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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:

When I got to work this morning and followed my daily routine of checking the judicial branch website to see if there were any opinions being issued today, I was excited. Giddy, even. (Get it? Giddy…)

The Supreme Court had decided to release opinions in three very, very interesting cases. As luck would have it, the opinions were extremely anti-climactic. Nothing in any of these opinions was of substantive value. *grumble* *grumble*

The first, State v. Khadijah, was the appeal from the reversal by the appellate court of the defendant’s conviction. The defendant was convicted of failure to appear, because, after returning from work at 8am, she had fallen asleep on the couch and her boyfriend had forgotten to wake her up in time. The appellate court found that the evidence was insufficient to sustain the conviction on the “willful” element of the charge. The Supreme Court dismissed the State’s appeal on the grounds that cert had been improvidently granted.

Next up, Porter v. Commissioner, was also dismissed on the grounds that cert had been improvidently granted. Porter appealed from the Appellate Court’s denial of his appeal. The appellate court had concluded that the habeas court did not abuse its discretion in denying certification to appeal. Mr. Porter claimed that his appellate counsel was ineffective for not raising the issue of instructional error (which issue was not reached on his direct appeal because it was not adequately briefed - as found by the same appellate court). Nope, no good.

Finally we come to Taylor v. Commissioner. The petitioner claimed that his plea was involuntary. The habeas court denied the petition and denied certification to appeal. On appeal, the appellate court remanded to the habeas court with an order to make findings on whether petitioner had proven cause and prejudice which excused his procedural default. The State appealed, saying that the appellate court improperly found that the habeas court had abused its discretion in denying certification. It was an interesting issue because the appellate court had ruled that if there is no evidence on the record of cause and prejudice, then it can find so, but if there is evidence of cause and prejudice and there is no finding, then it must remand for the habeas court to make that finding. Unfortunately, we got no guidance, because the Supreme Court agreed with the State that the appellate court incorrectly found that the habeas court had abused its discretion in denying certification to appeal. So boo.

Yesterday, the Judiciary Committee made available the 14 proposals submitted by various lawmakers to reform the criminal justice system. I’ll go through each one in later posts. First up, though, is the proposal submitted [pdf] by the Judiciary Committee co-chairs, which has already received some press coverage.

First, Burglary in the First Degree is amended to include an element called “home invasion”. Home invasion is defined as:

a person “commits a home invasion” when such person enters a dwelling while a person other than a participant in the crime is actually present in the dwelling with intent to commit a crime therein and such dwelling, at the time of such entry, is not open to the public and the actor is not otherwise licensed or privileged to enter such dwelling.

So basically, with this amendment, a burglary would be a home invasion, which is a burglary, unless no one is actually present in which case it is a burglary.

This bill also

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.’’

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

The mainstream media seems to have reported on Philip Russell’s hearing over the weekend. Here are stories from the Greenwich Time, the Courant and the Connecticut Post. The story everywhere, however, is the same.

If prosecutors are allowed to pursue cases against defense lawyers caught in similar predicaments, their ability to defend clients could be compromised, said Hartford defense lawyer Moira Buckley, who addressed the court on behalf of the defense lawyers group.

“To me, it betrays a mentality that I find kind of frightening,” she said.

The prosecutors dropped this nugget:

Prosecutors argued that Russell did not face any such charge because he did not “knowingly” possess the pornography — a standard that was not met in this case because the church sealed the laptop with tape and Russell did not try to turn on the computer to see if the images were indeed of naked boys. But by trying to take the computer apart, Russell tampered with evidence and violated the Sarbanes-Oxley Act, prosecutors said.

“One thing Mr. Russell did that he can’t do is he destroyed it,” Assistant U.S. Attorney Peter Jongbloed said.

Oh. So he wasn’t in trouble because he didn’t knowingly possess anything illegal. So…if he had not destroyed the computer and it had been turned over, he wouldn’t have been prosecuted under the theory that he should have known that it possessed pornography. Yep.

