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You may have heard, you may not have. A Texas grand jury has decided to “no-bill” Joe Horn (no, not that Joe Horn). Prosecutors sought to indict Horn after Horn killed two men who were fleeing after committing a burglary.

Except it was not his own house. Wouldn’t you know it, such a thing is permitted in Texas. The relevant statutes are here. I’ll pare it down for you:

A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property. Actually, upon further reading of the statute, it seems that this last one is not a requirement. So, in Texas, you can kill someone you believe is robbing your neighbor without having the neighbor’s permission to protect his house. Don’t we all feel like men now?

Bennett thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you why.

Let’s take the “immediately necessary” portion of the statute. Here’s why this was not immediately necessary: He was on the phone with police who were on their way to the scene.

“I’ve got a shotgun; you want me to stop him?” Horn asked the dispatcher.

“Nope. Don’t do that,” the dispatcher replied. “Ain’t no property worth shooting somebody over, OK?”

Horn was clearly upset by the dispatcher’s response.

“I’m not gonna let them get away with it,” he said. “I can’t take a chance getting killed over this, OK.”

Despite the dispatcher’s protects, Horn said “I’m gonna shoot! I’m gonna shoot!”

The 911 dispatcher warned Horn to stay inside at least a dozen separate times, telling him, “An officer is coming out there. I don’t want you to go outside that house.”

He did not heed that request. He went outside and shot the two men in the back - firing three shots. Police arrived seconds later.

They weren’t on his property, they weren’t coming to his property. He was in no imminent danger.

Let’s look at the other element of the statute, that he reasonably believe that the neighbors asked him to watch over their property. The statute reads “has requested”, not “would have requested”.

“I really don’t know these neighbors,” Horn said. “I know the neighbors on the other side really well … I can assure you if it had been their house, I’d already have done something.”

Sure, today the neighbors may be glad (or perhaps not), but the question is did they give him permission at the time? Seems not to be so.

Then there’s the unfortunate matter of race. Both victims were illegal aliens of the hispanic persuasion. Horn is white. Harris County is predominantly white. I wonder what the makeup of the grand jury was?

[As an aside - where are you, victims' advocates? Every news story is parading the fact that one of the victims here was a criminal. So if they're criminals their lives aren't worth the same as others'? That's what really, really annoys me about this...]

Others may disagree - and it may seem incongruous coming from a defense attorney - but I don’t care. I don’t like the castle doctrine and I’m even more leery of using deadly force to protect property. I’ve always had trouble with this legal quirk and I always will.

As the police dispatcher said, no property is worth taking someone’s life and certainly not in cold-blood like Horn did.

I wrote and rewrote this last sentence several times as I tried to sympathize with Mr. Horn, just as I do with a majority of my clients. Don’t get me wrong, I would defend him to the best of my ability, but I’m not going to like him or feel bad for him.

Perhaps I’m just blinded by my hatred for this doctrine, but I can’t find it within myself to see his point of view. Maybe some other day, but right now I can’t. If that makes me a bad person or bad lawyer, so be it. What a slap in the face to the justice system and our notions of due process.

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.

Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.

Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!

How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.

So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?

Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.

Anyway, anyone see a potential notice problem here?

H/T: HaveOpinionWillTravel

I’m sorry, I have to say it. She’s freakin’ scary now. I think she’s lost it and I can almost picture her sitting in a darkened room, illuminated by frequent lightning, hair standing up, rubbing her hands together, eyes pointing in separate directions, cackling, laughing maniacally as she imagines these proposals.

The Governor, as part of her budget and state of the state speech yesterday, proposed these changes to the criminal justice system. Are you ready?

I will be submitting legislation to require a mandatory minimum sentence for Burglary in the Second Degree and to change Burglary in the First Degree to include burglary of an occupied dwelling, day or night.

I wonder if she reads the current statutes before making these proposals: “By Jove! I’ve got a brilliant idea! Let’s outlaw one man killing another!”

I would also like to put in place a three-strikes law for those convicted of three violent felony offenses.

And to satisfy those who thought mistakenly there was an “out” in the original proposal, I am removing the possibility of a case review after 30 years. Now it’s three strikes for violent felony convictions and you’re truly out.

There you go. “Original” three-strikes. Completely ineffective and counter productive. I’m also particularly tickled by the “to satisfy those…” comment. American Idol Governor, indeed.

I am also proposing legislation to significantly toughen our laws dealing with sex offenders.

All too often we hear or read about a predator attempting to entice a child online or about a sex offender failing to register as required.

One simple fix I am proposing is to bar offenders from legally changing their names to escape police attention or to avoid registration.

Again with this recidivism nonsense and this shows real ignorance on the topic. Yeah, we hear about MySpace predators because every single time it happens, there’s a media frenzy. Yet, 90-ish % of “predators” will be within the family. They don’t need myspace.

