Taking a Stand

You think you have a tough job? Try being Thomas Ullman. Ullman has spent the last three years defending Steven Hayes. After unsuccessfully defending Hayes at trial, Ullman, a public defender, spent the last few weeks trying to convince a New Haven jury that his client’s life should be spared. The jury, this week, disagreed and said that the death penalty is the appropriate punishment for Hayes, the first of two defendants being tried for the gruesome murder of Jennifer Hawke Petit and her two daughters, Hayley and Michaela.

Thomas Ullman

Our system works best when in an adversarial manner; two skilled professionals battle it out, with a fair and impartial judge presiding and jury deciding. Hayes’ defense team was a rather skilled and dogged one. Nonetheless, this case was a rather one-sided affair. First, there is the utter depravity of the allegation—the family was tortured for seven hours, the mother and her eleven-year daughter both sexually abused, and then the house set ablaze. Then, there was the sheer volume and quality of the evidence. The father, Dr. William Petit Jr., miraculously survived and was able to testify convincingly and sympathetically as an eyewitness to the graphic details.  And Hayes confessed.

It shouldn’t matter, but in reality, Ullman’s task was also made more difficult by the stark contrast in the background of his client and his victims.  The Petit family was that of a well-known doctor, a leading endocrinologist, his beautiful 48-year-old wife, Jennifer, who directed the health center at the Cheshire Academy. Their 17-year-old daughter Hayley was en route to Dartmouth.  And 11-year-old Michaela was entering sixth grade. Hayes, on the other hand, was in and out of jails since 1980, was already on parole for a 2003 burglary, a parole he had already violated once before. The sheer innocence of these harmless creatures, the torture imposed upon them, all collided to create a maelstrom of international media coverage.

The Petit Family

It was pretty lonely in Ullman’s corner. Hardly a soul was rooting for him to win. Not even Hayes. Asked how Hayes reacted to the death sentence reached by the jury last week, Ullman told CNN Hayes was happy with the verdict. “Suicide by State,” was how he said his client described the verdict. “If he can’t do it to himself, he’s happy the State will do it,” Ullman said. Hayes has been attempting to commit suicide for much of the time he has been incarcerated, according to his lawyer.

Ullman’s defense of Hayes will make him unpopular forever, wherever he goes. It’s wrong, but people will connect him with the barbaric acts of his client, rather than the indispensable constitutional rights he upholds. It can take a toll on an attorney, personally and professionally. As the hours approached the execution of Michael Ross, the last person to be executed in Connecticut, his lawyer, T.R. Paulding, saw his law license threatened by a federal judge, who ordered Paulding to reconsider his representation of Ross and Ross’ desire to die, questioning whether Ross was truly stable enough to opt for execution.

The next time you think you have it tough at work, think of Thomas Ullman. He has it tougher.

I recently represented The Stamford Democratic Party in a Stamford Court trial, Caterbone vs. Bysiewicz, where the Party joined the Connecticut Secretary of State in objecting to James Caterbone’s request that the Court order the Secretary of State to place him on the ballot as a candidate for the State House of Representatives. In that case Assistant Attorney General Robert Clark and I were able to convince Judge Taggart Adams that Caterbone failed to abide by the Connecticut laws governing how candidates formally file the Certificate of Endorsement that is filled out at their nominating conventions. Judge Adams refused to ignore the law’s requirements and held Caterbone to the letter of the law, refusing to order the Secretary of State to place his name on the ballot.  In this case,  Caterbone’s Certificate arrived in Hartford many days after the deadline for nominations had passed.  This decision is very significant.

First, Carterbone was not the only candidate to be kept off the ballot this fall.  In the West Hartford consolidated Probate Court election,  John W. Butts, the Democratic candidate for Judge of Probate also went to Court to get an order to place his name on the ballot.  In that case, the Certification for Judge Butts was mailed in but the Secretary of State claimed never to have received it and Judge Eliot Prescott also refused to ignore the letter of the law and denied his request that his name be placed on the ballot.

For many years Connecticut Courts have been granting these legal requests to be after candidates made one mistake or another in filing the nomination certificates, so the State Legislature tightened the law, giving the Secretary of State absolutely no discretion to these correct errors, declaring the late certificates invalid. Caterbone and Butts are the first two cases that I am aware of where Connecticut Judges have refused these requests.  Since Butts has appealed the trial court decision,  we now have, for the first time a Connecticut Supreme Court decision upholding this new trend in the law.

