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Apparently, it is not a violation of due process in the state of CT if there is not an adequate factual basis for a plea stated on the record. See Paulsen v. Manson, 203 Conn. 484 (1987). Who’da thunk it?

In what may prove to be a landmark decision, the Connecticut Supreme Court last week reversed decades of precedent in interpreting the State’s kidnapping statute. The Court issued two companion cases: State v. Salamon (concurrence and dissent) and State v. Sanseverino (dissent).

Background: Under the prior interpretation of the kidnapping statute, you would be guilty of kidnapping in the second degree (C.G.S. 53a-94) if you merely restrained an individual while committing a crime. This interpretation came from a line of cases starting twenty or so years ago, most recently reaffirmed in State v. Luurtsema.

This interpretation brought about absurd results. A defendant, who pinned down an individual for the purpose of committing sexual assault, was also then guilty of kidnapping. If I pushed you down and then punched you (clearly an assault), I would also be guilty of kidnapping.

Prosecutors used this to their advantage and routinely charged kidnapping in the second degree with other crimes, because they had to prove very little. (In fact, there were some judges who would routinely acquit defendants of kidnapping if charged as a throw-in with the underlying crime.) Under the Luurtsema interpretation, any restraint, however minimal, was sufficient to convict someone of kidnapping in the second degree - a B felony with a maximum sentence of 20 years.

The correct offense to charge, however, was unlawful restraint in the second degree - a B misdemeanor. But under Luurtsema, there was virtually no difference between kidnapping and unlawful restraint.

6 years after Luurtsema, the Court gets it right. I’m not sure they picked the case with the best facts in which to do so, but here we are. The Court engages in a very lengthy analysis of our kidnapping statutes, starting with common law.

The Court does this by focusing on the distinction between the words “abduct” (appearing in the kidnapping statute) and “restraint” (appearing in the unlawful restraint statute). The Court determines that abduct incorporates and builds upon restraint.

In what is becoming a rarity, the Court also acknowledges the practical impact of its prior interpretation:

Our failure previously to recognize such an exclusion largely has eliminated the distinction between restraints and abductions and effectively has merged the statutory scheme such that it now closely resembles the provision that the scheme was intended to replace. Unfortunately, that interpretation has afforded prosecutors virtually unbridled discretion to charge the same conduct either as a kidnapping or as  an unlawful restraint despite the significant differences in the penalties that attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors— indeed, it has encouraged them—to include a kidnapping charge in any case involving a sexual assault or robbery. In view of the trend favoring reform of the law of kidnapping that existed at the time that our statutes were enacted, and in light of the commission’s stated goal of creating a modern, informed and enlightened penal code, it is highly likely that our legislature intended to embrace that reform, thereby reducing the potential for  unfairness that had been created under this state’s prior kidnapping statutes.

The Court then looks to sister states and cites a number of them interpreting their kidnapping statutes in a manner contrary to Luurtsema.

The test: So what does all of this mean? Well, now, it is no longer kidnapping to restrain an individual where the restraint is merely incidental to the commission of the underlying felony. I believe this to be the operative test going forward:

‘‘[T]he guiding principle is whether the [confinement or movement] was so much the part of another  substantive crime that the substantive crime could not have been committed without such acts . . . .’’ State  v. Niemeyer, 258 Conn. 510, 528, 782 A.2d 658 (2001) (McDonald, C. J., concurring). In other words, ‘‘the  test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the   confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.

The Court gives no guidance, however, on what would constitute “significant enough”. Perhaps that remains for another day.

The Court doesn’t go back on all of its kidnapping jurisprudence, though. There still is no minmum restraint requirement to constitute a kidnapping. However, the Court does tell us that when there is restraint incidental to the crime, for kidnapping “the confinement or movement must have exceeded that which was necessary to commit the other crime.”

The Court also states that is not double jeopardy for someone to be convicted of both kidnapping and unlawful restraint (nor could they - having established that they are separate requirements for each).

