a public defender

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Would you believe it? Two reversals in two weeks! Two! The Appellate Court yesterday reversed a conviction on the grounds that a Motion to Suppress should have been granted on an issue, apparently, of first impression in Connecticut.

We conclude that the defendant was unlawfully detained, that his consent to search the vehicle was tainted by that illegal detention and that the state failed to purge the taint of the illegal detention.

The defendant was stopped for illegal lane changes. After obtaining his license and determining that there were no outstanding warrants for him, the cop wrote him a ticket and then started inquiring about any other illegal activity. The Court was asked to determine whether the extension of the stop was supported by any reasonable suspicion supported by articulable facts that a crime has been or is being committed.

The Court held that the extension of the stop was not supported by “R & AS” and that his subsequent consent to search the car was not voluntary.

Reversed! (Of course, as is par for the course, here’s the dissent.)

Here’s some context for the title:

The big news of the weekend thus far, for me at least, has been the announcement by the NYCLU that it is filing suit in New York, alleging Constitutional violations by the State for its failure to provide adequate resources to public defenders.

From the press release:

“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. “We filed this lawsuit today as a last resort, in response to the constitutional deficiencies identified by a commission appointed by Chief Judge Kaye to evaluate our public defense system, and the failure of lawmakers to compel the state to repair what is clearly a broken and unjust system.”

The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York.

It is extremely annoying that it has to come to this. New York could have, at the very least, learned from Connecticut. It was a CCLU and ACLU lawsuit in Connecticut - Rivera v. Rowland - that forced the legislature to increase funding by millions and double the number of positions in the system. The settlement of that lawsuit led to a wholesale revamping of the public defender’s system in CT, with better pay, more positions, more training, lower caseloads. This was in 1999. Now, almost 8 years later, New York is facing the same crisis.

It is great, on the other hand, because this will undoubtedly force New York to take action. New York is one of only 6 states remaining that have no statewide responsibility or oversight mechanism for public defense and remains among a minority of states, including Alabama and Mississippi, that have failed to join the movement toward full state funding.

Make no mistake: this is not a panacea. Caseloads will still be high, public defenders will still be understaffed, berated and maligned. However, they will be in a better position to fight those charges and the charges brought by the State against indigent defendants.

For more, read the ABA’s report entitled “Gideon’s Broken Promise” and The Spangenberg Group’s report to NY’s Indigent Defense Commission.

Veteran’s Day edition!

• Governor Rell is opposed to the $260million proposal to build new prisons, which was covered here.
• This NYT piece considers whether suspension of parole is an Ex-Post Facto violation. Norm covers the CT angle, while Scott has the New York perspective.
• Indignant Indigent has a great post on why it is ineffective not to raise claims of ineffective assistance of counsel. He goes through a pretty compelling list of reasons. As if it should even be a question.
• What do you carry during trial? Bennett has a long list.
• Prof. Berman points to a five part report in the Dallas Morning News about Texas being soft on murderers (imagine that!).
• Maggie takes a break from Nichols posting and wonders about the propriety of levity in the courtroom.
• Miss Tyrios tells us of unusual sentencing in (what the heck is Mass.’s nickname?) the Bay state (who knew!) where a judge imposed banishment.
• Legal Blog Watch notes the support in the blawgosphere for the lawyers in Pakistan, but asks if we would represent Musharraf.
• Here’s an interesting piece in the Village Voice by a public defender whose client chose to fight against NYPD’s crackdown on “trespassing”.
• NYCLU will file a “landmark lawsuit” today, alleging failings in indigent defense.
• Widow of Michael Richard (executed by Texas due to Judge Keller’s questionable actions) filed suit in federal court.

That should do it for now! As usual, leave a link in the comments if there’s something interesting you want to share.

Image license info here

Say two thirds of those polled in this latest Quinnipiac University poll. There you go legislators.

Only 35 percent of voters support a so-called “third strike” law where a person convicted of three violent felonies automatically is sentenced to life in prison, while 63 percent say sentences should be decided on a case-by-case basis.

Oh thank God.

There are some other interesting results in this poll. For example, only 27 percent say they feel less safe at home since Cheshire. On prison overcrowding:

48 percent of voters say build more prisons, while 39 percent say release inmates earlier. But only 47 percent of voters want to pay higher taxes for new prisons, while 50 percent are opposed.

Meanwhile, by a 62 - 32 percent margin, Connecticut voters are willing to pay higher taxes for more community supervision of offenders.

