Hilarious picture via this list of brilliantly pointless street fliers.
If the law were a series of Hollywood blockbusters, undoubtedly the highest grossing series of movies of all time would be the ones that featured the exceptions carved out in long-standing law to accommodate the prosecution of alleged child abusers. You’d start with the original, “The Child Abuse Exception to Confrontation”, with which the
writers judges hit a goldmine. Then I’d recommend moving to “The Child Abuse Exception to Prior Bad Acts”, and by now with a well-worn formula that keeps the entire plot intact but simply changes the name, a la The Hangover 2, The Child Abuse Exception to Privilege. There’s a rumor that there is a madlibs game in the works “The Child Abuse Exception to _____”. Ultimately, the plan is to release a director’s cut box set compendium under the title “The Child Abuse Exception to The Law”.
This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.
The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).
Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.
Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.
In Connecticut, the privilege statute is 52-146s, which states:
(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.
(c) Consent of the person shall not be required for the disclosure of such person’s communications:
(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;
So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:
Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent for any subsequent disclosures.
The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.
The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:
Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into § 52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.
The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.
In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.
The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.
Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.
Yeah, no chilling effect, for sure.
“They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street,”
State Senator Edith Prague, D-Lots of Places That Are Not Cheshire, CT, who was for the death penalty before she was against it, before she was for it again, but only for one man.
The abolition of the death penalty in Connecticut was already hanging on by the thinnest of wires, thanks to Governor Malloy’s decision to take several Senators into his administration. The vote was a very, very close one. And that was before Sen. Prague’s comments today, after she had a meeting with Dr. He Who Shall Not Be Named, CT’s favorite victim.
But lets be clear: Sen. Prague may not have changed her stance on the death penalty in general – she may very well vote for abolition next time, she magnanimously informs us – but in this one instance, she wants the government of Connecticut to murder a man:
Prague indicated she may still support future efforts to abolish the death penalty but said, this year, she couldn’t look Petit in the face and “not give him something that would make his life a little easier.”
“I actually believe in repealing the death penalty,” said Prague, a senator for 16 years. “For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can’t do it.”
Prague’s voice broke today as she recounted her visit from Petit.
“I can still see Dr. Petit’s face in front of me. Oh, my god in heaven. I’m doing it because that’s what they came in for,” Prague said. “They brought their lawyer and said, ‘If you vote for the repeal, it would make it more difficult.”
And she’s not the only one:
Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit.
Those who are regular readers know that I am not easily left at a loss for words. To say that these comments left me reeling would be an understatement. So let me state this in terms that should not be misunderstood by anyone: Sen Edith Prague is deciding policy in the State of Connecticut based on the wishes of one man.
She may well be the deciding vote that defeats the abolition bill and she is doing so, not because of some moral opposition to the death penalty, but because one survivor made a personal request to her. And what of the others? Those survivors who are opposed to abolition? Did she even bother to listen to their opinions? Can she look them in the face and make their life easier? Or is their loss not the same? Must we always side with vengeance and “justice” over mercy and compassion? Where do you want to be, at the end?
Connecticut’s capitulation to the person in question is well documented: our former Governor Rell repeatedly invoked his name in defeating criminal justice and death penalty abolition bills. Public opinion polls routinely separate one particular case from the idea in general when asking about the death penalty. And apparently, a majority of Connecticut’s citizens would agree with Sen. Prague.
It is one thing, however, for the general populace to voice such opinions – they should and are entitled to it. It is quite another for an elected representative, who takes an oath, to put aside policy considerations for the specific interest of one individual.
Make no mistake: this is the State of Connecticut explicitly stating that Joshua Komisarjevsky and Steven Hayes are to be murdered. This should trouble you. The machinery of two governmental branches of the State have now maneuvered and conspired to bring about the deaths of two individuals.
If two elected representatives to State Government are so moved by their desire not to “make it more difficult” for this survivor, what chance do 12 members of a jury have?
