Penis interruptus

When Edith-gate broke last week, there were plenty of questions being asked about the future of the death penalty, the propriety of the Senator’s comments, the level of contortion required of the Supreme Court to get out from under this one, but the most pressing question that most seemed to miss was what this meant for the ongoing trial of Joshua Komisarjevsky.

Now we have a partial answer: his lawyers filed this motion today (thanks, Courant!) asking the Hon. Judge Blue to interrupt jury selection for three months to allow the torturous image of a man hanging by his penis from a tree on Main Street to fade from the memories of the general public. The motion seeks a continuance of three months for this to happen. It does not request scrubbing Sen. Prague’s mouth with soap. An excerpt:

Her public comments were clearly reckless and undignified for an individual who is a member of the Connecticut legislature and her comments only serve to contribute to the mob mentality. If the senator truly did not care what people think of her reversal, she could have simply announced her reversal in a more responsible manner without need for anatomical reference. It is outrageous that an elected official of the senator’s stature would publicly advocate for public torture and attempt to subvert the judicial process with such sensational remarks.

(Are you paying attention, Connecticut Bar, Connecticut Criminal Defense Lawyers’ Association and CT Network to Abolish the Death Penalty?) This is a valiant effort and the motion includes lots of evocative and motivational language that is sure to rile up Komisarjevsky’s opponents and stir the smoldering embers within the heart of every abolitionist, but ultimately, it is a fool’s errand. Judge Blue is just as likely to grant this request as I am to become the next President of France.

What the motion does, however, is to highlight the inherent difficulty in selecting a jury in a case as inflammatory (pun wholly unintended) as this. It mentions a potential juror, who while being questioned seemed to give all the right answers, but upon being excused, erupted in cries of “Murderer! Asshole!” directed squarely at the defendant. If this were the case prior to Senator Prague’s comments, the motion argues, how are we to prevent the inclusion of such people, now emboldened by an elected official’s animalistic outburst, on this jury of supposed neutral peers?

That’s a rhetorical question.

You can thank me later for not including a picture with this post.


Defending zealous advocacy

go ahead, tell me he doesn't look like Nino

There’s a reason why the phrase “death is different” was coined: because it is. In many ways, not the least of which is its finality. That irreversible quality and the magnitude of the punishment also renders other aspects of death cases different, namely the resources that are expended and the amount of time that is consumed. Death penalty lawyers often handle a few cases at a time – there are specialized units – and appeals take years to perfect, argue and get decided. Courts have also recognized the need for special treatment: greater number of jurors, repeated extensions of time and the setting of generous page limits for briefs (and when I say generous…I’ve read some that run over a few hundred pages). Post-conviction doesn’t get any better: thanks to the ridiculous rules set in place by AEDPA, state and federal habeas have become the proverbial kitchen sink – and who can blame inmates facing death? You’d want to exhaust every avenue possible and every colorable claim if you were facing the end of your days.

Everyone knows this. Lawyers for the defense, for the state and judges. Which is why this recent spat brewing in Pennsylvania is astonishing. It all started with the PA Supreme Court Chief Justice writing a “concurring” opinion in a capital appeal for one Mr. Spotz. It starts:

I join the majority opinion in its entirety. I write separately to note and address broader issues implicated by the role and performance of federal counsel in purely state court collateral proceedings in capital cases, such as this one.

What follows is a 34-page vituperative rant about perceived sabotage of the death penalty in Pennsylvania. He throws around phrases like “bordering on the perverse” and calling the lawyers’ representation “abusive”. He writes:

The zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania.

It truly is a jaw-dropping example of judicial bullying, coming from the most powerful judge in Pennsylvania. It is not unusual to see snide comments about (almost exclusively) defense counsel thrown into a legal opinion, but to see one entirely devoted to questioning the ethics and professionalism of capital counsel is unheard of.

Because that is precisely what the “concurring” opinion does: it attempts to embarrass and ridicule the defense attorneys whose sole responsibility is to zealous advocacy on behalf of their client – and in capital cases – to prevent the State from killing him.

But nothing I can say will be an adequate response: for that, read the motion filed by the defense attorneys in response to this “concurring” opinion, seeking withdrawal of Castille’s opinion and recusal from another pending capital appeal. After a page or two devoted to the cheeky argument that the “concurring” opinion should be withdrawn because it doesn’t comply with the court’s own rules, the motion moves onto addressing the allegations of the Chief Justice:

The Opinion makes a number unwarranted and unfounded accusations of misconduct against the FCDO and its employees. In this Motion we rebut those accusations, to the  extent that we are able to do so in this forum. Chief Justice Castille’s accusations demonstrate a misperception about the role and responsibility of capital post-conviction  counsel. Those misperceptions will be addressed in section A, below. Chief Justice Castille also makes specific and unfounded assertions about particular actions taken by FCDO personnel. Those will be addressed in section B, below.

The motion is also a refresher course for those who need it – perhaps the Chief Justice among them – in the role of defense counsel and just what zealous advocacy means:

The federal defenders say they are merely doing what they are paid to do: provide the best representation possible. They cannot choose who deserves the best effort, said Leigh M. Skipper, the chief federal defender based in Philadelphia. “We take the cases as we find them. We can’t differentiate between ‘good murderers’ and ‘bad murderers.’ A lawyer has an ethical obligation.”

The lawyers also sharply rejected Castille’s complaints that they nitpick to deliberately clog the court.

“As a lawyer who is appointed to represent someone, we don’t have the luxury of saying, ‘Well, it’s close; we don’t make this argument,’ ” said David Rudovsky, president of the Defender Association of Philadelphia, which oversees public defenders in state and federal courts. “Frivolous claims are in the eye of the beholder,” he said.

You really should take the time to read it, if you haven’t already. It systematically destroys every item “noted” by the Chief Justice and exposes just how specious his arguments were to begin with.

The most relevant portion is that which notes the real impact of this “concurring” opinion: the chilling effect it could have on capital appeals. Certainly, the well-funded federal defender’s office doesn’t represent all the capital defendants in PA, nor even a majority, I suspect. Most of them would be handled by state public defenders or private lawyers paid by the State, who also have to come before the Supreme Court on behalf of other clients. Having the Chief Justice of the Supreme Court put in writing such a negative view of what is required of post-conviction counsel in State proceedings can only hurt the level of representation that is provided capital defendants.

The idea that a supposedly impartial supreme court justice – an umpire who calls balls and strikes, as it were – would take such an unusual interest in capital appeals and attempt to vilify those defending the condemned individual is stunning. I understand efficiency in the courts and docket management and all that nonsense, but this goes above and beyond that. This is a rant from a man who has let his personal feelings on the death penalty affect his impartiality and neutrality in the most serious of cases.

But surely he sees that.

oh, how did this get here?

The child abuse exception to [privilege]

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.

Abolition is dead and with it, a little bit of all of us

“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.”

And more:

“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.


It only takes one

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:

Arrest warrant for judge rejected…if it existed in the first place

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: