He fled and took all logic with him

State v. Ward [PDF], issued by the CT Supreme Court yesterday, presents the ubiquitous problem of how to contort the law and the plain meaning of words to ensure that an obviously guilty person stays convicted. Showing their abhorrence for “technicalities”, the court does the astonishing: it re-imagines itself as a lexicographer and unilaterally changes the definition of a simple four-letter word.

The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.

This brings us to the intersection of the notions of justice and due process. For justice requires that someone who commits a crime like this shouldn’t go unpunished, no matter how long it takes to find and prosecute them. Victimization remains forever and the penalty must be paid. Due process, on the other hand, demands that prosecutions be brought in a timely manner and that individuals not be required to answer for crimes allegedly committed decades earlier due to the inherent problems of missing witnesses, eroded memories and evanescent evidence.

This is why the law provides not only for a statute of limitations in almost all felony cases, but also for an “out clause”: a tolling of that statute under certain restrictive circumstances. For the uninitiated, the statute of limitations states:

(b) No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed.

The tolling provision states:

(d) If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against such person at any time within such period, during which such person resides in this state, after the commission of the offense.

Clearly, in the matter of Ward, the prosecution was not initiated within 5 years of the commission of the offense. So the only question that remains is whether the limitations period has been tolled. To answer that question we need to ask if Ward “fled” the state.

The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution. The alternative – that every individual who has committed, or thinks he has committed, a crime is required to stay at the scene of that crime and await the inevitable arrival of Constable Fife with open arms is absurd and illogi-I’m sorry, hang on. The Supreme Court wants to say something:

The defendant contends that the trial court improperly determined that he ‘‘fled from and resided out of this state’’; General Statutes (Rev. to 1987) § 54-193 (c); because the state did not present any evidence to show that he was aware of a criminal investigation against him and that he fled in order to avoid prosecution. In response, the state contends that the term fled does not require an intent to avoid arrest or prosecution and that any absence from the jurisdiction, regardless of intent, tolls the statute of limitations. We agree with the state that the plain language of § 54-193 (c) does not require a defendant to leave the state with the intent of avoiding prosecution.

Section 54-193 (c) contains no mention of a requirement that the defendant must have fled for the purpose of avoiding prosecution. Thus, the plain language of § 54-193 (c) supports the conclusion that it does not require that a defendant has fled with the intent to avoid prosecution.

[(c) is now (d)] Oh. I see. So you are saying that all perpetrators must stand vigil at their crime scenes until police arrive to arrest them. Are they required to provide confessions too? Maybe we should make it a law for all criminals to videotape their criminal activity and then mail the aforementioned tape to the nearest police department and turn themselves in within 24 hours.

The fact that the Court agrees with the State that the verb “to flee” as used in the statute has no intent requirement renders the phrase meaningless. They might as well take it out of the statute and simply say “if the person has left the state…” because the existence or possibility of a prosecution is irrelevant.

We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.

Okay, hang on. I’m confused. What? You just got done saying that it didn’t matter why the person left the state. Then you use the wishy-washy word “may” in the next paragraph to include that scenario that you just dismissed as irrelevant1. WHAT ARE YOU SMOKING AND WHERE CAN I GET SOME?

Certainly, the defendant herein, as a result of his conduct in the victim’s home, had reason to believe that an investigation would ensue.

Ay, there’s the rub. He’s a Very Bad Guy and he’s Obviously Guilty so he should’ve known that a prosecution would naturally ensue from his actions.

Granted, a man who rapes a woman at knifepoint in her home, deposits his DNA everywhere and just saunters off cannot plausibly claim that he “just went home” and so the court, in an “ends justify the means” sort of way can reasonably be forgiven for calling bullshit on his claim that the statute had run.

