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As public defender offices across the country are cutting budgets and closing up shop, and at the same time that SCOTUS gave fresh guidance on when the right to counsel attaches, it is important to reflect on the place of the public defender in our criminal justice system today.

With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ‘06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.

That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.

The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen.  There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).

What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal - and often counterproductive - defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.

The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.

And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Justice Clark, concurring in Gideon:

That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.

To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!

Who’da thunk it? Fourth of July is almost around the corner (and fireworks are still illegal) and before you know it, it’ll be snowing again. Dammit.

These stories and posts should take your mind of that chilling eventuality:

• A whole bunch of new laws go into effect Tuesday - including, ofcourse, the stiffer penalties for home invasions.
• What effect will California’s same-sex ruling have on the CT Supreme Court (whose decision has been pending over a year, btw)?
• Georgia’s Supreme Court is poised to review a non-capital sentence for proportionality under the Eight Amendment.
• SexCrimes has all the post mortem on Kennedy.
• Scott brings us a juror’s take on a potential sentence incorporating acquitted conduct.
• Maybe our job is not thankless after all?
• The Confrontation Blog deconstructs Giles - part one and part two.
• Answering some questions on the impact of Heller.
• My post on the CT Supreme Court’s year-in-the-making magnum opus reversing kidnapping precedent is here.

Enjoy the day!

In what may prove to be a landmark decision, the Connecticut Supreme Court last week reversed decades of precedent in interpreting the State’s kidnapping statute. The Court issued two companion cases: State v. Salamon (concurrence and dissent) and State v. Sanseverino (dissent).

Background: Under the prior interpretation of the kidnapping statute, you would be guilty of kidnapping in the second degree (C.G.S. 53a-94) if you merely restrained an individual while committing a crime. This interpretation came from a line of cases starting twenty or so years ago, most recently reaffirmed in State v. Luurtsema.

This interpretation brought about absurd results. A defendant, who pinned down an individual for the purpose of committing sexual assault, was also then guilty of kidnapping. If I pushed you down and then punched you (clearly an assault), I would also be guilty of kidnapping.

Prosecutors used this to their advantage and routinely charged kidnapping in the second degree with other crimes, because they had to prove very little. (In fact, there were some judges who would routinely acquit defendants of kidnapping if charged as a throw-in with the underlying crime.) Under the Luurtsema interpretation, any restraint, however minimal, was sufficient to convict someone of kidnapping in the second degree - a B felony with a maximum sentence of 20 years.

The correct offense to charge, however, was unlawful restraint in the second degree - a B misdemeanor. But under Luurtsema, there was virtually no difference between kidnapping and unlawful restraint.

6 years after Luurtsema, the Court gets it right. I’m not sure they picked the case with the best facts in which to do so, but here we are. The Court engages in a very lengthy analysis of our kidnapping statutes, starting with common law.

The Court does this by focusing on the distinction between the words “abduct” (appearing in the kidnapping statute) and “restraint” (appearing in the unlawful restraint statute). The Court determines that abduct incorporates and builds upon restraint.

In what is becoming a rarity, the Court also acknowledges the practical impact of its prior interpretation:

Our failure previously to recognize such an exclusion largely has eliminated the distinction between restraints and abductions and effectively has merged the statutory scheme such that it now closely resembles the provision that the scheme was intended to replace. Unfortunately, that interpretation has afforded prosecutors virtually unbridled discretion to charge the same conduct either as a kidnapping or as  an unlawful restraint despite the significant differences in the penalties that attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors— indeed, it has encouraged them—to include a kidnapping charge in any case involving a sexual assault or robbery. In view of the trend favoring reform of the law of kidnapping that existed at the time that our statutes were enacted, and in light of the commission’s stated goal of creating a modern, informed and enlightened penal code, it is highly likely that our legislature intended to embrace that reform, thereby reducing the potential for  unfairness that had been created under this state’s prior kidnapping statutes.

The Court then looks to sister states and cites a number of them interpreting their kidnapping statutes in a manner contrary to Luurtsema.

The test: So what does all of this mean? Well, now, it is no longer kidnapping to restrain an individual where the restraint is merely incidental to the commission of the underlying felony. I believe this to be the operative test going forward:

‘‘[T]he guiding principle is whether the [confinement or movement] was so much the part of another  substantive crime that the substantive crime could not have been committed without such acts . . . .’’ State  v. Niemeyer, 258 Conn. 510, 528, 782 A.2d 658 (2001) (McDonald, C. J., concurring). In other words, ‘‘the  test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the   confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.

The Court gives no guidance, however, on what would constitute “significant enough”. Perhaps that remains for another day.

The Court doesn’t go back on all of its kidnapping jurisprudence, though. There still is no minmum restraint requirement to constitute a kidnapping. However, the Court does tell us that when there is restraint incidental to the crime, for kidnapping “the confinement or movement must have exceeded that which was necessary to commit the other crime.”

