Can Woody Allen still be prosecuted?

I’m sure everyone’s read and talked about Woody Allen recently, what with his award and then Dylan Farrow’s open letter in the NY Times reminding everyone that ‘hey, this guy sexually molested me’.

Allen has rejected these claims again and reminded the world that a Connecticut prosecutor investigated the allegations and declined to pursue charges.

It ain’t gonna happen. He’s not gonna get reprosecuted. But, for purely academic purposes, could he?

That depends on a few things: mainly the facts of the allegations and the dates of the allegations. Assuming that the incidents were alleged to have occurred in 1992, the statute of limitation in effect at the time was 5 years for a sexual assault. That means the SOL ran out in 1997 and Sexual Assault in the First Degree, a Class B felony, is no longer a viable option.

There’s a new statute of limitations (none) for sex assault crimes with DNA evidence, but that wouldn’t apply here, nor would the Supreme Court’s convoluted rules for “lapsed” and “non-lapsed” statutes of limitation in Connecticut1

UConn Law Criminal Clinic professor Todd Fernow agrees:

The passage of time has likely barred the possibility Allen could be prosecuted on sexual abuse charges, said Todd Fernow, a law professor at the University of Connecticut. Under Connecticut law, the statute of limitations for all but the most serious sexual crimes lasts for five years from when a police report is filed, which if applied to Dylan Farrow’s claim of having been abused in 1992 would have run until 1997, Fernow said.

So does the original prosecutor who declined to pursue the allegations:

Connecticut state prosecutor Frank Maco in 1993 declined to bring charges against Allen and retired in 2003. He declined to speculate on Sunday about whether a criminal case could be brought based on the allegations Dylan Farrow has outlined.  But he added that whether the statute of limitations had passed would depend on several factors including the nature of the evidence and changes in the law in the past decade.  Maco said that he examined the question before he retired and did not believe then a criminal case was still possible. “When I left office, I was satisfied that the statute of limitations had long run in that case,” he said.

But a friend posed the question just the other day: can Allen be prosecuted for something else? That something else being the Class A felony – for which there is no statute of limitations – of kidnapping in the first degree.

Specifically, kidnapping in the first degree provides that:

(a) A person is guilty of kidnapping in the first degree when he abducts another person and: (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony;

In order to convict someone of Kidnapping in the first degree, the prosecution must prove beyond a reasonable doubt that a person “abducted” another person2 and then further restrained the abducted person in order to rape the victim.

So the question is, could Allen be guilty of this? The answer, in my opinion, is it depends. It would depend specifically on the facts of the allegations: did Farrow allege that Allen shoved her in a car and drove her to an abandoned building on the outskirts of town and there touched her? Or is the allegation that when she was in his house, he would touch her sexually?

These factual distinctions are critical because in 2008, the Connecticut Supreme Court clarified the requirements of Kidnapping in the First Degree, ruling that restraint that is required for the commission of another felony and is merely incidental is not kidnapping. In other words, the restraint of liberty must be over and above and independent of any restraint that is required to commit sexual assault.

But this, of course, is a deeply factual scenario. Clients have been convicted of kidnapping for preventing the victim from leaving the room so as to enable them to sexually assault the victim and they have been convicted of dragging a victim to the back of an alley to perform a sexual assault.

As I said, I don’t think anything will come of it at this stage, but the possibility certainly exists, however academic, that a prosecution for kidnapping might be viable.

Yet another judge caught on video abusing his power

Thanks to this video recording from August 2013, the public gets another glimpse into the power trips that some people go on when they get elevated to the bench.

Back in August last year, a woman named Ebony Burks was arrested and brought before a judge (Judge Gary Bennett) for arraignment. He asked her how she wanted to plead (not guilty) and then set bonds. As a condition of bond, he directed her to stay away from her partner, who was the victim of a domestic charge. When she realized that that meant she couldn’t go to her own home, shit hit the fan:

“How you going to tell me I can’t go to my home?” Burks asked.

“I just did,” Bennett replied.

“Well, I bet I do,” Burks said.

That brought the initial 30 day sentence.

Burks got 60 days when she held up her hand and walked away from the camera. Bennett ordered her back. Burks continued to talk back.

Here are her words and the resulting jail sentences:

“So what?” (90 days)

“So?” (120 days)

“Okay, and?” (160, 180 days)

“What else you got to say?” (Bennett replies that he will have nothing more to say until they meet again in six months.)

Burks makes an off camera remark, gets a 200 day sentence, and then Bennett asks Burks if she has anything more to say.

