Significant CT Supreme Court cases

Justice Old White Dude 1, Justice Old White Dude 2...

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.

5. State v. Oquendo – declining to adopt the restricted meaning of seizure under Hodari D. and holding that Connecticut’s Constitution provides greater protection.

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.

17. State v. Ledbetter; State v. Marquez; State v. Outing – slowly but surely coming in line with the modern scientific thinking on the uselessness of eyewitness identification.

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.]











Wrong time, wrong battle

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:

State police want to arrest judge who refused to sign arrest warrant

Unless the victim was also arrested. You can’t make this shit up. And if it were April 1st today, I might laugh it off as a clever joke. But it’s not and apparently neither is this.

Here’s the lowdown, from the two meager paywall inhibited articles that I could find. State Trooper from Salisbury, CT (where watching paint dry is exciting) Mark Lauretano apparently submitted an arrest warrant for a man who got into a bar fight with someone else. The “victim” of the fight (meaning the guy who got beaten up worse), was obviously not arrested, as these things go. Judge Klatt, upon reviewing the information in the warrant declined to sign it, apparently until the “victim” was also arrested.

Judge Klatt, a former prosecutor from Death Valley Waterbury, CT, should have known better. You simply do not refuse the State Police what they want. So instead of, I don’t know, reviewing the information again to see if maybe the Judge had a point, Lauretano does the logical thing and is now seeking an arrest warrant for the Judge herself*.

Because, you know – no, actually I don’t know. He claims that:

Reasonable gibberish

(alternate tagline: because juries never convict anyone anyway)

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.  It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt.  It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision.  It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.  Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

Deluding yourself is deluding the client

Sometimes I wonder what practicing as a criminal defense lawyer would be like if the State only arrested innocent people; if all my clients were, indeed, not guilty. It would be a burdensome practice, for sure. And exceedingly infuriating. As every criminal defense lawyer will tell you, one inevitably comes to believe in the not-guilt of a client with whom you are preparing to go to trial. Every inconsistency in the State’s case becomes magnified, every weakness exaggerated, every defense rock-solid. There is no way to lose, we say to ourselves.

But the reality is, unless you can pick and choose your clients, you will lose. More often than not. Frequently, even. Which is why the inevitable “how many trials have you won” question from an antagonistic client gets under my skin. None, I often respond. But what I really want to add is “that’s because I haven’t had an innocent client yet”. Recognizing that that is nothing more than a hurt ego lashing out, I resist.

But maybe there is something to be learned. Perspective, after all, matters. As defense attorneys, we regularly complain that the state and the man wearing the robes commence discussions and negotiations with the presumption of guilt. Due process, the burden of proof and all the rest of it are fine concepts, in principle and need to be upheld on a daily basis, for without them we would be left with a terrifying shambles of a system.

The reality, though, is that they’re right, for the most part. The system doesn’t just go about arresting perfectly innocent people willy-nilly. And the blind faith in the innocence of each and every client does them a disservice. Clients come to us – or we are thrust upon them – for our expertise, our knowledge and our advice. It is imperative that we consider every possibility and assess it accurately before suggesting the most prudent course of action.

Our job isn’t to “win” or to put on a great trial or to take on the State. It’s to protect the client’s ass, which, most of the times, they have no interest in doing. We fail miserably at our jobs if we adopt the same reckless abandon that they have to their future. We are in the mitigation business, unfortunately and even more so for others, we are akin to actuaries.

What is the most likely outcome, we are required to advise, and what is the best way to minimize negative consequences? Crunch the numbers and viola, we have a recommendation.

Do not, for a second, mistake this to be a growing disinterest or disillusionment with the role of the defense attorney, but the opposite: an expanding awareness of the pragmatism that is needed – required, even – to perform this job well. In the end, I do not sleep in a jail cell; the client does. And if that outcome is more likely than not, is it not my job to ensure that such an undesirable circumstance occurs for the least amount of time possible? And what, then, is the most certain way to achieve that outcome?

Prepare every case as if it were going to trial, because that meticulous preparation will inevitably lead to better offers from the State. But recognize that the plea deal is more often than not the sounder of the two choices. Because, in the end, experience tells us that the defendant almost always gets screwed. How badly he gets screwed is up to us.

