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James Tillman was exonerated a few months ago and last week, the CT legislature voted to compensate him $5 million. On the other hand, Alan Cortzer was denied $1.25 million in compensation by Florida’s legislature. So, this CSM story asks, what do states owe the exonerated? (HT: Corrections Sentencing)

This is a question that an increasing number of states have had to answer in recent years, with the good work of defense attorneys and the Innocence Project, brought about by an advancement in DNA technology and science. But are states adequately prepared to deal with the exonerated? Should there be any remuneration for those wrongfully convicted?

As DNA exonerations become more plentiful – and more publicized – some states are moving on the compensation front. Of the 200 men who have been exonerated based on DNA evidence, about 45 percent have received some sort of compensation, according to the Innocence Project, with amounts that range from $25,000 to $12.2 million.

Twenty-one states, along with the federal government and the District of Columbia, now have standardized compensation laws on the books – offering exonerees amounts ranging from $15,000 total to $50,000 per year of imprisonment. Thirteen states have introduced bills this year to either create or improve compensation for the wrongfully convicted. Some of those bills, like the one that gave Mr. Tillman $5 million, dealt only with individual prisoners, but other states are trying to standardize the compensation.

Texas, where 13 men have been exonerated in Dallas County alone, is considering a package of bills that would, among other things, raise the compensation amount from $25,000 to $50,000 per year of incarceration.

Vermont – which hasn’t yet had a prisoner exonerated by DNA evidence – has passed a comprehensive bill that would provide between $30,000 and $60,000 per year of incarceration as well as access to healthcare and reintegration services. It’s currently awaiting the governor’s signature.

Connecticut did have a bill proposed this session that would have studied the creation of a standardized system, but it didn’t make it past committee.

But these are states that are providing for compensation. What about those that aren’t, like Florida? What of the Alan Cortzers?

“In Florida, if you’re a parolee they give you $100 and a bus ticket,” says Michael Olenick, the Tallahassee attorney who represented Crotzer pro bono. “Al Crotzer got no bus ticket, and no $100.”

He also didn’t get access to counseling, and he says he’s struggled with some things since his release: He still wants to turn his light off at 11:47 every night, for instance, and he keeps everything in his room neat enough to pass a cell inspection.

Neither Mr. Olenick nor Crotzer can be sure why the request for $1.25 million failed, especially after the Florida House unanimously approved it. Senate leaders said they didn’t have the money – a common reason that states cite in not providing compensation. In Crotzer’s case, some also suggested that lawmakers didn’t want to grant any more individual compensation bills, but instead wanted to pass a “global” bill that would address all cases. However, the three such bills that were introduced in past years didn’t go anywhere.

Some believe Crotzer may also have been hurt by the fact that he was convicted of a beer store robbery when he was 18 – a fact that would have excluded him from compensation under one of the laws proposed in Florida.

So what do you think? What would be adequate compensation? Here are some of the laws already on the books:

California: $100 per day of incarceration

Montana: Educational aid for those exonerated through postconviction DNA testing

New Hampshire: Maximum of $20,000

New Jersey: Whichever is greater – twice the amount of the claimant’s income in the year prior to incarceration or $20,000, for each year of incarceration

Tennessee: Maximum total of $1 million

The Connecticut legislature is set to vote on a “tender years” exception statute. In spite of the obvious Constitutional hurdle of Crawford, the sponsors of the bill are pressing ahead. This is the text of the proposed statute:

Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if

1. the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
2. the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and
3. either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act.

For the purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.

I have highlighted the problematic portions of the statute. Firstly, what is “apparent authority”? Does a simple command such as: “Come here” constitute “apparent authority”? Does kidnapping constitute “apparent authority”?

Secondly, it only allows to “provide the adverse party with a fair opportunity to prepare to meet it”. It does not require that the opponent of the statement have the opportunity to cross-examine the declarant at the time the statement was given, as required by Crawford.

Finally, what does the legislature mean by “independent nontestimonial admissible evidence”? Does a statement by the victim to her mother count?

