Steven Hayes was found in his cell this morning unconscious. He is now in a medically induced coma. Prison officials are not commenting on why he was found in that condition. But already, in comments to news stories posted on line, folks are declaring victory -- blood, they cry, and pain, too. Did the rule of law fail Steven Hayes?
Hayes is standing trial in a death-penalty case for his role in the kidnapping, rape and murder of a popular doctor's family in Cheshire. Jury selection has been underway for two weeks now. Trial was not expected to begin until September.
The Superior Court had imposed a gag order on Hayes' lawyer and the DOC is not saying what happened, but a medically induced coma suggests trauma to the brain. Was Hayes beaten by fellow inmates? Did the Department of Correction blink and permit a little vigilante justice to take place? Or was there an accident? An independent prosecutor should be appointed to find answers.
The department is not above this sort of misconduct. I recall one case in which a man was placed in a cell with a known predator, and then left alone. When he was beaten nearly to death, the prison acted surprised. A federaj judge denied summary judgment to the defendants in that case.
In another case, Kevin King, a man the state sought to kill, was beaten after he surrendered while trying to escape. He faced the death penalty for the rape and murder of his girlfriend. When he tried to escape, he abducted a guard, stabbing her with a home-made shank and tying her to his bed after putting on her uniform and trying to walk out the door. An outraged jury awarded Kevin King $2.1 million for the ordeal.
Oddly enough, King's unreasonable force case was tried in federal court before Judge Domenic Squatrito. And the jury was assembled using group voir dire. King's lawyer told the jurors everything about Mr. King and then let them debate whether he had the right to complain that justice had failed him. Hadn't he forfeited the rights of an ordinary citizen?
The jury said no. They agreed that no man is the sum of his worst moments, and they awarded $2 million in punitive damages against guards who behaved no better than the man they were guarding. It was a stunning verdict, and it gave me hope in the ordinary decency of jurors.
And, lest I forget to mention it, the case was mine. I took it at the request of the Connecticut Public Defenders office. Our goal was simple: To prove that the rule of law reaches even the darkest of places. As I write this piece on Hayes I cannot help but wonder whether justice failed again. Did we let the mob speak, thus neutering the rule of law for us all?
If Mr. Hayes was the victim of foul play, the currency of justice has been devalued.
UPDATE: The morning papers report that Hayes apparently stockpiled prescription medications, hording a lethal dose. According to these reports, he is not the victim of violence at the hands of another. At least that is the official gloss. If so, this is precisely the method Michael Ross tried to use in his efforts to be permitted to die. How odd the ways of justice: You can't kill yourself, we assert; no, the thrill of the kill belongs to we the people.
Sunday, January 31, 2010
Letter To Publisher: Read It And Weep
This will be mailed tomorrow. It speaks for itself, and it speaks volumes about the status of litigation arising under 42 U.S.C. Section 1983.
February 1, 2010
Dear Jeff:
Flattered though I am by your offer to let me participate in creation of the new book on model federal complaints, I have decided to pass. Although I have filed scores of suits arising under 42 U.S.C. Section 1983 in my career, I am no longer confident that our federal courts have the will to face these cases with anything but a motive to derail them prior to trial. I rarely encourage lawyers calling me for advice about these cases to file them any longer.
In the past few years, the judiciary has become so hostile to federal civil rights complaints that the volume of actions I have filed is greatly diminished. Just last year, the Supreme Court put another nail in the coffin of 1983 practice by requiring heightened pleading rules. I now routinely waste time responding to boilerplate motions to dismiss. See, Iqbal v. Ashcroft. I rarely file these complaints any longer, and when I do, I am rarely confident my case will make it to the jury: An emboldened judiciary grants qualified immunity with increasing encouragement from the Supreme Court. See, Scott v. Harris.
I was invited a few months back to contribute sample voir dire questions for another book to a another publisher, and never did so. I am frankly not at all confident that these writs are worth filing in all but the most egregious cases of misconduct. Those cases are few and far between. Frankly, I believe the hey day of 1983 litigation has passed.
I am hard pressed to know who to recommend in my stead. Perhaps .... He remains my mentor and what little I know in this area I learned from him.
I am returning the material you were kind enough to send to me. Thanks for thinking of me.
Sincerely,
NORMAN A. PATTIS
February 1, 2010
Dear Jeff:
Flattered though I am by your offer to let me participate in creation of the new book on model federal complaints, I have decided to pass. Although I have filed scores of suits arising under 42 U.S.C. Section 1983 in my career, I am no longer confident that our federal courts have the will to face these cases with anything but a motive to derail them prior to trial. I rarely encourage lawyers calling me for advice about these cases to file them any longer.
In the past few years, the judiciary has become so hostile to federal civil rights complaints that the volume of actions I have filed is greatly diminished. Just last year, the Supreme Court put another nail in the coffin of 1983 practice by requiring heightened pleading rules. I now routinely waste time responding to boilerplate motions to dismiss. See, Iqbal v. Ashcroft. I rarely file these complaints any longer, and when I do, I am rarely confident my case will make it to the jury: An emboldened judiciary grants qualified immunity with increasing encouragement from the Supreme Court. See, Scott v. Harris.
I was invited a few months back to contribute sample voir dire questions for another book to a another publisher, and never did so. I am frankly not at all confident that these writs are worth filing in all but the most egregious cases of misconduct. Those cases are few and far between. Frankly, I believe the hey day of 1983 litigation has passed.
I am hard pressed to know who to recommend in my stead. Perhaps .... He remains my mentor and what little I know in this area I learned from him.
I am returning the material you were kind enough to send to me. Thanks for thinking of me.
Sincerely,
NORMAN A. PATTIS
Olson's "The Rule of Lawyers"
Walter Olson is a clear and concise thinker. I've read his blog page, Overlawyered, intermittently over the years and have, frankly, been won over by his common sense. There are too many lawyers. We have too much power to disrupt the lives of strangers with impunity. As a society, I am persuaded, we are overlawyered. A few weeks ago, I thought it time to try one of his books.
The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin;s Griffin, New York, 2003) did not disappoint. But, true to my profession, which is that of a trial lawyer, I read the book with a disconcerting sense of ambivalence.
The Rule of Lawyers is not about the world I inhabit. My firm is devoted to criminal defense and federal civil rights. We work both sides of the Fourth Amendment, using it as a shield for those accused of crimes and as a sword for those abused by police officers. In recent years, however, we have come to file fewer and fewer federal civil rights actions. The reason? Judges have increasingly made the federal courts inhospitable for these claims: Management-happy judges now insist on reports, conferences, special pleading requirements and all manner of digital manipulation of files that contribute little or nothing to the orderly progress of litigation. In Connecticut, for example, a new presiding District Court Judge, Robert Chatigny, ushered in a new plan years ago to have cases move quickly through the system. Cases were to be trial ready in 18 months; to assure that, the judges of the district were encouraged to do a better job monitoring the files. In all but a few cases, the experiement has been a failure. The docket still crawls; all that has changed is the amount defense counsel get to bill for wasting time.
But I disgress. The real culprit in the federal courts has been the expansion of qualified immunity, a judicially created doctrine that makes it very difficult to get a case to the jury. One sign of the change in the law? The two volume edition of the Practicing Law Institute's annual practice manual for civil rights lawyers now consists of an entire volume on qualitifed immunity. It used to be a mere chapter in earlier editions.
Walter Olson would like this development. And perhaps he is right to do so. It is perishingly easy for lawyers to get a case into court. And once there, a defendant pays through the nose for justice. The American Rule prohibits a judge from assessing costs on the loser. Hence, there is little incentive for plaintiff's lawyers to avoid playing spin the bottle with other people's money. Olson proposes elimination of the American Rule. I agree with him, but not entirely: Transferring costs to individual plaintiffs would work a regressive sort of harm on those litigants least likely to afford it. I say require plaintiff's lawyers to post a bond as security for costs. To cover the cost of this bond, lawyers could purchase something like insurance. As with the case of bondsmen, lawyers would be permitted to post only so much insured bond. Defendants could then recoup the costs of litigation without undermining access to the courts by ordinary people. All that would be required would be asking lawyers to make cost-benefit analysis about their own funds.
So what was my ambivalence about the Olson book? I hate to confess this, but here goes: I was envious of the big-time lawyers in the mass tort and products liability business. I've met a few of these folks at one location or another. I recall meeting John Quinn, now deceased, several years ago in Wyoming. He was rumored to have more money than God. I turned my nose up at the time. How could one lawyer have thousands of clients? And what about the ethics of active solicitation of the injured? It seemed, and still seems, sleazy. But it does take my breath away to learn about lawyers with the same J.D. I possess making enough money to cause Croesus to weep.
Envy aside, however, reading Olson made me better understand why lawyers are disdained by many in the business community. I read of one industry after another crippled by litigation and I wondered whether markets really ought to be cleared in such a manner. And if litigation is to decide the life or death of an industry, ought there not be countervailing pressures on lawyers? I end where I started. Lawyers have too much power. We play with the lives of others with impunity. I think Olson's on to something.
I await his next book, and encourage him to take a look at the lives or ordinary lawyers. Not all of us own jets. I'm thrilled with first class on the few times I've tried it. Most often I fly coach.
The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin;s Griffin, New York, 2003) did not disappoint. But, true to my profession, which is that of a trial lawyer, I read the book with a disconcerting sense of ambivalence.
The Rule of Lawyers is not about the world I inhabit. My firm is devoted to criminal defense and federal civil rights. We work both sides of the Fourth Amendment, using it as a shield for those accused of crimes and as a sword for those abused by police officers. In recent years, however, we have come to file fewer and fewer federal civil rights actions. The reason? Judges have increasingly made the federal courts inhospitable for these claims: Management-happy judges now insist on reports, conferences, special pleading requirements and all manner of digital manipulation of files that contribute little or nothing to the orderly progress of litigation. In Connecticut, for example, a new presiding District Court Judge, Robert Chatigny, ushered in a new plan years ago to have cases move quickly through the system. Cases were to be trial ready in 18 months; to assure that, the judges of the district were encouraged to do a better job monitoring the files. In all but a few cases, the experiement has been a failure. The docket still crawls; all that has changed is the amount defense counsel get to bill for wasting time.
But I disgress. The real culprit in the federal courts has been the expansion of qualified immunity, a judicially created doctrine that makes it very difficult to get a case to the jury. One sign of the change in the law? The two volume edition of the Practicing Law Institute's annual practice manual for civil rights lawyers now consists of an entire volume on qualitifed immunity. It used to be a mere chapter in earlier editions.
Walter Olson would like this development. And perhaps he is right to do so. It is perishingly easy for lawyers to get a case into court. And once there, a defendant pays through the nose for justice. The American Rule prohibits a judge from assessing costs on the loser. Hence, there is little incentive for plaintiff's lawyers to avoid playing spin the bottle with other people's money. Olson proposes elimination of the American Rule. I agree with him, but not entirely: Transferring costs to individual plaintiffs would work a regressive sort of harm on those litigants least likely to afford it. I say require plaintiff's lawyers to post a bond as security for costs. To cover the cost of this bond, lawyers could purchase something like insurance. As with the case of bondsmen, lawyers would be permitted to post only so much insured bond. Defendants could then recoup the costs of litigation without undermining access to the courts by ordinary people. All that would be required would be asking lawyers to make cost-benefit analysis about their own funds.
So what was my ambivalence about the Olson book? I hate to confess this, but here goes: I was envious of the big-time lawyers in the mass tort and products liability business. I've met a few of these folks at one location or another. I recall meeting John Quinn, now deceased, several years ago in Wyoming. He was rumored to have more money than God. I turned my nose up at the time. How could one lawyer have thousands of clients? And what about the ethics of active solicitation of the injured? It seemed, and still seems, sleazy. But it does take my breath away to learn about lawyers with the same J.D. I possess making enough money to cause Croesus to weep.
Envy aside, however, reading Olson made me better understand why lawyers are disdained by many in the business community. I read of one industry after another crippled by litigation and I wondered whether markets really ought to be cleared in such a manner. And if litigation is to decide the life or death of an industry, ought there not be countervailing pressures on lawyers? I end where I started. Lawyers have too much power. We play with the lives of others with impunity. I think Olson's on to something.
I await his next book, and encourage him to take a look at the lives or ordinary lawyers. Not all of us own jets. I'm thrilled with first class on the few times I've tried it. Most often I fly coach.
Eichenwald's "The Informant"
I don't get out much, but I do love to read. So while I have yet to see the movie, The Informant, released this past September, I did read the book, published in 2000. The book is fantastic, and I commend it to anyone interested in a sustained look at how the Government puts together a white-collar prosecution.
Don't roll your eyes, now. There is more to the criminal law that blood, lust and gore. Greed can leave a trail every bit as fascinating. And it did in the case of Mark Whitacre, a complex figure at the heart of the federal government's examination of price-fixing by the Archer Daniels Midland corporation during the 1990s.
I stumbled upon the book while reading up on the use of confidential informants in preparation for a trial. Frankly, I was ordering some odds and ends on Amazon, when the computer's alogrithm suggested I might also enjoy this book. Why not? I thought.
I groaned silently when the book arrived. It's 600-pages long. And fasinated as I am by the arcania of criminal law, I wondered whether I a book on price fixing could really hold my interest. It did. I spent several nights in the past week transfixed, calculating the benefits of sleep versus the pleasures of fine writing and an engaging narrative.
The Informant was written by Kurt Eichenwald, who reported the story for The New York Times. He relays the story with the quiet confidence of a man who has mastered his record.
As the plot thickens and unfolds, I found myself thinking again about the causes of crime. Mark Whitacre appeared to have it all. A young Ph.D. from Cornell, he turned his knowledge of nutritional biochemistry to the service of giant corporations aspiring to improve food production worldwide. Given responsibility for production of lysine, an amino acid essential to our diet, Whitacre soon faces production difficulties at his plant. When the possibility of industrial espionage is raised, the FBI launches an investigation. Whitacre flips early on and is soon wired and attending meetings around the globe at which the major producers of lysine fix both production quotas and prices.
What is in this for Whitacre? He harbors fantasies of bringing down the extant leadership of the corporation and being named chief executive officer by acclamation when outraged shareholders learn about the price fixing. This is the sort of narcissistic daydream all of us harbor from time to time. But what distinguished us from Whitacre is that we can tell our fantasies from reality. The line became blurred in Whitacre's case, and the result was utter chaos: He squirreled away millions while serving as an FBI cooperative witness. And he lied to the feds about it. When he was caught, counsel for Archer Daniels Midland tried to torpedo the investigation of price-fixing by dislcosing Whitacre's lies. It didn't work, and Whitacre ended up witha long prison, serving most of it. He is now apparently living on the West Coast and is CEO of a biotechnology company.
Whitacre fascinates me. He did not seem utterly without the ability to distinguish truth from fiction; he simply thought he could outsmart the world and fool not just the FBI, but shareholders, his colleagues, and, in the end, even his wife. When he fires one lawyer who tried to counsel him, I sensed the lawyer's relief. It is hard work representing a person whose private vision of the rational does not correspond to what the world regards as reasonable. Many are the hours experience lawyers count as lost to the voids of those poor souls who are unmoored to the world the rest of us take for granted.
I rate Eichenwald as one of the best non-fiction works on how an actual case developes. I rate it the white-collar crime equivalent of Jonathan Haar's A Civil Action. Sure, it took me ten years to find the book. I pass along this review so that you can find it now. It's a great read.
Don't roll your eyes, now. There is more to the criminal law that blood, lust and gore. Greed can leave a trail every bit as fascinating. And it did in the case of Mark Whitacre, a complex figure at the heart of the federal government's examination of price-fixing by the Archer Daniels Midland corporation during the 1990s.
I stumbled upon the book while reading up on the use of confidential informants in preparation for a trial. Frankly, I was ordering some odds and ends on Amazon, when the computer's alogrithm suggested I might also enjoy this book. Why not? I thought.
I groaned silently when the book arrived. It's 600-pages long. And fasinated as I am by the arcania of criminal law, I wondered whether I a book on price fixing could really hold my interest. It did. I spent several nights in the past week transfixed, calculating the benefits of sleep versus the pleasures of fine writing and an engaging narrative.
The Informant was written by Kurt Eichenwald, who reported the story for The New York Times. He relays the story with the quiet confidence of a man who has mastered his record.
As the plot thickens and unfolds, I found myself thinking again about the causes of crime. Mark Whitacre appeared to have it all. A young Ph.D. from Cornell, he turned his knowledge of nutritional biochemistry to the service of giant corporations aspiring to improve food production worldwide. Given responsibility for production of lysine, an amino acid essential to our diet, Whitacre soon faces production difficulties at his plant. When the possibility of industrial espionage is raised, the FBI launches an investigation. Whitacre flips early on and is soon wired and attending meetings around the globe at which the major producers of lysine fix both production quotas and prices.
What is in this for Whitacre? He harbors fantasies of bringing down the extant leadership of the corporation and being named chief executive officer by acclamation when outraged shareholders learn about the price fixing. This is the sort of narcissistic daydream all of us harbor from time to time. But what distinguished us from Whitacre is that we can tell our fantasies from reality. The line became blurred in Whitacre's case, and the result was utter chaos: He squirreled away millions while serving as an FBI cooperative witness. And he lied to the feds about it. When he was caught, counsel for Archer Daniels Midland tried to torpedo the investigation of price-fixing by dislcosing Whitacre's lies. It didn't work, and Whitacre ended up witha long prison, serving most of it. He is now apparently living on the West Coast and is CEO of a biotechnology company.
Whitacre fascinates me. He did not seem utterly without the ability to distinguish truth from fiction; he simply thought he could outsmart the world and fool not just the FBI, but shareholders, his colleagues, and, in the end, even his wife. When he fires one lawyer who tried to counsel him, I sensed the lawyer's relief. It is hard work representing a person whose private vision of the rational does not correspond to what the world regards as reasonable. Many are the hours experience lawyers count as lost to the voids of those poor souls who are unmoored to the world the rest of us take for granted.
I rate Eichenwald as one of the best non-fiction works on how an actual case developes. I rate it the white-collar crime equivalent of Jonathan Haar's A Civil Action. Sure, it took me ten years to find the book. I pass along this review so that you can find it now. It's a great read.
Gerry Spence Is Dead?
The headline of this piece alone will prompt a spike in readership of this page. Gerry Spence casts a long shadow. He has admirers from one coast to coast. Silent lovers will ponder these words and write secret notes to others. They will ask. Is it true?