But this doesn’t – and shouldn’t – give the Court license to rewrite the meaning of the word in the statute that affects not only Ward, but every other criminal defendant in the state. The court has added a judicial gloss to the meaning of the statute in a way that was completely unnecessary and unfortunately served to eviscerate the protections offered by it, despite its fervent protestations to the contrary:

We reject the defendant’s argument that construing § 54-193 (c) in a manner that does not require an intent to avoid prosecution renders the term fled meaningless. As we have explained previously herein, a defendant must absent himself from the jurisdiction with reason to believe that an investigation will ensue as the result of his actions in order for there to be an application of the tolling provision. There may, indeed, be situations in which a person is traveling through Connecticut and leaves the jurisdiction without reason to believe that an investigation would ensue as a result of his or her actions. For instance, if a motorist was driving on a dark road at night and hit what he reasonably believed to be a bump in the road without stopping, only later to learn that he had left the scene of an accident, he may not have fled the jurisdiction within the meaning of § 54-193 (c). We are confident that our interpretation of the statute does not render the term fled meaningless.

God this court is schizophrenic. From the earlier “may” we now come to a “must”, thereby cementing that a reasonable belief that an investigation will ensue is an integral part of the determination of whether the defendant “fled”. The court then provides the most laughably absurd example of how that requirement would serve to protect an “innocent” person, but still cannot bring itself to say that its own fictional defendant, in its fictional example of the application of the statute that they have just defined “must” get the protection it confers. All it can say is “he may not have fled the jurisdiction”, because logic.

For this judicial determination of “he should have known because, look, he’s really guilty” is a prior judicial determination of guilt before the fact-finder is called upon to make that very same determination. Through what lens are we to make this determination of a “reasonable” belief? From the perspective of the defendant at the time of the commission of the alleged offense? At the time of arrest?

This “interpretation” may not have rendered the term “fled” meaningless, but it sure has made it completely incomprehensible and useless.

There’s a lesson to be learned here, kids: bad cases make bad law, always.

1Unless, of course, you’re using the word “may” in the sense of “is permitted to”. As in “you may serve me my coffee now”. In which case, I suggest the use of the more direct and precise “shall” or “will”.

This is the song I first thought of when I read this case. There are some obvious similarities, but I’ll leave it to you to figure them out:

General intent, specifically

The Connecticut Appellate Court, in what is sure to be a short-lived decision, reversed the conviction of a man accused of conspiring to commit Robbery in the Second Degree. In State v. Pond [PDF], the court held that while Robbery in the Second Degree is a general intent crime, conspiracy is a specific intent crime, so the trial judge improperly instructed the jury on the elements required to be proven beyond a reasonable doubt.

The majority opinion and the concurrence [PDF] go to great lengths to plead that their decision here is “constrained” and “required” by the anomaly in the jurisprudence brought about by our supreme court’s decision in State v. Padua. In fact, almost the entirety of the concurrence is devoted to explaining this anomaly and how it basically fucks it up for the State, which has to prove more to prove a conspiracy and then ends with the blatantly transparent “but I’m just an appellate court, so I can’t do anything about it….HINT! HINT! ARE YOU GETTING MY HINT YET!?!!?”

Reading these opinions on specific and general intent and what is and isn’t not only made my head throb violently, but it also re-ignited a conversation I was having with myself last week: what is the difference between general and specific intent and why do we even bother to differentiate?

Thankfully we have State v. Gonzalez to clearly explain all of this to us (via the concurrence in Pond):

Death on death’s doorstep

[You should’ve seen the alternate title I had lined up for this post: Death’s Final Countdown.]

In the early morning hours of April 11, 2012, the people of Connecticut, through their elected legislature, decided that they would no longer permit their own to be put to death with the imprimatur of official state action. For those like me, who are abolitionists, it was only half a victory: the measure was prospective only. So while we rejoiced, we did so with caution and measure, because there were still 11 men who could be executed by the State and at least two more who could legally join them on death row.