Indeed, the judge almost made that argument:

[Judge] Nevas fired back that “a lawyer certainly could see that an official proceeding would ensue. He knew this computer contained images of children engaged in terrible acts.”

Nevas also maintained that, under state law, certain people like doctors, teachers and clergymen are required to inform law enforcement authorities of evidence of child abuse.

Here’s the bottom line:

Robert M. Casale, Russell’s lawyer, said after the hearing that a conviction would send a message to all defense lawyers: “By virtue of the case of the United States against Philip Russell, you’re all conscripted to be agents of the government. And if you don’t act in that capacity, we’ll prosecute you.”

Update: I don’t want to write a new post, so I’ll just add on here. Things are getting stranger. Bob Farr can’t get out of his own way:

Earlier this week, Robert Farr, chairman of the Connecticut Board of Pardons and Parole, said that the release of the two men was appropriate based on the available evidence.

Farr then said the board didn’t have all the facts on Komisarjevsky’s background when it chose to parole him. If it had, he said, the board’s decision might have been different. Farr has said that the board had no idea a Superior Court judge had called Komisarjevsky a “cold, calculating predator” during a 2002 sentencing because a transcript of the sentencing was not included in his parole file, even though state law required it to be there.

I’ve seen worse things said during sentencing. Nasty things get said during sentencing. I very much doubt that the parole board would have denied parole based on comments at sentencing. I do find funny the notion that they didn’t have the transcript and the implication that they couldn’t do anything about it. It wouldn’t have been the first time that they canceled or postponed a parole hearing for want of documentation.

Now Gov. Rell is jumping into the act:

Rell said she is forming a special panel to review not only how Komisarjevsky and Hayes were paroled, but also to take a look at the entire process of who gets released from state prisons.

“I want a top-to-bottom assessment of all the procedures and processes involved in charging, sentencing and releasing those convicted of crimes in Connecticut. I want the facts of the Cheshire case to be used as a touchstone during the course of this examination,” she said.

I’m not quite sure what that second paragraph means. She wants a review of the judicial system in CT? Okay…

And Rep. Caligiuri has another idea:

Word that the parole board released Hayes and Komisarjevsky based on incomplete case information and without a full hearing prompted one state senator to call for an immediate moratorium on further parole decisions until a full review is complete.

“I think the entire parole process seems to be in shambles,” said Sen. Sam Caligiuri, R-Waterbury. “We can’t afford to have another mistake made. We can’t afford to have another person go out on parole until the board of parole gets its act together.”

Sigh. Screw you Hayes and Komisarjevsky.

Original: As expected, New Haven State’s Attorney Michael Dearington has charged Steven Hayes and Joshua Komisarjevsky with six capital felonies each in the triple homicides in Cheshire, CT [previous coverage here].

As a colleague pointed out today, the question now becomes: Can they get a fair trial an impartial jury anywhere in this State given the publicity this crime has received?

Technorati Tags: death penalty, connecticut, triple homicide, william petit

I resisted. I tried very hard. I clenched my fists. I got up and walked away from the computer. I let it be for a few days, thinking it would pass. Then I read this story.

Heinous, depraved, disgusting crimes no doubt. Do they warrant a review of the parole system? Absolutely not. [That's not to say that the parole system doesn't warrant reviewing, but my point is that this should not be the sole cause. There are plenty of things wrong with the parole system here.] Both men had lengthy criminal records, but the crimes were non-violent. In Connecticut, there are two eligibility classes: 50% (non-violent) and 85% (violent).

Here’s the thing, though: Even if you’re convicted of a non-violent offense, parole has the authority to (and frequently does) classify you as violent based on history, facts of the case, even nolled or dismissed charges. In some cases, the history stretches back 10 years. Their “unofficial” policy is that if an individual has two violent felony convictions in the last 10 years, then even if the current conviction is non-violent, they are automatically classified at 85%. I have previously written about CT’s parole system here.

