The Hitchhiker’s Guide to the Galaxy describes Vogons as:
[O]ne of the most unpleasant races in the galaxy – not actually evil, but bad tempered, bureaucratic, officious and callous. They wouldn’t even lift a finger to save their own grandmothers from the Ravenous Bugblatter Beast of Traal without an order, signed in triplicate, sent in, sent back, queried, lost, found, subjected to public enquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.
There is no way that Douglas Adams, when he created the Vogons, would have the foresight to know of the CT Supreme Court. But in his description of the Vogons, he has also put into words the most precise description of this State’s highest court1.
They’re not evil. They’re bureaucratic.
And they certainly won’t lift a finger unless every request you’ve made is signed in triplicate and somehow magically predicts the spot to the which they’re going to move the target and then manages to hit it perfectly, while following all the rules they’ve subsequently made up.
Some of their opinions are much like Vogon poems:
Vogon poetry is of course, the third worst in the universe. The second worst is that of the Azgoths of Kria. During a recitation by their poet master Grunthos the Flatulent of his poem “Ode to a Small Lump of Green Putty I Found in My Armpit One Midsummer Morning”, four of his audience died of internal hemorrhaging and the president of the Mid-Galactic Arts Nobbling Council survived only by gnawing one of his own legs off. Grunthos was reported to have been “disappointed” by the poem’s reception, and was about to embark on a reading of his 12-book epic entitled “My Favourite Bathtime Gurgles” when his own major intestine–in a desperate attempt to save life itself-leapt straight up through his neck and throttled his brain.
So pretty much how I feel after reading CT Supreme Court opinions. Like this one from yesterday [PDF].
Meet Michael Pires, Sr2. Pires was a VeryBadMan©, guilty of murder. Michael Pires also had a big problem with his lawyer. In a word, he didn’t like her. So he tried, on many occasions to fire her. The problem is, that he didn’t hire her to begin with, so the upside-down law says that you can’t fire someone you didn’t hire.
As a poor person who couldn’t afford private counsel to defend a murder charge – and let’s be honest, unless you live in Fairfield County or the East End of Long Island, you can’t afford a private attorney to represent you on a murder charge – he was appointed a public defender.
And once you have counsel foisted upon you, you’re stuck with that attorney no matter how much you hate him or her. Because that’s what you get for free.
Now there is an alternative, which is usually used as a stick to make the carrot of the infuriating counsel-who-can’t-be-fired more attractive: represent yo’self! After all, Faretta v. California says that it a core Constitutional right to be permitted to represent oneself.
In order to exercise that right, you have to inform the Court somehow that you want to. That’s fair and logical. You can’t be afforded a right that you don’t express you want to exercise.
So, what did Pires do, after rounds of headbutting with his LawyerWhoCouldn’tBeFired? He apparently told her he wanted to represent himself. Which she duly conveyed to the court:
I did go downstairs and attempt to talk to [the defendant]. He did want to discuss strategy with me. He indicated now that he wishes to represent himself in this matter. I informed him that I didn’t think Your Honor was going to allow him to represent himself on a murder charge simply because that would be much too dangerous and it would not be in his best interest. And that’s about where we stand, Your Honor.
Putting aside the fact that counsel’s advice was blatantly wrong, she is alerting the court “that he wishes to represent himself in this matter”.
Now. Imagine you’re the CT Supreme Court. A court that has increasingly become reliant on procedural rules to deny VeryBadPeople new trials. A court that has become so reluctant to judge whether rights have been violated that it makes a tortoise stuck in its shell look like Evel Knievel.
So what do you do? Well 5 of them decided that his “request” wasn’t “a clear and unequivocal invocation” of his right to self-representation.
At this point, I’m just inclined to throw up my hands and say “I don’t even know anymore”. How can “he indicated now that he wishes to represent himself” not be a “clear and unequivocal invocation”?
I mean, surely there must be some rules in place to deal with situations where unsophisticated defendants make fumbling assertions of their individual rights, much less so
clear and unequivocal?
Why yes, yes there are. Articulated by this very court, just last year in State v. Jordan:
Although a clear and unequivocal request is required, there is no standard form it must take. “[A] defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to [that] request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.”
Ask the damn question. If a lawyer or defendant tells you he wants to represent himself, how long does it take to ask him a few questions? Really? Why is everything a game?
Chief Justice Rogers, who wrote Jordan, dissents in Pires [PDF] saying essentially the same thing she said before: that requests for self-representation can be made through counsel and that this is as clear as they come.
The unfortunate reality, however, is that the die has long been cast. The lasting legacy of the “Rogers court” will be their systematic destruction of modes of review. For those who don’t know what I mean, I’m referring to the methods by which appellate courts, whose job it is to ensure that trials were conducted fairly and according to the law and rules of court, determine whether that was done.
If improper evidence was admitted, a new trial may be warranted. If Due Process was violated, a new trial may be warranted. If a judge or lawyer makes a mistake that results in the violation of rights, remedies must be issued. We used to value the protections built into our system more than we valued the result. But now, we value procedure over all else.
So if you are on trial and the judge admits some very improper and damaging evidence against you, evidence that the jury should have under no circumstances heard or considered, and your lawyer didn’t object either because she was asleep or frenzied or scared or incompetent, our appellate courts will refuse to remedy that wrong, because proper procedure wasn’t followed.
It’s akin to doctors refusing to perform surgery because there isn’t a signature on the requisition form for the lightbulbs that are in the operating room.
There is a silver lining, though: maybe someday soon the Court will start to get it. There are fresh faces on the court and more to come. Maybe people will start to realize how narrow appellate review has become. That maybe elevating finality and form over substance has negative consequences for society as a whole.
Well, if not, then we can always go have a drink at the Restaurant at the End of the Universe.