An undignified farce (now with video)

Update: video below

Astute, long time readers will have noticed two things: 1) the death penalty trial of Steven Hayes, defendant in the brutal murders of 3 people in idyllic Cheshire, CT has wrapped up its first week; and 2) that I haven’t blogged about it yet.

I’ve resisted adding to the 5-ring circus, but what I’ve seen and read over the last week in the press have driven me to the point of breaking my silence.

A trial of a man implicated in the most horrendous of crimes in recent memory, the most inhuman acts, if one believes in such things, has also robbed all of us of our humanity and sense of dignity.

I’m assuming you all know the basics, so I won’t rehash them here. This is the stuff that millions are made out of; enough fodder to keep the presses printing and the airwaves buzzing for months and months to come. Judging by the coverage of this trial on Twitter and the press, you’d be forgiven for thinking that the entire State had come to a standstill. It’s a good thing nothing else newsworthy is happening anywhere in Connecticut presently.

As the tweets start every morning at 6am and continue with alarming regularity well past 5pm, I cannot escape the mental image of a horde of vultures circling a sad, deteriorating carcass, pecking away at it, tearing off pieces of flesh, bit by bit and then those vultures morphing into hyenas, cackling wildly.

Sure, the crime is offensive. Sure the crime is heinous. I’ll accept whatever adjective you choose to throw at me. But there is an unmistakable stench of race and class politics emanating from that courthouse in New Haven. Out of curiosity, I called a source who is familiar with the goings on in that courthouse. “Are there any other trials going on currently?”, I asked. Sure enough, there is one other, just a floor below the Cheshire spectacle: State v. Brandon Bellamy.

By the information provided at that link, Mr. Bellamy is accused of two murders. That’s two victims, two families devastated, multiple lives ruined. Mr. Bellamy is also black. Perhaps his alleged victims are too, I don’t know. “How many reporters there?”, I followed up.


Not a single one. While the Cheshire trial needs a horde of media vans lining the streets and every able-bodied reporter in the State to cover it, just 20 feet below is a possible capital felony trial that no one gives a shit about.

The Cheshire case is often called “the Petit case”, after the last name of the victims. Can anyone here tell me the first or last names of the victims in the Bellamy case? Had you even heard of Bellamy? I sure hadn’t.

A Google News search for Brandon Bellamy turns up abso-fucking-lutely nothing. Why? Because no one gives a damn. Black man accused of two murders? Pshh. Inner-city business as usual. Three white women murdered? Every news outlet must abide.

The Cheshire case is every white person’s nightmare. The Bellamy case is every city-dwelling black person’s reality.

The blame, of course, lies with the reporters and the news media. “Hayes leans over to lawyer and talks”. “Petit looks at screen”, “Hayes scratches his nose”. Okay, I made that last one up. But these are the tweets being sent out at a furious pace to thousands of followers (myself included).

As trials go, the Hayes trial is a boring one. It is a tedious one. He admitted guilt during the opening statement of his lawyer. There’s really no question that he had a hand in this brutal massacre. The question – the only question – in this trial is whether he’ll get life without the possibility of release or will he be murdered by the State.

I blame the reporters for something else: I blame them for turning our justice system into American Idol, for turning the murder of 3 women and the anticipated murder of another man into a spectator sport, for not having any sense of journalistic integrity to put things in context and for not taking their responsibility to inform the public seriously. Anyone can be a reporter – all you have to do is report the facts. It takes more skill to actually convey some meaning and emotion and context by using the facts.

I avoid the websites of the leading newspapers in Connecticut like the plague. The Hartford Courant, the New Haven Register and others of their ilk have become the cesspools of the angry and ignorant. And the authors of the articles in whose comment sections unmitigated rage is spewed and spread don’t seem to care. Take a look, if you can, at the comments to today’s story in the various papers. The big news of the day wasn’t the fact that firefighters testified about the evidence of arson in the home or the pictures of the home burning, but rather it was that the defendant had suffered a seizure last night (or “seizure-like symptoms”) and despite sitting through the morning’s proceedings, apparently deteriorated during the lunch hour to the point that his health became a concern and the rest of the day’s proceedings were suspended. Here’s a sampling of the reaction:

” So the freak had a “seizure” and wee-wee’d on himself? Tough s**t. Why does he get this kind of consideration? A pox on him and the s**mbag [New Haven's chief public defender] Ullman who stands up for the freak’s “rights.” “

I wonder what Randall Beach, the author of the piece to which those comments are posted, thinks about that. Is that the level of discussion he hopes to foster when he writes? Is that who he’s writing for? Here’s one from the Courant:

notsocurrent you are absolutely right!! This sorry excuse for a human being was man enough to rape and pillage, but not man enough to face the music? Did anyone actualey see this seizure? I’ll bet not.

Lets skip the trial and get right to the penalty phase!

I’m sure that’s exactly the reaction that Alaine Griffin, who penned the Courant piece, wanted to provoke. In my years of reading these articles and the comments that follow, I’ve seen maybe 5 sensible comments that show any humanity or even a basic understanding of the criminal process. I’ve long complained that reporters and journalists themselves don’t understand the process, the rights and the importance of the application of those rights in even the most extreme cases, so how can one expect them to convey that to their readers. But that’s just a damn cop out. They know exactly what brings eyeballs to the website and that’s sensationalism.

