Spin

Couldn’t this article “James Holmes’ Victims Applaud Death Penalty Plan: ‘I Want Him Dead’” just as easily have been titled ”James Holmes’ Victims Conflicted on Death Penalty Plan”? See this paragraph:

Family members are divided on whether Holmes should get death, according to investigative sources. Some are philosophically opposed to the death penalty, others support it and still another group wants death for Holmes, but they don’t want to endure a trial.

More inaccurate sensationalist bloodthirsty drive readers to the page by appealing to their basest instincts bullshit.

State to establish dangerous weapon offender registry

You knew it was going to happen. It was just a matter of time. Doesn’t matter that we weren’t the first state to rush to pass gun control laws, as long as we’re the one with the best laws. And having the best laws means having the toughest laws and having the toughest laws not only means heavy regulation but also By-God-We’re-Going-To-Punish-The-Hell-Out-Of-You.

And so here we are. Along with bans on high capacity magazines and universal background checks, we also have “the nation’s first statewide dangerous weapon offender registry”. An idea that Senate Majority Leader Martin Looney has proposed before (here‘s a 2011 Courant article on that proposal), the registry requires that:

[I]ndividuals must register with DESPP if they have been convicted of any of more than 40 enumerated weapons offenses (mostly gun offenses) or another felony that the court makes a finding involved the use or threatened use of a deadly weapon.

Individuals must register with DESPP for a total of five years after their release into the community. During that time they must keep their registration address current at all times, and they must check in once per year, on the anniversary of their release, with local law enforcement in the town where they currently reside. Unlike Megan’s List, this registry will not be public. Instead, it will be available to law enforcement only.

In addition, this mega compromise super-awesome-best-in-the-world-bill naturally also “significantly increases penalties for many firearms trafficking and illegal possession offenses.” Of course it does.

These provisions will do nothing to stop another Adam Lanza. These provisions won’t affect James Holmes.

What they will do is further oppress an already oppressed segment of society. Now poor black and Hispanic defendants will have two more procedural hurdles to jump through and more opportunities to commit crimes.

So why not just take everyone who’s committed a crime and make them register somewhere with some agency. And we’ll make them undergo some rigorous testing when they’re released, so we can probe them and see if they’re doing the right thing. Maybe we can call it, hmm, let’s see, probe…probate…probation! Yes. Probation. And when they’re on probation they have to report to an officer of some sort. Someone who keeps tabs on them. Let’s see. What shall we call this Officer of Probation? Okay, nevermind, we can come back to that.

What’s that? We do that already? Oh. But what’s one more registration requirement, right? I mean, all of our other registries are working so wel-oh, wait.

Also included in the bill are a bunch of mental health provisions. Because now apparently the mantra is that people don’t kill people, but mentally ill people use guns to kill people. Whatever.

If you accept that flawed premise as the root cause of all gun-related evil (as has been bandied about by many since the mass shootings of the past few years); that these are mentally ill people who are committing crimes and of course no sane law abiding citizen would ever use a gun in an unlawful manner (of course they wouldn’t; once they do they aren’t law abiding anymore), then the question becomes, what to do with those that are mentally ill and thus predisposed to crime? Or are criminals mentally ill because only mentally ill people commit crimes with guns? And if we have such a large gun problem, that means that there are many people who are mentally ill, correct?

The truth, of course, is that some mentally ill people commit crimes, some sane people commit crimes, some mentally ill people don’t commit crimes and some sane people don’t commit crimes. What’s also true is that our prisons are filled with people who did commit crimes because they are mentally ill and there are zero options available to treat and assist them and prevent them from re-offending. Putting them on a fucking list isn’t going to solve anything.

So what’s plainly missing from these “mental health provisions” is any mention of mental illness among the prison population and the taking of any steps to address that huge neglected problem. At least a quarter of all inmates have mental illnesses and in a society where there are fewer and fewer resources being assigned to diagnose and treat those mental illnesses, any bill that proposes to make mental health reforms but doesn’t so much as mention the incarcerated population (in a bill that is all about criminals and criminalizing conduct, no less, wtf, is this crazy season?) is a joke.

WAIT. It’s April Fool’s Day today, right? That’s got to be it. That’s the only explanation. Whew. Good one, Connecticut legislature.

Spot the differences: A bill to fix Fourtin

[This is Part One of a 2-part series of posts on just how ineffectual the legislature is at fixing statutes. Part Two will come later.]

