Politicizing judicial elections (updated)

[Update: apropos of this post, I just stumbled across this Slate piece, chronicling the horrific partisan commercials in judicial election campaigns this year. A terrific, must-read entry. H/T. Radley Balko (will this get me a link now?)]

It’s election season, which means we’re all subjected to those horrible bipartisan attack ads, each side proclaiming that the other is a vicious child molester who eats babies for dinner while swimming on corporate money, stolen from the pockets of hard-working, salt of the Earth middle Americans.

That’s de rigueur and to some extent, we’re all immune to it. But what happens when that same poisonous tact starts to infiltrate the re-election of a Supreme Court justice? That’s exactly what’s occurring currently in Illinois, where the retention campaign of Supreme Court justice Thomas Kilbride has been met with some vicious attacks ads on the radio, leading him to fundraise millions of dollars to mount his own campaign. Oh, and he’s running unopposed. There. Is. No. Other. Candidate.

While listening to this story on NPR this morning, I was a little befuddled by this fact. The reporting did not explain it at all and only when I came across this website, did it become clear: in order to retain his seat on the Supreme Court, Kilbride must get 60% of the vote. The pro-business Illinois Civil Justice League is trying to ensure that he doesn’t.

Ed Murnane leads the pro-business Illinois Civil Justice League, Kilbride’s leading critic. Murnane rallied the business community after Kilbride voted this year against limits on medical malpractice claims.

“It became obvious that Thomas Kilbride not only had the worst record on civil issues,” Murnane said, “he also had a terrible record on criminal issues, and we thought the voters of Illinois who are being asked to send him back to the Supreme Court for 10 more years needed to know about his record.”

Those radio ads? Incendiary fear-mongering of the worst kind: the misleading kind

Does Martha Dean have a point?

If I’d never heard the words “attorney general” and “lawsuit” and “active practice” in the same sentence again, ever, I’d have been a happy man. Today, I am sad.

As Rick Green reports, professional whackjob Attorney General candidate Martha Dean tweeted today that she’s filed suit seeking a declaratory judgment that her opponent, George Jepsen, doesn’t qualify to be AG of CT. Yeah, this shit again:

Just filed court challenge to Jepsen’s qualifications under Supreme Court standard: trying cases & 10 yrs of active litigation experience.

It seems, though, that her suit is sparked in part by the Court’s decision in the Bysiewicz case from earlier this year. As you will remember, the supreme court issued its ruling from the bench, holding that Bysiewicz was not qualified to be AG of the state. Last week, they issued the actual decision. Here’s the crux of that decision:

We next address the intervening defendant’s claim that the trial court improperly determined that the plaintiff’s performance of her duties as the secretary  of the state constituted the active practice of law under § 3- 124. Specifically, the intervening defendant claims that, to be eligible to serve as the attorney  general under  § 3-124, a candidate must have ten years experience in litigating cases in court. The intervening defendant further claims that, even if  litigation experience is not required, the plaintiff did not have ‘‘ten years’ active practice at the bar of this state’’ because she has not, on behalf of clients  and as her primary means of livelihood, engaged in conduct that required a high degree of legal skill for ten years. We agree with both claims.

There’s further clarification on that, and that’s where the problem lies:

We conclude, therefore, that, as used in § 3-124, the phrase ‘‘attorney at law of at least ten years’ active practice at the bar of this state’’ means an attorney with at least some experience litigating cases in court.  Although the presumption of eligibility might require this court to conclude that an attorney who has  not practiced exclusively or even primarily as a litigator for at least ten years is qualified to hold the office of attorney general under § 3-124, the presumption does not authorize us to ignore the clear intent of the legislature that the attorney general must have some measure of experience in trying cases. Because it is undisputed that the plaintiff has no experience representing persons in court, we must conclude that she does not meet the eligibility  requirements of § 3-124.

Do you have your brain turned on tonight? Good. Then you’ve already seen the problem here. The court has established, in essence, a case-by-case standard. They have taken it upon themselves to add an element of minimum practice to the statute, without defining what that minimum is.

Because restrict does not mean disseminate

Everyone knows that a sex offender registry exists. Almost everyone knows where to find it online. People use it routinely, even if just for fun. You log on and you search for your town and you see all the creepy people living around you. You may know some of them.

