The FATWOD has a new ally: the crappy economy

Folks, don’t ever again say I don’t call things. I called this.

Finally, it seems that legislators might be getting “smart” on drugs and drug crimes. And no, the impetus isn’t a wake up call on the inherent unfairness of the drug crimes and the racially disproportionate impact they have. It’s the economy, stupid.

Sen. Toni Harp, chairwoman of the powerful appropriations committee, and Senate Majority Leader Martin Looney hope economics will succeed where other arguments have failed in convincing their colleagues that the costs of prosecuting and punishing pot smokers is an expense Connecticut can no longer afford.

“We’ve got to take a strong look at what we want to pay for as a state,” said Harp, D- New Haven, who with Looney is co-sponsoring a bill that would punish low-level marijuana users with a fine, not a criminal charge.

“To waste our resources on this small problem is not a good use of the people’s money.”

Now, they’re not going as far as I would go, so simmer down (and you know who you are). The proposed bill would decriminalize possession of less than one ounce of marijuana – essentially what Massachussetts did this past November. People found using that small an amount would be fined: akin to a parking ticket.

Careful what you wish for

Someone needs to explain to me why this case ever made it to SCOTUS. Actually, I have several questions:

  1. What are you asking for, exactly?
  2. Is this a case of getting too greedy or too literal?
  3. Did anyone consider the ramifications of an unfavorable decision in this case? (Let me spell it out for you: it could spell complete evisceration of a well-established and solidly pro-defense line of cases starting with Santobello)
  4. How do you get selected to argue in front of SCOTUS and then produce a complete clunker [pdf] (and not just one counsel – both!)?
  5. Does anyone think either lawyer has any clue as to what is being asked of them?

I fear that Puckett might win the battle, but lose the war. That would be bad news for all of us.

Scrutinizing the scrutiny

Judicial reconfirmations in Connecticut have usually been a low-key affair, so it was newsworthy last week when an all out battle erupted on the floor of the Senate during the reconfirmation of Judge Patricia Swords.

Judge Swords, just finishing up her first 8 year term a judge of the Superior Court, made it through the Judiciary Committee by a margin of 4 votes, despite the testimony [pdf] of a prominent criminal defense attorney regarding her behavior in a murder case where she declined to grant a continuance when the lead counsel had suffered a soon to be fatal brain injury just two days prior to the start of trial. Her reconfirmation made it through the House of Representatives pretty easily (100-41 or so), but stalled in the Senate, where the votes were pretty evenly decided.

After a vigorous debate on the floor of the Senate, during which Senators questioned the anonymous comments submitted by the defense bar opposing her reconfirmation (one of them likened these comments to blog posts – ha!) and used misinformed logic such as the number of decisions upheld on appeal. If I remember correctly, one of the Senators, in her defense, asked something along the lines of whether we should…well…judge a judge based on demeanor or accuracy in the law.

Anyone who has practiced law should know that not everything a judge does on the bench or behind the scenes that questions their impartiality in a case is appealable.

The judge was eventually confirmed by a vote of 19-18, the tiebreaking vote being cast by the Lt. Governor. But this reconfirmation battle raised some interesting questions, and rightly so.


MLK Day doesn’t just mean another day off (although that is nice too). If you do nothing else, make sure you read Scott’s post on the fight that remains to be fought.

You’ll find a video of Dr. King’s speeches elsewhere in the blogosphere, so I’m gonna give you a video instead. Taken from last year’s BR:

A red Herring, masked by Ma(r)sala

I’m awfully late to this dance, but as a criminal law blog, I might as well shut down completely if I don’t post about Herring. As you may be aware, this past week SCOTUS held in a 5-4 decision that mere negliglence doesn’t require the suppression of evidence obtained as a result of a 4th Amendment violation.

Some have called it the death of the exclusionary rule (or certainly the death knell) and others don’t think it’s such a big deal.

The underlying premise of this decision can be traced, in part, to the “good faith” exception enunciated in United States v. Leon. In Leon:

The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Herring furthers that proposition by holding that mere negligence of a police department does not trigger the exlusionary rule and thus the evidence seized as a result of an arrest made based on a mistake should be admissible.

If you’re not from CT, you can weep now. Those of you in CT don’t have any reason to be particularly concerned about Herring. This is because, in CT, there is no “good faith exception” to the exclusionary rule.

Fifth Amendment Right to Counsel

After reading the oral argument transcript of Montejo v. Louisiana today, I decided to refresh my memory of the Fifth Amendment Right to Counsel (starting with Miranda). In particular, I was curious to see if anyone had written a paper about the evolution (if any) of this right to counsel. I haven’t come across anything yet, but I did stumble across this.

It is an FBI law enforcement bulletin from 2002, which describes in some depth the 5th and 6th Amendment Rights to Counsel and their respective scopes. It’s a good refresher, if nothing else. Though you do have to wade through the “tips to law enforcement”.