Even before the ink that formed the Governor’s signature on the “repeal” bill was dry, chatter was building that there would soon be a push to make the repeal retrospective as well. Despite the clear language that this piece of legislation applied only to future crimes, many were skeptical that such a measure could pass constitutional muster. After all, what is more “arbitrary and capricious” than deciding who lives and dies based on a date?

Soon, we will find out if those skeptics were indeed correct. The Connecticut Supreme Court has granted a motion for reconsideration in the death penalty appeal of Eduardo Santiago (who was one of the 11 on death row, but whose death sentence the Supreme Court reversed [PDF] on other grounds in June). Instead of going straight to another penalty phase hearing, Santiago’s lawyer asked the Supreme Court to rule whether the death penalty is even a legal option in his case, given the repeal. The Supreme Court agreed to do so.

There’s also a similar motion pending in the case of Richard Rozkowski, who’s currently awaiting another penalty phase hearing. I wouldn’t be surprised if that were joined with the Santiago appeal at some point.

Meanwhile, the trial of the death penalty on charges of racial and geographic bias continues undeterred this week, despite the abomination that is McCleskey. Professor John C. Donohue’s study here in CT isn’t the only one to find great bias in the application of the death penalty. See this recent paper on a study of one county in California.

Frankly, the conclusion that the death penalty needs to be taken off life support is inescapable to me when viewed the prism of stories like that of Terrance Williams, where 5 jurors signed a letter stating that they were unaware that the alternative to death was life without the possibility of release; or that of Robert Wayne Holsey, whose lead attorney confessed that he drank a quart of vodka every day during the trial, and yet the 11th Circuit upheld [PDF] the death sentence, because nothing would’ve made a difference.

Will it be taken off life support? Or will it be allowed to live, weakened, cowering in a corner, yet poisonous and infecting us all? We’ll find out soon enough.

A quart a day keeps effectiveness at bay.



Constitution Day Jumpstart

It’s 2012. Do you know where your Constitution is?


It’s September 17, which means it is also Constitution Day: the day on which the delegates to the Constitutional Convention met in Philadelphia in 1787 to sign the document that would enumerate, in general, those rights and freedoms that we purport to hold so dear. With each passing year, the Constitution means less and has less power and effect and thus, the importance of understanding it and its intent and its protections grows stronger. Here are some stories from the weekend that you should read with the Constitution in mind:

  • The Ninth Circuit hears re-argument en banc in a challenge to California’s DNA upon arrest law. [My post on the original 9th Circuit decision.]
  • Popehat has this deliciously titled post about the First Amendment, damages awards and their chilling effect on speech: Schadenfreude Is Not A Free Speech Value.
  • A 13-year old Florida boy is facing murder and sexual assault charges as an adult, exposing him to life in prison. He’s thirteen. Think of the children.
  • EvidenceProf continues his analysis of Giles, forfeiture by wrongdoing and transferred intent, analyzing a case currently pending in the Oregon Supreme Court.
  • The Atlantic has this interesting article questioning the continued importance of Justice Scalia.
  • There’s also this lengthy, powerful piece on Terrance Williams’ clemency request in Pennsylvania. Make sure you read it in its entirety. For the TL;DR version, here‘s a NYT piece.
  • Prosecutors across the country get their hands dirty by joining with scam debt collectors to threaten people. Scott Greenfield has more.
  • This post at The Agitator uses the example of a West Virginia teacher, acquitted of sexual assault charges after a retrial, to question prosecutorial immunity and wonder how the woman can piece her life back together.
  • Ken Lammers gives us all tips on how to put together the perfect opening statement.
  • Finally, in the WTF news story of the day, Facebook takes down the City of New Haven’s Facebook page because Facebook.

Now go say a silent prayer to your favorite Amendment.

Forfeit what?

Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here‘s the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”:

Judge finds Reid method oppressive

In other news, scientist finds that the sun is really, really, hot and sports commentator opines that in order to win you have to score more than the opponent. Honestly, I wish the headline of this post, which is a version of the headline of this news story, was an Onion article. It’s not. Also, this is from Canada, so your mileage may vary.