The Connecticut Supreme Court

Another case where Connecticut Courts gave held candidates to the letter of the law was the even more noteworthy Bysiewicz v. DiNardo, where the Connecticut Supreme Court said that Secretary of State herself could not be a candidate for State Attorney General because the law required candidates for that office to have practiced law for ten years, a hurdle she could not overcome. It would be an interesting study to look at the men and women who have held this position over the last several decades to see just how many State Attorneys General could overcome that hurdle, a requirement the Bysiewicz case has likely firmly established for many years to come.

The message to candidates from the Connecticut Courts this year is a clear one: if you want to be elected to public office don’t start off on shaky ground—start by reading the laws that define your candidacy and your obligations as a candidate.  I suppose this will create more work for lawyers, just as the brand new trend of candidates challenging the awarding of public campaign finance grants to their opponents.  The lawyers will be happy, no doubt, with the expansion of a practice area. Hopefully, in the long run the result will be that the political parties take more seriously the nominating process and the responsibilities that come with having access to the ballot on election day.

A&E has a show called Hoarders. They are the people who have massive amounts of stuff and never throw anything out. I don’t think I’m a hoarder. I just can’t see throwing out things that have intrinsic value, and will take up valuable space in landfills. I try to donate stuff to charity when I’m done with it. But they won’t take just anything, and it can be an effort to donate. For example, I found a ten year old computer scanner in my office closet, and brought it to The Salvation Army. I hadn’t taken the time to search my stuff for the software disk that came with the scanner, or the cords needed to run the thing, so the Salvation Army rejected the item. “It’s worthless without the software and cords,” said the volunteer at the dock. Worthless? It must have some value to somebody, I thought. Isn’t there a computer chip or other stuff of value in there somewhere? Can’t it be retro-fitted to be an up-to-date scanner?

Or what do you do when you have an electronic item and it just needs a small part, but finding somebody to fix it is a challenge, you may have to ship it somewhere, and the labor costs make buying a new one a much better deal? My 14 year old recently blew something on his Fender guitar amp. Luckily, his guitar teacher said, “Call ‘Rich the Amp Guy’ in Redding. Rich is a retired electrical engineer and amateur guitarist who fixes guitar amps in his basement. Rich told me it needed a part that he would have to search for and that it would cost me $75 for him to fix the amp. I went to the local guitar shop and saw my amp new, on sale for $99. I probably should have just tossed the amp and bought the new one, but it seemed like such a waste! The old amp wasn’t old at all–maybe six or seven years old, but since I bought it used there was no warranty.

I’m sure, buried here in all of this is a study in the international labor market. The Fender amp is most likely mass manufactured somewhere where the workers aren’t paid very much at all for their time. Rich probably charges close to $75 an hour, and has to pay a mortgage in tony Redding, CT.

I’ve often thought communities we need to develop an organized system of sharing stuff. Places to drop off stuff we no longer want and take stuff we’d like. I give you the books I’ve already read, and you give me the books I want to read. That’s fair, right?

I think the “freegans” are onto this problem. I never heard of freegans before the other day when I read a blog written by Deidre Sullivan of  Snap Dragon Consultants about a “dumpster dive” attended in New York. That’s right. Freegans are dumpster divers who rescue furniture, clothes, household items and even food thrown away by others.  Although freeganism is not an official organization, they have a website that publicizes their meetups, which serve as the movement’s hub: http://www.meetup.com/dumpsterdiving-4/. ­Freegans believe that consumerism destroys the environment and is bad for us as a society. They believe that deforestation, factory farming and unfair labor practices are a natural result of a profit-centered culture. Most importantly, they think that working and buying give implicit approval to capitalism and its sometimes unpleasant side effects.

A recent dumpster dive in New York. Photo courtesy of http://snapdragonconsultants.com/blog/

So freegans choose not to buy. They resist the latest electronic gadgets and changing fashions. They repair what they already own and trade amongst themselves. They scavenge for what they need. Since most industrialized societies produce so much waste, freegans can usually get by quite comfortably with only the occasional purchase.

I am not as anti-consumerism as the freegans, nor do I think eating out of the garbage is a good idea; it’s rather sickening, actually. But we do need to figure out how not to waste nearly as much as we do, how better to recycle, and to share the things we no longer need or want. Or we’ll all end up on Hoarders.