And almost everyone knows that there’s a second “secret” registry. A registry of a much smaller number of individuals, who are permitted to have their names removed from the aforementioned “public” registry (I put public in quotes because all conviction information, whether on the regular list or on the secret list, is still public and you can walk to your local courthouse or police department and get that information) for a variety of reasons – primarily to protect the identity of the victim. There are about 40 people on this “secret” registry. There are thousands on the “public” one.

In an important decision today, the CT Supreme Court reaffirmed that the “secret” registry must remain secret. In Dep’t of Public Safety v. FOI Commission (concurrence), a unanimous court held that “duh! do not disseminate means do not disseminate!” Of course, this all started not because Nosy Neighbor sought this information, but because a reporter did*.

A reporter for the Manchester Journal Inquirer wrote to the department of public safety and asked not for the name and address of the defendant, but basically everything else: the court of conviction, the name of the judge, the name of the prosecutor and the defense attorney. The department refused, the FOI commission ordered the department to turn it over and a trial court supported the commission’s ruling. Until the Supreme Court ruled. The question, boringly enough, turns on the meaning of the phrase “registration information”. Does that mean only the name and address of the registrant, as the newspaper argued, or everything that the department of public safety is required to catalog and maintain, as they argued?

There is no language in Megan’s Law that restricts the meaning of ‘‘registration information’’ to only some of the information in the registry.

The opinion makes the compelling point that for the “public” registry, all “registration information” is available to the public. One cannot then turn around and say that the same word, when applied to the “secret” registry means something different:

General Statutes § 54-258 (a) (1) provides in relevant part that ‘‘the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. . . .’’ There is no limiting language suggesting that only some of the information in the  registry shall be accessible to the public. Correspondingly, General Statutes § 54-258 (a) (4) provides that, ‘‘[n]otwithstanding the provisions of subdivisions  (1) and (2) of this subsection, registration information the dissemination of which has been restricted by court order pursuant to section 54- 255 and which  is not otherwise subject to disclosure, shall not be a public record . . . .’’

Because the boldface title of § 54-258 refers to the ‘‘[a]vailability of registration information,’’ we must assume that all of its subsections and subdivisions refer to the same information. Thus, we must conclude that, just as the statute provides that all of the information in the registry is accessible to the public with respect to the overwhelming majority of offenders, none of the information in the registry is accessible to the public in the very few cases in which the court determines that the information should be restricted pursuant to § 54-258  (a) (4).

Judiciary Committee co-chair Mike Lawlor, whose remark (no, that’s not a typo) during the debate on the bill is heavily relied upon by the newspaper in support of its argument, is quoted in this Courant report:

State Rep. Michal Lawlor, co-chairman of the judiciary committee and one of the architects of the online registry, said the restricted list is intended to protect victims from further trauma.

He recalled a case in which a child, under the age of 6, was molested by her father. The man went to prison; the child grew up. When the man got out, he rejoined the family and was receiving counseling. In 1998, when the Internet sex-offender registry was created, the man’s name was posted. The daughter was in high school. She was shunned from events for fear that the father would show up. His name was eventually removed from the public list.

Lawlor noted that conviction information remains available through other channels, “but our concern was to keep it off the Internet registry, where it is obviously more visible.”

(*By the way, given the amount of grief I give newspaper reports and their coverage of legal issues, it is only fair to point out that this Courant piece by Josh Kovner is concise, precise and accurate. Well done, Josh!)

It seems that the Court got the legislature’s intent right. And so the “secret” registry lives on, protecting the identities of 40 victims and allowing them and their families a fair chance at reintegrating into society and living productive lives. Now if we could only do something about those thousands others whose names and pictures are readily available at the click of a button.

Thank goodness she was awake

So, I was watching legal show the other day and in it, a defendant was charged with breaking into the home of a woman and violently assaulting her. An anonymous caller informed police that this was occurring, but when the police arrived, he hid with her in the bathroom and kept her silent. When the police left, he resumed his beating until she somehow managed to call relatives who called 911.

The man was on trial – a jury was summarily selected in an afternoon and opening statements were delivered the next day. During the defense attorney’s opening statement – as these things go – a juror unexpectedly blurted out that she couldn’t sit on this case because – wait for it -  she was the anonymous caller!