It seems that there is a general belief that children under an arbitrarily chosen age are more prone to truthful statements. I am unsure of the veracity of this belief and whether it is supported by empirical evidence. Furthermore, as practitioners will attest, children are susceptible to suggestion - suggestion that is more often than not planted by a parent or someone in a position of authority (or apparent authority ;)).

Hopefully the legislature will take note of Crawford and realize that the statute as written is problematic.

Here [pdf] is the written testimony of the Connecticut Criminal Defense Lawyers’ Association in opposition to this statute.

Here [pdf] is the written testimony of the Chief State’s Attorneys’ Office, which seeks to clarify the difference between testimonial and non-testimonial statements.

Here [pdf] is a general statement in opposition by the Chief Public Defender’s Office.

Here [pdf] is a statement by the Judicial Branch asking that the legislature not move forward with this bill, since the issues are currently being considered by the Code of Evidence Oversight Committee.

Previous coverage:

• “tender years” and Crawford
• tender years exception to hearsay
• tender years II
• tender years III
• “anti-innocence” bills: tender years IV

One of the many criminal justice bills proposed this term is SB 838. While I mentioned it in the list, I haven’t yet had the opportunity to comment on it. So this Law Tribune article provides the perfect opportunity. Pursuant to this bill, any person arrested for any Class A or Class B felony must give a DNA sample. Currently, the law provides that if you are convicted of any felony you have to provide a DNA sample. The proposed bill does provide for a mechanism to destroy the DNA sample, if found not guilty or if the charges are nolled or dismissed. However, the request must be made by the acquittee and is not automatic.

The bigger problem with this bill, ofcourse, is that the offense of arrest may have no need for a DNA sample. For example, why must someone accused of Robbery be required to give a DNA sample? Or even Assault, if there is no involvement of bodily fluids?

Here’s a list of B felonies for which this is unnecessary (in my opinion):

• Promoting Prostitution
• Kidnapping
• Burglary
• Arson
• Identity Theft
• Robbery
• Trafficking in persons
• Promoting a minor in an obscene performance
• Importing child p—-graphy
• Possessing child p….
• Computer crime in the first degree
• Money laundering
• Vendor fraud

Well, you get the point. The bill, while a good idea, needs to be more specific. Then there’s the whole privacy argument. DNA is very personal and unless absolutely necessary, there’s no reason for samples to be given to law enforcement. One step closer to “Minority Report”?

EyeID has a fantastic follow-up post to the post discussing the Judge Hoffman editorial, entitled “Stages of denial: The numbers are on our side too“. You must read it. It traces the history of skepticism of wrongful convictions and the shifting arguments employed to counter the growing evidence that wrongful convictions do occur. Here’s a brief glimpse:

In the pre-DNA era, they disdainfully dismissed works like the Radelet study — a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years — pointing to its supposed flaws such as its reliance on “one-sided” materials like newspaper articles.Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem — by, for example, reforming demonstrable problems in eyewitness identification procedures — the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.

Read the whole post. Absolutely terrific! Bravo! What a blog!

Previous coverage:

• The Innocence Myth

Technorati Tags: innocence, wrongful conviction

I fully intended to start a new feature here - the Monday Morning Jumpstart. It was to be a roundup of the weekend’s most interesting posts (including mine). However, the server was acting sluggish this morning and I was about to be late for work, so I shelved it. In that spirit, though, here are (what I think) the top stories of yesterday.

• The Innocence Project announces the 200th DNA exoneration. More coverage at CDW and eyeID.
• Man in MA held for four years after his discharge date!
• CT prosecutor avoids jail time.
• Monday Musings: Frolics and Detours.

Now, those who read the blog know that I have started several “features” and abandoned them after the first week - mostly because I’m lazy, but sometimes because I’m forgetful. I’ll try to keep this going, but who knows?

Connecticut is set to join several other states considering videotaping interrogations. Only four states thus far require it (AK, MN, ME and DC). The appropriations committee has set aside 100K a year for ‘08 and ‘09 to test it out. Videotaping of interrogations has become increasingly important what with the explosion of false confession claims over recent years.