One of these guys had served almost 4 years of a 5 year sentence and the other had served half of a nine year sentence. By all accounts, they were model inmates and not a hint of violence in their backgrounds.

Bob Farr, Chairman of the Board of Pardons and Paroles said:

“Both offenders were deemed to be appropriate candidates for supervised parole based on their criminal history, which involved the minimum level of violence.”

“The board took a look at the history. They took a look at crimes and whether they were violent offenses, and under most standards, the individuals had no history of violent crimes they have now been charged with.

A Department of Correction spokesperson had this to say:

“Both were on a weekly reporting schedule with their parole officers and had been in full compliance with the requirements of their release, including being employed on a full-time basis.”

Yet state lawmakers are calling for a “review of parole procedures”. I hate to say it and I feel awful doing so, given the tragedies, but sometimes, these things happen. You cannot control it. As much as I dislike parole policies in Connecticut, I cannot blame them here. They are not soothsayers; they cannot see into the future.

“How do we review candidates for parole? Even though violence is not in their past record, but it shows what they can do in the future. We have to ask that question,” [State Rep.] Caligiuri said.

Read that again. Tell me if that makes any sense. Violence is not in their past, but it (what is it?) shows what they can do in the future. What shows what?

He also said

“…these men seem to have conspired to commit even more heinous crimes, instead of being rehabilitated in the state system.”

Ah, there you have it. Although he doesn’t realize he’s saying it, the question is truly: Do prisons rehabilitate and do our prisons rehabilitate? What is being done in correctional facilities in Connecticut to ensure that inmates re-enter society as productive, responsible members? Frankly, given the state of overcrowding in facilities, how much can they do?

Which is what makes this State Rep’s suggestion mind boggling:

State Sen. John Kissel, R-Enfield, said Wednesday that in light of the Cheshire home invasion, the state needs to reassess the penalties for those convicted of burglary.

Kissel, who serves as a member of the legislature’s Judiciary Committee as well as chairman of the Connecticut Sentencing Task Forece’s subcommittee on racial and ethnic disparity, said that the current law considers burglaries to be a non-violent crime. He suggested that the law be changed to require mandatory prison sentences.

Again, instead of focusing on the real problem, let’s give out harsher sentences across the board.

I’m not even going to touch the death penalty issue.

Having said all this, I would not want to be the guy who has a parole hearing scheduled in the near future.

Finally, the Connecticut legislature has passed a bill that goes a long way toward giving inmates gate pay. Currently, inmates in Connecticut are released from prison without any money whatsoever and are dropped off in the center of either of the large cities (Hartford or New Haven). Then, they are left to their own devices. I have long maintained that this policy is counter-productive, so I am quite glad to see that there is something being done.

The provisions are that 10% of all inmate earnings will automatically be transferred to a “savings” account, the contents of which will be available to the inmate at the time of release.

Battling recidivism rates and grappling with preparing thousands of inmates for release, several states have set up similar “discharge accounts” for inmates. The hope is that such a reserve, along with other measures, will facilitate a quicker transition to a law-abiding life, and, in turn, stop the recycling of inmates through the court and prison systems.

Obviously, as with all state laws that deal with inmates, there is a catch. Once the account reaches $1000, it will stop accruing money and the 10% will instead be deducted to reimburse the state’s cost of incarcerating the inmate.

Department of Correction Commissioner Theresa Lantz, who tried four previous times to push the law through the legislature, hopes mandatory savings will impress upon the system’s roughly 18,800 inmates the importance of setting aside money for re-entry, instead of “spending money on honey buns” in the prison commissary.”At least it will get the offender some pocket change,” Lantz said. “Hopefully they’ll use it for the right reasons.”

But ofcourse, this is a meager step (albeit a good first step). Inmates rarely make any money in prison even if they want to. The maximum they can earn in CT prisons is $1.75 per hour.