Remember State v. Richard Fourtin? Of course you do. Back in October 2012, the Connecticut Supreme Court issued a decision reversing the conviction of a man for sexual assault, holding that the definition of “physically helpless” in the statute was very specific and the State did not meet its  burden. Remember the ensuing assault on Due Process that followed?

I said then that this is an area that must be tread lightly upon. Mental illnesses are on a scale and people with mental illnesses have rights, too. I suspected that the legislature would take up a bill to “fix” the problem.

I shouldn’t have been surprised that it did this. The bill does two things. First, it amends the definition of “physically helpless” include a person who is:

(A) unconscious, or (B) for any other reason, is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact.

This change is fine by me. It seems a bit unnecessary because, in my opinion, this scenario is covered by other subsections, but whatever. If only they’d stopped at this one change.

The bill also removes the offensive “mentally defective” and replaces it with “impaired because of mental disability or disease”.

The latter is certainly more specific than “mentally defective” but immensely more problematic, as I’ll explain in a second. To get there, though, we need to look at one more change the legislature is proposing: the deletion of the definition of “mentally defective”:

[(4) "Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct.]

This definition, while using terms that may be offensive to those with mental diseases, also gave guidance to individuals and courts on the conduct that was prohibited. It said, in essence, that you cannot have sexual intercourse with someone who doesn’t understand what they’re doing.

But this deleted subsection hasn’t been replaced with a definition of “impaired because of mental disability or disease”. So now the statute would read:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (2) such other person is impaired because of mental disability or disease to the extent that such other person is unable to consent to such sexual intercourse;

Right off the bat, actual consent is irrelevant. So the only question is whether the person who is the “victim” can or cannot legally consent.

How is this any different than the scenario that prompted Kortner v. Martise, the civil suit in which the mother of a disabled woman has sued a guy she dated?

This is where the problems begin. How do you define mentally impaired? Who defines mentally impaired? A jury? Their caregivers? A prosecutor?

I can imagine that there is nowhere near any consensus in the medical community as to a bright line rule on consent. This isn’t an historical fact, like age, where we’ve made an arbitrary cutoff for consent. That’s easy to solve: are you 16? Yes, then you can consent. Are you under 16? Then it doesn’t matter, we’re saying you cannot.

How about someone with mild schizophrenia or borderline personality disorder or vertigo or seasonal affective disorder? Is every case then dependent on a battle of experts?

Are private individuals like you and me now the arbiters of determining whether the person is so impaired that they cannot legally consent? How is this not a wide net that will ensnare far too many?

And what if two doctors don’t agree? What if a doctor finds that the person is impaired, but the facts also show that the person did, in fact, consent? How far does the nanny state go? You may have consented but we are saying you’re not capable of consenting? Does this infringe on the fundamental right to sexual congress?

I don’t know the answers to any of these questions, but clearly, this proposed “solution” is creating more of them. That can’t be good.

The sine qua non of legitimacy

What is more important? A system that protects the rights of the individuals subjected to it, but that is fundamentally unfair in the treatment of those individuals? Or a system that is equally concerned with rights and fairness? While the Right To Counsel is a wonderful thing, has it been co-opted as a proxy for fairness in a system and has it been abused by courts to move as far away from the F word as possible? Have counsel truly been subsumed into a subset of the system – a cog in the machinery – so that the extent of our influence diminishes day by day?

Yes, says Alexandra Natapoff, LawProf and author of the Snitching Blog, in this fantastic new paper titled ‘Gideon Skepticism’. I’d really recommend reading the entire thing. She argues persuasively that Gideon, while great for the system, was terrible for criminal defendants, because it permitted courts to get away with all sorts of unfair outcomes because the defendant was represented by an attorney.

There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.

When I’m asked why I do what I do, my response is multi-fold. It isn’t only about our individual rights and protecting the innocent, but also about the fundamental fairness of a system as large as the criminal justice system. As you may well know by now, over 97% of convictions are obtained via plea agreements. And quite possibly well over 90% of criminal defendants are guilty of something (not an accurate figure; don’t quote me).

But no two circumstances are the same: each person is different; each case is different and each outcome should be tailored to its specific causal circumstances.

Having set the bar so low for competent representation, and making the remedy also dependent on the likelihood of a different outcome, courts have effectively rendered it impossible for any one individual to rectify an unfair situation (there are exceptions, of course, but even those come at a cost).

And the clearinghouse role assigned to defense counsel is unfair and improper. As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.

We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.

