Racial ridicule in Connecticut

is apparently a crime. C.G.S 53-37 provides:

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

Volokh notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but still troubling considering the First Amendment implications:

This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 convictions since 1995. Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race– or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.

UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action — Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.

Yes. So would I. I’d also add that the statute was enacted in 1949 and hasn’t been amended since. A quick Lexis search reveals only one hit for that statute, and that too in a footnote:

As noted, Section 53a-183 is directly relevant to the issue in this case and provides, in and of itself, a basis for determining that a clear, well-defined and dominant public policy exists prohibiting the kind of conduct which is at issue here. It is worth remembering that there are other state statutes which recognize the particular harm that racially motivated criminal conduct inflicts on society. These statutes include Section 46a-58, which criminalizes cross burning under specified circumstances; 53-37, which criminalizes holding persons up to ridicule on account of race, creed or color; 53-37a, which prohibits the wearing of a mask or hood under certain circumstances; 53a-40a, persistent offenders; and 53-181b, intimidation based on bigotry or bias. Related federal statutes exist as well.

State v. Local 387 of Council 4 AFSCME, 1999 Conn. Super. LEXIS 437 (1999) (which is an interesting case that involves the appeal of a decision to reinstate a corrections employee who was terminated after he called a state Senator and left a message calling him an n-word, after the Senator allegedly referred to corrections employees as criminals).

Anyone? Bueller?

The blind leading the blind?

We are counselors, which is a term that is broader than attorney or lawyer. Counseling implies so much more than merely representing someone in court in a criminal or civil matter. It is our job to counsel, to advise. We are not cheerleaders and we are not enablers. I often tell clients that they may not like what they hear from me, but that I will not lie to them or blow smoke up their ass, because it is my responsibility to give them all the information so that they make the best decision for them.

Flowing from that duty – and particularly important in criminal cases – is the ability to accurately assess the strengths and weaknesses of the State’s case against the client and analyzing the risks and benefits of going to trial. Everything we do leads up to that. Some others have written (Bennett I can remember for sure, but I can’t find the post) that their focus from the first court date is preparing for trial. It is through that preparation for an eventual trial that we as counselors can fully understand the intricacies of the matter. Investigate fully and discover that there exist no defenses? Your advice to the client reflects that. Realize that their witnesses are shaky and the evidence questionable but the offer is good enough to hedge against any “wild card” eventuality? The advice varies accordingly.

But a new paper [pdf] suggests that perhaps we’re all a little full of ourselves and overestimate the strength of our case.

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions  and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by  a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their  chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions.  Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female  lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce  overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve  calibration.

There’s no need for me to get into the paper in detail. You can read it for yourself; it isn’t very long. Striking is the fact that there wasn’t much of a difference between civil lawyers and criminal lawyers. Also notable is that attorneys were overconfident regardless of their experience. This sample tended to overestimate their chances of success at the same rate.

There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.

The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.

It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.

When relaying an offer, or advising a client to reject one, I ask myself: “would I do what I am recommending the client do?” Because if I can’t follow my own advice, I have no business suggesting it to someone else.

Of course, the client is free to do as he pleases. It’s his liberty on the line, after all.

You’re not a criminal defense lawyer if

you haven’t fantasized about doing this (for those who don’t want to click on the link just yet: a pd choked a prosecutor as a result of a case-related dispute). I know I have. And, just as in the story, it’s always been motivated by the law, not any personal animus. I find that the desire to choke a prosecutor rises particularly sharply during oral argument.

Being a non-violent person and all, my frustration is expressed solely in this way:

Is Tim Curry going to have to choke a b*tch?

If you’re not ready, neither is your client

War stories are a great way of passing time. It’s a slow day in the office and you end up in a long conversation with a colleague who’s been there and seen that. While mostly entertaining, the stories are also useful for one other thing: they’re a training tool. A veritable what’s what of what not to do.

I won’t bother you with this particular story, but there’s something to share, something that seems so obvious yet is often neglected by lawyers either because they don’t give a damn or don’t have the damn time.

If you’re not ready to plead, neither is your client.

Simple, isn’t it? Yet in the high-volume courts across the country, offers are routinely made and accepted or rejected on initial court dates or before investigation can be started or before you have the time to learn your client’s name and tell him from a hole in the wall.

If you wouldn’t know enough to take the offer, your client doesn’t either.

It’s difficult to do, resisting the tide that builds up, demanding swift disposition. It gets embarrassing, asking for continuance after continuance because the investigation isn’t complete. The caseload keeps piling up, the numbers look astronomical and ugly. I get it. There just isn’t enough time.

But this is non-negotiable, folks. Would you listen to a lawyer who said: “take this offer. I’m sure it’s a good one, but I can’t tell you why because I don’t know enough”? Obviously not. Yet we ask our clients to place their trust in us, to rely on our judgment and our opinion. The least we can do is take the time to make sure that we are in a position to recommend acceptance or rejection of that offer.

I’ve said it on occasion: “Sorry, judge. I need more time. I’m not ready to convey this offer to my client.” If I haven’t been dilatory in my handling of the case, what’s the judge going to say? After all, no one likes a habeas.

More than that, no one likes a client who’s forced into doing something because his lawyer didn’t take the time to make sure it was the right thing to do.

So the next time you’re being pushed into conveying an offer to a client or have a client who’s being rushed into accepting or rejecting, ask yourself: do you want to become a war story of the instructional kind?

Paying for injustice

Meet Manuel Hidalgo Rodriguez, arrested and convicted in 1995 for child sexual assault that he did not commit. Hidalgo spent 5 years out of a 5 1/2 year sentence before his conviction was reversed and the charges dismissed.

Meet Thomas White, also convicted for child sexual assault and who also spent 5 years in prison before a third jury finally acquitted him in 2005.

But Hidalgo and White have more in common that merely being falsely accused of terrible crimes for which they both spent long years in harsh conditions in prison. Both convictions were obtained by a failure of the system: in Hidalgo’s case, aided by the complete inexperience of his defense attorney in what amounted to a constructive denial of counsel; in White’s, horrifying misconduct by the police and prosecutors to hide exculpatory evidence.

Expanding Graham

In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments.  The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.

This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?

I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.

Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual.

Taking stock of Comstock

[I can't believe no one's made the pun yet]

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):