Cf: Why I hate guilty pleas

They may take my freedom, but they will never take my cell phone

The title only really works if you imagine it being uttered by Mel “before he went crazy – or maybe he always was” Gibson essaying the role of William Wallace in that stirring monologue near the end that is actually said to have never happened (There’s some trivia for you).

But it is indisputable that some of the lunacy that has infected the good actor’s mind has seeped into the brains of certain state legislators, for how else would one explain a new proposed bill that would make talking on a cell phone punishable by imprisonment?

Raised Bill 6366 would make the penalty for a second violation of the no-talking-on-cell-phones-while-driving law up to three months in jail:

(h) Any person who violates subsection (b), (c) or (d) of this section shall, for a first violation, be fined one hundred dollars, and, for a second or subsequent violation, be fined not more than five hundred dollars or imprisoned not more than three months, or both.

It would also give the police the immediate authority to suspend a driver’s license for a period of 24 hours, without a hearing, or due process, which up until now were within the exclusive kangaroo jurisdiction of courts and the Department of Motor Vehicles.

I’ll get back to the “3 months in jail” provision in a bit, because there are other problems with the bill as drafted that also merit attention. For example, the bill makes it illegal to talk on the phone or send text messages, but does not make it illegal to hold “a hand-held mobile telephone to activate, deactivate or initiate a function of such telephone”.

There is an exception for a “hands-free” device which:

means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

So, it would seem, I can answer a call, put the phone on speaker and talk away to my heart’s content. Or can I? It is also illegal to have “engage in a call” in one’s “immediate proximity”:

(7) “Immediate proximity” means the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.

Whaaa? So can I use the speaker function, or can’t I? The bill also makes it a rebuttable presumption that anyone who holds a phone to, or in the “immediate proximity” of his ear is engaged in a call. The presumption can be rebutted by one proving that there was indeed no call taking place.

And of course, the bill also makes it clear that getting pulled over for this violation does not give police the authority to seize or forfeit the phone.

Nifty little trick there. It places the burden of proof – of innocence – on the accused and then forces that accused to give up his fourth amendment right to be free from illegal search and seizure in order to prove that innocence.

The only way that someone can prove that they were not engaged in a call is to take out the phone and show the officer that they were not, indeed, making a call. But courts have held recently that there is some grounds for a right to privacy in one’s telephone, thus triggering the Fourth.

[Although, this particular “problem” is taken care of by Raised Bill 961, another bill on talking-while-driving, which directs the police to seize the cell phone for a period of 48 hours. I suggest that each one of you create a password on your cellphones and calmly remind the officer that he is violating your fourth amendment rights and that he obtain a warrant prior to seizing the cell phone.]

Of course, the biggest problem with this bill is that it creates criminal liability for acts that are so poorly defined and that really should not be the subject of criminalization.

Making one of the potential penalties 3 months’ imprisonment brings with it the attendant rights of anyone who is exposed to a deprivation of liberty. Which means due process, the right to counsel, etc. And that means greater resources and more time wasted on something that really even the police themselves can’t be bothered to police. In other words, I smell pretext.

H/T: Capitol Watch

The Limp Writ Redux

Because the State of Connecticut has nothing else to worry about *cough3billiondollardeficitcough*, it’s time for the legislature to entertain bills on all sorts of nonsensical subjects, including one that’s every “dumb on crime” legislator’s favorite whipping boy: Habeas Corpus reform. The bill is exactly the same as the one proposed last year (no, I haven’t done an actual word-by-word comparison, but it looks pretty damn identical to me), so instead of wasting my time crafting an entirely new response, I’m going to follow the learned legislators’ lead and copy and paste my detailed response from last year. But don’t be fooled into skipping past it. It’s awesome and I’m pretty sure I put a lot of hard work into writing it a year ago. That this bill has once again been presented to the legislature is not any indication of the need for habeas reform; rather it is a testament to the improbably short-sighted and bull-headed nature of our elected representatives for whom it is more important to appear as if they’re doing something worthwhile than to actually do it.

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure: