I only just realized that there’s a bill currently in the legislature implementing the Adam Walsh Act. Folks, this is some nasty, scary shit. For the first time in my life, I think I might be moved enough to call my legislator to oppose this. I will have plenty of posts on the AWA in the coming days, but for now, here’s the bill.
Imagine you’re sitting at a dinner table with some friends. You pick up a fork to eat some salad. Suddenly, cops come bursting into your house and arrest you for the murder of your friend who’s sitting across the table. You’re convicted and then the Supreme Court upholds your conviction because you took the first step in a series of actions that could lead to murder.
Welcome to the world of Michael Cyr [pdf]. Except he wasn’t eating dinner with a fork, but rather sitting in his car, drunk, with the key firmly in his pocket. He started the engine with a remote starter and then sat in the driver’s seat, with the key in his pocket. He wasn’t going anywhere, but that didn’t matter to the CT Supreme Court.
So what, you say, he was sitting in the car, with the engine on. It’s reasonable to assume that he meant to drive it drunk. But that’s just the problem. The Supreme Court held that the State does not have to prove intent in cases like this. So he could have been sitting to stay warm, or to sleep in his car. In fact, he could have been trying to avoid driving drunk. But none of that matters. He turned on the engine and sat in the driver’s seat. Therefore, he is guilty of driving under the influence.
The law of DUI in CT is just as ass backwards as this decision. Read from Cyr itself:
The resulting definition that long has been in use has its origins in State v. Swift, 125 Conn. 399, 403, 6 A.2d 359 (1939), an appeal in which this court approved the following jury instruction explaining what it meant to operate a vehicle: ‘‘A person operates a motor vehicle within the meaning of [the] statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.’’
Adoption of that definition established, and subsequent cases confirmed, that the term ‘‘ ‘operating’ encompasses a broader range of conduct than does [the term] ‘driving.’ ’’ State v. Haight, supra, 279 Conn. 551. After a number of decisions made clear that sitting at the wheel of a nonmoving vehicle with the engine running constituted operation; see, e.g., State v. Wiggs, 60 Conn. App. 551, 554–55 (2000); State v. Marquis, 24 Conn. App. 467, 468–69 (1991); State v. Ducatt, 22 Conn. App. 88, 93, cert. denied, 217 Conn. 804 (1990); the question arose whether the definition could be satisfied when a defendant had been seated in a vehicle that neither was in motion nor had its motor running. See State v. Haight, supra, 552. In Haight, this court concluded that it could. Specifically, we held that the evidence was sufficient to sustain a prosecution under § 14-227a (a) when the defendant was found sleeping in the driver’s seat of his legally parked vehicle, with the key in the ignition9 and the headlights illuminated, but without the motor running. Id., 547. We explained: ‘‘The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle. . . . Each act therefore constitutes operation of the vehicle under the definition set forth in Swift.’’ Id., 553.
So, if it’s illegal to sit in a car, with the key in the ignition, without the motor running, Cyr stood no chance. The Court has really outdone itself this time and its illogical reasoning in this case is evident. The Court is jumping through untenable hoops to reach this absurd conclusion. Imagine if this line of cases were pro-defendant. The horror.
What, exactly, would not constitute “any act which alone or in sequence will set it motion the motive power of the vehicle”? Opening the door? No, I don’t think so. Walking to the car? Perhaps.
What this does, in reality, is remove any incentive for people to not drive. Why would you sit in your car when you can be convicted of DUI just the same as if you drove home? I mean, if you can’t even turn on the battery to get some heat, what’s the point?
So what is one to do, besides abstain from drinking? Turn on the heat and sit in the passenger seat with the keys in the trunk? Perhaps, but I wouldn’t bet my law license on it. Leave you keys with you, but you can’t turn the car on. Preferably sit in the back seat and always keep a blanket around or take your chances with the weather.
I think “activist” is a fair term here.
but the Judiciary Committee is in full swing again and is considering several important bills again. Here’s a listing of the bills up for public hearing today, with some links to submitted testimony. I’ll have more on specific bills as they progress.
S.B. No. 348 (COMM) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS. (JUD)
S.B. No. 349 (COMM) AN ACT CONCERNING THE PENALTY FOR POSSESSION OF A SMALL AMOUNT OF MARIJUANA. (JUD)
S.B. No. 357 (COMM) AN ACT CONCERNING EYEWITNESS IDENTIFICATION. (JUD)
S.B. No. 537 (COMM) AN ACT PROVIDING COMMUNITY REINTEGRATION SERVICES TO END-OF-SENTENCE INMATES. (JUD)
S.B. No. 543 (COMM) AN ACT CONCERNING SENTENCE REVIEW Modifications. (JUD)
S.B. No. 1159 (RAISED) AN ACT CONCERNING PRISON POPULATION.