The Court also states that is not double jeopardy for someone to be convicted of both kidnapping and unlawful restraint (nor could they - having established that they are separate requirements for each).

The bottom line: There are a few things to take from this decision. One, that if the restraint is merely incidental to the other felony being committed, then it is not kidnapping. Second, you can be convicted of both kidnapping and unlawful restraint in the same act.

Unanswered questions: There are some unanswered questions, unfortunately. The first is whether some slight restraint is sufficient to convict someone of kidnapping, if there is no other underlying crime. For example, if I stand in your way as you try to leave a room, for even a few seconds, is that kidnapping? (The chatter on the local listserve tells me that there is such a case currently pending before the Supreme Court. We may have an answer to this soon.)

Finally, Mike asks in the comments to my previous post: What of Mr. Luurtsema himself? It is his case that was overruled here. Does he (and others like him) get any benefit now?

I think the answer is: Maybe, but probably not. (Can I be any more vague?) Both the majority and dissent in Sanseverino recognize that Salamon can be applied retroactively to cases pending at the time of its issuance. Justice Zarella’s dissent, in footnote 1, seems to argue for a further application to cases not still pending, but it’s not clear. Or maybe that’s just me reading too much into it. (See my comment here for the text of that footnote.)

This case was not decided on Constitutional grounds, so the Teague rule probably wouldn’t apply. But in my brief search, I came upon no case where there was a retroactive application of a judicial interpretation of a statute that benefited defendants, on collateral review. If anyone knows of such a case, or has any insights on what Mr. Luurtsema might do, feel free to share them in the comments. I suspect that it will have to be litigated in habeas corpus proceedings.

To those of you to actually listened to our Chief’s words today at the annual meeting and decided to check out the blog, I say heartily: welcome!

Poke around the site; you’ll find plenty to keep you entertained. Remember, she said it’s okay to look!

If you’re looking for the post she cited, it is here.

Stick around, comment, come back regularly.

To the chief: Thanks for the kind words

Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.

Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.

Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).

Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.

Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping - a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.

Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint - a B misdemeanor.

The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.

For reasons that aren’t important, I was engaged in a discussion of Connecticut’s Supreme Court and the tone of recent opinions.

This led to a discussion of retired Justice Berdon, Gov. Lowell Weicker’s first nominee to the Supreme Court, and a prolific writer who wore his opinions on his sleeve (and pen). I then engaged in a quick survey of CT Supreme Court dissents since 2000 to see if the Court has changed since his departure.

First on Justice Berdon. His outspokenness was recognized as early as 18 months into his tenure on the highest court.

Justice Berdon, Mr. Weicker’s first nominee to the court, has emerged in the last 18 months as one of the most outspoken dissenting voices in its history, legal experts say, skewering the majority — often in disparaging terms — time and again. Of 147 cases Justice Berdon heard through last month, he issued his own separate dissenting opinion 39 times, an unprecedented number on this court.

“A couple members of the majority haven’t liked my choice of words,” Justice Berdon said in an interview. “But I’m going to say exactly what I think and what I feel should be said.”

Justice Berdon, a soft-spoken man who wears bow ties and so reveres Adlai Stevenson that he named his only son Peter Adlai Berdon, said he believes that there is an obligation to dissent in many cases. A cynical public must be shown that justice is being done, he said, and that issues are receiving a real public debate.

“It’s important that if you disagree with the majority, you don’t merely go along to tag along,” he said. “You have an obligation to put in your views and words so the the public can know what the other side is. It’s a constitutional obligation.”

And he did it with such bite:

One might debate, though, whether there is a constitutional requirement to criticize one’s colleagues with such obvious relish. In one dissent last year, for example, in a case challenging the method used in reapportioning State House and Senate seats, Justice Berdon began with the pronouncement that “today the majority trivializes the State Constititution,” and went on to disparage the majority’s “simplistic” reasoning and its “confusion and failure to understand the case that is before us today” and giving “at best, a cursory review” of the facts of the case.

Now let’s turn to the Court since his departure in 2000. Since then, in eight years, there have been only 55 dissents in criminal cases. Compare that to the 39 dissents in 18 months.

Of those 55 dissents, 19 were penned by Justice Katz. Also in that 8 year span, the Supreme Court heard (more than a few times), the appeals of Michael Ross, Richard Breton, Todd Rizzo, Ivo Colon, Russell Peeler and Courchesne, all capital appeals.

In the last three years (2006-2008), there have been only 8 dissents in criminal cases - and only 2 from 2007 onwards.

