The State attempts to use the transcription of the tape of that conversation as evidence against the defendant. Clearly, the co-conspirator had no idea that he was talking to someone acting for law enforcement or that his words would be used at trial. The question, though, is whether the informant’s questions testimonial under Crawford and thus inadmissible?

The CT Supreme Court recently faced this question in State v. Smith [pdf]. The Court notes:

In the present case, we view Williams’ recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., ‘‘mm-hmm’’ or ‘‘yeah’’; (2) questions Williams directly posed to Estrella about the crime; and (3) statements Williams made that directly implicated Estrella or the defendant in the  commission of the crime.

The Court is quick to decide that the first category is non-testimonial. Deciding whether those that fall into the second category is a matter of context, the Court writes. Despite some leading questions, the Court finds that most of those questions about the crime were to provide context to other questions and were not assertions of fact.

In addressing the final category, the Court finds that the informant was clearly aware that this entire conversation was being taped with an eye to a prosecution. In fact, it was the informant who approached the authorities to obtain favor in his cases. The Court does not hesitate in finding those statements testimonial and since the informant was unavailable at trial, a violation of his Confrontation Clause right.

The defendant still lost on appeal, however, due to our good friend Harmless Error. The Court finds that the informants assertive statements were merely cumulative.

Still, it’s a good start and something to keep in mind in future cases. Where the transcript of any such conversation between the defendant and an informant is dominated by the informant, the CT Supreme Court can be fairly said to have ruled that those statements are testimonial.

The issues they have asked for briefing on are:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This is going to get very, very interesting from a Constitutional law perspective, folks. You better strap yourselves in.

My previous thoughts on Proposition 8 and it’s validity are here and here.

More from The Satyricon, Volokh and TalkLeft.

That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.

Judge Sack writing for a panel of the Second decided:

Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa

…

The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.

It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.

So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!

[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]

photo credit: Mez Love

the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men’s test results vary from the sobriety standard set by the device.

He said Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and, based on his studies, has determined the Intoxilyzer 5000 does not effectively test the blood-alcohol content of black men.

“He looked at all the research and came up with the bigger picture and found the common thread,” he said.

Ruane said he intends to have Hlastala testify on Brown’s behalf.

Never one to shy away from a soundbite, he then said this:

“They are KKK in a box,” said lawyer James O. Ruane of Shelton. “We really have some racist machines here.”

The Ruane’s have a fantastic reputation for being zealous advocates for their clients and are the go-to resources for DUI law in CT, so I figured there must be something more to this than just a lawyer clutching at straws. Sure enough, in the comments to the news article, Attorney Ruane the younger explains (after the jump):

This motion was one of a series of motions we filed in regards to the potential evidence in the case. The medical research is clear, the Intoxilyzer will overstate the breath alcohol level in certain persons (African Americans and women). I did not conduct the research, I only learned of it last year in another case.

When you combine the biases of the machine for the racial factor, the lung capacity, the conversion from a breath sample to a blood reading, and take into account a person’s natural partition ratio, you can see a possible breath test reading of a person at 0.08 that may actually be as low as .03.

That is a significant overstatement in the results. As you get further away from the standard, the overstatement grows larger in number. The machine treats every person the same, and that may cause it to discriminate against certain segments of the population. In this case, the purported results as mentioned in the article do not match the physical evidence. This was why we started looking for other explanations.

I haven’t read the studies and I don’t intend to, so I’ll take him at his word for now. I’ll follow this case with some interest, though.

From someone who knows nothing about DUI law, but a little about the internet, allow me to give you this piece of advice:

Stay away from the comments on these news sites.

I tried really hard to come up with a witty title, but this is all I could muster. After a long day stuck getting re-educated [Ed. Note: Gideon's just trying to be funny. Actually was one of the most educational CLEs ever], I’m not going to try harder. Deal.

Via Scott via Doug Berman comes word of Norm Pattis’ latest article in the Law Tribune (which I might have read if someone hadn’t snagged it right away), in which he essentially argues for sentencing guidelines. Heck, the first sentence is:

Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts.

If that’s all you take away from the article, then, yes, you should go bang your head on a table or wonder if Norm’s tried any Federal cases recently.

But there’s more. What Norm is suggesting is a solution to a state-wide problem, one that I’ve written about before and one that really needs to be rectified somehow.