Interestingly, the Cheshire murders have not sparked a huge increase in support for the death penalty. Connecticut is in favor of the death penalty by a margin of 63-27, which is a slight increase from 60%, which was prior to Cheshire. However, when given the alternative of life in prison without parole, the state splits 47-44 in favor of the death penalty.

After being denied a new trial in State court, Michael Skakel is now going straight to federal court. His attorneys filed a petition for writ of habeas corpus (not petition for new trial as the Courant first reported), raising essentially the same failed claims from his direct appeal to the Connecticut Supreme Court.

I’m not sure if this means that he is forgoing an appeal from the denial of petition for new trial, but it does almost certainly mean that no IAC claim will be raised in federal court. That will surely come in state court, but further down the line.

Again I am a little surprised as to why they chose to go this route, as with the petition for new trial. Perhaps his one year was almost up.

Either way, I think Skakel’s best bet is the IAC claim against “Mickey” Sherman.

Yesterday, the CT Supreme Court issued State v. Randolph [pdf], reversing a murder conviction. The Court agreed with the defendant that he should not have been tried together for two separate offenses. Here is the standard for severance in Connecticut:

The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . .

Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.’’

It’s Monday. Have you set your clocks back one hour?

• The topic du jour is snitching, so let’s start off with the Windypundit’s exploration of the snitching debate from an economics perspective.
• Speaking of economics, Grits has this absolutely terrific post on why economic theory doesn’t apply to plea bargaining.
• Corrections Sentencing follows up on Grits’ post and highlights the fundamental flaws in the criminal justice system that have brought us to where we are.
• Stephen Gustitis points to an interesting, though not groundbreaking, study that concludes that the cockier you are, the greater your credibility falls.
• Malum decries the lack of funding for indigent defense.
• Prof. Birmingham will be back in the spring, albeit one class lighter: Feminist Legal Theory.
• NACDL’s website has this terrific guide (which is from an old issue, but still very useful) which provides a blueprint for trying Eyewitness ID cases.
• Apparently, CT is facing a “growing problem” with fake lawyers. [H/T: LBW]
• CT gets a glimpse of life in Texas.

Enjoy the extra hour!

Finally some good news on the criminal justice reform front. Mike Lawlor, co-chair of the Judiciary Committee, is also on the State Risk Assessment Board, which is charged with - you guessed it - assessing the risk of the state’s registered sex offenders. Lawlor wants to streamline the registry so as to provide more relevant information on those who have the highest risk of re-offending.

Lawlor sees room for improvement. He wants the Connecticut registry to attach “risk levels” to each offender to help people understand who poses a danger and who, likely, does not. It’s an idea modeled on states like Minnesota, Missouri and Colorado, where “actuarial” risk assessment—a social science-based prediction method—is used to analyze a sex offender’s likelihood of re-offending, and where only those determined to have a high risk are placed on the internet. Based on the experience of the states that have done this, high risk offenders typically make up only 10 to 20 percent of the sex offender population.

In 2006, Lawlor pushed for the formation of the Risk Assessment Board, charged by the legislature with analyzing the state’s more than 4,600 registered sex offenders and stamping each as high, medium or low risk. The board is made up of high-level public officials—the commissioner of Correction, the commissioner of Mental Health and Addiction Services, the commissioner of Public Safety, the chief state’s attorney, the chief public defender, the chairperson of the Board of Pardons and Paroles—as well as a governor-appointed victim’s advocate, forensic psychiatrist, a risk assessment expert and members of the relevant legislative committees, including Lawlor.

The article actually does a good job of explaining the risk assessment methods and compares it to the traditional subjective approach employed by therapists.

Further, people may finally be catching on to the real problems of registries and the dangers it poses:

It’s counterintuitive, acknowledges the study’s author, David D’Amora, a licensed therapist who heads the Center for the Treatment of Problem Sexual Behavior and sits on the Risk Assessment Board. But the reason for the possible increase [in recidivism], he says, is fairly straightforward: Registered sex offenders have a harder time getting jobs and finding housing, and people without jobs or housing are more likely to abuse drugs and alcohol and to re-offend. When your life’s a mess, the theory goes, it’s harder to keep your behavior in check. “When you over-respond to the lowest risk people,” says D’Amora, “you end up making them more dangerous.

“With the best of intentions we are putting in place things that are decreasing the ability for people to have appropriate jobs and appropriate living,” says D’Amora, “and those are two of the things that are most important to decrease recidivism. The unintended consequence is making things more dangerous.”

Of course, there’s a long way to go and with the current political climate, who knows if this will ever come to fruition. I hope it does. If not, can they at least legislate that condoms be made available in jails?