This name changing this is also odd. Why can’t they be allowed to change their name, as long as they register? To change your name, you have to get an order from Court, no? So if you’re on the sex offender registry, it should be pretty easy for someone to figure that out and make the change in the registry.

But I want to go further. I want to require offenders to report in person to police and to provide the name and address of their employers and the license plate number and description of their cars.

And they will also have a special imprint on their driver’s licenses.

Further than need be… This is scarlet letter territory we’re entering into here. Why should the sex offender have to provide the name of his employer? Do we want to further outcast these people? Look at my post from the other day, about the sex offender who can’t be located because he’s been kicked around like a football, or the sex offenders living under the bridge in Miami, one of whom has decided to disappear. Yeah, that’s public safety.

And in the name of public protection, I am calling for another significant change: I want all persons arrested for an A or B felony the most serious of criminal charges to provide DNA samples immediately upon arraignment.Those convicted of lesser felonies and certain misdemeanors must provide a DNA sample at conviction.

These samples will be processed to see if there are any matches related to unsolved crimes.

Incredibly, the law on the books only requires DNA samples to be taken at the end of the inmate’s sentence.

This is where one eye starts spinning uncontrollably, some cats enter the picture and fade to black.

This is just frightening. Absolutely frightening. Presumption of innocence? Them’s just fancy terms. Don’t mean nothing. You’re arrested so you’re guilty. Give up your damn DNA. Heck, I got a better idea. Why wait for people to be arrested. Let’s just have the police go to everyone’s homes. We can all stand in our yards in a line and the police can walk by, taking our DNA. You know, because innocent people don’t exist. Diogenes was right. There isn’t an honest man.

By the way, the statute calls for DNA to be collected after conviction. DOC can choose to collect that sample upon initial entry and they don’t always collect it prior to release.

She’s absolutely lost it and has no idea what to do and what not to do. Pandering is scary enough. This delusional law-making is scarier.

More from CTLP, CT News Junkie.

Disclaimer: This is my opinion. I don’t really think she looks like that in her home. That was my poor attempt at satire. Also, I don’t know what the public defender’s office’s official position would be. This is just mine.

A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.

So it came as no surprise when I saw this report today. It says that he is on the move - perhaps with a one-way ticket to prison.

This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.

This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement?  The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.

The statute has has violated is C.G.S 54-252, which provides in relevant part:

If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.

I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.

Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?

Now that stricter home invasion laws have been enacted, Governor Rell indicated at a press conference today that she will be considering whether to lift the parole ban this weekend. This will certainly be good news for a correctional system that is barely hanging on by a thread and is bursting at the seams (hah! TWO in a row!).

At a ceremony Friday, in which Mrs. Rell signed into law the new criminal justice reforms passed earlier this week by the legislature, she said she needs to make sure a few more things are in place before she lifts the ban. However, “I hope to have that decision over the weekend,” she said.

Cathy Osten, a lieutenant and president of CSEA/SEIU Local 2001’s correctional supervisors, said Friday morning that all the state’s correctional facilities are overcrowded. She said she’s been with the department more than 18 years and it’s been overcrowded almost half of that time. She said the current population increase is a result of the governor’s ban on parole.

Ironically, her new bill might get its first test on the first day! The wife of the Assistant Deputy House Speaker walked in on two robbers in her home today (Morons). Will it matter what time she actually signed the bill into law?

Gov. Rell also indicated that she would try and raise a three-strikes bill again, because the people of CT want it or some such nonsense. Except that the most recent QU poll showed that they don’t. I guess she’s the American Idol Governor only when it suits her ideas.

Forgotten in this Cheshire mess is the sentencing commission that started work in May, which was charged with looking at how to change the state’s sentencing laws for the better. Ah, back in May, when Komisarjevsky was still on GPS monitoring and the Petit women were alive.

Glad to hear that someone thought to ask them of their other business. Cheshire has overshadowed the fact that CT has draconian drug laws and there is a racial disparity in sentencing and even charging.

[New Haven Public Defender Tom] Ullmann and several other members suggested the task force may be missing a chance to make long-term changes in the justice system.

Others said the group will continue to discuss issues such as mandatory minimum drug sentences and racial disparity in sentencing even as it deals with parole system gaps exposed by the Cheshire case.

Some of the juicy things on their agenda:

The task force divided into four subcommittees that would discuss alternatives to incarceration, sentencing structure, the racial imbalance in prisons and how to classify some drug offenses and other crimes that carry a broad range of possible sentences.

These are all excellent areas of investigation and reform. Thankfully last year the legislature eliminated the disparity between crack and powder cocaine sentencing (I think…I may be imagining it).