“Electronic recording of interrogations will assure protections to the innocent,” said Amanda Melpolder, a policy advocate for the Innocence Project, which has helped exonerate 198 people since it was established in 1992.”Less than ideal interrogation procedures have contributed to or been the main factor in nearly one in five wrongful convictions of individuals later exonerated through DNA evidence,” Melpolder said. “In each of these cases, the true perpetrator remained at large. … The mandatory recording of interrogations is a reform whose time has come.”

Of course, not all agree, especially law enforcement. Their main concern is that it will “hinder the investigators’ interview techniques”. As opposed to ensuring there are no false confessions.

Public Safety Commissioner John A. Danaher III said in his testimony for a recent legislative hearing on the matter. “Defense attorneys may use the tape in an attempt to divert the focus of the jury’s attention in a criminal trial from the accused to criticism of an investigator’s interrogation techniques.”

Good job by the legislature and I hope the pilot program will convince them that this needs to become law in Connecticut.

Technorati Tags: connecticut, videotaped interrogations

The judiciary committee, in a flurry of activity before the deadline, reported quite a few bills out of committee. Here’s a list of all relevant criminal justice bills reported out of committee this session:

• HB 5503 An Act Concerning Residency Restrictions for Registered Sexual Offenders
• HB 6285 An Act Concerning The Age of a Child with Respect to Juvenile Court Jurisdiction
• HB 7085 An Act Concerning the SOL for Prosecution of Certain Sexual Assault Offenses Using DNA Evidence.
• HB 7234 An Act Concerning Victim Services.
• HB 7313 An Act Concerning Domestic Violence.
• HB 7335 An Act Concerning Persistent Offenders.
• HB 7365 An Act Concerning the Procedure in a Capital Felony Trial.
• HB 7391 An Act Concerning Preventive Detention.
• HB 7406 An Act Concerning Youthful Offenders…
• HB 7408 An Act Concerning the Risk Assessment Board…
• SB 0170 An Act Concerning Pardons.
• SB 0708 An Act Creating a Violent Offender Registry.
• SB 0838 An Act Requiring the DNA Testing of Certain Arrested Persons.
• SB 1269 An Act Concerning the Quality of Legal Representation of Children and Youth in Juvenile Matters.
• SB 1322 Student Loan Repayment Assistance Bill for Public Defenders and Prosecutors.
• SB 1457 An Act Concerning Consensual Sexual Activity Between Adolescents Close in Age.
• SB 1458 An Act Concerning Jessica’s Law.
• SB 1479 An Act Concerning Judicial Branch Openness.

This is a great time of year. The legislature is in session and new bills are being proposed. Via the OLR, I see that one such curious bill is Senate Bill 708 - An Act Creating A Violent Offender Registry. Yes, this bill proposes a registry akin to the sex offender registry for violent offendes. The offenses are:

1. murder (including felony murder and arson murder),
2. first-degree manslaughter,
3. 1st-degree manslaughter with a firearm,
4. 1st–degree kidnapping of a minor,
5. 1st–degree assault, or
6. conspiracy or criminal intent to commit any of the above crimes.

First time offenders are required to register for 10 years and second offenders for life. Failure to register is a Class D felony.

Are residency restrictions for violent offenders far away? Will we have an ever growing class of citizens who will be forced to live in seclusion? Shades of Escape from L.A.

Seriously, what does this achieve. Look at the list of offenses. Murder - minimum sentence of 25 years. Most murders aren’t random crimes. What will you do? Cross the street when you see someone who was convicted of murder? 1st degree assault? Do people seriously believe that assault convictees walk around randomly assaulting people?

Between this and the sex offender registry, it leaves only the larcenies and related offenses and the drug crimes. I’d rather have a community notified of someone who was convicted of a robbery or burglary. The store owner has as much a right to know that a person convicted of hold-ups lives in the neighborhood.

Also, isn’t the central argument behind sex offender registries and residency restrictions that that class of people cannot be rehabilitated? Registry proponents frequently cite statistics that recidivism rates are the highest for that class of offenders. Is the tune changing? Are they all equally likely to re-offend? You can’t have it both ways.

Maybe the way to end this is to make records of all convictions (which are public information anyway) available on a website. I don’t know.

At some point, SCOTUS will have to address the Constitutionality of these registries and residency restrictions. We are heading toward a very fractured society.