One of Hayes’ attorneys, Thomas J. Ullmann, said at the start of today’s session that Hayes had a seizure last night and urinated all over himself. However, he said at the time that he thought Hayes was well enough to be in court.

But after the lunch break, he said he did not think Hayes could continue because of his medical condition.

Judge Jon C. Blue agreed to halt proceedings until Monday. Friday had already been scheduled as a day off.

Would it have been so difficult to include that the State didn’t object to the continuance? The high irony of this is that the one entity that wants to – and can – kill Mr. Hayes is the only one that seems to want to proceed with dignity. The rest just want a show.

Is it that difficult to understand that we have become the very monster we are condemning when we forsake the basic human values of dignity and compassion? That we are undermining the foundations of our system of justice when we want to “skip the trial and hang ‘em already”? Have we devolved to the point that intelligent discourse is left to fly-by-the-seat-of-your-pants networks like Twitter? Oh wait.

Mr. Hayes will be found guilty of several crimes and then 12 people will have the task of deciding whether to let him rot in jail for as long as he lives or to spill blood on all our hands. Some are licking their lips at that prospect. I don’t see the difference between them and Hayes.

Maybe it hasn’t occurred to all who are riveted to the trial, but what they’re witnessing is the slow murder of one man. All the reporting, the jeering, the condemning is nothing but spectatorship of the slow build up to the execution of a human being. Talk about macabre.

Murder is a terrible thing. It is not to be relished, enjoyed or anticipated. Let us not make a mockery of justice and of the value and dignity of all human lives.

Rant over. I thought I’d feel better, but really, I still feel sick to my stomach.

[And, of course, I must reiterate that these are my personal views only.]

How apropos is this video from the Daily Show:

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Rally to Restore Sanity
Daily Show Full Episodes Political Humor Tea Party

Q&A in closing arguments

In a recent string of posts around the ‘sphere, the jury trial system has come under some scrutiny, mostly in the area of unanimous verdicts. I wrote this post, and then a few days later Volokh had these posts, which prompted Scott to write this.

That the jury trial system is imperfect has been known for ages and commentators have struggled with ways to improve it, if at all. For instance, take a look at this tantalizing teaser of an article written by the great Wigmore in 1929 (I’d love to get my hands on the rest). Here’s a more recent article on the ills plaguing the jury trial system and what can be done about it.

But as Wigmore said in that 1929 piece, the arguments against the jury trial system are either simple problems that can be remedied or are made in the absence of a better alternative. It seems, then, that we’re stuck with this system for the foreseeable future. And one can trumpet the “best legal system in the world” all we want, in some sort of mindless obeisance, but we’d all be better served if we thought of ways to improve the system, tweak it to better fulfill the goals it was established for.

Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible. Trials are cumbersome, which only add to the desire to not participate.

The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.

The point of this one, taken from this comment, is to tweak the system a bit to give jurors additional tools in reaching the correct decision. I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.

On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.

A 15-20 minute session of questions and answers and rebuttals may help to clarify the evidence that has been presented to the jury, to focus the closing argument on the issues that the jury is truly wrestling with and it partially lift the shroud of secrecy that surrounds the jury’s decision making process.

Not my town-itis

Connecticut, for some reason I have not yet uncovered, has thus far been immune to the sex offender hysteria that has gripped our nation for well over a decade now. Sure, we have mandatory minimums and calls to classify sex offenders on the same level as murderers, but the legislature, in an exemplary show of good sense, has resisted the urge to enact residency restrictions and has now twice rebuffed the implementation of the horrid Adam Walsh Act.

But, as I wrote back in December, the State hasn’t taken any positive steps either. There’s still nowhere for sex offenders who need treatment to get it. And if the residents of Montville, CT have their way, there won’t be anywhere for a while.

Montville, already home to two correctional facilities, was identified by the State as the prime location for a sex offender residential treatment facility, with an allocation of 24 beds. Frankly, 24 beds is nothing. Me and the 5 other attorneys in my office could come up with a list of 24 people before you finish reading this sentence, never mind the 100 other attorneys in the public defender system and their clients from just this year alone. But it’s a start and we have to start somewhere.

Yet, just like there are peas in a pod and two of a kind and how Garfunkel needed Simon, “sex offender treatment facility” seems incomplete without “not in my town”. And that’s exactly what the residents of Montville are arguing. Today, the town committee voted to seek an injunction to block the building of said treatment facility.

The state Department of Correction plans to create a 24-bed facility at the Corrigan-Radgowski Correctional Center for sex offenders about to be released from prison and those who have already been released. Creation of a residential sex offender program was part of a 2008 criminal justice reform law passed after the 2007 Cheshire home invasion.

Oh wait, this facility was to be created at the two jails that already exist in your little town? Perhaps they don’t realize these are the very jails that these sex offenders come from. It’s like moving them from one wing of the jail to another. But then again, it’s called hysteria for a reason…

In all the objections to constructing treatment facilities or the arguments in support of residency restrictions, I haven’t heard a single legitimate reason for excluding these from a particular locality or any justification that acknowledges the realities of banishing an entire group of people. Folks, “not in my town” isn’t a reason, it’s a position. You should explain, logically, why.