Back to Berdon. That NYTimes article I linked to above predicted a liberal turn to the CT Supreme Court:

Some students of the court say the early suggestions are that Justice Berdon may be pointing the way toward a stricter defense of civil rights, and that if other Weicker nominees follow that trend, Connecticut could emerge with one of the more liberal courts in the nation. Justice Berdon, who is 63, faces mandatory retirement in 1999, when he turns 70, but Justices Katz and Norcott, and Mr. Palmer, if he is appointed, could serve for decades.

And it may have been, during Justice Berdon’s tenure. But after his departure, it seems that the Court has returned to what it was prior to his appointment:

The Connecticut Supreme Court, the state’s highest appeals panel, has not been a place of flash and dazzle. Known until the 1960’s by the unfortunate formal title of the Supreme Court of Errors, the seven-member panel has been seen as a conservative, often technical-minded body that generally shuns sweeping constitutional pronouncements in favor of unanimous, bland consensus.

What does all of this mean? Well, very little. The dissents in the last eight years are varied: a “liberal” judge like Justice Katz has voted against defendants twice, whereas “conservative judges” Sullivan, Palmer and Zarella have voted for defendants 8-9 times.

Where it interests me (and possibly you) is in the capital arena. The Court’s decision in State v. Courchesne will mark the first time in a long, long time that the entire Supreme Court panel sat on a capital appeal with the constitutionality of the death penalty before it. Of further interest is that of the current 7 members, only 3 have ever expressed an opinion on capital punishment: Justices Katz and Norcott have frequently dissented and Justice Palmer has voted to uphold the death penalty once.

Justices Rogers, Vertefeuille, Zarella and Schaller have not yet had the opportunity to decide the constitutionality of the death penalty - and it certainly will be interesting to see where they stand and how they come down on the issues.

There are quite a few important and interesting issues pending before the Supreme Court right now and the next year or so will be quite telling as to how the Rogers Court has shaped up. Will it sink further into the abyss of congenial consensus or will a Justice Berdon emerge?

On that note, it is only fitting to leave you with this sad concluding paragraph from Justice Berdon:

This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one –  Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote, 24 Connecticut is not among those enlightened states and nations to put an end to the death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.

State v. Griffin, 251 Conn. 671, 741-42 (1999).

SCOTUS today issued its opinion in Rothgery v. Gillespie County [pdf], which has caused some discussion in the blawgosphere. The prevalent theme in this discussion is a sense of being unfulfilled. A sort of “that’s it?”

There’s also some confusion as to what the decision really means.

Only one thing is clear: It is narrow. Very, very, narrow.

Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

So the decision was on a small, technical issue and the case will be sent back to the Fifth Circuit to determine whether any of Rothgery’s rights were actually violated (remember, this is a 1983 case).

So if they’d left it at that, it’d be fine. But then there’s this other business (from J. Alito’s concurrence):

As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.” The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right . . . to have the Assistance of Counsel for  his defence”). It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching”.

Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the  defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177–178

So the criminal prosecution commences for Sixth Amendment purposes when there is an arraignment (or in Rothgery’s case - a presentment to a magistrate), but that doesn’t necessarily mean that the defendant be afforded counsel?

Some put it this way:

As Justice Alito’s concurrence notes, a finding that the right to counsel has “attached” means only that counsel must be present for “critical stages,” which are events where counsel needs to be present to preserve rights related to the forthcoming trial. There is, to date, no Supreme Court precedent that requires appointment of counsel for indigent defendants to protect rights other than trial.

So, we have no concrete decision on what is that first “critical stage”. Does the right to counsel attach only for critical stages, so in between these “critical stages”, there is no right to counsel? Or is it a critical stage from that first event all the way through to trial?

Obviously, I think the answers to these are fairly simple. There is an initial stage, say the arraignment, where a criminal prosecution is commenced. Anything that happens after that is with an eye toward a trial. So after arraignment, indictment or whatever it is in your local jurisdiction, right to counsel should attach (and a substantive right, not this incomprehensible Rothgery “right”). It only makes sense.

Some argue that there is no right to counsel during pre-trial negotiations. That is a red herring. No prosecution is undertaken with the goal of resolving it via plea bargaining. Plea bargaining is something that happens (albeit very frequently) along the way to a trial. During the plea bargaining process, the defense attorney is investigating the state’s case, conducting legal research, filing motions to dismiss/suppress, etc. It’s all with an eye toward the trial. That most cases are resolved via pleas is incidental.

Further, a plea bargain still results in a conviction (mostly) or a dismissal. If there were no right to counsel to assist in the plea bargaining process, then convictions would be obtained without counsel. There would be no one to point out the weaknesses in the State’s case; the whole system would be reduced to prosecutors vs. pro-se defendants. And then if a plea bargain goes south and case proceeds to trial, a defense attorney is placed in the position of having to undo the damage done by the pro-se defendant.

The system would not function. See previous post on IAC during plea bargaining for more.