Technorati Tags: connecticut, violent offenders, registry

Modesto Reyes, a Hartford pastor, is charged with having sex with and impregnating an 11-year old parishioner. A previous DNA test showed with 99 percent certainty that he is the father. He, however, is asserting his innocence and is asking for a second round of DNA testing. The Court wouldn’t address the issue at a pre-trial hearing and directed Reyes’ questions to his attorney. Reyes is represented by William Gerace, a reputed Hartford criminal defense attorney. What made me pause at this news story were Gerace’s comments to the press:

Defense lawyer William Gerace told [Judge] Miano he has told Reyes that it is
“inappropriate to contest DNA results” until prosecutors offer a plea
bargain.

“He insists upon his innocence,” Gerace said after the hearing.

If Reyes continues to press for additional testing, Gerace said he
anticipates the prosecutor will end pretrial negotiations and take the
case to trial. Requesting a second DNA test before trial is very
unusual, Gerace said.

“He’ll need to accept or reject the offer
prior to a new test being done. He’s in a position to know whether he
is guilty or not. I’m his lawyer, and I’ll do what he asks,” Gerace
said.

Now I understand that sometimes we may not agree with what our clients do and it is indeed our job to advise them and counsel them, but I’m not sure “He insists upon his innocence” conveys the right message. If you close your eyes, you can almost hear Gerace sighing as he says that.

This article is just over a year old, but a Technorati search didn’t reveal many posts about it. I’m frankly quite surprised. It’s a great article which transcribes an interview between Chris Hansen (host of "To catch a Predator") and Dr. Fred Berlin, a professor of psychiatry at John Hopkins School of Medicine. It is an extremely lengthy article with a video attached, so take the time to read it. Dr. Berlin makes very insightful comments and seems to be arguing for more than just harsh legislation - a better understanding of what drives these people and how we can help them. Here are some excerpts:

Hansen: What makes these men tick?  Do we even know?

Dr. Berlin: Well, let me be careful when we say "these men."  Because that’s like asking
me what makes drunk drivers tick.  In other words, there’s a tremendous spectrum from the alcoholic on the one end to the guy who had one too many at the Christmas party to everyone in between.

But there are a subgroup of individuals who commit sex offenses who are sexually disordered in the same way that there is a subgroup of drunk drivers who have alcoholism.  When it comes to sexual disorders, what we’re talking about in the simple layman’s terms is that an individual experiences recurrent abnormal sexual cravings.  In some instances, those are cravings that become involved actually with children.

In terms of why this can be so problematic, God or nature put the sex drive into each and every one of us for a very important reason, and that is literally the preservation of the human race.  And so all of us have a sex drive that recurrently wants to be satisfied.  When that drive becomes aimed, if I can put it in that way, in the wrong direction, towards children for example, it still recurrently wants to be satisfied.  And it doesn’t take a mental health expert to appreciate what a problematic circumstance that can become.

Hansen: Can these men, in most cases, be successfully treated?

Dr. Berlin: Many of these men can be successfully treated, many can’t.  Again, I’ll come back to the analogy of working with alcoholics.  Some can be easily treated. Some can’t be treated.  And you’ve got the whole group in between.

One point I do want to make, though, is that we’re not, in my judgment, going to solve the problem only through a criminal justice approach.  I very much support that, let me make it clear.  But think about it for a moment, if the only thing we do with a person who’s having sexual cravings about children is to send them to prison, there’s nothing about prison alone that will either erase those cravings or enhance their capacity to successfully resist acting upon them. Sooner or later, like it or not, most of these men are going to be back out there in the community. So unless we have both a strong criminal justice component and a strong public health component, in my judgment, we are doing society a tremendous disservice.

The part in bold is what I think most legislators today are missing. There is an overwhelming belief that harsher prison sentences are going to solve our problems (make us forget about them, is a more appropriate description).

Hansen: The natural reaction after seeing a story like this is to say, "Lock these guys up.  Throw away the key. That’s the only way to protect children.”

Dr. Berlin: One of the things we’ve done in this area is we’ve completely dehumanized these people.  If we look back historically, at one time we looked at alcoholism as though it was only a moral problem.  The alcoholic was the bum in the gutter.