The Courant has this article today, seeking to make much of the under-utilized persistent felony statutes in Connecticut. All it does, instead, is underline the need for more rehabilitation programs.

Meet Richard D. Halapin Jr., a small-time career burglar and thief who earlier this year broke into his sister’s home and stole the family’s jewelry - including a wedding ring and her three children’s golden baptism crucifixes. The cherished items were sold to get money for a drug fix.

The perfect lead in, you’d think, to an article examining the rehabilitation programs in prison that help inmates like Halapin kick their habit and go on to lead productive lives upon release. Of course, the Courant, which is going the politician’s course and trying to look “tough on crime”, doesn’t walk through the open door. Instead they give us this: “[H]e may be the best living proof that an entire category of Connecticut laws - designed to increase punishment for “persistent offenders” - is under-used, at best, and at worst, useless.”

What a novel idea for a story! I’d imagine the pitch went something like this:

Journalist: “Boss, I found this woman in Naugatuck whose brother stole from her.”

Editor: “HOME INVASION! OMG! HEADLINES FOR ANOTHER MONTH!”

Journalist: “He’s a druggie and spent most of his life in jail.”

Editor: “OMFG! VIOLENT CRIMINAL! STATE LAW IS TEH SUCK!”

Okay, so not quite like that. But I’ve always wanted to use “teh suck” in a post.

Halapin’s sister and the state’s victim advocate say that he’s a symbol of failings in the state justice system.

Yeah, the failing being that the root of the problem is almost never addressed. Drug dependent inmates plead to non-drug dependent crimes, drug rehab programs in prisons are scarce and spaces are limited and it is left to the inmates to seek treatment upon release. Not to mention that they get jacksquat upon release.

It’s sad that the Courant missed this opportunity to examine the real problem leading to re-offending and instead chose to focus on the worn drum.

Previous posts on the topic of rehabilitation while incarcerated:

• What should the State’s responsibility be?
• Solving the revolving door of parole
• There are other reforms too
• Re-entry problems
• Gate pay for inmates a reality

Stan Simpson has this fine piece in the Courant today, urging legislators to learn from the State’s past and resist the urge to simply expand prisons as a solution to reforming the criminal justice system.

The last time the state went on a massive prison expansion escapade, it spent $1 billion to build 12 new prisons - the last in 1996. The overcrowding problem got worse, not better. Inmates were sent to out-of-state facilities.

Prison expansion was costly and largely ineffective. The state Department of Correction’s budget ballooned, from $92.4 million in 1985, with 5,379 inmates, to $605 million this year. In recent years, Connecticut got smarter and embraced prison-diversion alternatives for nonviolent offenders.

This recent enlightenment is what led to Connecticut being reported favorably in a private report released by the Pew Charitable Trusts back in February. Connecticut was one of two states, the other being Delaware, that was projected to have no increase in its prison population. That, obviously, no longer holds true. The policies that the State put in place and followed, however, are still valid.

“When an event as tragic as the Petits’ occurs, obviously, the first response is to identify why it happened and to do everything to prevent it from happening again,” said Ryan King, policy analyst for The Sentencing Project, a Washington, D.C.-based prison reform advocacy organization. “Unfortunately, that response has traditionally been longer sentences of some kind, restricting parole release, those sorts of things. And the fact of the matter is there’s been very little empirical evidence that any of them have had the advertised effect.”

“The conversation that can’t be lost in this dynamic is that at the end of the day, creating and maintaining comprehensive re-entry services for individuals is a better way of increasing safer communities,” said Maureen Price-Boreland, a member of the governor’s task force and executive director of Community Partners in Action, which runs re-entry programs for former offenders.

Stan suggests that legislators should not overreact, but instead invest in job training, drug counseling and housing assistance programs, reserving prison beds for the “true incorrigibles”.

Now, will legislators listen?

Meanwhile, there was a community meeting in Hartford last night, where ex-offenders and their families confronted Gov. Rell Commissioner Lantz about the negative effects of the parole ban.

The Clean Slate Committee also made demands of Lantz. They asked her to guarantee that by Nov. 30, every inmate released from incarceration would be given a state-issued identification document and that the state review of all parolees and inmates eligible for community release programs would be completed by Nov. 21. They also asked that the governor establish a commission - to include former inmates, their families, advocates, public officials and two members of Clean Slate - that would work on parole and community re-entry.

Lantz agreed to establish such a commission, but said she could not meet the deadlines on the other two demands.

One of the two crim justice stories of the day was the impending release of Alex Kelly, who is finally done serving his time for two 1986 rapes. He was in court today to find out whether he would be released despite the fact that he has not yet paid the $10,000 fine levied along with his prison sentence.