Prison overcrowding is an immense problem and all of these avenues will help to reduce it and hopefully, get to the source of the problem for most drug offenders: addiction.

I wish there was some way to study racial disparities in charging, but it seems too daunting a task.

Of all the groups commenting on Cheshire, this task force has been oddly silent. Not all members agree:

Some members say the task force should lend its voice to the Cheshire debate so the state does not make any rash changes.

“I think it’s incumbent upon us to respond,” said Andrew Clark, a group member and the administrator of the Institute for the Study of Crime & Justice at Central Connecticut State University. “We have to ask tough questions and come up with real solutions.”

But there has been, at least for some members, a shift in focus.

The sentencing task force changed its focus at the same time. It studied tougher burglary laws and looked at the impact a tougher “three strikes and you’re out” law would have on prison overcrowding.

“It’s almost like members are bending over backward to join the throng of punitive measures,” said Jon Schoenhorn, a task force member and president of the Connecticut Criminal Defense Lawyers Association. “It violates the entire purpose of why this task force was created.”

“Three strikes laws” + prison overcrowding: Not gettin’ better any time soon.

Grits writes today of the counterproductive nature of policies that bar felons from gaining employment upon release. He points to this press release by the CEO of a security camera surveillance company lamenting the foolishness of such policies. I agree with both of them, but I don’t think any shift in policy will happen any time soon. Rehabilitation and re-integration into society have long been abandoned as goals of the correctional institutions and  the penal system in this country (and many others).

Think about it. What is the last thing you want a just released inmate to be doing? Nothing. That’s right. You don’t want him to be sitting around on street corners wondering where the next meal is going to come from or where he’s going to sleep. That is not a good formula for re-integration. More often than not, he will resort to the only thing he knows: How to make quick money. More often than not, that will not involve legitimate means. Crime will continue to occur.

If we are to make our streets safer and to reduce the burden on taxpayers, then we need to focus on re-entry programs and in assisting recently released inmates obtain lawful employment. The money we spend on these programs will be quickly offset by the savings from reduced incarceration costs, law enforcement costs and will only help local economies.

So what is standing in the way? Are we that invested in the idea that “criminals” are “monsters” and “evil” and cannot be salvaged? Are we that invested in our moral highground that we cannot see beyond our own nose?

No one is better off with these policies. Which is why I was extremely glad when Connecticut introduced a proposal to provide gate pay to inmates earlier this year. We need more steps like these to ensure that when inmates are released, they aren’t forced back into a life of crime.

The Windypundit (sorry Mark, but I like calling you that!) writes here about what he considers to be evil suspicious reasons for legislation.

Another example of a free punishment is suspending someone’s driver’s license. To the person who loses their driving privileges, it’s a disruptive life change, but to the government that does it to them, it’s just a database entry and a form letter. So any time politicians want to “get tough” on drunk drivers or parking ticket scofflaws they just tack on a license suspension or increase one that’s already there, because they pay no cost for doing so.

It’s not that there aren’t good reasons for taking away the licenses of drunk drivers and keeping violent felons from owning guns. However, as long as doing so doesn’t cost anything, there’s going to be a temptation to punish too much, just because we can.

It’s a good time to remind my CT readers about the awful DUI bill the legislature passed this past session. Miranda gave us the highlights:

Get ready for the next wave of [insert victim's name]’s Law. Officials in the Upper Bucks borough of PA will urge legislators to pass “Robin’s Law” which is the same as Megan’s Law, except for domestic violence offenders. Yeah. You read that right. Domestic Violence.

To do what? To protect “other people”. Huh? Are we now legislating good dating habits?

Introduced in the state House on May 31, the bill would create a Megan’s Law-style database. Instead of sexual predators though, the picture, address and crime of domestic violence convicts will be posted online for anyone to see, according to a preliminary draft of the bill.If approved, the database would be the direct outgrowth of the Quakertown murder-suicide of June 15, 2004. That day Robin Shaffer was shot to death by her estranged husband, Jeffrey Ogle, at her Quakertown apartment. Ogle then led police on a day-long manhunt that ended when he killed himself beside the train tracks in the borough.

Heidi Markow, Shaffer’s sister, came up with the idea for a domestic violence registry, seeing it as a way to forge something positive from her sister’s death.

Domestic abuse, by definition, refers to those who abuse domestic partners. Y’know, those who are in relationships with other people. How is this a “risk to the community” group?

Also, what is the need for these offenders to register their address? If the goal is to help other women “avoid potentially disastrous relationships by checking, with the click of a mouse, if the new man they’re dating has a history of domestic abuse”, then shouldn’t a name be enough? Why should they have to register?

Oh boy.

Sometimes I feel like the Aflac duck.

(HT: C&C)