Well, we still have moral values as we should when it comes to alcoholism. But we also have the Betty Ford Clinic.  We recognize there are legitimate concerns for science and medicine.

When we talk about terms like "sexual predator," "pedophile," "sexual offender," we’re talking as though it’s only a moral problem.  And God knows they’re important moral issues.  But there are also important issues of medical and scientific concern.  How is it that some people are not attracted to people of their own age?  How is it that some people crave sex with children and they’re not attracted to other adults?  Given the fact that such people exist and that we can’t punish away or legislate those kinds of disorders, what can we learn through science research to help make society safer? What kinds of treatments can we provide for them?

Here’s the part where I think we as society will have to improve in the coming years in order to tackle this "problem":

Hansen: If a man sees this program and that man has a problem in this area, what should that person do?

Dr. Berlin: There are very few resources available.  We see on television all the time “if you have schizophrenia,” “if you have anorexia nervosa,” “if you have a drug problem,” “if you have an alcohol problem,” we as a society want to help you.  We want to help you before you go out if you’re an alcoholic and get in a car and injure an innocent person.

Where do we hear that as a society we want to reach out to people who are struggling and confused and disordered sexually?  Where do they get the message this is where you can go?  We’re created a "we versus they" mentality.  And I understand that what they do is offensive.  It’s aggravating.  It makes me angry.  But we’re not going to solve the problem by pushing it further underground.

And finally, the most important statement that clearly and effectively states the more rational view of this issue:

Hansen: Is this a problem that can be solved with more severe punishment and better legislation? 

Dr. Berlin: The sense that I get is that our society today seems to feel that almost every problem can be solved by enforcing some prior statue more sternly, or by enacting new legislation.  There are other things that have to be looked at.  There’s the role of science.  There’s the role of research. There’s the role of treatment.  There’s the role of treatment providers working collaboratively with parole and probation in situations such as this.  There are laws being enacted now in terms of where people who are sexual offenders can live in some states. Whereas other states are beginning to wonder if those laws are helping and are looking towards rescinding them.

Because there’s so much emotion tied to this, we really need to get beyond that emotion, to think it through and to try to base public policy on facts that are going to try to lead to effective solutions. 

And if I may just add one final point to that:  Much of public policy today in this area is based on the exception rather than the rule—those horrible cases where there’s a  kidnapping, a sexual assault and a murder of a young child. That is a fraction of one percent of the big problem.  And yet if we’re going to base our public policy on the exception rather than the rule, it begs the question as to whether or not that’s going to be the most effective public policy.

Last week, the CT Supreme Court released a decision [pdf] that applied SCOTUS’ principle in Crawford v. Washington in a case that made the news media. In State v. Kirby, the supreme court held that the deceased declarant’s statements to a police dispatcher and a police officer were testimonial and were admitted in violation of Crawford and Davis.

Applying the Davis test to the facts of the present case, we first conclude that the complainant’s statements by telephone to Gomes were testimonial and, therefore, inadmissible under Crawford. A review of Gomes’ conversation with the complainant makes clear that the ‘‘primary purpose’’ of the call was to investigate and apprehend a suspect from a prior crime, rather than to solve an ongoing emergency or crime in progress at the time of the call.

This renders the call, viewed as a whole,distinct from the telephone call that was held  nontestimonial in Davis, in which the declarant, a domestic violence victim calling to report that her former boyfriend was at her house beating her, ‘‘was speaking about events as they were actually happening, rather than ‘describ[ing] past events . . . .’ ’’  Put differently, at the time of her telephone conversation with Gomes, the complainant in the present case was not under a ‘‘bona fide physical threat’’ at the hands of the defendant. Id. Her call was made for the purpose of reporting a past criminal act, rather than to avert a presently occurring one. This renders the telephone call recording testimonial and, therefore, inadmissible under Crawford in the absence of an opportunity for prior cross-examination by the defendant.

We conclude similarly as to the complainant’s statements to Thornton at her home, which also were testimonial and, therefore, inadmissible under Crawford because the defendant lacked a prior opportunity for cross-examination.