Dun dun dun.

Oh wait, this wasn’t a TV show, this actually happened. In real life.

“She said, ‘I was the (anonymous) person who made the 911 call,’” the assistant prosecutor said.

“She said, ‘It woke me up out of my bed and I saw him beating on her. I thought she must be dead.’”

Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, [Judge] Ruehlman declared a mistrial.

The new trial begins Wednesday – and [juror-turned-witness] Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.

The article tries to explain away this amazing turn of events by stating that during jury selection, prospective jurors aren’t given the detailed facts of the case. That may be true, but in every damn case I’ve ever tried (and by now that number is well over a thousand), the judge not only reads the charging document which lists the date, time and location of the offense, but every single juror is asked whether they have any familiarity with the location or the people involved. Another question that’s typically asked is whether the prospective juror knows anyone who’s been a victim of a crime. If nothing else, that question should have triggered her memory.

So what happened here? Did they forget to ask? Did they ask and she wasn’t paying attention? Or did they ask and she lied? Or was it a case of group voir dire not providing an adequate opportunity to properly examine potential jurors? (Yeah, you knew I was going there.)

Whatever the cause, the lesson is clear: people are mercurial and what may seem to be a straightforward question to you and me, may be vague and obscure to another. One can’t rely on a script to weed out the undesirable jurors. You have to assess the juror, analyze him or her and then tailor your questions to fit that juror’s personality.

Of course, it would be a lot easier if you had 20 minutes one-on-one with the juror…

An incovenient system

I’ve been watching the torturous trial of Steven Hayes from afar, overcome by shame, sadness and disgust. This trial has showcased not only the worst acts that man is capable of, but also the worst emotions that we allow ourselves to succumb to and has shone a spotlight on the primal, base urges for bloodsport that we have.

It’s also disturbing for another reason: that so many – victims, witnesses, bystanders and observers – are perfectly willing to subjugate the very system that is intended to protect us all to the raw, consuming rage that overcomes us when we are faced with terrible acts. And that is a massive problem for me, for you, for all of us.

I rarely quote the doctor here on this blog, or even mention his name in passing. It’s a decision I made a long time ago – to not comment on his comments. The man has suffered tremendous loss and I’m not going to involve him in my rants against the death penalty or the “abuse of tragedy” legislature. But I will quote him today, if only to demonstrate the problem that this trial is creating for the criminal justice system as a whole. After today’s shock-inducing testimony, this snippet of a quote was repeated on Twitter, in newspaper reports and I’m certain it will be broadcast on the nightly news:

the system re-victimizes victims at an alarming rate

This, from the victim of a crime, the trial for which is currently underway. Sneak into the comments section of any online newspaper report on this case in Connecticut and behold the vitriol for yourself, if you have the constitution to stomach it (I’ve written about these comment sections before and why these venerable institutions continue to permit such “dialogue” is beyond me). Those comments, from ostensibly the general public, echo those made today. The most common refrain involves questioning the need for a trial, the certainty of the defendant’s guilt and a desire to save everyone the pain of having to sit and listen to testimony. For example:

After reading about half of the first page all the voices in my head were screaming “Give this d0uche nozzle* the injection now!


What do the writings of this lunatic have to do with the penalty phase of this trial?  What do they have to do with anything???  This is another disgusting example of how the victim IS victimized all over again in the name of protecting the murderer’s rights.

He should have no rights.  He is GUILTY, GUILTY, GUILTY beyond a shadow of a doubt, and he should be erased from the face of the earth NOW!

This is a refrain that is picking up steam: particularly because of this case.

This is very, very dangerous. These are the jurors of tomorrow. These are the people who vote. These are people who will one day decide whether another man is guilty or innocent. That there is such a fundamental lack of understand – or perhaps disdain – for the underpinnings of a criminal justice system that starts out with the most needed of principles: that every man is innocent in the eyes of the law, unless proven guilty and found to be so by a jury of his peers, should make us all worried.