I offer an analogy – admittedly weak, because nothing can adequately capture the gravity of the State’s decision to murder someone – but nonetheless: If this were not an abolition bill, but a bill to raise taxes and Sen Edith Prague made public comments that while she supports raising taxes and it will benefit the State, one individual from a city not in her jurisdiction came to her and begged her not to, because it would affect him personally, and so she will be voting against raising taxes this time. How hard would you laugh at her?
If the State can so contort itself to train its crosshairs on these two individuals – so explicitly, so blatantly and without any shame – why do you think you’re not next?
I suppose, on balance, an abolitionist might gain some small measure of hope from the fact that these public comments, with their explicit emphasis on the desire to please one individual over greater policy, would make it almost impossible for an appellate court to affirm the death sentence for a man so clearly and publicly marked for death. Upon rumination, however, I do not share that optimism. I have no faith in any of the branches of Government of this State. And they haven’t given me any reason to.
Whether you are for or against the death penalty is, in my opinion, entirely irrelevant to this post. Sen. Prague’s comments and her willingness to cow-tow to the emotional machinations of one individual should put the fear of God in all of us.
Today, we can no longer say that there is a divide between “them” and “us”. Today, Sen. Prague has made us all animals.
We have a saying, those of us in this field, that “it only takes one”. It’s said with a slight wink and an imperceptible smile, the legal defense equivalent of “anything’s possible”. Said in reference to cases that present near insurmountable challenges to the defense, it implies that all you need is one juror and you have a hung jury. And if that occurs, anything can happen: the state may not re-prosecute, they may offer a more palatable plea bargain, or at the very least, you’ll have a free preview of their evidence. “It only takes one” is the outcome you’ll gladly accept when all hope of an outright acquittal is lost.
Paul Kennedy, in this post today, writes about a recent Texas trial and the jury’s failure to unanimously agree on a verdict. He references the “reasonable doubt” posts written by both Scott and yours truly last week to ask:
What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn’t prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn’t prove beyond all reasonable doubt?
Rephrased, in the words of Judge Gee, writing for the 5th Circuit in US v. Becton, the issue becomes this:
Appellants’ argument-and an appealing one it is-runs that had they been convicted, and had their convictions been reversed on appeal for insufficiency of supporting evidence, they could not have been again put to trial. This is correct. Burks v. United States, 437 U.S. 1 (1978). How then, they assert, can it be that where, as here, the evidence was so entirely insufficient as to produce a hung jury rather than a conviction, a retrial is yet permissible? When the prosecution’s case is on, and the evidence is insufficient, why should a defendant be worse off if the jury hangs than if it improperly convicts? Stated as an abstract proposition, the argument by analogy seems unanswerable.
But answer it they do, in a variety of ways. The most specious being that a hung-jury is “manifest necessity” that permits retrial and does not violate the Double Jeopardy Clause. That a hung jury is not a determination of the insufficiency of the evidence, because jurors may decline to convict for a variety of reasons despite overwhelming evidence.See, e.g., Richardson v. US.
That is a troublesome proposition, which becomes clearer if you look at it another way. The State, with all its might, had the simple task of convincing 6 – just 6 – people of the guilt of an individual beyond a reasonable doubt (yes, whatever that means). How else can their failure to do so be interpreted other than a lack of evidence?
But what’s to stop legislatures from codifying this principle as law? What if a legislature were to enact a statute that provides that all hung juries shall automatically be treated as acquittals? Clearly legislatures have considered this in one aspect: capital cases. A number of States provide that if a jury hangs in the penalty phase of a capital trial, the judge shall impose a sentence of life without the possibility of release.
Why, then, would legislatures be unable to mandate that if the prosecution cannot convince 6 people beyond a reasonable doubt of the guilt of the accused, then an acquittal must enter and the state is barred from retrying the person?
Would it necessarily run afoul of the “manifest necessity” jurisprudence? That seems, to me, to be an exception to the double jeopardy prohibition. The Constitution permits, but doesn’t require, that retrials occur after a hung jury. Could any court then say that such a statute runs afoul of the DJC?
Or have I gotten hold of the wrong end of the stick all around?