One final point on Rothgery: The decision does not mandate, as some have suggested, that Texas appoint counsel for defendants every time someone is “presented” at a bail hearing. The decision did not address what Texas (or any other state) must do when a criminal prosecution is commenced. It simply addressed the time at which a prosecution is deemed to commence.

[The Crime and Consequences post linked to above has the throwaway line: "Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, and be done with the whole appointed counsel matter." Such a statement is dangerous and possibly ignores the disastrous consequences of such an event. It merits a whole post, which will follow sometime this week.]

photo credit: Taekwonweirdo

Apparently there’s a hail advisory for this part of the State. Which one of you angered the weather Gods? Make it up to them by spending your morning reading some of these stories and posts:

• Rest in peace, George Carlin.
• The big news in Kansas is that juveniles now have the right to a jury trial.
• SL & P brings us news of a bizarre motion filed by prosecutors in a death case, seeking to bar the defense attorneys from crying in court. The comments are a must-read too.
• A prosecutor admits to throwing a re-trial where there was strong evidence of innocence. More from Talkleft.
• Man sues church after falling due to receiving the holy spirit. Yeah, it’s exactly what you think it is.
• The Kelo decision was not that bad.
• Western Justice ponders the existence of a “crime gene”.
• Grits reports on how flawed ID and crime lab procedures not only imprison innocent men, but also hamper crime-solving.
• Anne Reed loves the bumper sticker question.
• From across the pond: defendants have the right to know the identity of witnesses testifying against them.
• CDW’s weekly edition is here.
• AFI’s Top 10 courtroom dramas.
• Having wrapped up Hartford’s crime problem, mayor Eddie Perez led a demonstration outside the Hartford Courant to protest anonymous commenters on its message boards.

Have a good day!

One of the most important aspects of our job is maintaining attorney-client confidentiality and it is also an integral component of the adversarial system. We need confidentiality so clients can take us in their confidence without fear of repercussion. Clients need advice and we need the information without the filter of someone overhearing that information and using it against the client.

In the criminal justice system, where the burden of proof is squarely on the State, the confidentiality is even more important. Clients tell us all sorts of things, none of which the State needs to know.

In this era of Prison Nation, however, maintaining that confidentiality has some unique challenges. As the prison population grows, so will the challenges to maintaining confidentiality. For example, defense attorneys in San Diego were outraged when they recently discovered that their telephone conversations with clients were being recorded.

A lawyer for the Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.

But defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.

They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.

It’s bad enough that a “glitch” in the system led to recording highly sensitive and confidential conversations, but the thought that prosecutors had access to those conversations sitting at their desks should be enough to make anyone cringe and cross their legs. Then there’s this silly waiver argument:

However, all of the calls from the jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.

“I don’t know if it’s privileged if both parties are warned they are being recorded,” Toyen, a lawyer and a special assistant to the sheriff said. “If a client in jail made a phone call to me and I heard that, I wouldn’t say anything that I wouldn’t want recorded.”

So some automated recording serves as an automatic waiver of attorney-client confidentiality? Why spew this nonsense instead of just admitting you messed up?

In Connecticut, there are two “types” of phones in prisons: counselor’s phones and pay phones. The pay phones are recorded and counselor’s phones are not (supposed to be). It is rare, but sometimes I do get clients calling from pay phones in the prison. That’s when I ask them to hang up and let them know I will call their counselor to set up a legal call. But even calls with counselors aren’t always “private”. The counselor’s office is in a cell block, with other inmates outside the door - and often counselors don’t even leave the office while the client is talking.

This problem with talking to incarcerated clients isn’t limited to the phone, though. In person visits with clients also have confidentiality problems. Holding cells in small courthouses are the least confidential of all locations and yet one has to talk to clients there. There are other inmates being held in those cells and there are marshalls milling about.

One of the largest correctional facilities in the State has the least sound-proof professional visiting rooms ever built. There might as well be no walls. Anything you say above a whisper can be heard by the people in the next room and quite probably by the correctional officers standing guard outside.

But such is the system and you learn to work with it. It’s an unwritten understanding that anything heard during these “confidential” meetings will not be used by the State against your client. It has to be - otherwise the State is looking at massive lawsuits. Imagine that they did use a statement or fact learned from such a conversation. The State could quite possibly be forced to build new courthouse facilities, new visiting rooms in prisons: it would be looking at a massive expenditure.

It’s easier to turn a deaf ear. But when the conversations are being recorded, the pretense of ignorance has been shattered.

photo credit: rekha6

Sigh.

photo credit: aslinth

Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)

There’s pretext and then there’s this.

The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):

No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.

The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.

First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.

Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:

“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”

The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”

Mr. Gamache is placed under arrest for DUI.

This is not just a CT phenomenon. From footnote 2 of the opinion:

The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical  crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d  804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).

Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,

Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.

The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.

So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.

The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.

I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.

This is a hunch in sheep’s clothing.