H.B. No. 6031 (COMM) AN ACT CONCERNING PAROLE AND PROBATION TRANSPARENCY. (JUD)
H.B. No. 6341 (RAISED) AN ACT CONCERNING COMPETENCY TO STAND TRIAL.
H.B. No. 6342 (COMM) AN ACT CONCERNING DISEASE PREVENTION IN THE CORRECTIONAL SYSTEM. (JUD)
H.B. No. 6581 (RAISED) AN ACT CONCERNING THE ENHANCED PENALTY FOR THE SALE OR POSSESSION OF DRUGS NEAR SCHOOLS, DAY CARE CENTERS AND PUBLIC HOUSING PROJECTS.
H.B. No. 6624 (RAISED) AN ACT CONCERNING THE BOARD OF PARDONS AND PAROLES.
H.B. No. 6685 (RAISED) AN ACT CONCERNING THE REPORTING OF INMATE POPULATION DENSITY AND CORRECTIONAL FACILITY SPECIFIC DATA.
H.B. No. 6697 (RAISED) AN ACT ESTABLISHING A SENTENCING COMMISSION.
H.B. No. 6704 (RAISED) AN ACT CONCERNING PRISON OVERCROWDING.
H.B. No. 6706 (RAISED) AN ACT CONCERNING RESCISSION OF PROBATION.
The submitted written testimony in each of these cases can be found here.
“Who is this guy?”, an experienced trial attorney recently confided in me, is one of the essences of jury selection and the best we can hope to do. Prospective jurors are faced with a pretty intimidating (and boring) day. “What do you think of the presumption of innocence?” “Do you need to hear both sides of the story?” “Are you racist?” “Have you ever been the victim of a crime?”
They’re subjected to intensely personal questions and constantly asked “tell me more about that”. They’re expected to bare their souls to 3-5 complete strangers, all in a 45 minute span. No one even buys them dinner or drinks first.
Most people in a jury panel aren’t stupid these days, either. They know the drill; they’ve been around. Either they themselves or someone they know has been called to jury duty. They’ve seen enough TV shows and news reports to know the drill. Whether they admit it or not, they know what the correct answers are.
Which makes answering the question so much more difficult. No one wants to seem prejudiced or bigoted in public, in front of complete strangers. This is why, I believe, in a number of cases “rehabilitation” of jurors is a crock of shit. The cat’s out of the bag and now everyone’s trying desperately to shove it back in.
And maybe that’s all we can hope for. That they’ll try. They’ll try not to prejudge the defendant. They’ll try to put their biases aside. They’ll try not to let their first impression color their verdict. In return, we’ll try to pick as many honest triers as we can.
Because voir dire is the only shot we’ll get at figuring out who that guy is. Is he “fair and impartial”? Does he think he is? Does he understand that life isn’t black and white or just say that he understands? And, perhaps more importantly, why is he who he is?
I’m going to sidetrack here: I often stare at complete strangers on the road. Maybe there’s an older gentleman sitting in the car next to mine at a red light. I look at him and I wonder: how did he get here, at this light, sitting in the car next to me. What has he been through? This 6 foot mass of sinew and bone and nerve and blood is the embodiment of this man’s life. Maybe a book could be written about him, with black and white pictures in the beginning, a fresh faced young child playing with the water from sprinklers, then more text with faded yellow pictures, then some faded color pictures, maybe a wedding or two and children and grandchildren. All inevitably leading to the car next to mine.
Or the courtroom. And somewhere on that journey to that courtroom, something happened that caused him to answer a question a certain way. Is it possible to figure out what that event was and to understand it and its progeny? Is it possible to get a glimpse of the inner operations of another human’s mind in 40 minutes and then make a judgment call as to whether that person is one of the 6 or 12 who will decide the fate of another?
They say Connecticut is the slowest jurisdiction in terms of picking juries. I say maybe not slow enough.
How many times can one say: “It happens only in Texas” and not sound repetitive? I’m pushing the envelope here. Because, this just happened in Texas.
A man plucked and ate both his eyeballs (though not at the same time) and yet he was found competent to stand trial and be convicted of capital murder. Texas sure loves their executions (and eyeball marinara).
A condemned Texas inmate with a history of mental problems who removed his only eye and ate it in a bizarre outburst several months ago on death row lost an appeal Wednesday at the Texas Court of Criminal Appeals.
Thomas “is clearly ‘crazy,’ but he is also ‘sane’ under Texas law,” Judge Cathy Cochran wrote in a 14-page statement accompanying the court’s brief order upholding Thomas’ conviction and punishment.
Yes, that does seem to be a contradiction of terms, although I guess one can argue that the legal standard for “sane” is so damn low that even eating one’s eyeballs clears that standard.