And as if that wasn’t enough, the town committee also voted to set a public hearing to consider an ordinance that would create a “sex offender free zone”. Montville isn’t the only town considering such an ordinance in CT. Greenwich, that bastion of purity and wholesome values and more BMWs than all the dealerships in the state combined, is also considering such an ordinance to ban its five (count ‘em – 5) sex offenders from places that are “frequented” by children.

Yet it is town officials in Greenwich who have been debating since February whether to approve an ordinance that would prohibit sex offenders from being near schools, parks, playgrounds and other places children congregate. The ordinance would not limit where sex offenders can live, as similar laws in other states do, but it would impose a $100 fine on a registered offender caught in the wrong place for a second time.

After unanimous approval by the Board of Selectmen, the measure moved on to the Representative Town Meeting, the city’s 230-member legislative body, where it failed twice, most recently on Sept. 21.

The quote speaks for itself. What needs addressing, however, is the mindless repetition of what should properly be considered pure fabrication by the Republican members of the state legislature:

“Look, there is obviously an extremely delicate balance between protecting the public and the constitutional rights and freedoms of individuals, whether they are convicted sexual predators or not,” [State Senator McKinney] said. “The difficulty comes with the fact that this type of crime has an extraordinarily high recidivism rate, which justifies us in government taking greater steps toward protecting the public than we would with other crimes.”

As is noted in the article linked to above, and as I’ve cried myself hoarse on this blog, that’s just not true. McKinney knows that too, because he’s been on the Judiciary Committee when these residency restrictions have been proposed and he’s been given the studies that show it’s not true. But of course, acknowledging the truth doesn’t further the fearmongering agenda and so here we are. Again.

Coincidentally, and that’s how these things usually go, today’s episode of the local NPR program “Where We Live” was devoted to sex offenders in Connecticut and these “loitering ordinances”.

Here’s my question, that I wish these proponents of the Scarlet Laws would answer: do you believe that we can completely eradicate sex crimes against children? If your answer is yes, then you’re either a liar or you don’t understand anything about how crimes are committed and why. If you answer no, then I have a follow up question: What is the most effective use of resources? Police loitering around parks and schools and enforcing these possibly unconstitutional ordinances or creating facilities for offenders to reintegrate into society, in a productive manner, so as to prevent future occurrences?

The answer is clear. The only question that remains is whether you want to be honest with yourselves or lie to everyone in order to win a vote.

The obscenity of risk of injury

Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

Good enough for government work

The Blagojevich trial (and subsequent mistrial) has provided plenty of fodder for discussion among the press, the blogosphere and the nation in general. But it seems as though a bit of the madness that allows him to polish his hair using shoe-polish has seeped into the rest of the world as well. Take this Time article for instance, which uses the fact that the government was unable to convince 0.004% of the population of Chicago, to describe the ill that ails our criminal justice system: hung juries

After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.

So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.

I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?

“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”

Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”

That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.

Close enough for government work.

The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.

How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.

Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.

And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.

It may be close enough for government work, but when it comes to justice, there should be no such thing.

Crime: reality and perception

Ran across this interesting article in Prospect Magazine from the UK, on the shifting policing and perception of crime, violent and otherwise:

The consequence has been that violent crime—defined as actions which cause injury or serious threats to do so—has fallen steadily for about the last 15 years. The official statistics do not show a fall in violent crime when comparing offences now with those recorded before 2002-03—quite the opposite, in fact. This was because of a foolish agreement which attempted to make recorded crime a perfect representation of reality, so that a crime had to be recorded if reported even if the police officer did not believe it had happened. Moreover, the definition of violent crime was greatly widened, with the result that more than 50 per cent now falls into the category of—wait for it—”assault without injury.” It would be hard to conceive a more perfect weapon for opposition parties to beat a government with—as the then shadow home secretary, Chris Grayling, unhappily showed during the election campaign. This is probably why the new government seems to be casting about for someone other than the home office to be in charge of crime statistics. Perhaps they will even give them back to the police.

In 2008-09, the annual murder rate in England and Wales was 651, lower than at any time in the past decade. Moreover, the number of children under 16 killed by strangers was two. In 2006, UN figures show that England and Wales had 16 murders per million population, far lower than the US at 59 and roughly equal to France, Canada, the Netherlands and Germany. (The figure for Colombia was 611.)

And yet the “broken Britain” mantra remains—not because we have become a more violent society, but because we have become a much more violence-averse society, in which such acts are widely reported and vilified.

It is interesting to see that contradiction exists in other countries besides the US. I know little about the state of television in the UK, but judging by this article it is safe to assume that the strains of the 24 hour news cycle exist there as well, forcing the media to turn every report of crime into a sensationalist warning that crime is on a meteoric rise.

It is also somewhat heartening – deflating? – to see that politicians are politicians the world over, especially when it comes to criminal justice policies.

There are many more interesting themes and points in the article. I recommend reading it all.