I wrote last week about the double standard in sanctioning defense attorneys while scores of prosecutors nationwide engage in deliberate and willful misconduct that deprives individuals of their Constitutional rights without any consequences whatsoever.
A helpful reader sent me a link to this CT Supreme Court opinion from 2012 that I’d missed, as a further example. In this case, the defense argued that in order to convict him of aggravated sexual assault and aggravated kidnapping (both require the use of a firearm), the jury must be instructed that he actually possessed such firearm. The operative language of both statutes is similar and it is this:
(1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon
The reason for this argument is that it is an affirmative defense that the weapon was inoperable. Thus, it would make no sense for the affirmative defense to be applied to someone who had an inoperable gun, but unavailable to someone who had no gun at all.
The Court agreed with the prosecution that the defense had not preserved this argument and thus declined to consider it. And then it dropped this footnote:
[W]e feel compelled to note that in the section of her appellate brief addressing this issue the state’s appellate counsel, Assistant State’s Attorney Melissa L. Streeto, purported to provide quotations of §§ 53a-70a (a)(1) and 53a-92a but inserted commas supporting her statutory construction without any indication that alterations had been made.
In response to questions at oral argument regarding the accuracy of these quotations, she explained, in justification of the improper insertions, that “I put those there because that is how the statute should be read.”
No matter how a statute should be read, it is for the legislature—and not counsel—to determine how the statute should be written. We strongly disapprove of the tactic employed here, which was at the very least misleading, and we remind counsel that they are obligated to indicate, through the use of brackets or explanatory parentheticals or otherwise, any modification to quoted materials.
Contrary to Assistant State’s Attorney Streeto’s suggestion at oral argument, and notwithstanding her apology for misleading the court, this obligation is not met by including unmodified copies of the relevant texts in an appendix.
A prosecutor, in reproducing something as basic as the text of a statute – something that everyone has free access to – which she must’ve known the parties would be familiar with, decided to pass off as accurate her own interpretation of the statute.
Then, upon being questioned, had the hubris to state “that’s how the statute should be read”.
This is what happens when prosecutors are allowed to run rampant without any oversight. Once again, I’m fairly certain, despite the Supreme Court’s concern and strong disapproval of this “tactic” that was “at the very least misleading”, she was not punished or reprimanded, let alone referred to the grievance committee.
When prosecutors apologize, everything is okay, because they didn’t really mean to deprive you of your Constitutional rights. After all, they’re in it for justice.