Is Gerry Spence dead?
He stepped down as president of the Trial Lawyers College this past summer. Several of us raised a storm by questioning the financial arrangements underlying the college. Was it really true that the Spence Foundation, controlled, you guessed it, by Spence and family members, held a revocable lease for the college's ranch in DuBois, Wyoming? Were contributors misled about where their donations were going? I raised the questions here, and, so far as I know, they've never been answered.
I let the topic go on the theory that what others do with their funds is their own business. It really isn't my problem. So I dropped it, and moved on.
But I do from time to time check Spence's blog page, however. Every couple of weeks I check in to see what he is writing about and to read the comments on his page. He has a passionate following.
The other day a piece appeared on his blog that began with the following line: "We are the new slaves, enslaved by the Corporate King." My first thought? Isn't that the theme of the books he was writing 10, 15 and 20 years ago?
So I ask you, Is Gerry Spence dead? Has someone at the college taken to writing faux-Spence posts, reworking old wine and trying to pour it into new bottles? Isn't this the same old neo-populism?
We are slaves, he says. We have lost our freedom to big corporations and a government grown unresponsive. But I wonder, really, when and whether we have ever been free. There were slaves by nature in Aristotle's time; and Christians were sometimes fed to the lions to entertain Rome. When the barbarians came crashing into town, centuries of darkness set it: serfs found security in the service of temporal lords. But these chains were shaken with the rise of nation states, and the world convulsed. Industrialism transformed the way we live. Computers now have hastened the pace of change to a steady whir. During these past few giddy centuries we've gone from the disenfranchised to wage-slaves, and then to consumer-slaves yoked like small dots on grids we cannot discern. Somehow this entire sweep seems steeped less something less than freedom.
I don't fault Spence his populist rants. But I wince when the wealthy preach to those without means. We are all slaves, a man preaches from the safety of his pleasure palace. Are those platinum chains I hear rattling as he pecks at his keyboard? Or is it someone writing in his stead.
I ask again, is Gerry Spence dead? I think not. The flesh is willing, but the spirit seems weak.
Is Gerry Spence dead?
He stepped down as president of the Trial Lawyers College this past summer. Several of us raised a storm by questioning the financial arrangements underlying the college. Was it really true that the Spence Foundation, controlled, you guessed it, by Spence and family members, held a revocable lease for the college's ranch in DuBois, Wyoming? Were contributors misled about where their donations were going? I raised the questions here, and, so far as I know, they've never been answered.
I let the topic go on the theory that what others do with their funds is their own business. It really isn't my problem. So I dropped it, and moved on.
But I do from time to time check Spence's blog page, however. Every couple of weeks I check in to see what he is writing about and to read the comments on his page. He has a passionate following.
The other day a piece appeared on his blog that began with the following line: "We are the new slaves, enslaved by the Corporate King." My first thought? Isn't that the theme of the books he was writing 10, 15 and 20 years ago?
So I ask you, Is Gerry Spence dead? Has someone at the college taken to writing faux-Spence posts, reworking old wine and trying to pour it into new bottles? Isn't this the same old neo-populism?
We are slaves, he says. We have lost our freedom to big corporations and a government grown unresponsive. But I wonder, really, when and whether we have ever been free. There were slaves by nature in Aristotle's time; and Christians were sometimes fed to the lions to entertain Rome. When the barbarians came crashing into town, centuries of darkness set it: serfs found security in the service of temporal lords. But these chains were shaken with the rise of nation states, and the world convulsed. Industrialism transformed the way we live. Computers now have hastened the pace of change to a steady whir. During these past few giddy centuries we've gone from the disenfranchised to wage-slaves, and then to consumer-slaves yoked like small dots on grids we cannot discern. Somehow this entire sweep seems steeped less something less than freedom.
I don't fault Spence his populist rants. But I wince when the wealthy preach to those without means. We are all slaves, a man preaches from the safety of his pleasure palace. Are those platinum chains I hear rattling as he pecks at his keyboard? Or is it someone writing in his stead.
I ask again, is Gerry Spence dead? I think not. The flesh is willing, but the spirit seems weak.
Ninety-Nine Bottle of Beer on the Wall ...
Tomorrow is the thirteenth day of jury selection in a capital felony case I am attempting to try this year. We've got twelve jurors. We are now looking for three alternatives. Jury selection began in the case on January 4, and we have been given several days off to attend to other matters; the original judge also fell ill, and we have been assigned a new judge.
And the funny thing is, no one in the courthouse seems to think that there is anything wrong with the pace at which this case is moving.
Welcome to Connecticut, where we engage in a practice known as individual sequestered voir dire. Alone among the states, we routinely question each potential juror outside the presence of all other jurors. Lawyers conduct the voir dire. There are few limits on what can be asked.
My case involves sad and emotionally charged facts. A 15-year-old girl turned up missing in May 1996. According to the state, she has not been seen since. My client was charged in 2008 with kidnapping, raping and murdering the young woman. There are no witnesses to the alleged crimes, but there are statements from jailhouse informants. The case is being tried in the eastern portion of the state, where communities are tightly knit. Although the state has charged capital felonies in my case, it is not seeking the death penalty. Jury selection in this case was bound to be difficult.
As slow as we are moving, however, we are sprinting through voir dire by contrast to the case of State v. Hayes. Mr. Hayes is one of the men charged with the home invasion, rape, murder and arson of a popular physician's home. The state is seeking death in that case. And after nine days of jury selection in the Hayes case, the lawyers have selected nine jurors. Evidence in the Hayes case is set to begin in September.
No other state engages in individual sequestered voir dire as a matter of right. Connecticut's federal courts engage in group voir dire. I am aware of no empirical evidence, or even any anecdotal evidence, that our slow-as-molasses method of picking jurors yields more reliable outcomes at trial.
The Connecticut Bar Association is forming a task force to study whether justice is served by state's quaint and wasteful manner of picking jurors. I hope the CBA recommends change. The manner in which the state picks jurors promotes nothing but waste.
And the funny thing is, no one in the courthouse seems to think that there is anything wrong with the pace at which this case is moving.
Welcome to Connecticut, where we engage in a practice known as individual sequestered voir dire. Alone among the states, we routinely question each potential juror outside the presence of all other jurors. Lawyers conduct the voir dire. There are few limits on what can be asked.
My case involves sad and emotionally charged facts. A 15-year-old girl turned up missing in May 1996. According to the state, she has not been seen since. My client was charged in 2008 with kidnapping, raping and murdering the young woman. There are no witnesses to the alleged crimes, but there are statements from jailhouse informants. The case is being tried in the eastern portion of the state, where communities are tightly knit. Although the state has charged capital felonies in my case, it is not seeking the death penalty. Jury selection in this case was bound to be difficult.
As slow as we are moving, however, we are sprinting through voir dire by contrast to the case of State v. Hayes. Mr. Hayes is one of the men charged with the home invasion, rape, murder and arson of a popular physician's home. The state is seeking death in that case. And after nine days of jury selection in the Hayes case, the lawyers have selected nine jurors. Evidence in the Hayes case is set to begin in September.
No other state engages in individual sequestered voir dire as a matter of right. Connecticut's federal courts engage in group voir dire. I am aware of no empirical evidence, or even any anecdotal evidence, that our slow-as-molasses method of picking jurors yields more reliable outcomes at trial.
The Connecticut Bar Association is forming a task force to study whether justice is served by state's quaint and wasteful manner of picking jurors. I hope the CBA recommends change. The manner in which the state picks jurors promotes nothing but waste.
Wednesday, January 27, 2010
Judge Hall To The Second Circuit? Go, Go, Go
Another name circulating throughout the state for nomination to the United States Court of Appeals for the Second Circuit is Janet Hall's. She currently sits as a District Court judge in Bridgeport. Much though I would hate to lose her as a trial judge, I hope she gets the promotion.
I've appeared before the judge in a number of cases. She is tough, but always well prepared. She doesn't tolerate fools, which, of course, places a special burden on me. But I have learned that solid preparation is respected in her chambers.
Critics contend that she has a temper. That's fine with me, so long as it is connected to a judicial temperament. She possesses a fine intellect, a warm sense of humor and a sharp sense of what fairness requires. I've not always agreed with her decisions, but I have never found fault with her manner of handling things. She's not the sort of judge who has become so besotted with her power that she forgets that a presidential appointment is not the bestowal of the right to play lord of the manor.
I wish her well in the hunt for a nomination.
I've appeared before the judge in a number of cases. She is tough, but always well prepared. She doesn't tolerate fools, which, of course, places a special burden on me. But I have learned that solid preparation is respected in her chambers.
Critics contend that she has a temper. That's fine with me, so long as it is connected to a judicial temperament. She possesses a fine intellect, a warm sense of humor and a sharp sense of what fairness requires. I've not always agreed with her decisions, but I have never found fault with her manner of handling things. She's not the sort of judge who has become so besotted with her power that she forgets that a presidential appointment is not the bestowal of the right to play lord of the manor.
I wish her well in the hunt for a nomination.
Proposed Agenda Items For CBA Voir Dire Committee
The Litigation Section of the Connecticut Bar Association is considering creation of a task force to study the method of selecting juries in the state courts. The committee should form such a task force, and resolve to have a full report to the CBA in 2010.
I'm not a committee joining sort, so let me offer my two cents here in the form of proposed agenda items for the task force. My goal is simple: Let's get rid of individual sequestered voir dire.
1. Conduct a survey of the method used for jury selection in civil and criminal cases throughout the fifty states and in the federal court.
2. Determine the length of time between initiation of an action, whether civil and criminal, and disposition by way of jury verdict. Of interest here is whether the delay in getting to trial is substantially longer than the national average, and whether this can be attributed to the length of jury selection.
3. Determine the incidence of individual sequestered voir dire in other jurisdictions. In other words, in what circumstances is is it permitted, if at all. What preliminary showing must be made to get such voir dire in cases where it is permitted.
4. Study the methods used by those states which permitted lawyer-conducted group voir dire. Consider who best to train lawyers in Connecticut to conduct this voir dire.
I stress lawyer-conducted voir dire for two reasons. First, our state constitution requires it in Article First, Section 19. Sequestered voir dire is a statutory right that can easily be eliminated from the books; amending the constitution in difficult.
The second reason I stress lawyer-conducted voir dire grows out of a sense of disdain for the managerial ethos prevalent in the federal courts. Judge conducted voir dire often seems meaningless. I've seen judges rattle through a set of questions with the passion of a toll-booth ticket collector. Of course jurors are inclined to tell judges what they want to hear. Empowering judges to play roles larger than that of referee seems dangerous to me. Confine their role to calling balls and strikes, and let the people decide, I say. That's why we had juries at the founding, before we emasculated panelists by refusing them the right to nullify.
I realize that this distrust of the judiciary confounds a central claim about group voir dire in the federal courts: Namely, that I have seen no appreciable difference in the quality of jurors or outcomes in the Connecticut federal and state courts. It may be that judge-conducted voir dire is as effective as individual sequestered voir dire conducted by lawyers. The CBA should examine this, too.
The Litigation Section is currently chaired by Jim Nugent of Orange. Nugent is perhaps the ideal person to chair this task force. He is a faculty member and board member of Gerry Spence's Trial Lawyers College. When he is not drinking Gerry's Kool Aid, he's actually sensible. And he has become intimately familiarity with how to train lawyers to conduct group voir dire by his work at the college. (Full disclosure: He's also a good friend.)
It's time to kill the wasteful practice of endless voir dire in Connecticut. In the case of State v. Hayes, arising from the Cheshire home invasion involving the Petits, three jurors have been selected after seven days of jury selection. I just completed the 11th day of jury selection in a case in New London: we have eleven jurors. This is simply wasteful and unnecessary.
Conduct a study of how other states pick juries and propose reform in Connecticut. That's a good task for the CBA.
I'm not a committee joining sort, so let me offer my two cents here in the form of proposed agenda items for the task force. My goal is simple: Let's get rid of individual sequestered voir dire.
1. Conduct a survey of the method used for jury selection in civil and criminal cases throughout the fifty states and in the federal court.
2. Determine the length of time between initiation of an action, whether civil and criminal, and disposition by way of jury verdict. Of interest here is whether the delay in getting to trial is substantially longer than the national average, and whether this can be attributed to the length of jury selection.
3. Determine the incidence of individual sequestered voir dire in other jurisdictions. In other words, in what circumstances is is it permitted, if at all. What preliminary showing must be made to get such voir dire in cases where it is permitted.
4. Study the methods used by those states which permitted lawyer-conducted group voir dire. Consider who best to train lawyers in Connecticut to conduct this voir dire.
I stress lawyer-conducted voir dire for two reasons. First, our state constitution requires it in Article First, Section 19. Sequestered voir dire is a statutory right that can easily be eliminated from the books; amending the constitution in difficult.
The second reason I stress lawyer-conducted voir dire grows out of a sense of disdain for the managerial ethos prevalent in the federal courts. Judge conducted voir dire often seems meaningless. I've seen judges rattle through a set of questions with the passion of a toll-booth ticket collector. Of course jurors are inclined to tell judges what they want to hear. Empowering judges to play roles larger than that of referee seems dangerous to me. Confine their role to calling balls and strikes, and let the people decide, I say. That's why we had juries at the founding, before we emasculated panelists by refusing them the right to nullify.
I realize that this distrust of the judiciary confounds a central claim about group voir dire in the federal courts: Namely, that I have seen no appreciable difference in the quality of jurors or outcomes in the Connecticut federal and state courts. It may be that judge-conducted voir dire is as effective as individual sequestered voir dire conducted by lawyers. The CBA should examine this, too.
The Litigation Section is currently chaired by Jim Nugent of Orange. Nugent is perhaps the ideal person to chair this task force. He is a faculty member and board member of Gerry Spence's Trial Lawyers College. When he is not drinking Gerry's Kool Aid, he's actually sensible. And he has become intimately familiarity with how to train lawyers to conduct group voir dire by his work at the college. (Full disclosure: He's also a good friend.)
It's time to kill the wasteful practice of endless voir dire in Connecticut. In the case of State v. Hayes, arising from the Cheshire home invasion involving the Petits, three jurors have been selected after seven days of jury selection. I just completed the 11th day of jury selection in a case in New London: we have eleven jurors. This is simply wasteful and unnecessary.
Conduct a study of how other states pick juries and propose reform in Connecticut. That's a good task for the CBA.
Tuesday, January 26, 2010
Chatigny To The Second Circuit? No, No, No
A representative of the ABA is making the telephone rounds of the state chatting people up about whether United States District Court Judge Robert Chatigny has a temperament suitable for a promotion to the United States Court of Appeals. The answer is obvious: Hell no.
I'll have more to say on this later, but I ran across a blog post elsewhere that describes the judge's shocking memory lapse when it suited his political principles, and his role as bully against a lawyer serving his client's interests. http://donpesci.blogspot.com/2009/10/judge-chatignys-selective-memory.html
Rumor earlier in the year had it the judge was souring on the bench. Why, then, is he seeking a promotion?
I'll have more to say on this later, but I ran across a blog post elsewhere that describes the judge's shocking memory lapse when it suited his political principles, and his role as bully against a lawyer serving his client's interests. http://donpesci.blogspot.com/2009/10/judge-chatignys-selective-memory.html
Rumor earlier in the year had it the judge was souring on the bench. Why, then, is he seeking a promotion?
Invasion Of The Civility Snatchers
We've got a pretty good thing going in the federal courts of this state, at least I think we do. It is a small bar. Almost all of the judges have roots in the state and still draw nourishment from relationships formed at the bar. We've not yet become a big state, replete with brash big-state norms.
That seems to be changing. Big-city lawyers trot through the Courts on loan from Boston and New York. Every third word is "sanction." Give ‘em what they want or they'll seek sanctions. Connecticut also seems to attract federal judges looking for a break from the big-jurisdiction grind. From time to time, a new kid arrives on the block, huffing and puffing foul winds.
Rumor has it that the federal judges in Connecticut meet periodically to discuss the district's affairs. Because they are judges these meetings have a name. Because they are federal judges, these meetings are called "meetings of the minds." I am making an appeal to these minds to meet and to discuss how better to orient visiting judges to the mores of Connecticut practice.
A judge newly arrived from a foreign state typically has no comprehension of what goes on in our state courts. The distinctive feature of state court practice is individual sequestered voir dire, the slow-as-molasses method of questioning each and every juror outside the presence of all other panelists in each and every case. The state court system moves at a snail's pace by contrast to other states. Rocket-docket jockeys landing in Connecticut are sure to find this frustrating. But, as practitioners in the state system know, it is hard to get a state jury case to trial. When you get a judge's attention, you fight to keep it.
Judges who come from Connecticut understand this. And, most often, a federal judge who actually practiced in Connecticut has working relationships with his state-court counterparts. But drop a newbie federal judge on loan from some big city or big state into Connecticut, and fur starts flying.
Not long ago, our firm had a case reassigned to a federal judge I never of. The judge came from a much larger state, with multi-district federal courts. I sighed when I saw the transfer, but was relieved to see the case would finally be tried.
An order issues. There will be a pre-trial on a date certain. Trial counsel must appear at the conference with authority to settle the case. But the scheduling gods quarelled on Olympus. A state court judge owned my time. My paralegal called the foreign federal judge's clerk to ask for relief. We proposed a couple dates when it looked as though jury selection in the state case would be over. The judge issued an order directing me to call my adversary to check to see if the proposed dates worked; in the absence of an agreement, the original date would hold.
Jury selection in my state case, a non-death capital case, hit the wall. There was no good date for a federal pre-trial, and evidence was set to begin in my state case the date of the federal pre-trial. We moved to continue the federal case. Motion ignored. So I reassigned the federal case with regret to an associate. I simply cannot be in two places at once.
She arrived at the pre-trial with settlement authority and the judge ordered the firm to go to retrieve the client, who had no car. I get a call from a frantic associate. When I balked at lack of notice and being compelled to serve as a livery, the judge threatened to send the marshals to close my office, and to detain me so that I could go and retrieve a client who had not previously been ordered to appear. He muttered about use of the Supremacy Clause to disrupt my state case.
The judge kept my associate and the client at a pre-trial set to begin at noon until seven p.m., boasting along the way that he had persuaded a local restaurant to remain open to midnight to accommodate another pre-trial. It feels like something out of Joseph Conrad.