Here’s what he’s really complaining about:

I stagger from the courtroom to tell my client that the court cannot force the prosecutor’s hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.

That’s just it. Everything in Connecticut is so…isolated. What’s a good offer in Hartford is unheard of in Waterbury. What would get accelerated rehabilitation in New Haven gets you a trial in Manchester.

Each courthouse in Connecticut is a separate entity, it’s own fiefdom. Some are run with iron fists and some with sensibility and compassion. But the results will always be different. A case that’s worth 1 year in one courthouse shouldn’t automatically become worth 7 years in another.

A long time ago, I asked what the reasons for this might be. The most popular answer was volume. Smaller courthouses have more time and resources to devote to prosecutions. Hence, a greater emphasis on adversarial litigation and demanding the moon and less on resolving the case efficiently and moving on to the next.

But that’s not all of it. As some regular readers will attest, in a few jurisdictions, the standard offers for certain crimes start in the high 30s. That’s years, not months. The same cases can get resolved in other equally busy courts for numbers in the 10s. That, squarely, rests on the shoulders of prosecutors. There are some that know they can twist the arm of every defendant, with pliant lawyers, into pleading guilty.

Sentencing guidelines, in my opinion, are a terrible idea. What Norm sees as the virtues of sentencing guidelines, I see as its pitfalls: a rigid set of rules, determining what the sentence should be for someone in an arbitrarily defined category. Sentencing guidelines remove all judicial discretion - and in good courts - prosecutorial discretion.

What he really means is that prosecutors need to stop being so varied in their assessment of cases. That judges need to grow a backbone and stop toeing the prosecutor’s line.

Maybe the next time legislators and the general public wonder why we’re spending so much money on the criminal justice system, they’ll look at the inconsistencies in prosecutions.

It would help. Sentencing guidelines won’t.

And to make you ignore everything I’ve typed thus far, here’s Pink Floyd:

It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.

They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved. He even describes with some detail a car he saw driving away from the house.

Obviously, this is not the part of the video where he “confesses”. Just listen to the voice of the 8 year old boy. It’s disgusting that they’re doing this.

I am quite curious about the prosecutor’s motive in releasing this truncated video. Any thoughts on that? It seems like a PR ploy, but I can’t quite figure out their angle. Are they bowing to media pressure? Are they trying to show the public that this was a conniving young boy? Portray him as a liar?

Whatever their motives may be, the bottom line is that the police should not have interrogated him for hours without the presence of an adult.

Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.

I would be rather surprised if a judge admits this confession at a trial - and if by some miracle it is admitted - I would be even more shocked if an appellate court permitted the conviction to stand.

A shame, really, that this kind of shit still goes on.

An AP report with some clips of the video is below; the full raw feed is at this link.

• In light of my recent post about the plight of pd systems, Scott writes a stirring tribute to the public defender and hidden in that is a call to arms for every other lawyer. More on that, and my own thoughts, later.
• The Courant reports on this new ACLU study which finds that - surprise! - minority kids are arrested more than white kids. Definitely some more on this later.
• On the DNA front: 6 exonerations in NE and unreported DNA in a Baltimore case casts doubt on conviction
• The Lori Drew trial has taken some odd turns: yes suicide, no suicide, yes!

That’s it. Now get to work!

I mean, she had to expect this:

• Stop paying police overtime to babysit construction jobs and watch traffic lights at events such as basketball games at Gampel.
• Too many “commissions
• Reduce mowing along the highways
• Too many DOT workers watching work and too many trucks watching someone mow the grass.
• Look into why state agencies have so many high-end SUVs
• Reduce the number of troopers enforcing speed limits – stop purchasing speed detection equipment.
• Reduce the number of supervisors at the Dutcher Building on the CT Valley Hospital Complex. (Someone’s not happy)
• Change garbage bag liners in trash containers less often in state offices.
• Cut out all advertising to attract businesses to CT – CT is not a business-friendly state.
• Why the need for a horse guard?

The most popular ones seem to be bringing back tolls and cutting down on personal use of state vehicles and getting state employees back to 35 hour work-weeks.

One that makes a lot of sense and that I argued for yesterday:

• Get rid of the death penalty. Lock the murders up and throw away the key.  Killing these people is expensive and it prolongs the ordeal for the victim’s family

And my personal favorite:

• Have the legislature stay home this year