The bottom line: There are a few things to take from this decision. One, that if the restraint is merely incidental to the other felony being committed, then it is not kidnapping. Second, you can be convicted of both kidnapping and unlawful restraint in the same act.

Unanswered questions: There are some unanswered questions, unfortunately. The first is whether some slight restraint is sufficient to convict someone of kidnapping, if there is no other underlying crime. For example, if I stand in your way as you try to leave a room, for even a few seconds, is that kidnapping? (The chatter on the local listserve tells me that there is such a case currently pending before the Supreme Court. We may have an answer to this soon.)

Finally, Mike asks in the comments to my previous post: What of Mr. Luurtsema himself? It is his case that was overruled here. Does he (and others like him) get any benefit now?

I think the answer is: Maybe, but probably not. (Can I be any more vague?) Both the majority and dissent in Sanseverino recognize that Salamon can be applied retroactively to cases pending at the time of its issuance. Justice Zarella’s dissent, in footnote 1, seems to argue for a further application to cases not still pending, but it’s not clear. Or maybe that’s just me reading too much into it. (See my comment here for the text of that footnote.)

This case was not decided on Constitutional grounds, so the Teague rule probably wouldn’t apply. But in my brief search, I came upon no case where there was a retroactive application of a judicial interpretation of a statute that benefited defendants, on collateral review. If anyone knows of such a case, or has any insights on what Mr. Luurtsema might do, feel free to share them in the comments. I suspect that it will have to be litigated in habeas corpus proceedings.

Lots and lots of interesting decisions this week, both from SCOTUS and the CT Supreme Court. For Kennedy coverage, the best place to go is Sex Crimes. Giles is the potentially more interesting decision for the criminal defense practitioner. I should have something up on Giles later today.

Then, of course, there’s the gun ban case, which will be announced today. SCOTUSblog will have up to the minute coverage.

Of even more interest to the CT practitioner should be yesterday’s decisions by the CT Supreme Court in Salamon (majority, concurrence, concurrence and dissent) and Sanseverino (majority and dissent).

Not only do these decisions make me look foolish, but they also overrule very recent precedent. In doing so, CT now comes in line with a majority of states (and common sense) by differentiating between kidnapping and unlawful restraint.

Until yesterday, any slight restraint on a victim during the commission of another felony could be charged as kidnapping - a B felony carrying a 20 year penalty. Now, the court has backtracked and said that in order to prove kidnapping there must be something more than just the restraint required to carry out the underlying felony.

Where this will affect practice is that prosecutors will no longer be able to charge every defendant with kidnapping, no matter how slight the restraint. Those defendants will have to be charged with unlawful restraint - a B misdemeanor.

The decisions are dense and very interesting, so I will have full posts on them as soon as I’ve had a chance to digest them.

For reasons that aren’t important, I was engaged in a discussion of Connecticut’s Supreme Court and the tone of recent opinions.

This led to a discussion of retired Justice Berdon, Gov. Lowell Weicker’s first nominee to the Supreme Court, and a prolific writer who wore his opinions on his sleeve (and pen). I then engaged in a quick survey of CT Supreme Court dissents since 2000 to see if the Court has changed since his departure.

First on Justice Berdon. His outspokenness was recognized as early as 18 months into his tenure on the highest court.

Justice Berdon, Mr. Weicker’s first nominee to the court, has emerged in the last 18 months as one of the most outspoken dissenting voices in its history, legal experts say, skewering the majority — often in disparaging terms — time and again. Of 147 cases Justice Berdon heard through last month, he issued his own separate dissenting opinion 39 times, an unprecedented number on this court.

“A couple members of the majority haven’t liked my choice of words,” Justice Berdon said in an interview. “But I’m going to say exactly what I think and what I feel should be said.”

Justice Berdon, a soft-spoken man who wears bow ties and so reveres Adlai Stevenson that he named his only son Peter Adlai Berdon, said he believes that there is an obligation to dissent in many cases. A cynical public must be shown that justice is being done, he said, and that issues are receiving a real public debate.