This might be how business is done in states that regard the District Court as a plantation and judges as masters. But this is Connecticut, isn't it? I am appealing to the District Court judges to do a better job of orienting newcomers to the state. If we lawyers have to learn to speak bully, we will. But it has been awfully nice avoiding that thus far. It can be avoided still.
Reprinted courtesy of the Connecticut Law Tribune.
That seems to be changing. Big-city lawyers trot through the Courts on loan from Boston and New York. Every third word is "sanction." Give ‘em what they want or they'll seek sanctions. Connecticut also seems to attract federal judges looking for a break from the big-jurisdiction grind. From time to time, a new kid arrives on the block, huffing and puffing foul winds.
Rumor has it that the federal judges in Connecticut meet periodically to discuss the district's affairs. Because they are judges these meetings have a name. Because they are federal judges, these meetings are called "meetings of the minds." I am making an appeal to these minds to meet and to discuss how better to orient visiting judges to the mores of Connecticut practice.
A judge newly arrived from a foreign state typically has no comprehension of what goes on in our state courts. The distinctive feature of state court practice is individual sequestered voir dire, the slow-as-molasses method of questioning each and every juror outside the presence of all other panelists in each and every case. The state court system moves at a snail's pace by contrast to other states. Rocket-docket jockeys landing in Connecticut are sure to find this frustrating. But, as practitioners in the state system know, it is hard to get a state jury case to trial. When you get a judge's attention, you fight to keep it.
Judges who come from Connecticut understand this. And, most often, a federal judge who actually practiced in Connecticut has working relationships with his state-court counterparts. But drop a newbie federal judge on loan from some big city or big state into Connecticut, and fur starts flying.
Not long ago, our firm had a case reassigned to a federal judge I never of. The judge came from a much larger state, with multi-district federal courts. I sighed when I saw the transfer, but was relieved to see the case would finally be tried.
An order issues. There will be a pre-trial on a date certain. Trial counsel must appear at the conference with authority to settle the case. But the scheduling gods quarelled on Olympus. A state court judge owned my time. My paralegal called the foreign federal judge's clerk to ask for relief. We proposed a couple dates when it looked as though jury selection in the state case would be over. The judge issued an order directing me to call my adversary to check to see if the proposed dates worked; in the absence of an agreement, the original date would hold.
Jury selection in my state case, a non-death capital case, hit the wall. There was no good date for a federal pre-trial, and evidence was set to begin in my state case the date of the federal pre-trial. We moved to continue the federal case. Motion ignored. So I reassigned the federal case with regret to an associate. I simply cannot be in two places at once.
She arrived at the pre-trial with settlement authority and the judge ordered the firm to go to retrieve the client, who had no car. I get a call from a frantic associate. When I balked at lack of notice and being compelled to serve as a livery, the judge threatened to send the marshals to close my office, and to detain me so that I could go and retrieve a client who had not previously been ordered to appear. He muttered about use of the Supremacy Clause to disrupt my state case.
The judge kept my associate and the client at a pre-trial set to begin at noon until seven p.m., boasting along the way that he had persuaded a local restaurant to remain open to midnight to accommodate another pre-trial. It feels like something out of Joseph Conrad.
This might be how business is done in states that regard the District Court as a plantation and judges as masters. But this is Connecticut, isn't it? I am appealing to the District Court judges to do a better job of orienting newcomers to the state. If we lawyers have to learn to speak bully, we will. But it has been awfully nice avoiding that thus far. It can be avoided still.
Reprinted courtesy of the Connecticut Law Tribune.
Monday, January 25, 2010
Simple Absence
Mike Cernovich called one day in 2005. Did I want to write for a blog page he created called Crime and Federalism? My response was simple: "What's a blog?"
Mike and I wrote for a couple of years and page had a modest popularity. He still writes under the banner, although his interests are now more eclectic. He is as prone to write about cognitive sciences and diet as he is about the law. And I've tried my hand at a couple of pages since. I dabble at the fringes of what some call the "blawgosphere."
One of the new starts of the genre is Scott Greenfield, who writes Simple Justice. He typically writes two or three pieces first thing each day, and has attracted a broad readership throughout the country. One key to his success is generosity of spirit. He freely links to other sites, engages his readers in lengthy give and take in the comments to his posts, and is as lavish in his praise of friends as he is direct in his scorn of foes. He's written his way to the top of the pack in a brief two years.
Over the weekend, Scott announced a brief trip South, where there is no Internet. He didn't say why. He didn't say where. He is generally reticent about his personal life, so the abrupt absence is not altogether startling.
I don't read much of the blawgosphere. I typically look at two daily: Scott's Simple Justice, and Mike's Crime and Federalism. I can count on Scott to survey what's of interest, and Mike is quirky and fun. From time to time, I look at a page called A Public Defender, written here in Connecticut, but postings there are even more erraticly timed than on my page. I sometimes look at Defending People, written by a Texan named Mark Bennett.
Someone with more time than I have might want to run down the list of legal blogs posted as links to Simple Justice. My hunch is that one or more pages that have been stagnant in recent months will suddenly burst into activity, trying to fill Scott's shoes. I checked several, and saw a sudden flourishing on A Public Defender. Serendipity?
Mike and I wrote for a couple of years and page had a modest popularity. He still writes under the banner, although his interests are now more eclectic. He is as prone to write about cognitive sciences and diet as he is about the law. And I've tried my hand at a couple of pages since. I dabble at the fringes of what some call the "blawgosphere."
One of the new starts of the genre is Scott Greenfield, who writes Simple Justice. He typically writes two or three pieces first thing each day, and has attracted a broad readership throughout the country. One key to his success is generosity of spirit. He freely links to other sites, engages his readers in lengthy give and take in the comments to his posts, and is as lavish in his praise of friends as he is direct in his scorn of foes. He's written his way to the top of the pack in a brief two years.
Over the weekend, Scott announced a brief trip South, where there is no Internet. He didn't say why. He didn't say where. He is generally reticent about his personal life, so the abrupt absence is not altogether startling.
I don't read much of the blawgosphere. I typically look at two daily: Scott's Simple Justice, and Mike's Crime and Federalism. I can count on Scott to survey what's of interest, and Mike is quirky and fun. From time to time, I look at a page called A Public Defender, written here in Connecticut, but postings there are even more erraticly timed than on my page. I sometimes look at Defending People, written by a Texan named Mark Bennett.
Someone with more time than I have might want to run down the list of legal blogs posted as links to Simple Justice. My hunch is that one or more pages that have been stagnant in recent months will suddenly burst into activity, trying to fill Scott's shoes. I checked several, and saw a sudden flourishing on A Public Defender. Serendipity?
Bysiewicz: Let The Voters Decide
Connecticut Secretary of the State Susan Bysiewicz is the front runner among candidates seeking the soon-to-be-vacated office of Attorney General. I am not at all surprised. She has been a responsive member of the state House of Representatives and Secretary of the State. Claims that she has not been involved in the practice of law long enough to qualify simply don't make a lot of sense.
Bysiewicz threw her hat in the ring a little more than a week ago. Almost immediately, questions arose about whether she was too green for the job. A state statute requires that the Attorney General have at least ten year's active practice of law in the state.
As it turns out, Ms. Bysiewicz worked as an attorney in private practice for less than ten years. She was then elected a representative and moved on up to Secretary of the State.
Whether the state statute placing limits on who may serve as Attorney General is constitutional or not is a side issue. No matter how this the statute is construed, Bysiewicz is qualified.
One needed chase ambulances, trundle off to criminal court, prepare corporate forms, or review documents in the dead of night to be involved in the practice of law. I suspect that as a lawmaker Bysiewicz relied upon and honed her skill as a lawyer; there is little doubt that as Secretary of the State, she interpreted and enforced laws. She's been a member of the bar for 20 years. And throughout that period, she has been engaged in interpreting, making and enforcing laws. It is not as though she's been selling pencils on a street corner somewhere.
I am not endorsing her for the position of Attorney General, mind you. Although if the state lives up to its image of the Land of Steady Habits, she's be a shoo-in. In some respects, she is the female doppelganger of the current occupant of the office, Richard Blumenthal, who has announced he is resigning to seek the U.S. Senate seat being vacated by Christopher Dodd. Bysiewicz is photogenic, she has an eye for publicity, and she has the ability to tirelessly work the cocktail circuits of the state from Stamford to, well, Willimantic. From time to time, I get an unsolicited note in the mail congratulating me on one thing or another. Just how she spots my doings is an impressive piece of public relations.
Bysiewicz's qualifications are really a non-issue. Ever cautious, she has sought an opinion from Blumenthal on whether she meets the statutory requirements. Watching these two eye one another across the dance floor is exquisite political theater. These are two experienced polls who calculate every grimace.
I say let the voters decide whether she is qualified or not. Should she win the election, and someone truly believes that she is not qualified, bring the issue to a court. At least that would give us the chance to take aim at a silly law.
Bysiewicz threw her hat in the ring a little more than a week ago. Almost immediately, questions arose about whether she was too green for the job. A state statute requires that the Attorney General have at least ten year's active practice of law in the state.
As it turns out, Ms. Bysiewicz worked as an attorney in private practice for less than ten years. She was then elected a representative and moved on up to Secretary of the State.
Whether the state statute placing limits on who may serve as Attorney General is constitutional or not is a side issue. No matter how this the statute is construed, Bysiewicz is qualified.
One needed chase ambulances, trundle off to criminal court, prepare corporate forms, or review documents in the dead of night to be involved in the practice of law. I suspect that as a lawmaker Bysiewicz relied upon and honed her skill as a lawyer; there is little doubt that as Secretary of the State, she interpreted and enforced laws. She's been a member of the bar for 20 years. And throughout that period, she has been engaged in interpreting, making and enforcing laws. It is not as though she's been selling pencils on a street corner somewhere.
I am not endorsing her for the position of Attorney General, mind you. Although if the state lives up to its image of the Land of Steady Habits, she's be a shoo-in. In some respects, she is the female doppelganger of the current occupant of the office, Richard Blumenthal, who has announced he is resigning to seek the U.S. Senate seat being vacated by Christopher Dodd. Bysiewicz is photogenic, she has an eye for publicity, and she has the ability to tirelessly work the cocktail circuits of the state from Stamford to, well, Willimantic. From time to time, I get an unsolicited note in the mail congratulating me on one thing or another. Just how she spots my doings is an impressive piece of public relations.
Bysiewicz's qualifications are really a non-issue. Ever cautious, she has sought an opinion from Blumenthal on whether she meets the statutory requirements. Watching these two eye one another across the dance floor is exquisite political theater. These are two experienced polls who calculate every grimace.
I say let the voters decide whether she is qualified or not. Should she win the election, and someone truly believes that she is not qualified, bring the issue to a court. At least that would give us the chance to take aim at a silly law.
Sunday, January 24, 2010
Say What? Subpoena Shakedown
Wow. The police department in the Town of Redding, Connecticut, is very, very creative.
When police officers in the town are subpoenaed to attend a deposition as fact witnesses in connection with a civil action, they come armed with a bill for their time. The town justifies the practice of billing in such a manner as a request by the party issuing the subpoena for "special duty."
The theory goes something like this. If an officer is subpoenaed as a fact witness in a civil rights case involving a claim of official misconduct by a fellow officer, the town takes the position that the officers are serving as fact witnesses in a case not involving the town.
In such cases, the town takes the position that the officer is on his own time, and not on the town's clock. Hence, the department requests payment for their the officer's time so that the officers don't lose pay. If a party compels an officer's attendance and refuses to pay him for his time, the department tries to change the officer's shift so that he can attend the deposition on town time.
None of this makes any sense to me. A fact witness served with a subpoena gets a statutory travel fee. That is the only requirement at law for payment of a fact witness. How a town can say that an officer under subpoena to testify about official misconduct is on his own time is a mystery to me. More confounding is the claim that the officer is on his own time, but the town will try to take care of him by rescheduling his work is even more myserious. And what's oddest of all is sending a cop with a municipal invoice to cover time that isn't the town's time at all.
What's going on in Redding?
When police officers in the town are subpoenaed to attend a deposition as fact witnesses in connection with a civil action, they come armed with a bill for their time. The town justifies the practice of billing in such a manner as a request by the party issuing the subpoena for "special duty."
The theory goes something like this. If an officer is subpoenaed as a fact witness in a civil rights case involving a claim of official misconduct by a fellow officer, the town takes the position that the officers are serving as fact witnesses in a case not involving the town.
In such cases, the town takes the position that the officer is on his own time, and not on the town's clock. Hence, the department requests payment for their the officer's time so that the officers don't lose pay. If a party compels an officer's attendance and refuses to pay him for his time, the department tries to change the officer's shift so that he can attend the deposition on town time.
None of this makes any sense to me. A fact witness served with a subpoena gets a statutory travel fee. That is the only requirement at law for payment of a fact witness. How a town can say that an officer under subpoena to testify about official misconduct is on his own time is a mystery to me. More confounding is the claim that the officer is on his own time, but the town will try to take care of him by rescheduling his work is even more myserious. And what's oddest of all is sending a cop with a municipal invoice to cover time that isn't the town's time at all.
What's going on in Redding?
Thursday, January 21, 2010
Time To Change Connecticut's Voir Dire Law
Ice is melting in a New Haven courtroom, and the world has turned out to watch. Will members of the Connecticut General Assembly pay any attention? Will they open their eyes and realize that individual sequestered voir dire wastes time and contributes little or nothing to the pursuit of justice?
Jury selection is underway in the case of State v. Steven Hayes. He is one of the two men accused of invading the home of Dr. William Petit in the summer of 2007. Hayes and his co-defendant face the death penalty for their roles in the rape and murder of the doctor's wife and two daughters. The men also assaulted Dr. Petit.
The Cheshire home invasion is national news. A photograph of the once happy family has been on the cover of pulp magazines. Already at least one book has been published on the case. Passions run high throughout the state about the men standing trial, with sentiment leaning toward summary execution.
Evidence in the Hayes case is scheduled to begin in September. I say scheduled because it is by no means clear how long it will take to pick a jury. Potential panelists will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months in this case.
There is no good reason why this jury cannot be selected in one week's time. Such passion and hatred as the crime evokes need not be addressed one venire person at a time. Jurors are picked routinely in the state's federal courts in a process known as group voir dire, where panelists are questioned as a group. Some judges permit the lawyers to conduct the questioning. I have picked jurors under both systems and discern no difference in the quality of justice delivered in the two court systems.
No other state picks jurors the way we do. And I am unaware of any empirical or even anecdotal evidence that suggests that we are doing a better job of deciding cases in Connecticut.
To the contrary: It takes years to tee up a case for trial in Connecticut's state courts. I suspect that is because of the length of time it takes to pick juries. When it takes three or four days to pick jurors for one day of evidence, each and every trial becomes a week-long event. Friends of mine from other states marvel at the delay we tolerate here. Justice delayed is justice denied, a popular maxim holds. But in Connecticut, justice denied is business as usual. Does anyone really believe that the administration of justice would suffer in Connecticut if we relied on group voir dire, the method used throughout the nation in the federal courts and in every other state?
Supporters of group voir dire claims in yields better jurors. Individual attention, the theory goes, yields candor. I have my doubts. Putting a lay person alone in the witness box and dropping them into a room of strangers terrifies many people. Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a side bar. Indeed, the use of side bars for private information better serves juror privacy than asking someone to disclose a painful incident in open court.
Why do we insist on the slow and tortured process? Article First, Section 19 of the Connecticut Constitution declares that "[t]he right to question each juror individually by counsel shall be inviolate." But this is only half the story. Nothing in the state's constitution requires that this questioning be done outside the presence of all other jurors.
What really jams the gears of justice, at least in the criminal courts, is Connecticut General States 54-82f. This statute guarantees a party the "right to examine ... each juror outside the presence of other jurors."
I say start with legislation repealing the statutory guarantee of isolation. The constitution can be satisfied by questioning jurors in the presence of others. And if it doesn't, perhaps we should just amend the constitution. We could save money and promote prompt resolution of disputes with group voir dire. If you doubt the need for this, take a trip to New Haven and watch the ice melt in the Hayes case. No need to hurry; they'll still be picking when the daffodils bloom.
Reprinted courtesy of the Connecticut Law Tribune.
Jury selection is underway in the case of State v. Steven Hayes. He is one of the two men accused of invading the home of Dr. William Petit in the summer of 2007. Hayes and his co-defendant face the death penalty for their roles in the rape and murder of the doctor's wife and two daughters. The men also assaulted Dr. Petit.
The Cheshire home invasion is national news. A photograph of the once happy family has been on the cover of pulp magazines. Already at least one book has been published on the case. Passions run high throughout the state about the men standing trial, with sentiment leaning toward summary execution.
Evidence in the Hayes case is scheduled to begin in September. I say scheduled because it is by no means clear how long it will take to pick a jury. Potential panelists will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months in this case.
There is no good reason why this jury cannot be selected in one week's time. Such passion and hatred as the crime evokes need not be addressed one venire person at a time. Jurors are picked routinely in the state's federal courts in a process known as group voir dire, where panelists are questioned as a group. Some judges permit the lawyers to conduct the questioning. I have picked jurors under both systems and discern no difference in the quality of justice delivered in the two court systems.
No other state picks jurors the way we do. And I am unaware of any empirical or even anecdotal evidence that suggests that we are doing a better job of deciding cases in Connecticut.
To the contrary: It takes years to tee up a case for trial in Connecticut's state courts. I suspect that is because of the length of time it takes to pick juries. When it takes three or four days to pick jurors for one day of evidence, each and every trial becomes a week-long event. Friends of mine from other states marvel at the delay we tolerate here. Justice delayed is justice denied, a popular maxim holds. But in Connecticut, justice denied is business as usual. Does anyone really believe that the administration of justice would suffer in Connecticut if we relied on group voir dire, the method used throughout the nation in the federal courts and in every other state?
Supporters of group voir dire claims in yields better jurors. Individual attention, the theory goes, yields candor. I have my doubts. Putting a lay person alone in the witness box and dropping them into a room of strangers terrifies many people. Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a side bar. Indeed, the use of side bars for private information better serves juror privacy than asking someone to disclose a painful incident in open court.
Why do we insist on the slow and tortured process? Article First, Section 19 of the Connecticut Constitution declares that "[t]he right to question each juror individually by counsel shall be inviolate." But this is only half the story. Nothing in the state's constitution requires that this questioning be done outside the presence of all other jurors.