The Reid method, for those who don’t know, is a classic police interrogation interview technique which is used to wrangle and coerce confessions from suspects. A simple Google search reveals much about the Reid technique, which you should peruse at your own leisure, preferably after you’re done reading this post. But since I know you’re lazy, here’s a link to the technique’s “Nine Steps“. You can see how coercive and insidious they are.

The Reid technique, despite its flaws and criticism about its tendency to produce false confessions, has been the standard method of conducting interviews across North America for near 20 years now. It’s routinely used – and defended – by law enforcement organizations. Courts have upheld the use of these coercive tactics time and again.

So leave it to a Canadian judge to unequivocally declare that this technique is improper and dangerous. In Regina v. Chapple [PDF], the Honorable M.C. Dinkle. The judge does a wonderful job of outlining the tactics employed by the police officers in this case:

Dinkel said Calgary police subjected Christa Lynn Chapple to an eight-hour interview and interrogation that “had all the appearances of a desperate investigative team that was bent on extracting a confession at any cost.”

Even though the accused asserted at least 24 times that she wanted to remain silent, Detective Karla Malsam-Dudar disregarded that right, continuing to prolong the interview with lengthy monologues, constant interruptions and persistent questioning.

The accused’s free will was overborne to the point where she told police what they wanted to hear, the judge concluded.

But more notable than the specific facts of this case was the overall condemnation of the technique itself, which the judge called “a guilt presumptive technique” designed to “extract confessions from the accused”. He further excoriates:

Innocence is not an option with the  Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with  the interrogators who misuse the technique and not the technique itself. They may also say that  the technique is intended to be used only in circumstances where the police are sure of an  accused’s guilt. These factors are of little solace to me and of no assistance to those innocent  individuals who have given false confessions over the years at the hands of Reid Technique  interrogators.

The judge notes, with some disappointment, that even years after other judges first began to question the use of this technique, it is still widely in service today. False confessions were recorded in approximately 25% of the exonerations cataloged by the Innocence Project. The dangers of using such a coercive technique should be obvious to those whose stated goal is the pursuit of truth and justice, yet more often than not, it is used to achieve precisely the opposite result and serves as nothing more than confirmation of their bias and tunnel-vision. The goal isn’t the truth, it’s an arrest, a confession and a conviction, truth be damned.


H/T: Lisa Steele for the pointer and The Trial Warrior for providing a link to the opinion.

Think of the children

The classic strawman, the underlying justification for any legislation appearing to be tough on crime, the go-to argument for riling up mobs in your favor is to implore people to, please, think of the children.

The “children” at issue are not just any children: they’re your children and mine, those sweet innocent babes who just want to eat ice cream and roll in the mud and take cute pictures with the family dog. Those naive children whom we must protect at all costs from the dangerous monsters that lurk around the corner and wait in shadows. Unless, of course, these children commit crimes themselves, in which case we do think of them: we think of them as juveniles. One day, they’re the future of the nation, the next they’re shackled in the back of a prison van, drenched in their newly acquired status as irredeemable delinquents, the scourge of society.

Juveniles have long been the forgotten sector of the criminal justice system. Practicing in juvenile court is barely a step above practicing in family court. Representing them is akin to being a social worker and no self-respecting defense lawyer voluntarily wants to go into juvenile court and looks down on those who do. Until now. After the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, the plight of juvenile defendants is finally seeing the light of day and taking center stage in a long-overdue discussion about just what, exactly, we are doing to our children. These two cases are notable not only for their respective holdings, but also for mainstreaming the scientific consensus on the development of the adolescent brain.

They’ve caused us to re-examine our treatment of these damaged, troubled 14, 15, 16 and 17 year olds and have shone a spotlight on the ugly legislation we have in our states that mistreats these children.