Mr. Kelly didn’t get that much needed promotion working in the commisary, so he didn’t have quite enough to pay the fine prior to release and being a 40-year old man, his parents weren’t going to pay it for him. Luckily, the Judge decided that he couldn’t be held past his maximum discharge date and that he would have to pay the fine as if it were restitution - on a weekly or monthly basis during his probationary period.

Alex Kelly is famous for several things, notable among them the 8 year period he spent on the lam in Europe, making wine while absconding from Connecticut. He is also famous for sitting somberly through his parole hearing a few years ago and upon hearing that parole was denied, losing it and yelling at the board members.

Meanwhile, the Governor’s phone has been silent. Maybe she passed the time watching that awful, awful movie about Kelly.

As the dust on the 208th DNA exoneree had barely begun to settle, Broward County public defender Howard Finkelstein sent a letter to law enforcement officials suggesting a change in identification procedures.

Bostic’s [the exoneree] accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

“These procedures will impact the human cost of misidentification,” he said. “This isn’t about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don’t get ensnared in our system.”

Currently, Florida uses the non-blind, non-sequential method of identification. Finkelstein called for them to use the double-blind, sequential method. Law enforcement’s response was curious, if not typical:

“If we had concerns about the procedure, we would have changed the procedure,” said Elliot Cohen, spokesman for the Broward Sheriff’s Office. “But new ideas and new proposals are always worth looking at, and we’ll take it in that spirit.”

At least eyeid reform seems to be gaining some momentum. 16 states have considered some legislation in this regard during the past year. Connecticut, although one of those sixteen, couldn’t get past simply funding a pilot program. I’m not even sure that the pilot program has gone into effect.

The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.

Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.

No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.

There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!

Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.

I hate when they do that.

On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se - raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.

By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.

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Yesterday, Judge Damiani ruled that redacted versions of the 11 search warrants used by police to investigate the Cheshire killings be unsealed. The Hartford Courant sought to have the warrants unsealed, presumably to keep publishing sensational stories.

The defense’s argument is a logical one: Given the existing media coverage, it will be difficult to find an impartial jury. If further details from the warrants are made public, specifically the alleged confessions, the task gets even more arduous. Judge Damiani’s response was to have portions of the warrants redacted. Which portions? We do not know.

Tom Ullman showed up at the last hearing with a thick binder with contained all the media coverage of the killings up to that point, documenting the extreme reactions of the people of Connecticut. That folder is about to get thicker.

Besides the fact that this would be a cash cow for the press, I cannot think of another reason why the Courant is so invested in having these warrants unsealed. Their argument that “the citizens want to know” or “have a right to know” or some such nonsense doesn’t outweigh the defendant’s right to have a fair trial by an impartial jury.

This will just make the already difficult task of picking a jury for a capital trial that much more difficult.

In light of yesterday’s prison tour, Judiciary Committee co-chair Mike Lawlor has issued a statement asking Gov. Rell to provide more resources to the DOC. He renews his disbelief over Comm’r Lantz’s assertions before the judiciary committee that they have the prison population under control.

Yesterday I toured the Willard-Cybulski Correctional Institution in Enfield at the request of the corrections officers who work there. After seeing the institution myself and having one-on-one conversations with many officers, there is no question that the situation there and elsewhere in the Department of Corrections is nearing a crisis stage due to the recent surge in inmate population.

Two weeks ago, Commissioner Lantz appeared before the Judiciary Committee in your place and told us that her department needs no additional resources in order to safely manage the population surge. I simply cannot see how that is true.

These conditions cannot be ignored. For the protection of the public and corrections staff, you must allow the front-line professionals in corrections and parole to tell state officials what they need to safely manage the inmate population and the offenders who are or who will be released into the community in the near and long term. We, in turn, must provide them with those resources.

Meanwhile (and there’s no link to this - surprise, surprise!), there are reports that there was a violent fight at Brooklyn Correctional last night that resulted in an inmate’s head being busted open. Inmates and COs have been warning that this overcrowding is creating a very volatile situation. Let’s hope someone takes heed before it turns ugly.

Or perhaps they should just look to this 2000 report prepared by our very own Legislative Program Review and Investigations Committee, which concludes:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

• Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
• Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
• The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
• A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
• Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

If legislators are truly interested in the “best solution”, then they should perhaps look to the current overcrowding problems in Texas, wonderfully covered by Grits for Breakfast [latest post here].

The full press release is after the jump, if you’re interested.