What really jams the gears of justice, at least in the criminal courts, is Connecticut General States 54-82f. This statute guarantees a party the "right to examine ... each juror outside the presence of other jurors."
I say start with legislation repealing the statutory guarantee of isolation. The constitution can be satisfied by questioning jurors in the presence of others. And if it doesn't, perhaps we should just amend the constitution. We could save money and promote prompt resolution of disputes with group voir dire. If you doubt the need for this, take a trip to New Haven and watch the ice melt in the Hayes case. No need to hurry; they'll still be picking when the daffodils bloom.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, January 20, 2010
Why Do We "Death Qualify?"
Among the many inconsistencies in the law is the manner in which we distinguish death penalty cases from those cases in which the state seeks something less than the life of the defendant. The courts are content to ignore these inconsistencies because, as the Supreme Court put it, "death is different." But if that is so, why, in capital cases, do we go out of our way to assure that the jury fails to reflect a fair cross section of the community?
I am referring, of course, to the insidious practice of "death qualification" of jurors. A line of cases reaching back to Wainwright v. Witt, 469 U.S. 810 (1985) permits the practice. As refined by the later case of Witherspoon v. Illinois, 391 U.S. 510 (1968), death qualification permits exclusion of those jurors who make it unmistakeably clear that their opposition to the death penalty would either make it impossible for them to impose the penalty, or would not be impartial during the guilt phase of the trial.
For neophytes, here are some basics: A capital trial takes place in phases. In the first part, a the state seeks to prove that the defendant committed a "death eligible" offense. If the state prevails, the state then attempts to prove in a second trial before the same jury the presence of an aggravating factor such that the defendant should be put to death. The defense presents evidence of mitigating factors. Jurors then retire to balance the so-called aggravants and mitigants before signalling thumbs up or down.
In many jurisdictions, including Connecticut, jurors are routinely told in non-death penalty cases that they are not to consider punishment. That is the judge's job. Jurors are expected to make decisions about guilt or the lack thereof in a vacuum. They are transformed into moral automatons and deprived of the right to make a reasoned moral response to the evidence before them. The theory goes something like this: Focusing the juries attention on whether the defendant committed the crime eliminates the danger of improper motives' contaminating the process.
So why when the stakes are at their highest do we invite jurors to decide the question of life or death?
The vanilla answer is that the stakes are so high we want the reasoned moral response of the jury in making the decision. But that glamorizes death penalty trials in a way that mocks justice. Surely killing someone is different than locking them away for 30 or 40 years, or for life, but the distinction between physical death and social annihilation is the sort of armchair line-drawing that makes little sense in the trenches: Sit, sometime, with a client sentenced to natural life explain the "up" side some time. It's not very convincing.
Juries should know the consequences of what they are doing. Would jurors send a young man to prison for decades for selling a little cocaine? In most cases not. The penalty is disproportionate to the harm. And what of statutory rape? A young man has sex with a willing partner who falls just short of the line separating those the law deems able to give consent from those unable to do so. Would jurors routinely send their neighbor's son to prison for an indiscretion many of the jurors themselves may have committed as young men and women?
Juries are supposed to be a means of checking the government's power to abuse ordinary citizens. The threat of abuse comes not just from an overweening executive branch making vindictive decisions about who to charge with crimes. The threat also comes from legislatures inspired by passion to "get tough on crime" each and every time some new, and spectacular, crime captures the airwaves. Lawmakers don't deliberate on juries and learn about the character of the defendant and circumstances of the crime. Lawmakers read newspapers, answer phone calls from angry constituents and earn their livelihood promising to make us safe. Is it any wonder that many lack an abiding concern for justice? When it comes to the criminal justice system, lawmakers are the most dangerous branch of all: They can belch out mandatory minimum sentences without ever once studying a trial transcript.
Jurors, I repeat, should know the consequence of their decisions, and they should participate in the process of deciding punishment.
So why isn't death qualification in capital cases a good thing?
Death qualification is used to exclude those folks opposed in principle to the death penalty from a jury. That is a significant part of the American public.
Last October, a Gallup poll indicated that 69 percent of Americans favor the death penalty for those accused of murder. This number, according to the pollsters, has held more or less steady during the past 13 years. Excluding those who are undecided, that leaves roughly 30 percent of Americans opposed to killing in the name of justice.
In a capital case, then, a defendant is likely to find about 30 percent of jurors challenged for cause because these jurors believe it is wrong for the state to kill. Of course, some small percentage of this 30 percent may find themselves on a jury if they are able to persuade a judge and prosecutor they could put their convictions aside and vote to kill. But odds are such jurors will be excused peremptorily by the state.
The pool of jurors in a capital case is selected to exclude those members of the community who cannot impose the ultimate penalty. Why, I wonder, aren't jurors in non-capital cases told, for example, the following? "Do you favor imposition of a 20 year sentence for the sale of crack cocaine?" There is no good reason to pull a punch by permitting "death qualification" but not "punishment qualification".
And there is the lingering suspicion that those jurors who favor the death penalty are, in fact, more likely to find in favor of guilt. It takes a lot, one hopes, to overcome the normal social instinct against killing. When we death qualify aren't we in effect looking for jurors already mad as a Hell and just looking to do something about it?
A moving example of death qualification at work took place in New Haven, Connecticut, yesterday, where a juror broke down in tears during jury selection in the case of State v. Hayes , the home invasion case involving the murder of a popular doctor's family. "A college student broke down in tears on the witness stand when asked about the death penalty," The Hartford Courant reported. "It makes me feel uncomfortable," she said, sobbing into her hands. Those tears represent the salf of the Earth.
This young woman's voice will not be heard on this jury. Yet if the defendant faced the possibility of life without parole the issue of consequences would never have arisen.
I am not opposed to asking questions about the consequences of a conviction. It should be permitted in all cases, capital or not. Jurors who have reservations about what the state seeks should not routinely be excluded from service, unless, of course, the process is designed to remove barriers to execution. Jurors are a check not just on abuse of power by the executive branch, but a means of checking the excess of passion reflected by legislators.
I am referring, of course, to the insidious practice of "death qualification" of jurors. A line of cases reaching back to Wainwright v. Witt, 469 U.S. 810 (1985) permits the practice. As refined by the later case of Witherspoon v. Illinois, 391 U.S. 510 (1968), death qualification permits exclusion of those jurors who make it unmistakeably clear that their opposition to the death penalty would either make it impossible for them to impose the penalty, or would not be impartial during the guilt phase of the trial.
For neophytes, here are some basics: A capital trial takes place in phases. In the first part, a the state seeks to prove that the defendant committed a "death eligible" offense. If the state prevails, the state then attempts to prove in a second trial before the same jury the presence of an aggravating factor such that the defendant should be put to death. The defense presents evidence of mitigating factors. Jurors then retire to balance the so-called aggravants and mitigants before signalling thumbs up or down.
In many jurisdictions, including Connecticut, jurors are routinely told in non-death penalty cases that they are not to consider punishment. That is the judge's job. Jurors are expected to make decisions about guilt or the lack thereof in a vacuum. They are transformed into moral automatons and deprived of the right to make a reasoned moral response to the evidence before them. The theory goes something like this: Focusing the juries attention on whether the defendant committed the crime eliminates the danger of improper motives' contaminating the process.
So why when the stakes are at their highest do we invite jurors to decide the question of life or death?
The vanilla answer is that the stakes are so high we want the reasoned moral response of the jury in making the decision. But that glamorizes death penalty trials in a way that mocks justice. Surely killing someone is different than locking them away for 30 or 40 years, or for life, but the distinction between physical death and social annihilation is the sort of armchair line-drawing that makes little sense in the trenches: Sit, sometime, with a client sentenced to natural life explain the "up" side some time. It's not very convincing.
Juries should know the consequences of what they are doing. Would jurors send a young man to prison for decades for selling a little cocaine? In most cases not. The penalty is disproportionate to the harm. And what of statutory rape? A young man has sex with a willing partner who falls just short of the line separating those the law deems able to give consent from those unable to do so. Would jurors routinely send their neighbor's son to prison for an indiscretion many of the jurors themselves may have committed as young men and women?
Juries are supposed to be a means of checking the government's power to abuse ordinary citizens. The threat of abuse comes not just from an overweening executive branch making vindictive decisions about who to charge with crimes. The threat also comes from legislatures inspired by passion to "get tough on crime" each and every time some new, and spectacular, crime captures the airwaves. Lawmakers don't deliberate on juries and learn about the character of the defendant and circumstances of the crime. Lawmakers read newspapers, answer phone calls from angry constituents and earn their livelihood promising to make us safe. Is it any wonder that many lack an abiding concern for justice? When it comes to the criminal justice system, lawmakers are the most dangerous branch of all: They can belch out mandatory minimum sentences without ever once studying a trial transcript.
Jurors, I repeat, should know the consequence of their decisions, and they should participate in the process of deciding punishment.
So why isn't death qualification in capital cases a good thing?
Death qualification is used to exclude those folks opposed in principle to the death penalty from a jury. That is a significant part of the American public.
Last October, a Gallup poll indicated that 69 percent of Americans favor the death penalty for those accused of murder. This number, according to the pollsters, has held more or less steady during the past 13 years. Excluding those who are undecided, that leaves roughly 30 percent of Americans opposed to killing in the name of justice.
In a capital case, then, a defendant is likely to find about 30 percent of jurors challenged for cause because these jurors believe it is wrong for the state to kill. Of course, some small percentage of this 30 percent may find themselves on a jury if they are able to persuade a judge and prosecutor they could put their convictions aside and vote to kill. But odds are such jurors will be excused peremptorily by the state.
The pool of jurors in a capital case is selected to exclude those members of the community who cannot impose the ultimate penalty. Why, I wonder, aren't jurors in non-capital cases told, for example, the following? "Do you favor imposition of a 20 year sentence for the sale of crack cocaine?" There is no good reason to pull a punch by permitting "death qualification" but not "punishment qualification".
And there is the lingering suspicion that those jurors who favor the death penalty are, in fact, more likely to find in favor of guilt. It takes a lot, one hopes, to overcome the normal social instinct against killing. When we death qualify aren't we in effect looking for jurors already mad as a Hell and just looking to do something about it?
A moving example of death qualification at work took place in New Haven, Connecticut, yesterday, where a juror broke down in tears during jury selection in the case of State v. Hayes , the home invasion case involving the murder of a popular doctor's family. "A college student broke down in tears on the witness stand when asked about the death penalty," The Hartford Courant reported. "It makes me feel uncomfortable," she said, sobbing into her hands. Those tears represent the salf of the Earth.
This young woman's voice will not be heard on this jury. Yet if the defendant faced the possibility of life without parole the issue of consequences would never have arisen.
I am not opposed to asking questions about the consequences of a conviction. It should be permitted in all cases, capital or not. Jurors who have reservations about what the state seeks should not routinely be excluded from service, unless, of course, the process is designed to remove barriers to execution. Jurors are a check not just on abuse of power by the executive branch, but a means of checking the excess of passion reflected by legislators.
Tuesday, January 19, 2010
Opening Day In Cheshire Trial. A Gag Order For Dr. Petit?
Did Governor N. Jodi Rell deprive Steven Hayes and Joshua Komisarjevsy of fair trials for their roles in the 2007 home invasion in Cheshire?
One of the lawyers for Mr. Hayes thinks so, and he has filed a motion to bar imposition of the death penalty in the case in the likely event his client is convicted. Expect Judge Jon Blue to deny the motion with hortatory puffery.
In May, 2009, the Connecticut General Assembly passed a bill abolishing the death penalty. Governor Rell, who at the time was still expected to seek re-election, promised to veto the bill, which she did on June 5, 2009. In a prepared statement to the Secretary of the State accompanying her veto, the governor had this to say:
"The death penalty sends a clear message to those who may contemplate such cold, calculated crimes. We will not tolerate those who have murdered in the most vile, dehumanizing fashion. We should not, will not, abide, those who have killed for the sake of killing; to those [sic] who have taken a precious life and shattered the lives of many more. Dr. William Petit recently quoted Lord Justice Dening, Master of the Rolls of the Court of Appeals in the United Kingdom, who said: ... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not."
I doubt that Dr. Petit, the husband and father of the three women murdered and assaulted in the Cheshire home invasion, looked this up Lord Dening by himself. Odds are his public relations firm did that. The man was a phyisician before his life was destroyed in a horrendous night of violence. Now he is a spokesman for the death penalty. I wonder who is bankrolling the public relations effort here?
“I need to stand up for what is just in society, and I need to stand up for my family personally,” Dr. Petit told The New York Times last week in anticipation of jury selection, which is set to begin today in a New Haven courtroom.
“We’re supposed to have the best judicial system,” Dr. Petit told the New Haven Register, but again noted how long is has taken to begin the trial.
“They keep using bits and pieces of arcane wordsmithing,” he added. “They’re not talking about Jennifer, Hayley and Michaela.”
No one seems to note that when Superior Court judge Richard Damiani imposed a gag order on the parties to prevent pre-trial publicity, the judge forgot, or lacked the nerve, to impose a gag order on Dr. Petit. The conventional wisdom is that the court lacks standing to impose such an order on victims. Why not?, I wonder. We have endowed victims with the right to be heard at all critical stages of a prosecution; many prosecutors now cower lest they offend a victim. The right to be heard has become in far too many cases a right to veto what the prosecution deems reasonable. It used to be that only defense lawyers complained among their peers about unreasonable clients; now prosecutors mumbles about being handcuffed by the rage of insatiable victims.
We have given victims rights, but, significantly, refused to them the responsibilities shared by participants in the process. Dr. Petit has a right to be heard and to scream for blood. Were the defendants' lawyers to take to the airwaves and wonder, aloud, whether Dr. Petit is really a prophet, or whether, tragically, his desire to stand now for his family masks the indescribable guilt of escaping the carnage as his wife and children lay dying in his home, those lawyers might well be held in contempt.
The show trials arising from the Petit murders are unnecessary. The two defendants have offered to plead guilty to life without possibility of parole. But the state won't accept the deal. It wants death, and thus the currency of justice is devalued as we pander to rage.
"[L]egal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper," our Supreme Court once observed. When life is at stake, it is "not requiring too much that [defendants] be tried in an atmosphere undisturbed by so huge a wave of public passion," the Court said in another case. Someone needs to remind Dr. Petit of that.
Trials are "bits and pieces of arcane wordsmithing" only to those whose minds are made up and whose passions leave them with a taste only for the blood of the accused.
Trials are tests we impose on ourselves. Can the rule of law hold amid the worst that we are capable of doing? That is always an open question. Last century lynchings suggested that passions easily overcame the rule of law. Emotions are raw today in New Haven. Sharpshooters will no doubt prowl the courthouse roofs once again on alert for purveyors of street justice.
The trial of Mr. Hayes is a test. It is not a wake for those killed in cold blood, that has already happened, years ago. Neither is the trial therapy for Dr. Petit, that will last a lifetime. The trial is a test of whether we can behave any better than the men who apparently killed without remorse. We can pass this test. In doing so, we will have to learn to accept Dr. Petit's words at face value: He is unstrung by rage, grief and sorrow flowing in part from the brutal murder of his family, and, in part, from survivor's guilt. A just society would show compassion for the man, while not sacrificing the larger goals of justice.
One of the lawyers for Mr. Hayes thinks so, and he has filed a motion to bar imposition of the death penalty in the case in the likely event his client is convicted. Expect Judge Jon Blue to deny the motion with hortatory puffery.
In May, 2009, the Connecticut General Assembly passed a bill abolishing the death penalty. Governor Rell, who at the time was still expected to seek re-election, promised to veto the bill, which she did on June 5, 2009. In a prepared statement to the Secretary of the State accompanying her veto, the governor had this to say:
"The death penalty sends a clear message to those who may contemplate such cold, calculated crimes. We will not tolerate those who have murdered in the most vile, dehumanizing fashion. We should not, will not, abide, those who have killed for the sake of killing; to those [sic] who have taken a precious life and shattered the lives of many more. Dr. William Petit recently quoted Lord Justice Dening, Master of the Rolls of the Court of Appeals in the United Kingdom, who said: ... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not."
I doubt that Dr. Petit, the husband and father of the three women murdered and assaulted in the Cheshire home invasion, looked this up Lord Dening by himself. Odds are his public relations firm did that. The man was a phyisician before his life was destroyed in a horrendous night of violence. Now he is a spokesman for the death penalty. I wonder who is bankrolling the public relations effort here?
“I need to stand up for what is just in society, and I need to stand up for my family personally,” Dr. Petit told The New York Times last week in anticipation of jury selection, which is set to begin today in a New Haven courtroom.
“We’re supposed to have the best judicial system,” Dr. Petit told the New Haven Register, but again noted how long is has taken to begin the trial.
“They keep using bits and pieces of arcane wordsmithing,” he added. “They’re not talking about Jennifer, Hayley and Michaela.”
No one seems to note that when Superior Court judge Richard Damiani imposed a gag order on the parties to prevent pre-trial publicity, the judge forgot, or lacked the nerve, to impose a gag order on Dr. Petit. The conventional wisdom is that the court lacks standing to impose such an order on victims. Why not?, I wonder. We have endowed victims with the right to be heard at all critical stages of a prosecution; many prosecutors now cower lest they offend a victim. The right to be heard has become in far too many cases a right to veto what the prosecution deems reasonable. It used to be that only defense lawyers complained among their peers about unreasonable clients; now prosecutors mumbles about being handcuffed by the rage of insatiable victims.
We have given victims rights, but, significantly, refused to them the responsibilities shared by participants in the process. Dr. Petit has a right to be heard and to scream for blood. Were the defendants' lawyers to take to the airwaves and wonder, aloud, whether Dr. Petit is really a prophet, or whether, tragically, his desire to stand now for his family masks the indescribable guilt of escaping the carnage as his wife and children lay dying in his home, those lawyers might well be held in contempt.
The show trials arising from the Petit murders are unnecessary. The two defendants have offered to plead guilty to life without possibility of parole. But the state won't accept the deal. It wants death, and thus the currency of justice is devalued as we pander to rage.
"[L]egal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper," our Supreme Court once observed. When life is at stake, it is "not requiring too much that [defendants] be tried in an atmosphere undisturbed by so huge a wave of public passion," the Court said in another case. Someone needs to remind Dr. Petit of that.
Trials are "bits and pieces of arcane wordsmithing" only to those whose minds are made up and whose passions leave them with a taste only for the blood of the accused.
