is a young girl who, at the time of trial, cannot remember any details. State used that to designate her “unavailable” and enter into evidence a videotaped interview with an evaluator at a guidance clinic - for substantive purposes under Whelan. The defendant claims that she had not recanted her earlier statements, her testimony was not inconsistent with her statements (requirements under Whelan), that the videotaped statement was not under circumstances assuring its reliability. He further claims that even if permissible under Whelan, it should be barred under Crawford, because it was made as part of an investigation and since she can’t remember now, she’s unavailable for cross-examination. I’m intrigued by this one.

February 14 - State v. Winer: This is another interesting case. The issue revolves around who requested a continuance that placed the case on a trial list for 3 1/2 years without any action. The trial court found that because the defendant rejected the offer and wanted to go to trial, it was placed there at his request and so it could not be dismissed due to inaction for 13 months (the requirement of the statute). The Appellate Court reversed, finding that it was the prosecutor who wanted it placed on the trial list and so reversed the trial court. The Supreme Court reversed will decide what to do.

February 15 - State v. Jenkins: I guess this is interesting to some. On nine occasions between December, 2002, and May, 2006, the court found that the defendant was not competent but that he was restorable to competency. The defendant received inpatient treatment for three periods that totaled twenty-one months. Subsequently, the defendant moved to dismiss the charges, claiming, among other things, that his twenty-one month placement for treatment exceeded the maximum period that he could be confined because it would exceed the period of the maximum sentence which he could receive on conviction, or eighteen months, whichever is less. The court disagreed, concluding that the period of placement referred to in the statute is not a cumulative period, as the defendant argued, but rather a consecutive period. It is also an interlocutory appeal.

Well, there you go. This has been your guide to the Supreme Court this month!

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