Monday Morning Jumpstart: Damn it’s getting cold edition

Where did summer go? Bring it back, please. While you do so, read some of these weekend stories, sure to light a fire unde-oh, whatever, just read the damn things:

  • Constitution Daily has a post about the drama and controversy that marked the first Supreme Court justices.
  • Connecticut’s top federal judge is seeking outside help to clear through a huge backlog of civil cases.
  • Former Waterbury prosecutor John Connolly has died. Search the blog for his name if you want to know more about him, but he’s dead, so no comments here today.
  • U.S. District Court in Minnesota rules that forcing a student to provide his Facebook/Twitter passwords violates the First and Fourth Amendments.
  • One of the East Haven police officers charged with civil rights violations has pled guilty, possibly  to testify against others?
  • Missouri’s public defenders will be able to cap their caseload, per their Supreme Court [PDF].
  • Michigan’s indigent defense system is on its way to an overhaul.
  • Is the Obama flag logo violating Federal Law? No.
  • CT News Junkie has a nice report on StandDown, the annual event that provides free legal and health services to veterans.
  • The Juvenile Justice Blog writes about that 13-year old in Florida charged with murder.

Okay, that’s enough.

How not to represent a client

Imagine that you represent a man accused of a bank robbery. He is in jail and you’re in your office. You receive a letter from this client in an envelope marked “Legal Mail”. That envelope contains within it another sealed envelope with a letter directing that the second sealed envelope be delivered to the client’s cousin. You:

a. Leave the envelope sealed and tell the client you won’t/can’t send that on, or;

b. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi and tell the client that you won’t forward the letter and that he shouldn’t be sending letters like that, or;

c. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi, turn the letter over to the prosecution, move to withdraw from representation and then testify against the client at his trial.

Corvet T. Williams’ lawyer Dennis Ryan chose option (c). At the criminal trial:

Sunday Stupidity

Here at ‘a public defender’, it’s my job to keep you informed of the latest trends in pop culture and all that stuff that the kids are listening to these days and whatnot so you know exactly who to tell to get off your damn lawn already. So here’s the summer’s biggest pop sensation:

The appropriate reaction is: “What is this I don’t even…”

Okay fine, it’s pretty awesome. You might even want to check out the SNL skit about it, which, thanks to Seth McFarlane, is actually funny.

But you still have to get off my lawn.

A Fully Informed Jury: Two tales

We here in the United States are particularly proud of our jury system of dispensing justice, touting it as “the best in the world” at every given opportunity: and yet think we are all acutely aware of the significant flaws that show no sign of ameliorating. Take, for instance, the role of the jury itself. A jury is supposed to be a representative cross-section of the defendant’s peers, chosen from those in his community or neighborhood, so that they may be able to relate to and understand the defendant’s actions, thus giving greater legitimacy to their finding of guilt or not-guilt. When’s the last time that really happened in your practice?

Juries also have another important role, as we so love to remind them during jury selection: they are the weighers of evidence. It is their job to determine if the State has met its burden of proof. They are to decide if a prosecution is successful beyond a reasonable doubt and whether the State has firmly convinced them that the individual accused has indeed committed the crime.

But juries are often kept in the dark. They are directly told that they are not to bother themselves with consequences – in fact, barring a few outliers, juries aren’t even told of what the consequences might be. Their job is simply to decide the facts and then blindly apply the law. They’ve become accountants, adding up the numbers and deciding if you’ve got a surplus or deficit. That’s not how it always used to be, though. In 1794, Supreme Court Chief Justice John Jay informed a jury as follows:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

John Adams said the following:

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):