Depends on what “actually present” means

Last year, in the wake of the Cheshire murders, the legislature got it into their heads that our current Burglary statutes weren’t sufficient to prosecute the act of a home invasion1. While not true, they felt there had to be some response to the murders and as a result, passed the home invasion statute.

There isn’t much difference between the Burglary statute and the “home invasion” statute. But let’s take it one step at a time. Here are the elements of the home invasion statute:

  1. A person
  2. Enters or remains unlawfully
  3. In a dwelling
  4. While a person other than a participant
  5. Is “actually present” in that dwelling
  6. The “offender” has the intent to commit a crime
  7. AND
  8. In the course of committing “the offense”
  9. either commits or attempts to commit a felony
  10. against “the person” of 4 & 5 above
  11. OR
  12. the “offender” is armed with explosives or a DW or a DI
  13. “course of committing” is either an act or attempt
  14. or in flight thereafter.

More, including a poll, after the jump.

When is an assault not an assault?

When it’s a strangulation. Yes, as of 2008, the Connecticut legislature has created the crime of “Strangulation” (I’d link to it, but it isn’t up on the website yet).

Is it redundant? What does it really mean? Let’s find out! The first step, of course, is to conduct an elements analysis. There are two degrees of strangulation, both felonies. Let’s start with Strangulation in the First Degree:

(a) A person is guilty of strangulation in the first degree when such person commits strangulation in the second degree as provided in section 53a-64bb and (1) in the commission of such offense, such person (A) uses or attempts to use a dangerous instrument, or (B) causes serious physical injury to such other person, or (2) such person has previously been convicted of a violation of this section or section 53a-64bb.

Huh? Okay, let’s look at Strangulation in the Second Degree (53a-64bb):

(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.

Here’s what I don’t understand. How do you commit strangulation in the second degree without using a “dangerous instrument”? Especially in light of the fact that hands (or fists or feet or limbs) may be “dangerous instruments”:

Now Hiring

[Note: This is a “sticky” post. There may be more recent posts beneath this one.]

To: Connecticut Public Defenders

From: Management

Re: Job opening

You people would make terrible eyewitnesses

The poll results from the eyewitness ID poll reveals either that I’ve got a bunch of non-attentive readers or (more likely) that there’s no way anyone can identify anyone from that array. They all looked the same to me, btw.

So, for those of you interested in the “answer”, it’s after the jump.

Listen up!

We talk a lot, as lawyers. It’s in our job description. The old classic misnomer is that if you can debate or argue well, you’ll make a good lawyer. We do it all the time: we talk to judges, we talk to clients, we talk to each other. Talk, talk, talk. It gets exhausting after a while.

The one thing no one tells us to do, or teaches us to do, is listen. Listening is just as important as talking in our line of work (in any, really). Over the past month, I’ve seen clients get angry at their lawyers because the lawyers didn’t listen, I’ve seen lawyers lose out on good deals because they didn’t listen to judges.

It isn’t that hard, or is it? Are we that ego-centric that all we care about is spewing our bit and then watching it waft into the world, while the important information from those around us misses us.

It really is the death-knell for a good lawyer – the inability to listen.

I was already resolute in my decision to listen, but the past month has made me that much more sure. Try it sometime; it might surprise you.

In which Gideon opposes the abolition of the death penalty

Now, now, rest your beating heart. I don’t really oppose abolition of the death penalty (don’t be silly). It is merely this abomination of a bill that I oppose. This bill was scheduled for a public hearing today, but given the gruesome weather we had, the hearing has been postponed to Wednesday.

The bill calls for prospective abolition of the death penalty. It is precisely this hackneyed idea that I cannot in good conscience support. Here is the pertinent new subsection of the bill:

Sec. 5. Subsection (a) of section 53a-46a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) A person shall be subjected to the penalty of death for a capital felony committed prior to the effective date of this section only if a hearing is held in accordance with the provisions of this section.

That’s one of the most absurd pieces of legislation that I have seen in a bit. There are currently 10 (11?) members of CT’s death row and there are many, many more “capital” prosecutions currently pending in the State of CT. None of those would fall under this new bill and all of those defendants would still be subject to the death penalty.