“F— you,” Burks replies, bringing the 300 day sentence.

Glad to see today’s definition of judicial temperament includes the ability to get into a childish pissing match with an indigent defendant who’s been told she can’t return to her house.

NH bill prohibits sex offender residency restrictions

Yes. Take another second. Re-read that. It means what it says. A New Hampshire house committee has just passed a bill 18-1(!!!) that would prohibit the establishment or existence of sex offender residency restrictions in that state.

This, frankly, is completely unheard of. It’s one thing to simply not pass residency restriction bills, but it’s quite another to pass a law that explicitly prohibits them. They’re doing it for all the right reasons, too:

In 2009, a district court judge in Dover ruled that city’s residency restriction invalid because the city had not shown a “substantial relationship” between the ordinance and the protection of children. In 2012, Merrimack County Superior Court Judge Larry Smukler came to the same conclusion when the New Hampshire Civil Liberties Union appealed Franklin’s ordinance.

Cushing, a member of the House Criminal Justice and Public Safety Committee, said the bill prohibiting residency restrictions is necessary because it will take costly legal fights to undo the 11 ordinances still in place across the state. “The simple thing that can be done is to pass a bill that incorporates the . . . courts’ decisions.”

And apart from the Constitutionality of residency restrictions, they’re a bad idea for public safety reasons too:

Cushing also argued that restricting housing for sex offenders pushes them “underground,” in campgrounds, under bridges and to other places the police cannot monitor. He said communities are safer if the police know where sex offenders live and require yearly registration with the local police.

Meanwhile Connecticut, which has for so long resisted the lure of the residency restriction, might see a bill proposed this year that would create them here. A terrible idea, needless to say. It’s common knowledge that we here in Connecticut are rather slow to catch up to the times, but this is one fad that we would be well served to avoid entirely.

Should lawyers be disciplined for criticism of judges?

Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?

Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?

Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”

Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.

Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:

Rule 8.2. Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disre­gard as to its truth or falsity concerning the qualifi­cations or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(4) Engage in conduct that is prejudicial to the administration of justice;

I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.

As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.

And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.

The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.

As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.

But we are all lawyers. The irony is lost on us.

 

In Colorado, you’re a victim only if you support the death penalty

Colorado, which apparently still has the death penalty, is currently trying Edward Montour for the beating death of Eric Autobee, a correctional guard. Montour was serving a life sentence for another killing at the time, so the prosecution is seeking the death penalty.

Except, according to Bob Autobee, Eric’s father, Eric was against the death penalty and so is he.

For months now, Bob Autobee has been making a stand against the prosecutor’s decision to seek the death penalty, even protesting outside the very courthouse where his son’s killer is being tried.

“I don’t want my son’s name attached to this lynch mob,” Autobee told The Denver Post.  Autobee said that during a meeting with [District Attorney] Brauchler last year, he told the district attorney he would fight his decision.

Brauchler declined to comment, citing the ongoing case. But in a statement he released after he announced his decision in April, Brauchler said in addition to the family’s wishes, he must also consider the safety of corrections officers.

As a death penalty opponent, I do have a biased view of this: I think that the prosecutor should exercise rare discretion in seeking the death penalty and take into account the  victim’s and any family’s opinions on the death penalty, almost always erring toward the side of not pursuing death. But Colorado has the death penalty and I suppose the prosecutor is within his rights to seek it.

But he wants to go a step further and not only seek the death penalty, but prevent Autobee from telling jurors that he and his son are opposed to the death penalty. Autobee has made his peace with Montour and forgiven him for his actions, but the jurors, who are also supposed to make highly individual moral decisions shouldn’t be told any of that, according to the prosecutor.

A prosecution motion filed Jan. 6 argues that Colorado law allows victims to testify about the impact a crime had on them but not about their opinions on the death penalty.

I’m not sure that’s entirely accurate, but I’m no expert on Colorado law. I do think, however, that if the shoe were on the other foot, the prosecution would have no problem allowing Autobee to express his fervent desire to see Montour hanged or shot.

Andrew Cohen at The Atlantic makes the same point:

Colorado law “only guarantees the right of the victims to discuss the harm that resulted from the crime,” Brauchler argues, and this limits “evidence from the victims to the characteristics of the victim and the impact of the crime on the victim’s family.” It is “not the court process that can be attacked by the victims,” prosecutors assert, before claiming that Montour’s Eighth Amendment rights will be implicated if the Autobees speak out in his favor. You don’t need to be a lawyer, or a juror, to understand that this is a terrible argument. And Brauchler cites no controlling Colorado law in support of it.