Everyone is well aware that SCOTUS is going to hear argument in House v. Bell today. Prof. Berman has a host of links on the case and provides the amicus brief as well. Truth be told, this case had slipped my mind over the last few weeks and my memory was jogged only by an NPR report this morning. It might be available online as an audio link, but I couldn’t find it in the quick search I did. However, what remains with me from that report is an interview with the head of a pro-death penalty group who aske d the question (and I’m paraphrasing):

"How many times do we try this case - over and over. Five, six? At some point there has to be finality. We can’t keep reopening the case every time there is some new small piece of evidence."

We keep trying till we get it right. DNA evidence has shown that the semen did not belong to the defendant and that a vial of blood was missing and another was leaking. The leaky vial was placed in the same box as the defendant’s pants, which were then used as evidence of him having committed the crime.

Is that not enough to warrant review? We shall find out…

I’ve received a couple of comments to the castration post below that I’d like to share. First, "jack" of Gideon’s Guardians points out that Alabama isn’t the only state to propose such legislation. Apparently, Sen. Shurden of Oklahoma consistently introduces this bill. The closest it ever got to becoming law was in 2002, when it passed both houses but was vetoed by the Governor.

Under Shurden’s bill, the jury would have to determine if the crime meets at least two aggravated circumstances as outlined in the legislation. Aggravated circumstances would include the rape of a child, rapes resulting in significant physical injury to the victim, gang rapes and previous convictions for sex crimes. In addition, a DNA test positively identifying the defendant as the rapist would be required before castration could be ordered by a judge.

Susanna writes,

I agree with you 100% when you say "I’m just against sensationalist legislation that doesn’t take into account data-driven reality and logistics." Setting penalties for crime is driven more by the election cycle than any coherent philosophy or even practical goal setting. The problem is that what is in place keeps failing, so public reaction pushes harsher penalties that just create more chaos. Somewhere, some governmental entity needs to fund more investigators, faster trials, fully staffed correctional programs and parole officers with fewer offenders to track so they can genuinely track the ones they’re assigned. Then we can see what does and does not truly work, and adjust from there.

Very true. This, ofcourse, can be said of the entire correctional system in general. Before legislation is passed calling for castration, we need to figure out what is wrong with the current system and how to fix it. Why is it that this has become national news only very recently? What were we doing right in the past and what is wrong now?

Which brings me to the past. Buck v. Bell specifically. We know the case - "three generations of imbeciles are enough". David Schraub of The Debate Link invokes Buck in determining that Alabama’s proposed law probably would be constitutional. I haven’t read Buck in a while (I’ll do it during lunch), but if my memory serves me right, the rationale in Buck was to prevent furthering the line of the "feeble-minded" by sterilizing Carrie Buck, so that she could not reproduce. Far more than prevention of crime, the underlying rationale was to "cleanse society", so to speak, of the feeble-minded and mentally ill. Justice Holmes writes,

The statute then enacts that whenever the superintendent of certain
institutions including the abovenamed State Colony shall be of opinion
that it is for the best interest of the patients and of society that an
inmate under his care should be sexually sterilized, he may have the
operation performed upon any patient afflicted with hereditary forms of
insanity, imbecility, etc., on complying with the very careful
provisions by which the act protects the patients from possible abuse.

We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call
upon those who already sap the strength of the State for these lesser
sacrifices, often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is better for all the
world, if instead of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can prevent those
who are manifestly unfit from continuing their kind.

Additionally, the argument still stands that castration as a punishment in cruel and unusual and in violation of the 8th Amnd; cruel and unusual having been defined as changing according to evolving moral standards in society, no?

Please correct me if I’m wrong. I’m going to think about it some more and maybe post later.

In this post over at Injustice Anywhere, TXpd considers a new policy of referring to suspects as "persons of interest".

This got me thinking. What of the use of the word "victim" during the trial to refer to a complainant? Is that prejudicial? Does that usurp the role of the jury in a trial where the victimization is, in fact, in dispute? I remember reading a case about it last year, so I did a little LEXIS research. State v. Robinson [pdf] and State v. Cortes [pdf] address the issue.