“Ten percent?” said Janette Rodriguez, another former inmate, who for years bounced in and out of jail but is now drug-free. “I think that’s crazy. Some people in jail, they make $5.35 a week.” Pay in the facilities can range from 75 cents a day to $1.75 an hour or slightly more, depending on the position.

Without any outside help, inmates with shorter jail or prison terms, like Anthony [another inmate], would have trouble earning enough to make a significant difference in quality of life, some former inmates say. The savings accounts will not bear interest, said Brian Garnett, a Department of Correction spokesman.

“If you could come out for $1,000, it just sounds like you’d have to be in there for years,” Rodriguez said.

That you would, Ms. Rodriguez, that you would.

One other important provision is the DOC working with DMV to provide inmates with some sort of identification upon release. For without ID, how is the inmate to cash the cheque? Overall, I like the idea, but it has a long way to go to be effective and truly useful.

Iowa was supposed to be on the forefront of the “revisit residency restrictions” movement. Iowa was supposed to be the vanguard of the sensible restrictions movement. Iowa was supposed to show the rest of the country that these draconian laws don’t work and here’s how to do it.

Unfortunately, not so fast. It seems that - as all hot button political issues go - this has become politicized and stuck in a quagmire (For those keeping track, that’s two sitcom references).

Iowa sheriffs and prosecutors on Monday blasted lawmakers for failing to roll back a controversial and politically charged law restricting where sex offenders can live.

“They’re just afraid to take action, and the people of Iowa should be ashamed,” said Story County Sheriff Paul Fitzgerald. “It’s absolutely politics at its worst.”

Earlier this year, the bipartisan panel heard during a series of public meetings from a number of groups - sex offender experts, statewide law enforcement associations, prevention experts and victims - who uniformly criticized the state law banning sex offenders from living within 2,000 feet of schools or child care centers.

However, those on the other side of the aisle are firm in their belief that this is not what the residents of Iowa want.

But Senate Minority Leader Mary Lundby of Marion said Republicans would resist any attempt to repeal the 2,000-foot law, which went into effect in 2005. Lundby said her belief is that people do not support such a move.

“My message hasn’t changed since the beginning of the session,” she said. “We will support additional spending for monitoring (sex offenders) and additional assessment, but people across the aisle don’t want them in their neighborhoods, period.”

It will be very interesting to see how this all plays out - with the end of session on Friday.

See also: SexCrimes and Corrections Sentencing

Previous coverage:

• Iowa I
• Iowa II
• Iowa III
• Iowa statement

*My sincerest apologies to those that had repressed any memory of that song and that show.

SCOTUS handed down its opinion [pdf] in James v. US today. From Scotusblog:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Professor Berman is all over this decision and has lots of coverage on it. He has compiled it all here.

Technorati Tags: supreme court, james v us

Connecticut has a juvenile problem. No, the state isn’t childish, but it is imprisoning juveniles with adults more than any other state in the country. D.C. based Campaign for Youth Justice has released a report [.pdf] on the state of the juvenile justice system in the country and according to that report, Connecticut is the worst offender.

State judicial officials say the numbers are higher because Connecticut is one of only three states that automatically prosecute children 16 and older as adults. New York and North Carolina are the others.

But Connecticut officials admit the rising numbers are also due to a shortage of suitable programs for children ages 16 and 17 - a situation some lawmakers and advocates want to change by passing a law raising the age for being treated as an adult to 18. The bill is expected to go to a vote before the General Assembly’s judiciary committee in the next two weeks.

The prosecution of offenders under 18 as adults is particularly damaging to youths of color, the report said. In Connecticut, blacks and Latinos constitute less than 30 percent of the total youth population but they make up 80 percent of the young men in the adult correction system, the report said.

The Youth Justice report also said locking youths up with adults does not make communities safer. The report cited a study comparing recidivism of youths waived to adult criminal court in Florida with those retained in juvenile court. The study found that those in the adult group were more likely to be rearrested and commit more serious new offenses.