Updating the humdinger of a story from last Friday, wherein a State Trooper was allegedly seeking an arrest warrant for a judge who failed to sign an arrest warrant, there are two conflicting sets of stories out today. First, we have the Waterbury Republican-American, which reports that the trooper did indeed submit an arrest warrant application, but it was rejected (by whom, we don’t know), and that now the Chief State’s Attorney’s Office is “reviewing the allegations” that were made in that application:
A state trooper’s arrest warrant application that charges a Bantam Superior Court judge with coercion and hindering an investigation has been rejected, but the allegations it raises have been forwarded to the Chief State’s Attorney’s Office for review. … On Friday, state police spokesman Lt. J. Paul Vance declined to say why the application was denied or by whom. Vance said the document, stamped in bold with the words “arrest warrant application” at the top, is not considered an application for arrest unless and until it is signed by the investigating trooper and a supervisor.
BUT then we turn to the Register-Citizen, which has a different story. According to the R-C, no warrant was ever submitted by any police agency to any prosecuting authority:
“No arrest warrant was ever submitted from any police agency to any prosecutorial agency,” said State’s Attorney David Shepack. Mark Dupuis, a spokesman for the Division of Criminal Justice, which includes the State’s Attorney’s Office and Chief State’s Attorney’s Office, also indicated that there is no warrant or warrant application for the arrest of any superior court judge. “What’s been reported up there is inaccurate,” Dupuis said regarding the news coverage in Litchfield County. “No valid warrant application was submitted. There may have been other documents, but it is not an arrest warrant application and we can’t act on it,” Dupuis said.
Note that the two may not be inconsistent. It’s entirely possible that Lauretano filled out an application and submitted it to his supervisor, who sat him down and had a nice long talk. Lauretano may then have forwarded the application to the Chief State’s Attorney’s Office anyway. Notice that Dupuis uses the word valid and references “other documents”, and finally this quote:
“The document people are referring to had no signatures,” Dupuis said. “Nothing was ever submitted to us to act on.”
Curiously, it seems that Judge Klatt did end up signing an arrest warrant for the individual who was the subject of the original warrant:
Later on Tuesday, attorney Ira Scott Mayo of Torrington said Klatt had signed a warrant for the arrest of Dylan Hickey following its submission from the Western District Major Crime Squad. … Klatt wanted more information regarding the altercation or to see an arrest warrant filed for everyone involved in the fight, according to Mayo, Hickey’s attorney.
Curiouser and curiouser. Whether the CSAO are actually looking into possible misconduct by one or more parties remains to be seen, as does any action they may pursue. In the end, I’d be extremely surprised if the Judge were accused of any wrongdoing, but I’ve been wrong so many times that it’s embarrassing for me to even think about. The original issue raised by the decision of the judge not to sign the warrant, from a legal geekery perspective, was the protection of the “victim” in cases of domestic violence and violations of protective order. Anyone who’s either been subject to a protective order or represented someone subject to it, knows how easy it is for the “victim” to get the defendant in trouble. All it takes is one phone call and some plaintive bleating about how the defendant “tried to contact me” or sent me a letter and bam! you’re in jail. Even in cases where the communication between the two is perfectly consensual – as it often is – there are no consequences for the purported “victim” for enticing the defendant to violate this protective order. So she [look, I know. It just gets really tiring to keep typing "the victim" and it reads awkwardly.] can call and say “I love you and fuck the protective order and I want you to come over” all she wants and then laugh mercilessly when he shows up with a six-pack and every available police officer in the State is waiting for him. And now the legislature wants to codify this nonsense. I present HB 6629 (you have to scroll way, way down to Section 12), which states in relevant part:
(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, as amended by this act, or section 54-1k or 54-82r has been issued against such person, and such person violates such order. (b) No person who is listed as a protected person in such protective order may be criminally liable for (1) soliciting, requesting, commanding, importuning or intentionally aiding in the violation of the protective order pursuant to subsection (a) of section 53a-8, or (2) conspiracy to violate such protective order pursuant to section 53a-48.
The amendment is to CGS 53a-223, 223a and 223b. Subsection (b) above is a new entry here. “Aiding” or “conspiring to induce a person to violate a protective order” is not a crime anyway, so I’m not entirely sure why this subsection was added, but there you have it.