That it is seen as an inconvenience – a travesty even – that a victim has to attend the trial of the accused, perhaps even provide testimony is not something we should dismiss lightly. As I’ve quoted before and will reproduce below, it simply cannot suffice to accuse. The system cannot make concessions in the rules of the game based on the perceived guilt in the eyes of the public. One cannot simply declare oneself the victim of a crime and then protest indignantly that it should be enough that one has declared oneself so. There must be a public trial – graphic, painful, heartwrenching if the facts are such – because there is no other way. Of course, this is a large part of why the vast majority of cases never go to trial. People are aware that they have to relive the most horrible moments of their lives. They have to sit and listen to gory events in excruciating detail. Some choose not to endure that and others decide differently.

Now for that quote:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. There isn’t one system for those “obviously” guilty and another for those “likely” guilty and those who “may or may not be guilty”. There is one system – tried and true – for everyone. And that’s the way it must be, to ensure conformity, consistency and to avoid appearances of bias. The sweeping tide of indignation, the emperor complex, must be halted. Because tomorrow, you will be on trial and a mass of others will have pre-judged you.

Why am I writing about this here? Clearly, a newspaper report about the day’s proceedings is not the right place to question the sentiment. Many others seem content to join the chorus. I know that I am firmly in the minority. But it disturbs me to see others, who are possessed of a greater intelligence than mine, accept as gospel the deafening din that emanates from the roused, amorphous, homogeneous mass. Let the doctor have his say, for sure. Allow him his anger, his sorrow, his vengeance. But realize that tomorrow there will be another trial, with another man and another victim and the system must do right by them too. A system that is so malleable, so subservient to the needs of one or another is no system at all. It would then be called a farce.

Besides, I haven’t written a post in 6 days and I have to do something keep those two last readers coming back.

[Obviously, once again, this is my personal view only and is not endorsed by the public defender's office. Read the disclaimer if you have any questions.]

*remember kids, we strongly discourage the use of this kind of language.

Latest poll: CT still split on death penalty vs. LWPOR

As lawyers know, it’s all about how you ask the question. If you ask “Do you favor or oppose the death penalty for persons convicted of murder?”, you get one answer and if you ask “Which punishment do you prefer for people convicted of murder, the death penalty or life in prison with no chance of parole?” you get quite another.

The latest Quinnipiac University poll released today, asks both of those questions of a sample of 1700+ voters in Connecticut, with a margin of error of 2.4%, and the results lead to headlines like this one and this one. The question, of course, starts with a faulty premise. Not all murders are death penalty eligible. A vast majority of murders aren’t death penalty eligible. But that’s just a quibble.

Let’s look at the numbers:

65% favor the “death penalty for all murders”, while 23% oppose it.

Now, my memory isn’t great, but something about that doesn’t seem very odd at all. In fact, it seems starkly reminiscent of the last poll, conducted in 2007, right after the Cheshire home invasion murders:

In 2007, 63% were in favor of the death penalty, with 27% opposed.

A 2% increase in support for the death penalty, and this after the penalty phase trial of Steven Hayes where every gory and heartbreaking detail you can imagine was splashed across the front page of every newspaper and every computer screen in the entire State. 2%, which might as well be within the damn margin of error. So essentially, there is little to no change in the support for the death penalty from 3 years ago.

So the headlines today are somewhat accurate and somewhat misleading. If the options were death penalty or nothing, then I’d probably choose the death penalty too. So what happens when people are given a viable second alternative?

If the two choices were the death penalty or life without the possibility of release (which is another way of saying the defendant will die in prison), then the numbers become much narrower.

46% still favor the death penalty, but a full 41% would choose LWPOR.

So when given a second alternative, support for the death penalty drops by 19% among CT residents. That is a significant fact, which has thus far been overlooked in the reporting.

So they choose the headline “65% back death penalty”, I choose “state split between death penalty and LWPOR”. Which one is more accurate?

[Interestingly, only 6% of voters would let the death penalty issue decide which gubernatorial candidate they'd vote for. Seems like the voters of CT have other things on their minds.]

Trumpeting the statistic that 65% support the death penalty is useless in any event. If the popular opinion for support of the death penalty were a  viable measure, we’d have a big problem on our hands, because the discretion to seek the death penalty lies only with the prosecutor: if 65% of people want the death penalty for murder, then prosecutors have, for a long time, been ignoring the wishes of the public. Only a miniscule percentage of murderers are death eligible and an even smaller percentage have death sought against them. The alternative, of course, is:

Speaking of polls and the death penalty, cue Gov. Rell’s press release in 3…2…1…