Trials are tests we impose on ourselves. Can the rule of law hold amid the worst that we are capable of doing? That is always an open question. Last century lynchings suggested that passions easily overcame the rule of law. Emotions are raw today in New Haven. Sharpshooters will no doubt prowl the courthouse roofs once again on alert for purveyors of street justice.
The trial of Mr. Hayes is a test. It is not a wake for those killed in cold blood, that has already happened, years ago. Neither is the trial therapy for Dr. Petit, that will last a lifetime. The trial is a test of whether we can behave any better than the men who apparently killed without remorse. We can pass this test. In doing so, we will have to learn to accept Dr. Petit's words at face value: He is unstrung by rage, grief and sorrow flowing in part from the brutal murder of his family, and, in part, from survivor's guilt. A just society would show compassion for the man, while not sacrificing the larger goals of justice.
Monday, January 18, 2010
Shame On Yale University Press
The Winter 2009-2010 edition of Censorship News arrived the other day. The lead articule stunned me. It turns out that Yale University Press lost its nerve and succumbed to fear last summer. It deleted cartoons that Moslems might find offensive. The rationale? The book might stimulate violence "somewhere in the world."
The book in question is Jytte Klausen's Cartoons that Shook the World, a study of the controvery surrounding the publication of comics of the prophet Mohammed in Denmark in 2005. The Danish paper Jyllands-Posten sparked world-wide outrage when it published twelve cartoons of the prophet, thus showing that a sense of humor is not among the attributes shared by all humans.
Yale's decision to withhold the cartoons from a scholarly work attempting to understand the controversy arising from publication of the cartoons is the sort of politically correct garbage one might suspect from a commercial public house worried about its market share. More is expected of a proud academic publishing house that the meely-mouthed fear mongering.
Of course, purists are free to argue that this is not really a First Amendment issue at all. Yale is a private institution, and its publishing arm is free to exercise any sort of censorship it chooses. The plain worlds of the Constituion prohibit Congress from passing any law abriding the freedom of speech. New Haven's Brahmin's are free to strangle authors any way it likes.
But the power of moral leadership is real and abiding. Yale University Press leads by example, and when it censors for the sake of remote fear it sends a signal to lesser publishing houses that fear or remote harm is justification enough to muzzle an author.
There was a time when books that inflamed were sought after. The power of the written word and the printed image has been a powerful toxin for centuries. Are we now so sated with images that we cannot tolerate images the excite the passions?
I confess to not paying a whole lot of attention to the cartoons when they were published. Frankly, I was about as sympathetic to the Islamic fundamentalists decrying the images as I would be to a Christian fundamentalist's insistence that God, He of infinite power, wisdom and good, was so exhausted after the six days it took to create all of space and time that He needed the seventh day off. Fundamentalists, it seems, are always with us.
Yale's decision to remove the cartoons of Mohammed from Klausen's book startled me. I looked up the offending images on line, and provide a link here to those of you who, like me, were too busy to notice what the mad Mullahs were all worked up about. Now that I have seen the pictures, I still don't get it. But I do know that the leadership of Yale University Press is spineless, and that, pun intended, is not a good thing in the book business.
Here are the images. Look for yourself: http://www.zombietime.com/mohammed_image_archive/jyllands-posten_cartoons/
You can check out the National Coalition Against Censorship's statement of principle regarding the Yale censorhip here: http://www.ncac.org/Statement-of-principle-Free-Expression-at-Risk-at-Yale-and-Elsewhere
The book in question is Jytte Klausen's Cartoons that Shook the World, a study of the controvery surrounding the publication of comics of the prophet Mohammed in Denmark in 2005. The Danish paper Jyllands-Posten sparked world-wide outrage when it published twelve cartoons of the prophet, thus showing that a sense of humor is not among the attributes shared by all humans.
Yale's decision to withhold the cartoons from a scholarly work attempting to understand the controversy arising from publication of the cartoons is the sort of politically correct garbage one might suspect from a commercial public house worried about its market share. More is expected of a proud academic publishing house that the meely-mouthed fear mongering.
Of course, purists are free to argue that this is not really a First Amendment issue at all. Yale is a private institution, and its publishing arm is free to exercise any sort of censorship it chooses. The plain worlds of the Constituion prohibit Congress from passing any law abriding the freedom of speech. New Haven's Brahmin's are free to strangle authors any way it likes.
But the power of moral leadership is real and abiding. Yale University Press leads by example, and when it censors for the sake of remote fear it sends a signal to lesser publishing houses that fear or remote harm is justification enough to muzzle an author.
There was a time when books that inflamed were sought after. The power of the written word and the printed image has been a powerful toxin for centuries. Are we now so sated with images that we cannot tolerate images the excite the passions?
I confess to not paying a whole lot of attention to the cartoons when they were published. Frankly, I was about as sympathetic to the Islamic fundamentalists decrying the images as I would be to a Christian fundamentalist's insistence that God, He of infinite power, wisdom and good, was so exhausted after the six days it took to create all of space and time that He needed the seventh day off. Fundamentalists, it seems, are always with us.
Yale's decision to remove the cartoons of Mohammed from Klausen's book startled me. I looked up the offending images on line, and provide a link here to those of you who, like me, were too busy to notice what the mad Mullahs were all worked up about. Now that I have seen the pictures, I still don't get it. But I do know that the leadership of Yale University Press is spineless, and that, pun intended, is not a good thing in the book business.
Here are the images. Look for yourself: http://www.zombietime.com/mohammed_image_archive/jyllands-posten_cartoons/
You can check out the National Coalition Against Censorship's statement of principle regarding the Yale censorhip here: http://www.ncac.org/Statement-of-principle-Free-Expression-at-Risk-at-Yale-and-Elsewhere
Sunday, January 17, 2010
The Rock Star Of Rage
I cannot fathom the grief of Dr. William Petit. I hope never to know such pain. And I pray that if I am ever undone by evil my neighbors will have the good sense to leave me in peace and not make me into a veritable rock star of rage.
Those of you not from Connecticut may not recognize the name, but you may well find his story familiar. In July 2007. two men burst into the doctor's home, beating him senseless and then killing his wife and two young daughters after sexually assaulting at least one of them. The men set the house afire. Dr. Petit, somehow, stumbled to safety.
Jury selection starts this week in the trial of one of the defendants, Steven Hayes. His co-defendant, Joshua Komisarjevsky, will go to trial next year. The trials are unnecessary as both men have already offered to plead guilty. They ask only that in exchange for their plea, the state not seek the death penalty.
The state has rejected this offer, and no judge can compel the state to accept the plea. So the machinery of death has been oiled, removed from its storage shed, and lurched into a New Haven courthouse. We do not kill with the ease of a Texan in Connecticut. The death penalty is rarely sought, and even more rarely applied. New Haven almost never seeks to kill; I cannot recall the last time the prosecution obtained a verdict calling for death.
Why the death penalty in this case?
In part, the public is outraged. Mssrs. Hayes and Komisarjevsky did not take out a family on food stamps, huddling in some desolate swamp of a housing project. No, these two defendants reached across the great socioeconomic divide and struck prosperous members of the upper middle class in a largely white and affluent suburban community. And it helps that the victims were photogenic. Their photograph has been in news magazines throughout the United States.
This prosecution is a revenge killing. The underclass we incarcerate, impoverish and seek to control with ever harsher penalties struck. We are reacting to these murders as though they were a slave rebellion. To keep order, we must be equally savage. Kill these monsters. Nothing less will do.
And we have abandoned reasoned judgment to proponents of victim's rights. We have lost sight of an elemental truth: No one can be a judge in his own case. We have professional law enforcement, courts, judges and juries to avoid the vendetta. However, the victim's rights movement has transformed the cost-effective pursuit of the public good into the grief-struck pursuit of vengeance. Dr. Petit wants these men dead? Then so be it!
This is silly, and demeaning. If the man is not unstrung by his sorrow, he should be. He should be wearing sack cloth and ash, not attempting to hijack a judicial robe.
A good friend sent me an email this week after the local media announced that Dr. Petit plans to be, as a newspaper put it, "the face of the victims" at trial.
"It is a wonder he can show his face," my friend said. "I cannot imagine how I could live with myself if I left my wife and kids in a burning house to die. I cannot imagine his guilt."
I had not thought about this perspective on Dr. Petit once in the years since the July 2007 home invasion. All I could think of was his loss. He had been beaten nearly to death; that he stumbled out of the house at all seems a miracle to me, a miracle for which I gave thanks, even if I sometimes wonder whether survival is a haunted curse in this case. But suppose, for a moment, that something like survivor's guilt is one factor inspiring the doctor to seek death here. Does sound public policy require a public trial to work out this private psychodrama?
The trial of Mssrs. Hayes and Komisarjevsky will costs millions of dollars more than simply confining the men for the rest of their lives. The case for the state seems strong. Convictions appear likely. The real trial begins, many months from now, in the penalty phase, where a jury is asked to make a reasoned moral response to the character of the defendants and the nature of the crimes. The state may not succeed in killing these men. It will spend millions of dollars trying.
But if more blood is drawn, what is accomplished? Killing these men teaches us nothing, and deters no one. It simply feels good. For a moment we can become just like the men we kill, sated with rage and lust we can take satisfaction in watching the life force in these men ebb. This twisted satisfaction is the law of the jungle, not justice. And as good as it may feel to Dr. Petit to have this fantasy of revenge enacted on a public stage, it demeans the rest of us.
New Haven State's Attorney Michael Dearington has no stomach for the death penalty. Does he feel he has no choice here but to seek to kill? Nothing in the law deprives him of a choice. All the law requires is that he heed the desire of the victim's representative. Victims have a right to be heard. Period. The wail of the grief struck is not the calm voice of reason. Have we become so tone deaf that we cannot distinguish reason from rage?
Let Dr. Petit howl all he likes for death. Let us join in unison in a sympathetic lament about the ubiquity of evil even amid our affluence. But in the end, let's stop making a rock star of a man brought low by the savage acts of others. There's still time for the state to accept the guilty pleas and to put an end to this despicable passion play. There is still time for justice to be done.
Those of you not from Connecticut may not recognize the name, but you may well find his story familiar. In July 2007. two men burst into the doctor's home, beating him senseless and then killing his wife and two young daughters after sexually assaulting at least one of them. The men set the house afire. Dr. Petit, somehow, stumbled to safety.
Jury selection starts this week in the trial of one of the defendants, Steven Hayes. His co-defendant, Joshua Komisarjevsky, will go to trial next year. The trials are unnecessary as both men have already offered to plead guilty. They ask only that in exchange for their plea, the state not seek the death penalty.
The state has rejected this offer, and no judge can compel the state to accept the plea. So the machinery of death has been oiled, removed from its storage shed, and lurched into a New Haven courthouse. We do not kill with the ease of a Texan in Connecticut. The death penalty is rarely sought, and even more rarely applied. New Haven almost never seeks to kill; I cannot recall the last time the prosecution obtained a verdict calling for death.
Why the death penalty in this case?
In part, the public is outraged. Mssrs. Hayes and Komisarjevsky did not take out a family on food stamps, huddling in some desolate swamp of a housing project. No, these two defendants reached across the great socioeconomic divide and struck prosperous members of the upper middle class in a largely white and affluent suburban community. And it helps that the victims were photogenic. Their photograph has been in news magazines throughout the United States.
This prosecution is a revenge killing. The underclass we incarcerate, impoverish and seek to control with ever harsher penalties struck. We are reacting to these murders as though they were a slave rebellion. To keep order, we must be equally savage. Kill these monsters. Nothing less will do.
And we have abandoned reasoned judgment to proponents of victim's rights. We have lost sight of an elemental truth: No one can be a judge in his own case. We have professional law enforcement, courts, judges and juries to avoid the vendetta. However, the victim's rights movement has transformed the cost-effective pursuit of the public good into the grief-struck pursuit of vengeance. Dr. Petit wants these men dead? Then so be it!
This is silly, and demeaning. If the man is not unstrung by his sorrow, he should be. He should be wearing sack cloth and ash, not attempting to hijack a judicial robe.
A good friend sent me an email this week after the local media announced that Dr. Petit plans to be, as a newspaper put it, "the face of the victims" at trial.
"It is a wonder he can show his face," my friend said. "I cannot imagine how I could live with myself if I left my wife and kids in a burning house to die. I cannot imagine his guilt."
I had not thought about this perspective on Dr. Petit once in the years since the July 2007 home invasion. All I could think of was his loss. He had been beaten nearly to death; that he stumbled out of the house at all seems a miracle to me, a miracle for which I gave thanks, even if I sometimes wonder whether survival is a haunted curse in this case. But suppose, for a moment, that something like survivor's guilt is one factor inspiring the doctor to seek death here. Does sound public policy require a public trial to work out this private psychodrama?
The trial of Mssrs. Hayes and Komisarjevsky will costs millions of dollars more than simply confining the men for the rest of their lives. The case for the state seems strong. Convictions appear likely. The real trial begins, many months from now, in the penalty phase, where a jury is asked to make a reasoned moral response to the character of the defendants and the nature of the crimes. The state may not succeed in killing these men. It will spend millions of dollars trying.
But if more blood is drawn, what is accomplished? Killing these men teaches us nothing, and deters no one. It simply feels good. For a moment we can become just like the men we kill, sated with rage and lust we can take satisfaction in watching the life force in these men ebb. This twisted satisfaction is the law of the jungle, not justice. And as good as it may feel to Dr. Petit to have this fantasy of revenge enacted on a public stage, it demeans the rest of us.
New Haven State's Attorney Michael Dearington has no stomach for the death penalty. Does he feel he has no choice here but to seek to kill? Nothing in the law deprives him of a choice. All the law requires is that he heed the desire of the victim's representative. Victims have a right to be heard. Period. The wail of the grief struck is not the calm voice of reason. Have we become so tone deaf that we cannot distinguish reason from rage?
Let Dr. Petit howl all he likes for death. Let us join in unison in a sympathetic lament about the ubiquity of evil even amid our affluence. But in the end, let's stop making a rock star of a man brought low by the savage acts of others. There's still time for the state to accept the guilty pleas and to put an end to this despicable passion play. There is still time for justice to be done.
Saturday, January 16, 2010
Mother California: Tell Me, Truly, Who Is The Criminal?
Prison. Say the word aloud. Prison. There. You have said it. What associations emerge? Is it a place of punishment and anger? Is it a place of quiet redemption? Or is it no place at all? A sort of black hole into which what we fear is thrown and, with less effort than we imagine, forgotten?
Prison is a reality most of us do not confront. Perhaps that is at it should be, as prison is the place those men and women go who become other by acts of misconduct for which we fault them. The law says we send folks to prison as a means of punishment, deterrence and rehabilitation. But what, really, goes on in prison?
Kenneth E. Hartman knows. He has been in California's penal system for almost 30 years. He was imprisoned for life at the age of 19 for the savage and senseless beating death of a man who had called him a "punk". In Mother California: A Story of Redemption Behind Bars (2009), Hartman writes about a life without the obvious sorts of hopes. He writes so well, it seems almost a miracle. From rage and despair, a diamond has emerged.
"We golems of urban legend," he writes of the man-child who beat a man to death with apparent pleasure, "were a force field of the darkest energy. I had gotten to the point where I could feel the fear I brought out in people. When I walked in the front door of parties, others ran out the back door. Beyond the thrill-seeking women and danger junkies who periodically hitched a ride in my wake, people sensed the blackness and avoided me."
He was a dark star, and whether he could hear the voices of those trying to reach him is unclear. "Not once during the trial does he [the public defender] shake my hand or display any kind of human connection," he writes. I winced when I read that. Did his lawyer not care, or was Hartman so far removed from normal human commerce that he could not be reached?
When he arrived in prison, he aspired to one thing and one thing only. He wanted to be feared. "Here I am in prison, one of the legendary joints in the largest prison in the country, a new recruit, and I am being treated as a predator. I am, in fact, a predator. I act on the ethos that if you can't defend what I want, I am entitled to it. Being accorded this perverse deference, I feel like a free agent, massive and justified, beholden to no one and nothing," he writes of his first bid at Soledad in the early 1980s. He was mean and massive; a Nietzschean sort of figure living the will to power in a world with little else to restrain him.
And then he met a woman. It started innocently enough. He placed a legal call. A paralegal answered the phone. "You are wonderful," she tells him on a prison visit. "The words echo around inside my empty chest, hollowed out by years of keeping my distance from emotion -- any emotion. For a moment, I feel as if I might cry. This is all too much. I'm securely shackled everywhere I go because I'm a menace, even in here.But a beautiful girl, an innocent, has managed to pierce me to the core of my isolation -- past all the posturing, all the anger, all the fear and loneliness -- with three words." He learns that he longs to be loved.
He ends up marrying the young woman. There are conjugal visits. A child is born. There are visits, and this once-hardened man swells with pride at the sight of his daughter on periodic visits with her. The life this fractured family lives thrives on the only positive thing left to man without hope of release: love. In the eighties and nineties, the prison system left room for the possibility that no prisoner is simply the sum of his worst moments. Hartman became fully human, and his humanity softened him. He set about the hard work of redemption, becoming a model to others.
And then the country turned mean and crazy. Victims raged that men locked up for life could watch television, or lift weights or enjoy human contact with those with whom they shared the gift of love. Prisons became waking graveyards. As a society we began to demonstrate the ethos of those we feared. We took vengeance from the Lord, to whom it belongs, and began to lord over prisoners, seeking gratuitous suffering in the name of justice. To our everlasting shame, we became a City on a Hill that boasts of freedom and imprisons more people, and for longer sentences, than any other nation. We glory still in our hypocrisy.
Hartman sees it all. While he has been redeemed, he's watched us become moral monsters. We now act as though "every prisoner had forfeited his claim to humanity when he arrived at the gate, ... society had concluded that we were all a contagion in need of containment behind hermetically sealed walls and lethal fences." As he grows older, Harman watches prison explode with violence as wave upon wave of men are deprived of all hope and almost all possibility of redemption.
I say almost because, against all odds, Hartman has found the good within himself. He has learned to atone for past sins. He organized an honor system for a prison unit that inspired men we think incapable of honor into believing in themselves. Somehow, Hartman found within himself integrity, a voice and a moral vision. He is a modern Epictetus.
Mother California is a book worth reading. The title refers to the state as the mother of those wayward children who mature in juvenile detention and then graduate to lives of larger violence. It is a mother who now seeks to devour her offspring, perhaps out of shame. I read the book with a dawning sense of sorrow that transformed into a sort of anger about the utter waste typifying our penal system. We throw men and women away for decades without thinking about it. Juries convict, judges sentence, and no one seems really to count the costs.
Our penal system is a failure, reflecting some broader failing of a society that routinely engages in social euthanasia and refuses to admit what it is doing. Those we cannot use we destroy, and we call the destruction justice. And yet the failure is not complete. That Hartman could have survived nearly 30 years of cruelty to produce such a beautiful book reflects the strength of the human spirit. The man is a killer, to be sure, but, reading his book led me to wonder whether we who seek to kill the human spirit with neglect have any right to pretend to be his moral superiors.
Prison is a reality most of us do not confront. Perhaps that is at it should be, as prison is the place those men and women go who become other by acts of misconduct for which we fault them. The law says we send folks to prison as a means of punishment, deterrence and rehabilitation. But what, really, goes on in prison?
Kenneth E. Hartman knows. He has been in California's penal system for almost 30 years. He was imprisoned for life at the age of 19 for the savage and senseless beating death of a man who had called him a "punk". In Mother California: A Story of Redemption Behind Bars (2009), Hartman writes about a life without the obvious sorts of hopes. He writes so well, it seems almost a miracle. From rage and despair, a diamond has emerged.
"We golems of urban legend," he writes of the man-child who beat a man to death with apparent pleasure, "were a force field of the darkest energy. I had gotten to the point where I could feel the fear I brought out in people. When I walked in the front door of parties, others ran out the back door. Beyond the thrill-seeking women and danger junkies who periodically hitched a ride in my wake, people sensed the blackness and avoided me."
He was a dark star, and whether he could hear the voices of those trying to reach him is unclear. "Not once during the trial does he [the public defender] shake my hand or display any kind of human connection," he writes. I winced when I read that. Did his lawyer not care, or was Hartman so far removed from normal human commerce that he could not be reached?
When he arrived in prison, he aspired to one thing and one thing only. He wanted to be feared. "Here I am in prison, one of the legendary joints in the largest prison in the country, a new recruit, and I am being treated as a predator. I am, in fact, a predator. I act on the ethos that if you can't defend what I want, I am entitled to it. Being accorded this perverse deference, I feel like a free agent, massive and justified, beholden to no one and nothing," he writes of his first bid at Soledad in the early 1980s. He was mean and massive; a Nietzschean sort of figure living the will to power in a world with little else to restrain him.
And then he met a woman. It started innocently enough. He placed a legal call. A paralegal answered the phone. "You are wonderful," she tells him on a prison visit. "The words echo around inside my empty chest, hollowed out by years of keeping my distance from emotion -- any emotion. For a moment, I feel as if I might cry. This is all too much. I'm securely shackled everywhere I go because I'm a menace, even in here.But a beautiful girl, an innocent, has managed to pierce me to the core of my isolation -- past all the posturing, all the anger, all the fear and loneliness -- with three words." He learns that he longs to be loved.
He ends up marrying the young woman. There are conjugal visits. A child is born. There are visits, and this once-hardened man swells with pride at the sight of his daughter on periodic visits with her. The life this fractured family lives thrives on the only positive thing left to man without hope of release: love. In the eighties and nineties, the prison system left room for the possibility that no prisoner is simply the sum of his worst moments. Hartman became fully human, and his humanity softened him. He set about the hard work of redemption, becoming a model to others.
And then the country turned mean and crazy. Victims raged that men locked up for life could watch television, or lift weights or enjoy human contact with those with whom they shared the gift of love. Prisons became waking graveyards. As a society we began to demonstrate the ethos of those we feared. We took vengeance from the Lord, to whom it belongs, and began to lord over prisoners, seeking gratuitous suffering in the name of justice. To our everlasting shame, we became a City on a Hill that boasts of freedom and imprisons more people, and for longer sentences, than any other nation. We glory still in our hypocrisy.
Hartman sees it all. While he has been redeemed, he's watched us become moral monsters. We now act as though "every prisoner had forfeited his claim to humanity when he arrived at the gate, ... society had concluded that we were all a contagion in need of containment behind hermetically sealed walls and lethal fences." As he grows older, Harman watches prison explode with violence as wave upon wave of men are deprived of all hope and almost all possibility of redemption.
I say almost because, against all odds, Hartman has found the good within himself. He has learned to atone for past sins. He organized an honor system for a prison unit that inspired men we think incapable of honor into believing in themselves. Somehow, Hartman found within himself integrity, a voice and a moral vision. He is a modern Epictetus.
Mother California is a book worth reading. The title refers to the state as the mother of those wayward children who mature in juvenile detention and then graduate to lives of larger violence. It is a mother who now seeks to devour her offspring, perhaps out of shame. I read the book with a dawning sense of sorrow that transformed into a sort of anger about the utter waste typifying our penal system. We throw men and women away for decades without thinking about it. Juries convict, judges sentence, and no one seems really to count the costs.
Our penal system is a failure, reflecting some broader failing of a society that routinely engages in social euthanasia and refuses to admit what it is doing. Those we cannot use we destroy, and we call the destruction justice. And yet the failure is not complete. That Hartman could have survived nearly 30 years of cruelty to produce such a beautiful book reflects the strength of the human spirit. The man is a killer, to be sure, but, reading his book led me to wonder whether we who seek to kill the human spirit with neglect have any right to pretend to be his moral superiors.
A Pointless Marathon In "Petit" Case
Jury selection starts Tuesday in a New Haven, Connecticut courtroom in the case of State v. Hayes. If the name means nothing to you, that's because you have been seduced by the symbolism of it all: Most folks refer to the matter as the Petit case, using the name of the three victims of the July 2007 rape, murder and arson. You know the case, that's the one where a doctor's beautiful wife and daughters were murdered in the dead of night and the house set afire. The man of the house, Dr. William Petit, escaped, somehow.
The state is seeking death, and that is saying something in New Haven. The state's attorney's office in the Elm City is lukewarm about state killing. One of its most skilled prosecutors won't set foot in a courtroom seeking the death penalty. One senses that death penalty prosecutions are done in out of obligation, not conviction.
But the Hayes case is different. People are wound up about this one. Hayes and his co-defendant, who will be tried separately, singled out strangers. They burst into the upper middle-class home of a popular doctor. They held the family hostage overnight. The wife was taken to the bank in the morning for a withdrawal. At least one of the daughters was sexually assaulted. The victims were tied up. The house set afire. The case has acquired the historic traction of the rape of the Sabine women. The state is seeking blood, and, odds are, it will get it.
But first a jury must be selected. And that will take months. Evidence is set to begin in September. A reporter who plans to attend the proceedings each and every day called me yesterday for comment. "Bring your knitting," I told her. "Watching jury selection in Connecticut is more painful than watching ice melt in a chilly room."
Jury selection in the Hayes case represents a perfect storm of what is wrong with jury selection in Connecticut. Alone among the states, we engage in individual, sequestered, voir dire, with lawyers free to engage in endless individual questioning of jurors outside the presence of all other jurors. In the Hayes case, one of the state's top public defenders, Thommas Ullman, who represents Hayes, is known in routine cases to question each potential juror for an hour or so. In this case, where jurors must be "death-qualified," Ullman will be lucky to get through three potential panel members a day. What's more, the case will be presided over by Judge John Blue, a quirky jurist aching for recognition who has elevated distinctions without difference into an art form. Not since Gilligan's Island has the prospect of pointless dithering been so ominous.
If I am ever in trouble, I want Ullman representing me. He is thorough, passionate and kind. But there is no reason in the world why jury selection, even in a notorious capital case, should take months. Now that the world is watching this case perhaps Connecticut will be shamed into abandoning individual sequestered voir dire in favor of group voir dire.
Connecticut is the only state in the nation that permits individual questioning of jurors in every case, whether criminal or civil. I have just completed nine days of jury selection in a non-death capital case in New London. We have ten jurors. It is expected to take another week to pick the balance of the 12-person panel, plus alternates. The process seems slow as molasses to me, and pointlessly so. Is it any wonder it takes so long to get a case to trial in Connecticut, and that witnesss get lost, or die, or forget what they saw by the time a case gets to trial? Justice denied is justice delayed, we say. But in Connecticut, delay is the norm: That is because in the overwhelming majority of cases it takes far longer to pick the jury than it does to put on evidence.
I am unaware of any empirical evidence that the quality of justice is better in Connecticut. Neither am I aware of any evidence that things are worse here, in terms of outcomes. Anecdotally, my experience suggests that individual voir dire makes no difference at all. I have tried scores of cases in the federal courts, where group voir dire is the norm; I discern no difference in the quality of juries.
Frankly, I favor group voir dire, so long as it is the lawyers, and not a judge, who is asking the questions. Individual voir dire requires that we place an ordinary person in the witness box and then question them, while they sit alone, being pondered by all the strangers in a courtroom. Most jurors are diffident and withdrawn in such a setting. Leaving jurors with their peers while questioning them gives skilled lawyers a chance to get group members talking to one another. My hunch is that potential jurors are more comfortable speaking to one another about common concerns than they are confessing while sitting alone on the stand.
Perhaps some good will come of the Hayes case. The world will get to watch ice melt in the courtroom and will perhaps wonder why we take months to do what could be done in a week. Individual sequestered voir dire promotes delay, is costly and is unnecessary to achieve the ends of justice or a fair trial. Months from now, when they are still picking the Hayes jury and the trees are once again in bloom, perhaps lawmakers will take note and change the law.
The state is seeking death, and that is saying something in New Haven. The state's attorney's office in the Elm City is lukewarm about state killing. One of its most skilled prosecutors won't set foot in a courtroom seeking the death penalty. One senses that death penalty prosecutions are done in out of obligation, not conviction.
But the Hayes case is different. People are wound up about this one. Hayes and his co-defendant, who will be tried separately, singled out strangers. They burst into the upper middle-class home of a popular doctor. They held the family hostage overnight. The wife was taken to the bank in the morning for a withdrawal. At least one of the daughters was sexually assaulted. The victims were tied up. The house set afire. The case has acquired the historic traction of the rape of the Sabine women. The state is seeking blood, and, odds are, it will get it.
But first a jury must be selected. And that will take months. Evidence is set to begin in September. A reporter who plans to attend the proceedings each and every day called me yesterday for comment. "Bring your knitting," I told her. "Watching jury selection in Connecticut is more painful than watching ice melt in a chilly room."
Jury selection in the Hayes case represents a perfect storm of what is wrong with jury selection in Connecticut. Alone among the states, we engage in individual, sequestered, voir dire, with lawyers free to engage in endless individual questioning of jurors outside the presence of all other jurors. In the Hayes case, one of the state's top public defenders, Thommas Ullman, who represents Hayes, is known in routine cases to question each potential juror for an hour or so. In this case, where jurors must be "death-qualified," Ullman will be lucky to get through three potential panel members a day. What's more, the case will be presided over by Judge John Blue, a quirky jurist aching for recognition who has elevated distinctions without difference into an art form. Not since Gilligan's Island has the prospect of pointless dithering been so ominous.
If I am ever in trouble, I want Ullman representing me. He is thorough, passionate and kind. But there is no reason in the world why jury selection, even in a notorious capital case, should take months. Now that the world is watching this case perhaps Connecticut will be shamed into abandoning individual sequestered voir dire in favor of group voir dire.
Connecticut is the only state in the nation that permits individual questioning of jurors in every case, whether criminal or civil. I have just completed nine days of jury selection in a non-death capital case in New London. We have ten jurors. It is expected to take another week to pick the balance of the 12-person panel, plus alternates. The process seems slow as molasses to me, and pointlessly so. Is it any wonder it takes so long to get a case to trial in Connecticut, and that witnesss get lost, or die, or forget what they saw by the time a case gets to trial? Justice denied is justice delayed, we say. But in Connecticut, delay is the norm: That is because in the overwhelming majority of cases it takes far longer to pick the jury than it does to put on evidence.
I am unaware of any empirical evidence that the quality of justice is better in Connecticut. Neither am I aware of any evidence that things are worse here, in terms of outcomes. Anecdotally, my experience suggests that individual voir dire makes no difference at all. I have tried scores of cases in the federal courts, where group voir dire is the norm; I discern no difference in the quality of juries.
Frankly, I favor group voir dire, so long as it is the lawyers, and not a judge, who is asking the questions. Individual voir dire requires that we place an ordinary person in the witness box and then question them, while they sit alone, being pondered by all the strangers in a courtroom. Most jurors are diffident and withdrawn in such a setting. Leaving jurors with their peers while questioning them gives skilled lawyers a chance to get group members talking to one another. My hunch is that potential jurors are more comfortable speaking to one another about common concerns than they are confessing while sitting alone on the stand.
Perhaps some good will come of the Hayes case. The world will get to watch ice melt in the courtroom and will perhaps wonder why we take months to do what could be done in a week. Individual sequestered voir dire promotes delay, is costly and is unnecessary to achieve the ends of justice or a fair trial. Months from now, when they are still picking the Hayes jury and the trees are once again in bloom, perhaps lawmakers will take note and change the law.
Thursday, January 14, 2010
Please, Please, Get Me Out Of Bed With "Protect Marriage"
Cameras in the courtroom are a stupid idea. We've been dabbling with the televised court proceedings in Connecticut. My experience to date suggests that, at least at the trial level, all the public really wants is a picture of the person accused of a heinous crime. This is titillation, not education. The same public that pauses to gawk at an accident scene wants to see the accused killer plead not guilty: We just love road kill.
I was therefore surprised when the United States Court of Appeals for the Ninth Circuit abruptly announced that it would permit television cameras in civil trials. What was Judge Alex Kozinski thinking, I wrote. As a result of this, I received, and still receive, emails from several groups who now count me a fellow traveler.
One of these groups is called Protect Marriage. A woman named Carla Hass sends me daily emails now, "updating" me on the proceedings in the trial challenging the constitutionality of Proposition 8, the California ballot measure outlawing gay marriage. Protect Marriage also opposed televising these proceedings.
Another writer sent me a piece from the National Review which outed the Ninth Circuit's move to televise court proceedings as a species of "liberal" activism, a mere smokescreen designed and intended simply to assure television coverage of the Proposition 8 proceedings. The writer asserted that the trial judge in that case, United States District Judge Vaughn Walker, viewed the proceedings as this century's Scopes trial, and wanted to assure broad publicity.
I write here to ask, to plead, actually, to be thrown out of the bed I am now sharing with Protect Marriage and the National Review. I oppose cameras in the courtroom because I think it inconsistent with the dignity of court proceedings. But I support gay marriage because I think it consistent with fundamental human decency.
Some seven million California voters approved Proposition 8. And hence, Protect Marriage reasons, the people have spoken. The courts have no business tinkering with fundamental social institutions like marriage, the argument goes. Marriage, after all, serves the purpose of procreation. The institution has deep roots in our society and culture: one man, one woman, for life.
I think of marriage as something more than licensed sexual intercourse. And I think of intercourse as more than rutting in the name of the species. Marriage, and all that it entails, is a commitment of one person to another. It nourishes, sustains, and, from time to time, challenges in ways that force one partner to learn to regard another's claims as of equal or greater significance than our own. Marriage is a good thing. Few doubt that.
I cannot see the justification or logic in denying gays and lesbians the right to marry. It strikes me as cruel to say that just because a person's libidinal compass points East rather than West they should be denied the succor and social standing of being a spouse to another.
Opponents of gay marriage who rally under a banner reading "Protect Marriage" startle me. No one is trying to prevent anyone from getting married. Expanding the right to marry encourages marriage. Just how does the extension of a right I enjoy to another person diminish the right I have? There is something like envy, one of the seven deadly sins, at work here.
The agenda of those opposing gay marriage is really something other than protecting marriage. It is more an incipient brand of nostalgia for a bygone era, an era in which God sat confidently in the Heavens. However, and this is the point, all has never been right with the world. Biblically literal people know this, if they have ever read about Adam and Eve.
So what of this linkage between opposition to gay marriage and televised court proceedings? I guess it really does have to do with the Scopes monkey trial. Recall in that case that the law banning the teaching of evolution resulted in a conviction of Mr. Scopes. The Biblical literalists won the trial. But they lost the battle for public opinion. Clarence Darrow crushed his opponents.
Prejudice works best in dark and silent places. Sunshine disinfects. The only justification for a ban on gay marriage is an antiquated theology. Opponents of gay marriage don't want to admit that. They prefer darkness to light. Shame on them for hating so; shame on them for denying that human dignity transcends libidinal boundaries.
Reprinted courtesy of the Connecticut Law Tribune.
I was therefore surprised when the United States Court of Appeals for the Ninth Circuit abruptly announced that it would permit television cameras in civil trials. What was Judge Alex Kozinski thinking, I wrote. As a result of this, I received, and still receive, emails from several groups who now count me a fellow traveler.
One of these groups is called Protect Marriage. A woman named Carla Hass sends me daily emails now, "updating" me on the proceedings in the trial challenging the constitutionality of Proposition 8, the California ballot measure outlawing gay marriage. Protect Marriage also opposed televising these proceedings.
Another writer sent me a piece from the National Review which outed the Ninth Circuit's move to televise court proceedings as a species of "liberal" activism, a mere smokescreen designed and intended simply to assure television coverage of the Proposition 8 proceedings. The writer asserted that the trial judge in that case, United States District Judge Vaughn Walker, viewed the proceedings as this century's Scopes trial, and wanted to assure broad publicity.
I write here to ask, to plead, actually, to be thrown out of the bed I am now sharing with Protect Marriage and the National Review. I oppose cameras in the courtroom because I think it inconsistent with the dignity of court proceedings. But I support gay marriage because I think it consistent with fundamental human decency.
Some seven million California voters approved Proposition 8. And hence, Protect Marriage reasons, the people have spoken. The courts have no business tinkering with fundamental social institutions like marriage, the argument goes. Marriage, after all, serves the purpose of procreation. The institution has deep roots in our society and culture: one man, one woman, for life.
I think of marriage as something more than licensed sexual intercourse. And I think of intercourse as more than rutting in the name of the species. Marriage, and all that it entails, is a commitment of one person to another. It nourishes, sustains, and, from time to time, challenges in ways that force one partner to learn to regard another's claims as of equal or greater significance than our own. Marriage is a good thing. Few doubt that.
I cannot see the justification or logic in denying gays and lesbians the right to marry. It strikes me as cruel to say that just because a person's libidinal compass points East rather than West they should be denied the succor and social standing of being a spouse to another.