Dan Malloy has done something extraordinary, and something nobody else in Connecticut politics has done before him. In his quest to obtain the Democratic Party nomination to run for Governor of Connecticut, the former Stamford Mayor has raised more than $250,000 in over 4,000 small individual donations of $100 or less. That’s quite an accomplishment. Imagine the effort required to raise that number of small donations in a matter of months –the cocktail parties set up by countless hosts across the state, crisscrossing the state to attend those events, the paperwork required to track each donation; it’s mind boggling.

What Malloy has done is an embodiment of the “public financing” system of reforms enacted in 2005 but now in effect for the first time in Connecticut statewide elections. The system was enacted in as a response to the numerous political scandals in Connecticut that involved many high level officials and resulted in Governor John Rowland going to federal prison.

As part of this “Citizen’s Election Program,” as it is officially titled, Malloy will now have up to $8.5 million to spend in the 23 weeks of the campaign that begin the day after the Democratic State Convention, which will be held this weekend in Hartford.

The courts have struggled with how to regulate money in politics for many years. It’s a balancing act. Appellate judges are always balancing–weighing– one right against another.  Such a balancing act has been going on in American courts with the regulation of money in politics; it has always been on a collision course with the free speech guarantees afforded Americans by the First Amendment.

It was an inevitable showdown, when Congress in 1974 strengthened the Federal Elections Campaign Act, enacting campaign contribution limits as a response to the Nixon-era Watergate scandals of the 1970’s.  Last year’s controversial U.S. Supreme Court ruling in Citizen’s United vs. F.E.C., therefore, was not a surprise, but a continuation of the review of free speech rights of individuals and corporations which started in 1976 in the case of Buckley vs. Valeo.  The court in that case ruled that spending money to influence elections is a form of constitutionally protected free speech, and that candidates can give unlimited amounts of money to their own campaigns. A reform system was created as a result of Buckley whereby campaign spending limits were constitutional and allowed, as long as some form of public financing mechanism is in place, with strict contribution limits as well. The spending limits, however, only apply to the candidates who voluntarily opt to accept the public money. The system cannot be mandatory under Buckley and the cases that followed it, because if it were mandatory it would be an unconstitutional infringement on free speech, according to the Court.

From 1981 to 1983, as Executive Director of Common Cause/NY, I lobbied hard for this type of reform in New York State elections.

Connecticut adopted the public financing system of reforms for both statewide and legislative elections, and the system is now underway statewide races; several candidates who have access to personal wealth, like Democratic candidate Ned Lamont or Republican candidate Tom Foley, have chosen not to participate in the system and do not have to abide by the spending limits.

For those who have access to wealthy donors who can write big checks, the temptation not to volunteer for the populist style reform system is great. For those who have personal wealth and can just fund the campaign themselves, the temptation is even greater. In doing so, however, they will not be able to make the claims that Malloy can make, that he has chosen a “clean” method of financing his campaign, has freed up his time to concentrate on the issues that are important to voters, and has done something to help reign in skyrocketing campaign costs.

What Malloy has done has earned him considerable bragging rights: his campaign has the appearance of being one supported by and for the people, and lots of them, and in politics that’s saying a lot.

I envy my dentist. I know that runs contrary to conventional thinking, but it’s true. I envy him because as a dentist, he has the capacity to do what I, as a criminal lawyer, can never do.

I was a bad patient. I cracked a tooth and rather than tackle the problem, I ignored it, procrastinated and it eventually became a mini crisis. It cracked again, and over a period of months, a giant hole in the middle developed. One night at a cocktail party, without warning, it became excruciatingly painful, to the point of being unbearable. The next day I called my dentist, Dr. Jeffrey Cahn of Stamford, and his assistant squeezed me in after work for an emergency appointment. He gave me the bad news: “the tooth is abscessed, and there’s a massive infection in the root.  You need root canal therapy and a crown,” he said.  I grimaced. It sounded like I was headed in the direction of more pain and a lot of it. “I’m going to give you a prescription for an antibiotic and some painkillers and it should start feeling better right away,” he said. “You’re going to be O.K.”

Wow. What soothing words. I was going to stop feeling the excruciating pain. I was going to be O.K.  Those are words I, as a criminal lawyer, don’t get to say very often. People come to me, quite frequently, after being arrested for very serious crimes. They are going through what probably is the worst experience of their life. The stress feels like their whole world is collapsing around them. And in that first meeting, I can tell them the range of penalties for what they are charged with, but I can’t tell them what the outcome will be. There are way too many variables and at that first meeting I have so precious little information to go on. What is the evidence against them, and how much of it do the prosecuting attorneys have, and how strong is that evidence? Which prosecutor and judge will be handling the case? What will the attitude of the victim be?