The Connecticut Judicial Branch, in keeping with its image of being speedy and up-to-date with news and technology, just posted a new link on its website. The link is to the celebrations held in honor of the 100th Anniversary of the Connecticut State Library and Supreme Court building, which was November 10, 2010. So, you know, only 5 months late.
There actually is interesting information on that site, including really old photographs of really old dudes with names like Samuel Prentice and Silas Robinson and Elisha Carpenter, who, apparently sat on wooden chairs at floor level. No wonder it was called the Supreme Court of Errors. Now there’s an appropriate name, if there ever was one.
There’s also this lovely link to a list of all Connecticut Supreme Court (I’m just going to call it that, okay? Let the Court of Errors thing go. Act your age.) Justices, dating back to the ubiquitous and inimitable Tapping Reeve. [And if someone can explain to me just what the hell is going on with the layout of this page, I'll buy you a drink.]
But – and what I’m getting to – is this nifty little list created by world-renowned Connecticut Appellate Lawyer Wesley Horton, of some “significant” CT Supreme Court decisions.
Being someone who once went to treatment for list-addiction, I cannot but permit myself a sip o’ the ole vice and present a list of my own and invite you to do the same. So, finally, here’s a list of the most significant Connecticut Supreme Court cases, in my opinion. Obviously, since no one really gives a shit about civil cases, there are few on this list.
1. State v. Golding – holding that unpreserved errors of Constitutional magnitude can and should be reviewed by appellate courts
1a. State v. Kitchens – effectively reversing State v. Golding above and making it near impossible to get any review of any sort of unpreserved claim of Constitutional magnitude.
2. Kerrigan v. Comm’r of Public Health – gay marriage is a-okay!
3. State v. Geisler – delineating a 6-part test to evaluate claims under the State Constitution.
4. State v. Stoddard – Police are required to timely inform suspects in custody of legal counsel’s attempts to contact them and render legal assistance.
6. State v. Randolph – reinstating the old common law rule of favoring a strict preclusion of “propensity evidence” in non-sexual assault cases.
6a. State v. DeJesus – actually putting ink on paper to say that, in sex assault cases, once a sex offender, always a sex offender.
7. State v. Marsala – under the State Constitution, there is no such thing as a “good faith exception” to the exclusionary rule.
8. Sheff v. O’Neill – something about racial segregation and schools and who the hell knows. They’re still fighting over this one, nearly 20 years later. (No, I’m kidding. This case is very big deal.)
9. State v. Courchesne I – a death penalty reversal based on statutory construction and “plain meaning” of words written on paper, which led the legislature to pass CGS 1-2z, which essentially says mean what they mean.
10. Lozada v. Warden – that whenever the right to counsel attaches (in this case in post-conviction hearings), that right is the Sixth Amendment guarantee of the effective assistance of counsel. Prosecutors hate this one.
11. Kelo v. New London – something about eminent domain and taking and – seriously, all I remember about this is that after SCOTUS’ opinion, some justice had almost had his house taken by eminent domain or something?
12. State v. Nelson, State v. Griswold – the name should give you a hint.
13. State v. Littlejohn – proving the old adage that a criminal defendant can waive whatever the hell she wants, including the statute of limitations.
14. Kohlfuss v. Warden – there is a double jeopardy provision in the State Constitution. It’s right there, umm, taking the shape of the Due Process Clause.
15. State v. Carpenter – holding, somehow, that recklessness (as required for manslaughter) is a subcategory of specific intent (required for murder).
16. State v. Morales – entitles the defendant to a jury instruction when the police fail to preserve potentially useful evidence.
I’m sure there are others you find significant. Let’s hear them in the comments.
[PS: I was really, really tempted to add another: She Who Must Not Be Named v. DiNardo, for my good friend Ryan. But I give him enough crap about it already.So I leave it to you, mischievous reader, to suggest it in the comments.]
There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.
And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.
But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.
South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.
But the commonality in the language we use this:
The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges
Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.
Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.
In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:
Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.
The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:
Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.
(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant1. That’s not the case with the right to the hearing itself.
That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause2, he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”3.
But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.
We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.