The services available to 16 and 17 year old offenders is also severely lacking:

As one of the examples of the hurdles court officials face, [Director of Court Support Services William] Carbone said current state law does not allow 16- and 17-year-olds to access services through the state Department of Mental Health and Addiction Services. They must be 18 to be eligible.

"Our services for 16- and 17-year-olds are minimal," Carbone said. "So when you’re faced with someone who has committed a crime and been convicted, if you don’t have programs appropriate for that age group, you’re going to see more of them incarcerated."

As of 2005, Connecticut had 383 juveniles incarcerated with adults.

The CT Supreme Court ruled yesterday that sex between consenting adults who happen to also be students and teachers is a per-se crime.

Richard Emanuel, the lawyer representing teacher Van Clifton McKenzie-Adams, who was sentenced in 2004 to seven years in prison for having sex with two New Haven high school students, argued before the Supreme Court last year that state law prohibiting school employees from having sexual relations with students was overly broad.

The reason, he argued, is that the law does not require prosecutors to show that a student was coerced by a teacher’s power or authority, or that a student had any professional contact with the teacher in question.

Both the students in question were above the age of consent in this case. You can read the opinion here [.pdf file]

The Greater Hartford Interfaith Coalition for Equity and Justice, an organization of about 40 churches across the state, came together on Sunday to start a grass-roots effort to improve the lives of immigrants in the state as well as fight against the "anti-immigrant" movement gaining momentum across the country.

The group hopes to hold an educational forum each month to raise
awareness about issues facing immigrants in Connecticut, including job
exploitation and access to health care.

Quite a few people spoke at this event, focusing on several issues related to immigrants:

"We need to work to diminish the anti-immigrant feeling that is around.
These people are not threatening anyone. They are not felons," Alstrum
said. "They are hardworking people who are not taking jobs from anyone,
but instead are taking the jobs no one wants."

…

Margarita Ledesma, a social worker, said immigrants who have cancer or
AIDS are not receiving medical care because they are afraid they will
be arrested if they show up at a doctor’s office.

Many states across the country have passed legislation to deal with the influx of immigrants:

As illegal immigrants have spread throughout the country and Congress
has been unable to pass an immigration reform bill, some states have
passed their own legislation to address the issues. In the first six
months of last year, states considered nearly 300 immigration-related
bills and passed 36 of them, according to the National Conference of
State Legislatures.

Florida allowed state law officers to
arrest illegal immigrants. Arizona barred day laborer centers from
receiving public funds, and Virginia denied some state benefits to
undocumented workers.

This year, the proposals include cutting
off benefits to illegal immigrants, allowing local police to identify
those in the country illegally and, in Arizona, sending National Guard
troops to secure the Mexican border.

Mayor Eddie Perez had one of the smartest comments on this issue:

"Rather than being reactive, I hope to be proactive on these issues."

SCOTUS today granted Rompilla v. Beard [majority opinion] by a 5-4 vote, holding that that even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available,
defendant’s counsel is still bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial. The Court granted the petition finding both prongs of Strickland had been met. Writing for the majority, Justice Souter explains:

Counsel knew that the Commonwealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator under state law.   

Counsel further knew that the Commonwealth would attempt to establish this history by proving RompillaÂ’s prior conviction for rape and assault, and would emphasize his violent character by introducing
a transcript of the rape victimÂ’s testimony given in that earlier trial. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutorÂ’s plans.

It is also
undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned by the prosecution a second time.

On the performance prong, the Court concludes:

Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing  here owing to the similarity of the violent prior
offense to the crime charged and Rompillas sentencing
strategy stressing residual doubt.  Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was certainly beyond any hope.

The prejudice prong wasn’t seriously contested by the State of PA and the Habeas was granted. SCOTUSblog has detailed analysis and commentary. An AP story here.