I’m going to pause for a second here while we all collectively shudder.
Everything about this case, including the murders themselves, are truly bizarre:
Thomas, from Texoma, walked into the Sherman Police Department and told a dispatcher he had murdered the three, then told officers he put his victims’ hearts in his pocket, left their apartment, took them home, put the organs in a plastic bag and threw them in the trash. He said God had told him to commit the killings.
What’s more disturbing is the bottom line, via Grits:
The trial court and the Court of Criminal Appeals accepted the prosecution’s argument that, although Thomas “was psychotic when he committed the offense, … his psychosis was triggered by his substance abuse in the preceding days and weeks.” So he was psychotic, but it was his fault.
How can such a standard survive? A standard so low that defendants with IQs in the mid-50s are routinely found competent to stand trial. It should come as no surprise that a good percentage of inmates have mental health issues.
Read more on the Texas eyeball case here. I won’t make any eyeball jokes. The image is enough. I’m also far too classy to link to this photo (be warned: it is disturbing) (Okay, fine, if you want more Googly eyes, here‘s a website dedicated to them.)
So the other day, I went to Miranda’s house. While there, I noticed she had a new iPod Nano. The thing looked damn good. So I thought I’d get myself one. Then I remembered that I was a public defender and I didn’t make much money. So I started thinking. What if I took it and didn’t tell her? What if I took it and didn’t return it? What if I took it and then I thought better of it and put it back, all without her knowing?1
What crime would I be guilty of? (Yes, I am that nerdy.)
The burglary statutes have several common elements. Judging by the title of this post, you know which one I want to focus on. Here’s the entire Burglary 2nd statute:
(a) A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.
Since Miranda invited me to her house, I am not there unlawfully. She is a person other than a participant and is actually present (she’s toolin’ around in the basement), so that element is satisfied. The only question then is whether I remained unlawfully with the intent to commit a crime therein.
The usual explanation of “remains unlawfully” uses the example of someone who enters a public building, like a bank, lawfully and then hides and waits for it to close for the day. He is then there unlawfully:
A person “enters or remains unlawfully” in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.’ (Emphasis [omitted].) General Statutes § 53a-100(b). . . . ‘A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.’ (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. [Emphasis added.] Miller v. Grossman Shoes, Inc., [186 Conn. 229, 237 (1982)]. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100(b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” State v. Grant, 6 Conn. App. 24, 29-30 (1986).
So the license to be in Miranda’s house could have been revoked. But does she need to do it explicitly? The Connecticut Supreme Court says no:
in State v. Reyes, 19 Conn. App. 179, 192-3 (1989), the Appellate Court held that “[e]vidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual ‘unlawfully remained’ within the meaning of the statute.”
State v. Allen, 216 Conn. 367 (1990). So I guess it’s clear that when I formed the intent to deprive Miranda of the iPod, I had the intent to commit a crime. But did I remain unlawfully? In both Reyes and Allen, the homeowner was faced with the defendant and could see the illegal actions of the defendant, thus having the opportunity to “implicitly” withdraw permission. What if Miranda had no idea that I was thinking about taking the iPod? Is that sufficient to complete an implicit withdrawal?
Now, stretching the hypos to the limit, what if the iPod is on a table next to the back door and I see it on my way out of the house? What if I take the iPod Nano and take one step, which places me outside her dwelling? Am I still guilty of burglary?
The question then becomes, in my opinion, what is meant by “remains”. The general statutes provide no guidance and I’m not going to bother looking at the legislative history, so let’s look at a dictionary instead (plain meaning, etc. etc.):
–verb (used without object)
1. to continue in the same state; continue to be as specified: to remain at peace.
2. to stay behind or in the same place: to remain at home; I’ll remain here when you go to the airport.
The word “remains” definitely connotes the physical act of staying in the same place, or occupying the same physical area as you were prior to the act or incident or temporal marker.
But for how long? Surely, I “remained” in her house for one second as I pocketed the iPod Nano. But the complete act was that of “leaving”, not remaining. The crime was completed by the time I picked up the iPod and placed it in my pocket, as distinguished from Reyes and Allen above, where the crime continued for a longer period of time.
So is there a temporal requirement inherent in “remains”? Can the “remaining” be for a second? A nanosecond? Is that absurd and unworkable?
And what of the scenario where I pocket the iPod Nano, hang around for a few minutes looking at pictures on a fridge and then decide that I was being silly and put it back, Miranda none the wiser.
Have I committed a burglary? I think the answer would have to be yes.
1. Miranda does not have a house, nor has she invited me in ever, nor have I ever formed the intent to commit a crime therein even if I have ever been therein invited for social engagements. Short form: It’s a freakin’ hypo, you nutjobs!