In Robinson, the defendant raised the issue that the trial court’s use of the word "victim" to refer to the complainant in a sexual assault case deprived him of his right to a fair trial. However, after being objected to by defense counsel, the Court offered to give a curative instruction, which was refused. In this case, the ACOTSOCT held that since the claim was not preserved, in fact since a curative instruction was refused, it was not reviewable under the Evans-Golding doctrine.

Cortes is more interesting, because the SCOTSOCT granted cert. and has not issued an opinion yet. In Cortes, the defendant was convicted of unlawful restraint and assault in the second. On appeal, he claimed that the trial court improperly

violated his due process right to a fair trial during its jury charge by referring to the complainant as ‘‘the victim,’’

The facts basically describe a "he said, she said" scenario, where the complainant alleged that her ex-boyfriend, the defendant, was obsessive and when she wouldn’t talk to him, kidnapped her and took her to New Hampshire. He related that she was emotionally unstable and he felt responsible for her state, so he offered to take her to New Hampshire to visit his family, so she could be with him.

During the trial, numerous witnesses referred to the complainant as "the victim". At one point, defense counsel object and the trial court overruled. It stated,

This [objection] has been raised on the ninth witness in this trial. I just wanted for consistency sake, the court felt it appropriate to maintain what has been presented to the jury rather than change with the ninth witness during the course of this trial.

The prosecutor also used the term victim and so did the judge in his charge. After another objection, the trial court specifically noted that it would not issue a curative instruction. Considering the whole charge, the Appellate Court stated that

Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.

To determine whether the complainant was indeed the "victim" of any crime was the province of the jury in this case. The court distinguished cases in which fact that a crime had been committed was not in issue, merely the identity of the perpetrator. However, in cases where the dispute is whether a crime has been committed, "a court’s use of the term may constitute reversible error".

The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.

The Court also considered whether any prejudicial effect would have been negated by the Court’s other instructions, citing Robinson above (where the court held that the "presumption of innocence"  instruction negated the use of the word "victim"). The Court held

We are confident that the court’s other instructions could not have negated such effect under these circumstances, in which the jury faced two conflicting versions of events and had to credit one witness’ word over that of another witness.

The court’s use of the term ‘‘victim’’ in reference to the complainant, under the particular circumstances of this case, may have invaded the fact-finding function of the jury concerning the issue of whether a crime had been committed…

The Court reversed.

The Supreme Court granted cert. limited to the following issue (in relevant part):

1. Did the Appellate Court properly conclude that the trial court’s
   instructional references to the complainant as ‘the victim’ deprived
   the defendant of his right to a fair trial?

I haven’t done a Federal Constitutional search on this issue, but if someone knows of cases that address this, please send me an e-mail or post a comment.

Two of the other criminal law opinions issued by the ACOTSOCT are State v. Boyd and State v. Orellana.

Boyd was convicted of kidnapping in the first and assault in the third. He allegedly sexually attacked a 16 yr old who was working with him. During the course of this attack, he allegedly banged her head against the floor twice, causing her to lose consciousness both times. Subsequent events, including her being temporarily paralyzed at a volleyball game, led to his arrest.

He raised 4 issues on appeal:

I. The Court improperly deprived him of his right to cross-examine by failing to release medical records pertaining to the victim.

Lucy Puryear, a psychiatrist who had treated the victim, was called by the state as a witness and was qualified as an expert in psychiatry and neurology. Prior to her testimony, the court stated that, as discussed in a chambers conference with counsel, Puryear’s progress notes concerning the assault required redaction.

Puryear testified that she treated the victim for PTSD, with symptoms such as loss of details regarding the traumatic event and reluctance to discuss all the details at one time.

Outside of the presence of the jury, defense counsel asked Puryear about a notation in her progress notes regarding ‘‘family stressors’’ that occurred prior to the assault. These stressors involved certain difficulties facing the victim’s sibling. In Puryear’s medical opinion, these stressors had nothing to do with the victim’s recollection of the assault.

Defense counsel continued to inquire about the victim’s relationship with her family, and Puryear testified unequivocally that the victim’s familial issues were unrelated to the symptoms of posttraumatic stress disorder.