But in reality it is not well. In reality there is unfairness everywhere one looks. There are harsh penalties for people who don’t deserve them; lack of treatment options for people who need them; laws that promote a wanton disregard for individual rights (see the exclusionary rule, harmless error, etc.); prosecutors and juries that believe in the presumption of guilt; judges that punish the exercise of those rights and a system that is built on a foundation of contempt and disdain for “the other“; and yes, defense attorneys who are more interested in protecting their own ego.

I suppose the analogy to Sisyphus is accurate after all.

The Mercy Project

It takes a lot for a judge to look a defendant in the eye, while sending that person to jail for 15 years, and say “This is one case where the guidelines work an injustice, and I’d like to do something about it but I can’t”. It’s a staggering admission by a sitting judge that his hands are tied by a legislature and a Congress that can’t see beyond the headlines they want to generate.

Mandatory sentences are reviled by judges and defense attorneys; prosecutors secretly love them and the pitchfork public revel in them. And people’s lives are ruined under their aegis. Mandatory sentences are the single most dehumanizing feature of the criminal justice system: it is the explicit admission that the system is stripping people of their individuality and instead treating them as cattle, with numbers branded upon their chest.

Robbed a bank to feed your starving child? Doesn’t matter. Found a little bit of crack on your person? Treated like a kingpin. It’s a one-size fits all approach that has led to gross inequalities, most notably in the crack-powder cocaine scenario. Thousands of people were caught in drug sweeps in the 80s and 90s and thanks to these mandatory sentences, banished to jail for extraordinarily long periods of time.

Like Denise Dallaire.

In which we thank Judge Seeley and go on our way

From time to time, we have to pause in this world of 24 hour news cycles, internet commenters who are like Pavlov’s dogs with keywords and shameless trolling by news organization to get eyeballs on their screens and sift through the sensationalist bullshit and pull out one shining diamond from among the steaming piles of dung.

Judge Hope Seeley is one such diamond. Judge Seeley, former criminal defense attorney extraordinaire (and one-time moot court professor of yours truly even those she did give me a ghastly B- in that class), you see, did something that every judge would do.

When faced with the troubled lives of individuals before her, she took measure of the situation and acted like a human being is supposed to.

But you wouldn’t know it from the coverage by the Hartford Courant – miraculously America’s oldest continuously published newspaper. From the click-bait title “Bristol Man To Watch Baby’s Birth Despite No-Contact Order Protecting Mom-To-Be” to the glaring omission of crucial facts in the article (is it fair to call it an article?), the setup is obvious. It’s written in a way specifically designed to up the outrage of today’s unthinking ADD masses. “Baby”, “birth”, “no-contact”, “Order”, “protecting” “mom-to-be”. Trigger words, all. Cue the outrage!

Because the real story would have the following words in the title “Because Mom-To-Be repeatedly requested that Bristol Man be present for the Birth of His Child”.

Now, anyone who’s covered criminal courts for half a minute would know that there is no judge who is that far out of his or her mind to grant a modification of a no-contact order without any victim input. Far less a new judge, and even far-er less-er a new judge who used to be a criminal defense attorney. So either the reporter was terrible at her job or willfully omitted the key pieces of information. I don’t know which is worse. It wouldn’t have been that complicated to figure out whether the mother objected to or consented to the modification. I suspect all one would’ve had to do was listen to what was being said in court.

But that wouldn’t make a good story, would it? The truth, it seems, is often ill-suited for what passes for modern day journalism.

The woman, who is unnamed, apparently sent a barrage of text messages to the defendant requesting that he be present for the birth.

 

He wisely did not respond to any of them. However, since it was the birth of his child and the woman was pretty insistent he be there, his lawyer requested a modification from Judge Seeley.

Judge Seeley granted a most reasonable modification. Three hours to see the birth, in the hospital and that’s it.

That’s it. What could’ve been a wonderful human interest story, instead is a half-baked, inaccurately reported anger piece without any redeeming value whatsoever that leaves me with only one firm conviction: never trust another report by Christine Dempsey of the Hartford Courant.

Oh, and that Judge Seeley is going to make a damn fine judge. And sometimes, we need to appreciate that because we don’t need judges who are afraid to do the right thing because of you, mad internet commentor. We need judges who treat the people who come before them as individuals and act accordingly. No matter how hard you try, they’re not going to stop being real people with real lives and real problems and turn into stereotypes.

[For my previous rants about irresponsible and shoddy media coverage, see herehere, here, here and here.]