In fact, as Cohen points out, it’s quite the opposite:

In their response, the Autobees’ attorney seem incredulous as they recite the provisions of Colorado law that support their view. “A crime victim,” they told the court, has the “‘right to appear, personally or with counsel, at the sentencing proceeding and to adequately and reasonably express his or her views’ regarding ‘the type of sentence which should be imposed by the court.’” Under Colorado law, the Autobees added, “prosecutors are required to support — not oppose — this right by ‘inform[ing] each victim of’ his or her ‘right to ‘express an opinion at the sentencing hearing or any sentence proposed to the court for consideration” (emphasis in original).

It just seems a little bloodthirsty to me to actively prevent Autobee from expressing his feelings about the trial. Victims come in all shapes and sizes and yes, in this day and age some will oppose the death penalty. This cherry picking by the prosecution of who gets to be a “victim” based on whether their political views align is disgusting and yet another reason why the implementation of the death penalty is so flawed.

 

Mandatory-minimums are a tool of convenience

There is apparently a new bill being proposed in Florida’s legislature that will, according to Gawker, legalize the firing of “warning shots”. Here’s a link to the bill [PDF] and here’s Gawker’s description of it:

Despite years of negative publicity over Florida’s “Stand Your Ground” self-defense law, lawmakers are close to expanding it to protect gunmen who fire warning shots or wave weapons in a threatening manner—and they’re doing it with a bill written by a top NRA lobbyist, Gawker has learned.

The current bill would amend the state’s expansive Stand Your Ground law—which permits residents to use deadly force in numerous circumstances—so that it also allows the nebulous “threatened use of force.” In effect, it means that gun owners could walk free for brandishing their gun in a threatening manner or firing a shot indiscriminately to “warn” a potential assailant.

That also means gun owners would get blanket immunity from the state’s “10-20-life” law, which mandates an automatic 10-year sentence for anyone accused of flashing or using a gun in the commission of a felony. Numerous Florida politicians, including Jeb Bush, have long credited that measure with significantly decreasing the state’s gun crimes.

Assuming the reporting is accurate, two related things are noteworthy: first, that hypocrisy and politics go hand in hand, given that the mandatory-minimum sentences were championed by the very same NRA in 1995. Second that mandatory-minimums are bullshit.

I don’t want to get into the politics of guns and gun owners and gun ownership, but it should be pretty obvious that something has changed the NRA’s stance on harsh penalties for some forms of gun ownership, possession and usage.

Is it race? Is it soaring gun sales and a desire to avoid contributing to the incarceration and incapacitation of a generation of potential gun buyers or the realization that mandatory-minimum sentences are idiotic?

I hardly think it’s the last of those three possibilities, but it should be. It should be that for everyone, regardless of political or NRA affiliation. So while it is sure-fire clickbait to blast the NRA for their stance on this bill, maybe the intelligent piece would look past the obvious politicking and focus on the real evils of giving so much sentencing power to prosecutors.

The NRA flip-flop on mandatory-minimums should tell you more about M-Ms than about the NRA.

Expert bullshit

From an unpublished Mass opinion1, consider the following description of the testimony of the state’s “expert” witness – a police officer and decide whether it was admissible or not:

First, referring to the cocaine and its packaging, the prosecutor asked [Detective Paul] Quinn whether he could offer an opinion as to whether ‘someone possessed these with an intent to distribute, or if they had it for personal use?’ In response, Quinn stated, ‘My opinion based on this in front of me and nothing more would be it would be with the intent to distribute it.’

[Second,] Quinn testified, ‘You know, if I stopped a guy who had nine bags, and he pulled out a burnt pipe and said, Officer, I just got paid, I’m going to get high, and he had those physical characteristics along with the pipe, I might give that guy the benefit of the doubt . . .

[Finally] Quinn [testified] regarding the physical characteristics and economic behavior of typical crack cocaine users, suggesting that the heavy-set defendant looked like a seller not a user and that a user would want to get his ‘money’s worth,’ and therefore would buy an ‘eight ball’ not nine twenty-dollar bags.

In this case, the court ruled that all of this testimony was improper and went beyond the scope of his “expertise”2.

But how similar is this testimony to others that you see routinely in drug trials? How many times has testimony like this been admitted, relied upon and upheld? How many times is a cop an “expert” based solely on nothing but his own inflated sense of his own abilities?

If you are a juror in a trial and a cop testifies as an “expert”, feel free to ignore that testimony and substitute your own common sense instead. Because usually they testify about bullshit like this.