The standard for determining whether medical records should be turned over was outlined in State v. Esposito, 192 Conn. 166. The standard is that the defendant should make a showing that the confidential information must be turned over so as to protect the defendant’s constitutional rights. If such a showing is made, the state should obtain the witness’ permission to allow the court to conduct an in camera review of the documentation and if necessary, turn it over to the defendant. If the witness does not agree, then his/her testimony must be stricken.

However, the Court noted, citing State v. Palladino, 69 Conn. App. 630, that this applies only where there is no voluntary disclosure of the records.

neither our Supreme Court nor this court has held that such an in camera review   is necessary where a victim freely gives up any rights to confidentiality that she might otherwise have

In this case, the victim orally waived her right to confidentiality and turned over the notes to the prosecutor. At that point, the notes should have been turned over to defense counsel and there was no role for the Court to play. So you’d think that the Court would agree with the defendants claim? No. They determined that failure to turn it over was harmless error.

Because the defendant took full advantage of the numerous inconsistencies with respect to the victim’s testimony, any additional attempt to impeach her credibility would have been cumulative.

II. The Court failed to strike testimony that the victim was sexually assaulted.

There was, however, no objection to the questions asked during trial and the Court found that the ruling was not a constitutional evidentiary ruling and therefore did not warrant a Golding analysis.

We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.

III & IV Prosecutorial Misconduct under Brady

These claims are offshoots of the first - in that the prosecutor was in possession of exculpatory material in the expert’s reports and notes and did not turn them over to the defense. The Court holds that upon review,

we conclude that although the records contain some exculpatory evidence, they do not contain any exculpatory evidence that is material under Brady.

Next up - State v. Orellana. This seems to be a more interesting case than Boyd.
In Orellana, the defendant was convicted of possession with intent to sell, conspiracy to sell and possession within 1500 feet of a public housing project. The facts are as follows:

A police detective, Chute, was contacted by an informant he had worked with once or twice in the past, Jusino. Jusino set up a sting with Chute and contacted the defendant to sell her 350 packets of heroin. The defendant (and a Co-D) were to deliver the drugs in a certain specific car between 5:15 and 5:30 at either one of two locations. Ofcourse, everything happened as she said and the two were arrested.

Defendant raised the following claims:
I. His motion to suppress was improperly denied.

Defendant claimed that all physical evidence seized from his car should be suppressed "as the fruits of unlawful searches and seizures". Applying the clearly erroneous standard, the court ruled that, based on Chute’s prior working relationship with Jusino, they did have probable cause based on information from a reliable informant.

Our Supreme Court has ‘‘consistently held that an informant’s record of providing information that led to arrests and seizures of contraband is sufficient to establish the reliability of the informant.’’ State v. Smith, 257 Conn. 224.

On the basis of the court’s findings concerning the events leading to the search and seizure—the informant’s reliability and basis of knowledge, the police surveillance that corroborated key details about the narcotics delivery related by Jusino as well as the behavior of [Co-D] when police approached the stopped automobile —we have little difficulty in agreeing with the court’s conclusion that the police had probable cause to believe that heroin would be  found in the automobile.

II. The trial Court improperly permitted evidence of prior misconduct.

One of the defenses put forth by defense counsel was that the defendant did not know that there was heroin in the car; that he was "an innocent bystander". The counter this, the trial court permitted the state to put on evidence of past dealings between the defendant and Jusino. On appeal, the defendant argued that the "limited" probative value of this evidence was outweighed by it’s prejudicial effect. The Appellate Court disagreed,

We conclude that the court properly determined that the probative value of the evidence outweighed its prejudicial effect. The admission of evidence of a defendant’s prior criminal conduct does raise concerns that a jury might misuse the evidence by considering it as evidence of a defendant’s bad character or criminal tendencies. ‘‘Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct.’’ State v. Ryan, 182 Conn. 335, 338 n.5, (1980).

Here, the court adequately instructed the jury as to the role the evidence was to play in its deliberations. Specifically, the court instructed the jury not to consider the evidence [...] solely as evidence of the defendant’s intent and knowledge.

*This has become a long, long post. I’ll wrap it up by simply asking a question to regular readers. Do any of you even read these summaries? I do them because they help me and I figure someone who is interested would appreciate them too. Whether you do or you don’t, please leave a comment to let me know.