The truth is that if I’m honest I can’t give them a lot of good news, at all, only that I will dig hard to find a defense, fight hard to protect them and try my best to get them an acceptable resolution of their case. But I’m in the bad news business.  I’m like the guide the military hires in foreign, hostile territory. I know the terrain like the back of my hand, but I can’t stop the bombs from falling or the mines from exploding. As an expert I can guide them through the painful experience, and minimize the damage where possible, but it’s still a minefield and it just might have a very bad outcome. In many cases, we’re going to have a long, drawn out process and a result that’s going to hurt, because they have committed a serious crime which will have very serious consequences. Their life may never be the same.

My dentist called me late that night to check up on me, a very caring and thoughtful thing to do, I thought. And I took the antibiotic that he prescribed. By the next evening the excruciating pain was subsiding and by the second day there was virtually no pain. The following week we started on the root canal treatment, and the tooth felt a whole lot better, just like my dentist said it would. I was O.K.

That must be nice to have a job where you can say with confidence, “you’re going to be O.K.” It might not be the most glamorous of occupations, but on most days he can predict the outcome and he can fix the problem. I don’t quite understand why it’s all not covered by my health insurance, but that’s an entirely different problem and one I don’t expect my dentist to solve.

James Carville’s 1992 words of political wisdom, “It’s the economy, stupid,” are an even more appropriate  analysis of today’s American electoral politics than they were in 1992.  Americans are scared, as Robert Reich recently wrote, “Voters are petrified of losing their jobs, their homes and what’s left of their savings.”

There is really nothing that a President can say in a State of The Union Address to dispel these fears. It’s an important speech, but it’s still just a speech, words.  According to Nancy Wyman, our State Comptroller, Connecticut has lost 94,000 jobs since the recession started in 2008 and 21,000 jobs in just the last six months! So long as unemployment continues to grow, as long as banks remain reluctant to loan money to businesses and to consumers, the fears of Americans are justified, and they will continue to “fire” the politicians who in power; the election in Massachusetts shows that they are still in the process of firing President Obama and my Democratic Party.  This termination may very well mean a three year work in progress unless things change.

President Obama’s recipe for economic recovery is stimulus spending. In this economy this means deficit spending.  The public, however, is wary of out-of-whack budgeting, and it is doubtful there will be Congressional support for this type of deficit spending.

What is shocking to me is that in all of the punditry and analysis of the State of The Union Address there has been so little outcry over our massive defense spending and our continued military spending to fight wars in the Middle East; defense spending has been exempted from any budget cuts.

At this time, with so many Americans unemployed or “underemployed”, can we really afford to undertake to rebuild two Middle Eastern countries? The U.S. spends almost as much on military spending as the rest of the world combined, and spends about six-times more than the second largest spender, China, a nation of a billion people. 44 percent of all 2009 tax dollars went to fund military spending, compared to a tiny fraction, just 7 seven percent, which was spent on jobs and education.

Make Us Healthy

And while it is true that Connecticut benefits from military spending and from military jobs, while military spending creates about 12 jobs per $1 million in spending, clean energy investments generate around 17 jobs, health care creates 20, and education produces 29 jobs for every $1 million of spending.

What are we accomplishing in Iraq and Afghanistan for our investment? In Afghanistan we have to counter a history of groups battling for political control. As my friend Scott Bates of the Center for National Policy recently wrote, “We are asking them (the Afghans) to put the past aside and work together, especially in the threat posed by the reconstituted Taliban. That is a tall order in one of the poorest nations on earth, where a generation has grown up knowing only war.”

Taliban Fighters

Are we making America safer from the threat posed by al-Quiada by our presence in Afghanistan? U.S. Intelligence officials admit that there are more al-Quiada members in places like Somalia and Yemen than Afghanistan. And Iraq? Has our commitment and spending in Iraq made America safer from terrorists? Civil war between the Sunnis and Shia still rages, six hard years after “Mission Accomplished” was declared.  Only 44 percent of Americans still believe that the war in Afghanistan is still worth fighting, according to a November ABC News/Washington Post poll, 52 percent say the war is “not worth it.”

President Bush aboard The USS Lincoln, "Mission Accomplished"

Given the pain felt in Connecticut and across the country it is time to reconsider our priorities, reconsider the exempt status of the military budget from the budget cutter’s scalpel and reconsider our financial commitment to rebuilding Afghanistan and Iraq.   Back to Carville:  It’s the economy, stupid.  And it’s our economy first. And  I mean OUR.