“It’s important that if you disagree with the majority, you don’t merely go along to tag along,” he said. “You have an obligation to put in your views and words so the the public can know what the other side is. It’s a constitutional obligation.”

And he did it with such bite:

One might debate, though, whether there is a constitutional requirement to criticize one’s colleagues with such obvious relish. In one dissent last year, for example, in a case challenging the method used in reapportioning State House and Senate seats, Justice Berdon began with the pronouncement that “today the majority trivializes the State Constititution,” and went on to disparage the majority’s “simplistic” reasoning and its “confusion and failure to understand the case that is before us today” and giving “at best, a cursory review” of the facts of the case.

Now let’s turn to the Court since his departure in 2000. Since then, in eight years, there have been only 55 dissents in criminal cases. Compare that to the 39 dissents in 18 months.

Of those 55 dissents, 19 were penned by Justice Katz. Also in that 8 year span, the Supreme Court heard (more than a few times), the appeals of Michael Ross, Richard Breton, Todd Rizzo, Ivo Colon, Russell Peeler and Courchesne, all capital appeals.

In the last three years (2006-2008), there have been only 8 dissents in criminal cases - and only 2 from 2007 onwards.

Back to Berdon. That NYTimes article I linked to above predicted a liberal turn to the CT Supreme Court:

Some students of the court say the early suggestions are that Justice Berdon may be pointing the way toward a stricter defense of civil rights, and that if other Weicker nominees follow that trend, Connecticut could emerge with one of the more liberal courts in the nation. Justice Berdon, who is 63, faces mandatory retirement in 1999, when he turns 70, but Justices Katz and Norcott, and Mr. Palmer, if he is appointed, could serve for decades.

And it may have been, during Justice Berdon’s tenure. But after his departure, it seems that the Court has returned to what it was prior to his appointment:

The Connecticut Supreme Court, the state’s highest appeals panel, has not been a place of flash and dazzle. Known until the 1960’s by the unfortunate formal title of the Supreme Court of Errors, the seven-member panel has been seen as a conservative, often technical-minded body that generally shuns sweeping constitutional pronouncements in favor of unanimous, bland consensus.

What does all of this mean? Well, very little. The dissents in the last eight years are varied: a “liberal” judge like Justice Katz has voted against defendants twice, whereas “conservative judges” Sullivan, Palmer and Zarella have voted for defendants 8-9 times.

Where it interests me (and possibly you) is in the capital arena. The Court’s decision in State v. Courchesne will mark the first time in a long, long time that the entire Supreme Court panel sat on a capital appeal with the constitutionality of the death penalty before it. Of further interest is that of the current 7 members, only 3 have ever expressed an opinion on capital punishment: Justices Katz and Norcott have frequently dissented and Justice Palmer has voted to uphold the death penalty once.

Justices Rogers, Vertefeuille, Zarella and Schaller have not yet had the opportunity to decide the constitutionality of the death penalty - and it certainly will be interesting to see where they stand and how they come down on the issues.

There are quite a few important and interesting issues pending before the Supreme Court right now and the next year or so will be quite telling as to how the Rogers Court has shaped up. Will it sink further into the abyss of congenial consensus or will a Justice Berdon emerge?

On that note, it is only fitting to leave you with this sad concluding paragraph from Justice Berdon:

This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one –  Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote, 24 Connecticut is not among those enlightened states and nations to put an end to the death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.

State v. Griffin, 251 Conn. 671, 741-42 (1999).

photo credit: aslinth

Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)

There’s pretext and then there’s this.

The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):

No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.

The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.

First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.

Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:

“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”

The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”

Mr. Gamache is placed under arrest for DUI.

This is not just a CT phenomenon. From footnote 2 of the opinion:

The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical  crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d  804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).

Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,

Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.

The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.

So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.

The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.

I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.

This is a hunch in sheep’s clothing.

This is a post that has been in the making for a long time. It is incomplete and at times will be incoherent. These are questions, however, that I think are worth exploring and attempting to answer. So bear with me on this Sunday as I ramble.