Opponents of gay marriage who rally under a banner reading "Protect Marriage" startle me. No one is trying to prevent anyone from getting married. Expanding the right to marry encourages marriage. Just how does the extension of a right I enjoy to another person diminish the right I have? There is something like envy, one of the seven deadly sins, at work here.
The agenda of those opposing gay marriage is really something other than protecting marriage. It is more an incipient brand of nostalgia for a bygone era, an era in which God sat confidently in the Heavens. However, and this is the point, all has never been right with the world. Biblically literal people know this, if they have ever read about Adam and Eve.
So what of this linkage between opposition to gay marriage and televised court proceedings? I guess it really does have to do with the Scopes monkey trial. Recall in that case that the law banning the teaching of evolution resulted in a conviction of Mr. Scopes. The Biblical literalists won the trial. But they lost the battle for public opinion. Clarence Darrow crushed his opponents.
Prejudice works best in dark and silent places. Sunshine disinfects. The only justification for a ban on gay marriage is an antiquated theology. Opponents of gay marriage don't want to admit that. They prefer darkness to light. Shame on them for hating so; shame on them for denying that human dignity transcends libidinal boundaries.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, January 13, 2010
An Open Letter To Taylor Pugh in Mesquite, Texas
Sometimes the things you learn in school are a whole lot more important than the lessons a teacher thinks he is teaching. Sometimes what you learn is that it can be scary to stand alone, apart from the crowd. I think you learned about how mean crowds can be this week when the Mesquite school board said it was all right to make you sit all by yourself because your hair is too long.
The crowd can be really, really stupid sometimes. And the crowds governing school boards can be more stupid than most groups.
I know you are only four years old, and odds are this letter won't make its way to you. But it might. And if it does, I want you to know that growing your hair long is really no big deal. I am old enough to be your grandfather and my hair is long and gray. I am a lawyer, and when I go to court people sometimes give me a hard time about my hair. But I am good at my job, so people get over the hair once they get a chance to see what I can do. Be yourself, Taylor, and let the world catch up to you.
I feel bad that the Mesquite school board is afraid of what you can do. They think that the length of your hair will make it hard for the other kids to do their school work. What a silly idea. They don't really mean that.
What the school board really means is that it is afraid of people who are different. Unless everyone looks the same and acts the same, the board is afraid it will lose control. Always, Taylor, fear the control a crowd seeks to impose. If you let a crowd bully you, you will lose your spirit. Once your spirit dies, life becomes gray and sad.
I read in a newspaper today that your mom and dad are going to go to court to see if a judge will let you grow your hair and be treated just like all the other kids. I hope you go with them to court to see what happens.
Courts are where people who are different go to make sure that the crowd does not stomp on them and hurt them. In our country we have a Constitution that sets the limits on what the crowd can do. If you have a good lawyer, he or she will make sure the judge hears that in this country it is wrong for government to try to make us all look and think alike. I hope you and your family keep fighting and that you make the bullies on the Mesquite school board feel ashamed of themselves.
Don't cut your hair, Taylor, or, if you do, cut it because that is how you want to wear it. Every time you hear the crowd roar and holler that you are different, you should clap your hands and smile. You are the salt of the Earth. The board is simply another passing cloud.
Good luck, Taylor. I am rooting for you and your parents.
The crowd can be really, really stupid sometimes. And the crowds governing school boards can be more stupid than most groups.
I know you are only four years old, and odds are this letter won't make its way to you. But it might. And if it does, I want you to know that growing your hair long is really no big deal. I am old enough to be your grandfather and my hair is long and gray. I am a lawyer, and when I go to court people sometimes give me a hard time about my hair. But I am good at my job, so people get over the hair once they get a chance to see what I can do. Be yourself, Taylor, and let the world catch up to you.
I feel bad that the Mesquite school board is afraid of what you can do. They think that the length of your hair will make it hard for the other kids to do their school work. What a silly idea. They don't really mean that.
What the school board really means is that it is afraid of people who are different. Unless everyone looks the same and acts the same, the board is afraid it will lose control. Always, Taylor, fear the control a crowd seeks to impose. If you let a crowd bully you, you will lose your spirit. Once your spirit dies, life becomes gray and sad.
I read in a newspaper today that your mom and dad are going to go to court to see if a judge will let you grow your hair and be treated just like all the other kids. I hope you go with them to court to see what happens.
Courts are where people who are different go to make sure that the crowd does not stomp on them and hurt them. In our country we have a Constitution that sets the limits on what the crowd can do. If you have a good lawyer, he or she will make sure the judge hears that in this country it is wrong for government to try to make us all look and think alike. I hope you and your family keep fighting and that you make the bullies on the Mesquite school board feel ashamed of themselves.
Don't cut your hair, Taylor, or, if you do, cut it because that is how you want to wear it. Every time you hear the crowd roar and holler that you are different, you should clap your hands and smile. You are the salt of the Earth. The board is simply another passing cloud.
Good luck, Taylor. I am rooting for you and your parents.
Tuesday, January 12, 2010
A Moot Writ
Sometimes the beast doesn't merely roar. Sometimes it listens.
The writ I posted yesterday did not need to be filed. The Department of Correction has agreed to provide the client with individual transportation to court in the mornings, thus making it possible to get a good night's sleep. And, miracles abound, Mr. Leniart walked into court yesterday with his legal papers.
But just to remind us that there is still a fist in the velvet glove, the Department still plans to return Mr. Leniart to prison each night by means of a circuitous route. He will get direct tranportation only one-way, and not round trip.
The significance of this half-measure? Call it a misguided attempt to be Solomonic.
A member of the Attorney General's office explained to me that the one-way accommodation was done as a courtesy to Judge Stuart Schimelman. Translated: Tell your client to kiss off. We still own his sorry derriere, and we want to make sure he recalls that each night on the way home.
Query? Will officials still taunt my client as a "ripper" at his transshipment point, this encouraging other inmates to assault him?
The writ I posted yesterday did not need to be filed. The Department of Correction has agreed to provide the client with individual transportation to court in the mornings, thus making it possible to get a good night's sleep. And, miracles abound, Mr. Leniart walked into court yesterday with his legal papers.
But just to remind us that there is still a fist in the velvet glove, the Department still plans to return Mr. Leniart to prison each night by means of a circuitous route. He will get direct tranportation only one-way, and not round trip.
The significance of this half-measure? Call it a misguided attempt to be Solomonic.
A member of the Attorney General's office explained to me that the one-way accommodation was done as a courtesy to Judge Stuart Schimelman. Translated: Tell your client to kiss off. We still own his sorry derriere, and we want to make sure he recalls that each night on the way home.
Query? Will officials still taunt my client as a "ripper" at his transshipment point, this encouraging other inmates to assault him?
Monday, January 11, 2010
Why Is This Writ Necessary?
RETURN: JANUARY 19, 2010
GEORGE LENIART : SUPERIOR COURT
:
VS. : J. D. OF NEW LONDON
:
DEPARTMENT OF CORRECTION, :
BRIAN K. MURPHY :
V E R I F I E D C O M P L A I N T
1. This is an action for injunctive relief against the defendants seeking that the plaintiff, George Leniart, be provided access to his legal papers, timely transport to the courts and opportunity to sleep during the nights on which he stands trial. He brings this action claiming violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
2. Jurisdiction of this court is invoked under the provisions of Sections 1331, 1343(3) and 1367(a) of Title 28 and, 42 U.S.C. Section 1983.
3. The plaintiff is currently in trial during jury selection in a capital felony being prosecuted in the Judicial District of New London before Judge Stuart M. Schimelman. He is housed at the Walker Special Management and Reception Unit in Suffield, Connecticut, a facility under the dominion and control of the Department of Correction.
4. The Department of Correction is the state agency responsible for the care and custody of sentenced inmates and pre-trial detainees on behalf of the State of Connecticut.
5. Brian K. Murphy is the Commissioner of the Department of Correction and is the final policy maker for the department.
6. Mr. Leniart is in the custody of the Department of Correction by virtue of the capital felony charges he currently faces and as a result of his status as a parolee in unrelated charges.
7. Jury selection commenced in the capital felony on January 4, 2010. Evidence is expected to commence on January 25, 2010. The court schedule for each of the days associated with jury selection and trial is expected to be 10:00 a.m. to 5 p.m.
8. Mr. Leniart is being systematically deprived of sleep during the course of these proceedings by the defendants, and, as such, his right to a fair trial is being impinged. The sleep deprivation claim arises from the following facts:
a. Mr. Leniart is awoken each day at 3:00 a.m. for transport from Suffield to New London.
b. Rather than being transported directly from Suffield to New London, Mr. Leniart is transshipped to various other locations, including the Corrigan Correctional Institution.
c. At the close of each day's court proceedings, Mr. Leniart is returned to Suffield by means of indirect routes, requiring a stop and detention at the Corrigan Correctional facility.
d. Mr. Leniart does not arrive in Suffield until somewhere between 11:00 p.m. and 1:00 a.m.
e. The result of transportation regime is that Mr. Leniart is given an opportunity to sleep two to four hours per night.
9. Mr. Leniart arrived in the New London Superior Court on January 4, 2010 with his legal papers and was prepared to assist his counsel, serving as a Special Public Defender, with his defense. Those papers have since been confiscated and he has not been permitted to return to court with them.
10. Mr. Leniart has been held briefly each morning and night at the Corrigan Correctional Institution. While there, guards have taunted him, and informed other inmates that Mr. Leniart is a so-called "ripper," thus placing Mr. Leniart in fear for his physical safety. Mr. Leniart has been convicted previously of a sex offense and currently stands trial for the kidnaping, rape and murder of a child under the age of sixteen.
11. The defendants refuse to provide Mr. Leniart transport directly from the Walker Reception and Special Management Unit in Suffield to the New London Superior Court, a distance of approximately 65 miles. That trip should take no more than 90 minutes each way.
12. Upon information and belief, other pre-trial detainees have been provided individual transportation, thus permitting them to retain their legal papers, avoid harassment and intimidation at other penal institutions, and obtain adequate sleep at night.
13. The defendants have offered Mr. Leniart the option of being housed at the Corrigan Correctional facility during the pendency of his trial, but Mr. Leniart has rejected the offer as he fears for his life and safety while at Corrigan. He has also been informed he cannot have access to his legal papers while at Corrigan unless he views those papers in a counselor's office, which will give him virtually no time to review the papers during the pendency of his trial.
14. The action of the defendants in depriving Mr. Leniart adequate sleep and access to his legal papers inflicts irreparable injury upon the plaintiff. If convicted of a capital felony, the plaintiff faces a sentence of life without possibility of parole.
15. The plaintiff has attempted to raise these issues in the trial court before Judge Stuart Schimelman and has not been granted the relief requested.
16. The facts and circumstances supporting paragraphs one through fourteen are more particularly described in the affidavit of Mr. Leniart attached to this Complaint as Exhibit A.
17. The facts asserts in paragraph 15 are made on representation of the undersigned as counsel for Mr. Leniart in the underlying capital felony trial.
WHEREFORE, the plaintiff claims judgment against the defendants and each of them, jointly and severally, as follows:
1. A temporary and permanent injunction requiring the defendants to provide individual transport from the Walker Reception and Special Management Unit to the New London Superior Court commencing immediately and continuing throughout the pendency of the trial currently being conducted.
2. An order requiring that the plaintiff be permitted to bring his legal papers to and from Court each day so that he may provide assistance to counsel in defense of the charges brought against him.
3. Such other relief as to this court shall appear to be fair and equitable.
THE PLAINTIFF,
BY:_______________________________
NORMAN A. PATTIS (#408681)
649 Amity Road
Bethany, CT 06524
203.393.3017
Fax: 203.393.9745
E-Mail: napatty1@aol.com
His Attorney
GEORGE LENIART : SUPERIOR COURT
:
VS. : J. D. OF NEW LONDON
:
DEPARTMENT OF CORRECTION, :
BRIAN K. MURPHY :
V E R I F I E D C O M P L A I N T
1. This is an action for injunctive relief against the defendants seeking that the plaintiff, George Leniart, be provided access to his legal papers, timely transport to the courts and opportunity to sleep during the nights on which he stands trial. He brings this action claiming violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
2. Jurisdiction of this court is invoked under the provisions of Sections 1331, 1343(3) and 1367(a) of Title 28 and, 42 U.S.C. Section 1983.
3. The plaintiff is currently in trial during jury selection in a capital felony being prosecuted in the Judicial District of New London before Judge Stuart M. Schimelman. He is housed at the Walker Special Management and Reception Unit in Suffield, Connecticut, a facility under the dominion and control of the Department of Correction.
4. The Department of Correction is the state agency responsible for the care and custody of sentenced inmates and pre-trial detainees on behalf of the State of Connecticut.
5. Brian K. Murphy is the Commissioner of the Department of Correction and is the final policy maker for the department.
6. Mr. Leniart is in the custody of the Department of Correction by virtue of the capital felony charges he currently faces and as a result of his status as a parolee in unrelated charges.
7. Jury selection commenced in the capital felony on January 4, 2010. Evidence is expected to commence on January 25, 2010. The court schedule for each of the days associated with jury selection and trial is expected to be 10:00 a.m. to 5 p.m.
8. Mr. Leniart is being systematically deprived of sleep during the course of these proceedings by the defendants, and, as such, his right to a fair trial is being impinged. The sleep deprivation claim arises from the following facts:
a. Mr. Leniart is awoken each day at 3:00 a.m. for transport from Suffield to New London.
b. Rather than being transported directly from Suffield to New London, Mr. Leniart is transshipped to various other locations, including the Corrigan Correctional Institution.
c. At the close of each day's court proceedings, Mr. Leniart is returned to Suffield by means of indirect routes, requiring a stop and detention at the Corrigan Correctional facility.
d. Mr. Leniart does not arrive in Suffield until somewhere between 11:00 p.m. and 1:00 a.m.
e. The result of transportation regime is that Mr. Leniart is given an opportunity to sleep two to four hours per night.
9. Mr. Leniart arrived in the New London Superior Court on January 4, 2010 with his legal papers and was prepared to assist his counsel, serving as a Special Public Defender, with his defense. Those papers have since been confiscated and he has not been permitted to return to court with them.
10. Mr. Leniart has been held briefly each morning and night at the Corrigan Correctional Institution. While there, guards have taunted him, and informed other inmates that Mr. Leniart is a so-called "ripper," thus placing Mr. Leniart in fear for his physical safety. Mr. Leniart has been convicted previously of a sex offense and currently stands trial for the kidnaping, rape and murder of a child under the age of sixteen.
11. The defendants refuse to provide Mr. Leniart transport directly from the Walker Reception and Special Management Unit in Suffield to the New London Superior Court, a distance of approximately 65 miles. That trip should take no more than 90 minutes each way.
12. Upon information and belief, other pre-trial detainees have been provided individual transportation, thus permitting them to retain their legal papers, avoid harassment and intimidation at other penal institutions, and obtain adequate sleep at night.
13. The defendants have offered Mr. Leniart the option of being housed at the Corrigan Correctional facility during the pendency of his trial, but Mr. Leniart has rejected the offer as he fears for his life and safety while at Corrigan. He has also been informed he cannot have access to his legal papers while at Corrigan unless he views those papers in a counselor's office, which will give him virtually no time to review the papers during the pendency of his trial.
14. The action of the defendants in depriving Mr. Leniart adequate sleep and access to his legal papers inflicts irreparable injury upon the plaintiff. If convicted of a capital felony, the plaintiff faces a sentence of life without possibility of parole.
15. The plaintiff has attempted to raise these issues in the trial court before Judge Stuart Schimelman and has not been granted the relief requested.
16. The facts and circumstances supporting paragraphs one through fourteen are more particularly described in the affidavit of Mr. Leniart attached to this Complaint as Exhibit A.
17. The facts asserts in paragraph 15 are made on representation of the undersigned as counsel for Mr. Leniart in the underlying capital felony trial.
WHEREFORE, the plaintiff claims judgment against the defendants and each of them, jointly and severally, as follows:
1. A temporary and permanent injunction requiring the defendants to provide individual transport from the Walker Reception and Special Management Unit to the New London Superior Court commencing immediately and continuing throughout the pendency of the trial currently being conducted.
2. An order requiring that the plaintiff be permitted to bring his legal papers to and from Court each day so that he may provide assistance to counsel in defense of the charges brought against him.
3. Such other relief as to this court shall appear to be fair and equitable.
THE PLAINTIFF,
BY:_______________________________
NORMAN A. PATTIS (#408681)
649 Amity Road
Bethany, CT 06524
203.393.3017
Fax: 203.393.9745
E-Mail: napatty1@aol.com
His Attorney
Sunday, January 10, 2010
Judge Gerry Esposito
The last time I saw Judge Gerry Esposito he was presiding in Juvenile Court in Torrington, a hard-scrabble, hard-luck city in the Northern part of Connecticut.
"What are you doing here?" he asked with a twinkle in his eye. I rarely appear in juvenile court.
"It's a sex case, judge," I said.
The judge's good sense prevailed and the client was spared a criminal record as a result of the judge's wisdom in brokering a plea. I regretted that, in a way. Time spent with Judge Esposito is always time well spent. I would have enjoyed trying a case with him on the bench.
"I'll catch you on the next one," I said, seeing him in the hall on the way out of court.
There will be no next one. Gerry Esposito died the other day. I just learned of it now.
He seemed to be the picture of health. In his late 50s, he was trim, filled with energy and a positive attitude. A former prosecutor, the man managed to fill tough roles without creating enemies. He had a gift for putting people at ease.
His death does not shock. He lingered on death's door for a spell. Not long ago, he went out for a jog. Later in the day, he collapsed. I am told it was a massive coronary: the trauma destroyed those parts of him that permitted him to express his love and generosity. A few days ago, he was removed from life support. It would have taken a miracle to restore him, and no miracle came.
His wake will be tomorrow night and I expect lawyers and judges from around the state to come to share memories of a good man gone too soon. I'd like to believe there was a larger rhythm accounting for his death, that somehow there was a plan that yielded a happy, or even a meaningful ending. But I know better.
Gerry Esposito's coffin will be silent tomorrow, and that is hard to imagine. As those of us who came to love him pay him our respect and show our love, there will be the shuffling sorts of noise grief-struck people make when the gods strike. I want to go to this wake and look at the man one last time. I want to go and thank him for his genoristy, his kindness and his ability to find the good even in the most terrible of places, a court.
I know he can't hear me now, at least I believe that. But I want him to know that despite the roles we adopted in our professional lives, I always looked at him with admiration and a sort of envy. He had the sort of way about him that made other comfortable. Thank you, Gerry. Thank you, and, somehow, farewell.
"What are you doing here?" he asked with a twinkle in his eye. I rarely appear in juvenile court.
"It's a sex case, judge," I said.
The judge's good sense prevailed and the client was spared a criminal record as a result of the judge's wisdom in brokering a plea. I regretted that, in a way. Time spent with Judge Esposito is always time well spent. I would have enjoyed trying a case with him on the bench.
"I'll catch you on the next one," I said, seeing him in the hall on the way out of court.
There will be no next one. Gerry Esposito died the other day. I just learned of it now.
He seemed to be the picture of health. In his late 50s, he was trim, filled with energy and a positive attitude. A former prosecutor, the man managed to fill tough roles without creating enemies. He had a gift for putting people at ease.
His death does not shock. He lingered on death's door for a spell. Not long ago, he went out for a jog. Later in the day, he collapsed. I am told it was a massive coronary: the trauma destroyed those parts of him that permitted him to express his love and generosity. A few days ago, he was removed from life support. It would have taken a miracle to restore him, and no miracle came.
His wake will be tomorrow night and I expect lawyers and judges from around the state to come to share memories of a good man gone too soon. I'd like to believe there was a larger rhythm accounting for his death, that somehow there was a plan that yielded a happy, or even a meaningful ending. But I know better.
Gerry Esposito's coffin will be silent tomorrow, and that is hard to imagine. As those of us who came to love him pay him our respect and show our love, there will be the shuffling sorts of noise grief-struck people make when the gods strike. I want to go to this wake and look at the man one last time. I want to go and thank him for his genoristy, his kindness and his ability to find the good even in the most terrible of places, a court.
I know he can't hear me now, at least I believe that. But I want him to know that despite the roles we adopted in our professional lives, I always looked at him with admiration and a sort of envy. He had the sort of way about him that made other comfortable. Thank you, Gerry. Thank you, and, somehow, farewell.
Even Madness Is No Stranger To Us
"If we feel our way into the human secrets of the sick person, the madness also reveals its system, and we recognize in the mental illness merely an exceptional reaction to emotional problems which are not strange to us."
C.G. Jung
I keep reminding myself that Jung is right. The line distinguishing mental health from mental illness is thin. We are all up against the edge in more ways than we care to admit. We comfort ourselves in moments of inspiration that the line separating genius and madness often blurs; we keep silent the desperation that haunts in more mundane moments.
My law practice keeps me close to misery. Most of the folks I represent are terrified about what the future holds. Some of them are so angry about what has befallen them that they can no longer see straight. A few find themselves in the law's cross hairs because they themselves seem permanently out of focus. Each challenges me to translate the expectations of a legal system hobbled together by visions of what is rational into terms that resonate once reason flees. Nothing in my training as a lawyer prepared me for this task, and I am sometimes depleted and filled with a harrowing sense of inadequacy.
I've been asking for years now for the bar or bench to sponsor training in dealing with mental health issues. There has not been any meaningful response to the request. Yet everyone in the system knows there are serious mental health issues driving both the civil and criminal justice systems. We just prefer not to talk about it, and to pretend that reason governs. We prefer our own fictions to reality.
Instead or serving reality, the powers that be have set in motions imperatives that poorly serve clients and the profession. The Rules of Professional Conduct have been amended to require lawyers to play greater roles as counselors: it is no longer enough to identify a client's strategic objectives and to provide choices. Now, lawyers and clients are to work together to discuss and conceive appropriate tactical means of advancing the litigation.
This transformation from a paternalistic to a client-centered model of the attorney-client relationship sounded great in theory. Hadn't medicine made a similar transformation in the latter portion of the twenty-first century, adopting a more patient-centered informed consent requirement? Wouldn't it work well with clients and lawyers?
What no one paused to consider when the law adopted informed consent is that, unlike doctors, lawyers have no training in mental health issues. A part of every doctor's training involves the recognition of mental health problems. A physician whose patient is undone by the choices before him can be prescribed medication to help them cope; most insurance plans also cover psychiatric referrals. There are no such avenues for lawyers.
This is most jarring in the law's civil system. On the criminal side, a lawyer who believes his client cannot comprehend the nature of the proceedings or who cannot provide assistance in his or her own defense can ask for a competency hearing. In such instances, the proceedings halt while the court satisfies itself that the defendant is fit to participate. There is not such mechanism in the civil courts. A lawyer with questions about a client's competence must bring a separate claim to the Probate Court, where a determination about whether the party needs a conservator can be made. But what lawyer will risk such an action in all but the most extraordinary circumstances?
Lawyers are permitted to withdraw if a client's demands become unreasonably difficult to satisfy, or if the client's objectives become repugnant. But that hardly seems a satisfactory solution. The client still remains in need. I would be interested to see whether there are any statistics on motions to withdraw in those jurisdictions requiring more expanded roles for lawyers as counselors. I'll bet more motions are being filed by lawyers ill-equipped to deal with avalanches of sorrow.
The fact remains that character disorders, the netherworld of diagnosis ranging from borderline personalities, to explosive rage disorder, to narcissism and other related so-called "soft" diagnoses go unrecognized and untreated in both the civil and criminal courts. And lawyers are left alone with these intractable conditions to make the best of every bad situation that comes their way.
Jung's observation about the relationship of pscyhosis to normal psychic process reminds me that what distinguishes health from pathology is largely a matter of degree. In this regard, Aristotle was really right when he discussed the concept of the mean in his Ethics. As regards anger, for example, it is a sign of good judgment, or health, to be angry in just the right way, to the right degree, in the right manner and at the right things. Rage obliterates these distinctions and becomes the soul of the person consumed by anger.
Oddly enough, the Seven Deadly Sins have become a starting point for me in understanding the human agony that I see day by day. A resilient soul knows passion, can experience anger, enjoys his appetites and is capable of detachment: when possessed by sin, a person becomes lustful, is a glutton, revels in sloth, loses his perspective and yields to unreasoning anger. We are all, it seems to me, so much tinder for the passions: A well ordered soul keeps a flame flickering at the center of the soul's mansion, warming himself by considering best how to marshal that flame for the purpose of harmony. But each of us can pushed to the point of violent combustion given the right circumstances. Each of us can be consumed and made a caricature by unmeasured desire.
I remind myself of this on the eve of a week filled with challenge. I remind myself not to become the anger and fear I see, but to remain a counselor capable of lending a firm hand amid a storm. I can recognize the danger signs by keeping a close eye on my internal compass. How easy to let anger become a lodestar. How easy to lose one's way. How hard, often, to remain calm in the center of so many storms.
C.G. Jung
I keep reminding myself that Jung is right. The line distinguishing mental health from mental illness is thin. We are all up against the edge in more ways than we care to admit. We comfort ourselves in moments of inspiration that the line separating genius and madness often blurs; we keep silent the desperation that haunts in more mundane moments.
My law practice keeps me close to misery. Most of the folks I represent are terrified about what the future holds. Some of them are so angry about what has befallen them that they can no longer see straight. A few find themselves in the law's cross hairs because they themselves seem permanently out of focus. Each challenges me to translate the expectations of a legal system hobbled together by visions of what is rational into terms that resonate once reason flees. Nothing in my training as a lawyer prepared me for this task, and I am sometimes depleted and filled with a harrowing sense of inadequacy.
I've been asking for years now for the bar or bench to sponsor training in dealing with mental health issues. There has not been any meaningful response to the request. Yet everyone in the system knows there are serious mental health issues driving both the civil and criminal justice systems. We just prefer not to talk about it, and to pretend that reason governs. We prefer our own fictions to reality.
Instead or serving reality, the powers that be have set in motions imperatives that poorly serve clients and the profession. The Rules of Professional Conduct have been amended to require lawyers to play greater roles as counselors: it is no longer enough to identify a client's strategic objectives and to provide choices. Now, lawyers and clients are to work together to discuss and conceive appropriate tactical means of advancing the litigation.
This transformation from a paternalistic to a client-centered model of the attorney-client relationship sounded great in theory. Hadn't medicine made a similar transformation in the latter portion of the twenty-first century, adopting a more patient-centered informed consent requirement? Wouldn't it work well with clients and lawyers?
What no one paused to consider when the law adopted informed consent is that, unlike doctors, lawyers have no training in mental health issues. A part of every doctor's training involves the recognition of mental health problems. A physician whose patient is undone by the choices before him can be prescribed medication to help them cope; most insurance plans also cover psychiatric referrals. There are no such avenues for lawyers.
This is most jarring in the law's civil system. On the criminal side, a lawyer who believes his client cannot comprehend the nature of the proceedings or who cannot provide assistance in his or her own defense can ask for a competency hearing. In such instances, the proceedings halt while the court satisfies itself that the defendant is fit to participate. There is not such mechanism in the civil courts. A lawyer with questions about a client's competence must bring a separate claim to the Probate Court, where a determination about whether the party needs a conservator can be made. But what lawyer will risk such an action in all but the most extraordinary circumstances?
Lawyers are permitted to withdraw if a client's demands become unreasonably difficult to satisfy, or if the client's objectives become repugnant. But that hardly seems a satisfactory solution. The client still remains in need. I would be interested to see whether there are any statistics on motions to withdraw in those jurisdictions requiring more expanded roles for lawyers as counselors. I'll bet more motions are being filed by lawyers ill-equipped to deal with avalanches of sorrow.
The fact remains that character disorders, the netherworld of diagnosis ranging from borderline personalities, to explosive rage disorder, to narcissism and other related so-called "soft" diagnoses go unrecognized and untreated in both the civil and criminal courts. And lawyers are left alone with these intractable conditions to make the best of every bad situation that comes their way.
Jung's observation about the relationship of pscyhosis to normal psychic process reminds me that what distinguishes health from pathology is largely a matter of degree. In this regard, Aristotle was really right when he discussed the concept of the mean in his Ethics. As regards anger, for example, it is a sign of good judgment, or health, to be angry in just the right way, to the right degree, in the right manner and at the right things. Rage obliterates these distinctions and becomes the soul of the person consumed by anger.
Oddly enough, the Seven Deadly Sins have become a starting point for me in understanding the human agony that I see day by day. A resilient soul knows passion, can experience anger, enjoys his appetites and is capable of detachment: when possessed by sin, a person becomes lustful, is a glutton, revels in sloth, loses his perspective and yields to unreasoning anger. We are all, it seems to me, so much tinder for the passions: A well ordered soul keeps a flame flickering at the center of the soul's mansion, warming himself by considering best how to marshal that flame for the purpose of harmony. But each of us can pushed to the point of violent combustion given the right circumstances. Each of us can be consumed and made a caricature by unmeasured desire.
I remind myself of this on the eve of a week filled with challenge. I remind myself not to become the anger and fear I see, but to remain a counselor capable of lending a firm hand amid a storm. I can recognize the danger signs by keeping a close eye on my internal compass. How easy to let anger become a lodestar. How easy to lose one's way. How hard, often, to remain calm in the center of so many storms.
Natapoff: Shedding Light On Snitches
Alexandra Natapoff's new book on the use of informants in criminal proceedings is a must read. Snitching: Criminal Informants and the Erosion of American Justice, (New York University Press, 2009) It is not that she tells us anything new and really startling; what impresses is that she has managed to pull together a wealth of scholarship and practical insight in a one volume. What's more, she offers sensible suggestions about how to reform the use of confidential informants.
I am generally ambivalent about the contributions of the legal academy to the day-to-day practice of law. Practice conceived isn't theory relieved, I keep telling myself. What can a professor tell a student about standing in a hate-soaked room pleading for a fair trial? The gritty reality of a courtroom doesn't often find its way beneath the fingernails of the chalkboard set.
Somehow Natapoff manages to combine scholarly acument with the solid sense of a practical litigator. She worked briefly as a federal public defender, before joining the faculty of the Loyala Law School in Los Angeles. She has not forgotten what she saw in courtrooms.
Snitches, rats, finks, scum, there are many names for those who trade what they are willing to say for favorable consideration from a prosecutor. Law enforcement depends on the "cooperation" of witnesses from all walks of life. But the information received from so-called cooperators is often unreliable; the Innocence Project and the students at Northwestern University, have demonstrated time and time again through the use of DNA evidence that innocent men and women are convicted due to unreliable chatter.
Natapoff surveys the use of snitches in a variety of contests ranging from routine narcotics case, to white collar investigations, to infiltration of terrorists groups. In each case she notes the tendency of power to become opaque. The lack of transparency in the recruitment, management and use of informants has created an unreviewable and secret parallel universe that cannot be challenged effectively in a court of law. When, for example, is the last time a judge demanded that a police officer with a warrant affidavit bring with him to court the "CI" he allegedly relied upon to support his request for permission to search a person's home? I suspect that more than a few warrants are supported by phantom declarants.
Her calls for reform on solid: She rightly questions whether jury instructions cautioning jurors to use special care in weighing the credibility of snitches are really enough. Ought not there be reliability hearings to determine whehther a snitch's testimony has any probative value? And why not require some sort of corroboration in any case involving a snitch?
This latter proposal hit a nerve. The case I am trying now involves the testimony of several jailhouse informants. They claim my client confessed his role in the kidnap, rape and murder of a 15-year-old girl in 1996. But there is nothing to corroborate this testimony. My client denies any involvement at all. Indeed, in this murder case, the state cannot prove murder at all, given the absence of a body. My client faces trial based on the say-so of inmates a decade and one-half after the so-called facts. How much of what these man report my client said is mere recycled gossip? The jury may never know: Moved by act hunger, that narrative instinct we all possess to impose a structure with a beginning, middle and end to every experience, isn't there a real danger the jury will credit the snitchs' chatter just to put an end to the nightmare that occurs when a child disappears?
Natapoff also suggests creation of an independent authority to screen and finance the use of informants favorable to the defendant in a criminal case. Why should the state be the only party at trial armed with the finances and the means to reward cooperating witnesses? She writes:
"The use of criminal informants is inherently lopsided: a prosecutor can reward an informant source with lenience or money, while a defendant who tries to pay or otherwise reward a potential witness will be accused of bribery or witness tampering. ... To remedy this imbalance ... establish[] a mechanism for rewarding exculpatory testimony, in essence, for creating defense informants."
Amen, I say. This professor gets high marks for nailing just what is wrong with the use of snitches. Yet another reason for the creation of a universal public defender system so that any American accused of a crime, whether poor, middle class or wealthy can match the resources of the state.
I placed a call to Professor Natapoff this morning. I am hoping she will agree to serve as an expert in my case. Juries need to know what she has to say. I suspect the state will object, however. And why shouldn't it? Right now it has a monopoly on the secret manipulation of evidence. Such secrecy is the nectar of tyranny.
Professor Natapoff also has a blog site devoted to snitching. Check it out: http://www.snitching.org/
I am generally ambivalent about the contributions of the legal academy to the day-to-day practice of law. Practice conceived isn't theory relieved, I keep telling myself. What can a professor tell a student about standing in a hate-soaked room pleading for a fair trial? The gritty reality of a courtroom doesn't often find its way beneath the fingernails of the chalkboard set.
Somehow Natapoff manages to combine scholarly acument with the solid sense of a practical litigator. She worked briefly as a federal public defender, before joining the faculty of the Loyala Law School in Los Angeles. She has not forgotten what she saw in courtrooms.
Snitches, rats, finks, scum, there are many names for those who trade what they are willing to say for favorable consideration from a prosecutor. Law enforcement depends on the "cooperation" of witnesses from all walks of life. But the information received from so-called cooperators is often unreliable; the Innocence Project and the students at Northwestern University, have demonstrated time and time again through the use of DNA evidence that innocent men and women are convicted due to unreliable chatter.
Natapoff surveys the use of snitches in a variety of contests ranging from routine narcotics case, to white collar investigations, to infiltration of terrorists groups. In each case she notes the tendency of power to become opaque. The lack of transparency in the recruitment, management and use of informants has created an unreviewable and secret parallel universe that cannot be challenged effectively in a court of law. When, for example, is the last time a judge demanded that a police officer with a warrant affidavit bring with him to court the "CI" he allegedly relied upon to support his request for permission to search a person's home? I suspect that more than a few warrants are supported by phantom declarants.
Her calls for reform on solid: She rightly questions whether jury instructions cautioning jurors to use special care in weighing the credibility of snitches are really enough. Ought not there be reliability hearings to determine whehther a snitch's testimony has any probative value? And why not require some sort of corroboration in any case involving a snitch?
This latter proposal hit a nerve. The case I am trying now involves the testimony of several jailhouse informants. They claim my client confessed his role in the kidnap, rape and murder of a 15-year-old girl in 1996. But there is nothing to corroborate this testimony. My client denies any involvement at all. Indeed, in this murder case, the state cannot prove murder at all, given the absence of a body. My client faces trial based on the say-so of inmates a decade and one-half after the so-called facts. How much of what these man report my client said is mere recycled gossip? The jury may never know: Moved by act hunger, that narrative instinct we all possess to impose a structure with a beginning, middle and end to every experience, isn't there a real danger the jury will credit the snitchs' chatter just to put an end to the nightmare that occurs when a child disappears?
Natapoff also suggests creation of an independent authority to screen and finance the use of informants favorable to the defendant in a criminal case. Why should the state be the only party at trial armed with the finances and the means to reward cooperating witnesses? She writes:
"The use of criminal informants is inherently lopsided: a prosecutor can reward an informant source with lenience or money, while a defendant who tries to pay or otherwise reward a potential witness will be accused of bribery or witness tampering. ... To remedy this imbalance ... establish[] a mechanism for rewarding exculpatory testimony, in essence, for creating defense informants."
Amen, I say. This professor gets high marks for nailing just what is wrong with the use of snitches. Yet another reason for the creation of a universal public defender system so that any American accused of a crime, whether poor, middle class or wealthy can match the resources of the state.
I placed a call to Professor Natapoff this morning. I am hoping she will agree to serve as an expert in my case. Juries need to know what she has to say. I suspect the state will object, however. And why shouldn't it? Right now it has a monopoly on the secret manipulation of evidence. Such secrecy is the nectar of tyranny.
Professor Natapoff also has a blog site devoted to snitching. Check it out: http://www.snitching.org/
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