Anyone who has followed this blog for the past year will no doubt be aware of several high profile criminal justice stories in CT: the Cheshire incident, the David Pollitt incident and the more recent New Britain incident. Starting with Cheshire, reform of the criminal justice system has been on the minds of many residents of this State, mostly pushed forward by our esteemed legislature and Governor. We were once on the path to reducing our prison population and now we are growing and bursting at the seams with no relief in sight.

Prison sentences have been beefed up to unimaginable levels in the name of public safety, rehabilitation programs have been abandoned and common sense no longer prevails.

Yet there are people who do not feel this is enough. Read the comments to any Courant article on criminal justice and you will see that there are people who feel that any sentence short of life is inappropriate.

This State, fueled by the vote-seeking legislators, has become gripped in what might be the biggest “tough on crime” wave in the country.

The paradox, however, is something that I have long suspected.

Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.

True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.

Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.

To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have somenoe with no appropriate training making these judgments and thereby controlling the destiny of a defendant.

When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine¹ [pdf]. If he fails to admit² [pdf], then he has violated his probation.

So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.

Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (See State v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.

There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).

It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.

Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.

The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.

While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found.  The outcome is generally not good.

So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.

I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?

1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).

At least in fair Norwich, CT, as this story leads me to believe. I can only imagine how this scene unfolded. Cops arrive at the scene of a fire. A building is destroyed, 14 people (including 7 children) are now homeless.

They arrest and charge the offender….who happens to be eight years old. That’s right. They arrested an 8-year old for recklessly starting a fire.

Not only that, they charged her with a felony. Now, this kid is either the devil incarnate or the whole damn thing was an accident.

The charge is Arson in the third degree, which states:

(a) A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.

Did the child’s acts fit the statute? Perhaps. Is it a crime? I really, really, really doubt it. However, since “accident” seems to have disappeared from the dictionary, this poor girl has been arrested at the age of eight, charged with a felony and will probably have some trauma from this.

Do we always have to assign blame for loss or damage? Have we become so focused on criminalization that we cannot see we are compounding these people’s misery? What is the point of this arrest? You’re going to send an eight-year old to jail? You’re going to ask her to complete probation or community service?

Reckless or not, I doubt she knows what the hell she’s doing or did.

It’s not like the Norwich police don’t have anything to do. Note that this is a Class C felony, which carries a maximum term of 10 years.

This led me to wonder: What sort of movie would The Problem Child be today? Then I realized it wouldn’t be a movie. It would be a Law and Order episode.

(Side note: Who is Law and who is Order in L A& O?)

Yesterday, California’s Supreme Court issued an historic 4-3 ruling [pdf] overturning that State’s statutory ban on gay marriages. Glenn Greenwald at Salon has a terrific analysis of the ruling here. It is critical to note that this argument was made pursuant to the California Constitution, not the U.S. Constitution.

As noted in a footnote in that decision, the Connecticut Supreme Court is considering an identical issue in Kerrigan v. Comm’r of Public Health. That case was argued before the Justices one year and two days ago. Re-reading my posts on the oral argument, it seems to me that the most likely outcome is that the Court will punt the case back to the legislature. The days of the CT Supreme Court being on the forefront of progressive jurisprudence seem to be long gone.

While the year and two day delay seems lengthy (compare that to CA, where they issued their opinion in two months), it is not the longest delay I’ve seen from the Court. Further, with May being the last term of the Court, it is very likely that if we do not get a decision from them by the end of July, we won’t see one till September or October.

Anyway, this decision by the CA Court is truly a landmark decision, making California only one of two States in the country to recognize same-sex marriages (MA being the other). It is a good day for equality when a Court sees the “civil union” argument as nothing but more of the “separate but equal” travesty.

For the fifth year in a row, the State legislature did not pass an open container law. Per CT News Junkie, the Black and Hispanic caucuses argued that the bill would just end up discriminating against minorities and give cops another excuse.

So, come to CT, where you can drink and drive (just not drunk and driving).