Due Process

Bad news for drug mules these days. The Connecticut Supreme Court has expanded the permissible scope of a warrantless search of a motor vehicle following a routine traffic stop, granting greater latitude to cops whose instincts trigger a hunch that more is happening than a violation of the rules of the road.

The Fourth Amendment to the Constitution protects against unreasonable police intrusions into our privacy by requiring a judicial warrant prior to conducting a search. Through the years exceptions to the warrant requirement have been defined. One of the more troubling focuses on the clash between a citizen’s First Amendment rights to freely travel and a police officer acting on his instinct that more is afoot than a motor vehicle violation.

What is the extent of an officer’s power when he stops a motorist for a legitimate traffic offense? Does he have the power to demand the motorist exit the vehicle? Can he pat the driver down? Can he search the interior of the vehicle without a search warrant? Can he detain the motorist and eventually obtain consent to search the car?

Thanks to a guy named Jenkins the answers to these questions have become much clearer. Jenkins was observed illegally changing lanes and was promptly stopped by Detective Morgan who was in uniform. Jenkins produced a valid license and rental contract but his actions suggested to the cop that he was too nervous. Something else was up; at least that was what well honed police instincts suggested to Morgan. Jenkins was patted down for possible weapons but none were found. After Morgan completed the necessary inquiries he asked if Jenkins had anything illegal, and if he could search the car, to which Jenkins replied: “Go ahead and check. You can check if you want.”

One of the well recognized exceptions to the warrant requirement is consent. One who consents to a search cannot later complain that his constitutional rights were violated unless that consent was tainted by coercive police action or resulted from some other illegal police conduct.

Unfortunately for Jenkins stupidity is not a defense (if it was I would have a much more impressive won-loss record). Despite that fact that he was transporting significant quantities of heroin and cocaine this lummox called the cop’s bluff and was found to have validly consented.

That wasn’t the real import of this new decision. Jenkins argued that his motor vehicle stop was enlarged beyond the time that was reasonably necessary and that as a result it became an illegal detention. If he succeeded in that argument his consent would then have been viewed as the “fruit of the poisonous tree” a legal term of art meaning that the claimed illegal detention now tainted everything that came afterward.

Jenkins argued that the officer held on to his license and registration longer than required for a traffic ticket. He maintained that he should have been allowed to leave before Morgan finally asked him for permission to search, and that the additional questioning had nothing to do with his illegal lane changes. The Supremes disagreed, “[Q]uestioning during a routine traffic stop need not be carefully tailored to the initial purpose of the stop, so long as the stop’s overall duration is not ‘’measurably extended’ beyond the time necessary to accomplish the tasks attendant to that reason for the stop. . . . [W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions. . . .”

So Det. Morgan gets a gold star and Mr. Jenkins got 8 years in the grey bar hotel.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” That is the opening clause of the First Amendment. Originally the Amendment only prohibited such action by Congress but in 1925 the U.S. Supreme Court determined that the Due Process Clause of the Fourteenth Amendment extended the protection of the First Amendment to any local or state government action as well.

The First Amendment protects freedom of religion. It was forged by the descendants of those who fled the religious tyranny that permeated 17th century Europe. State sanctioned religions were the rule. Those who sought the opportunity to follow a different religious path were shunned and oppressed. These early religious pioneers endured hardship on the path to freedom. Theirs was such a compelling force that the framers of the Constitution adopted religious freedom as the first of the Bill of Rights.

Equally as important is the concept of the separation of church and state. The evolution of case law underscoring this concept has, at times, been difficult for many to bear. Debate has focused on prayer in schools and the celebration of traditional religious holidays like Christmas and Easter. The vocal minority has dictated to the religious majority, as those who worship no God have been the architects of most court challenges.

Now the conservatives and Tea Party types have taken up the fight to prohibit the construction of an Islamic studies center in the neighborhood of Ground Zero. While voicing concern that radical Islamic fundamentalists were responsible for the horror of 9/11, these well meaning people have lost sight of the true meaning of the First Amendment.

Confusing a murderous fringe sect with a religion practiced peaceably by a large segment of the world’s population is too reminiscent of the tyranny of the Anglicans who forced our early forefathers from the comfort of their homes and families to the uncertainty of life in the New World. What the Newt Gingrich’s of this country fail to realize is that if they can succeed in prohibiting the exercise of Muslim prayer and study because of its proximity to Ground Zero, what happens when their religion of choice becomes the minority?

The entire rationale underpinning the First Amendment is that no government should sanction one manner of worship over any other. The current controversy surrounding the plan to build the Islamic Study Center has raised the passions and ire of many Americans. One argument I read asked whether Muslims would tolerate a Christian church or a synagogue in Mecca. The writer argues that they would not. Perhaps that is true, but that doesn’t diminish the fact that this country exalts the concept of religious freedom. That is what distinguishes us from so many countries that only tolerate state sanctioned religions. It was this type of small minded thinking that led to the internment of Japanese-American citizens following the bombing of Pearl Harbor.

It is not a proper restriction on the First Amendment to say that Muslims are free to exercise their religion, just not in a location that reminds us of the horror that religious zealots can inflict. Nearly one quarter of the world’s population embraces Islam. Arabic-Americans were no less devastated by the terror of 9/11 than any Baptist, Methodist, Catholic, Jew or any other of the dozens of sects that peacefully all worship the same God, just in different ways.

Newt, it isn’t freedom of religion if you and others of your ilk can dictate where it can be practiced. We need to understand that those of the Muslim faith are primarily good people like any of the rest of us who simply wish to worship in peace. It is not an insult to the memory of the 9/11 dead to allow this project to move forward. Rather it is a strong statement that terror will not dictate how this country protects and honors it’s freedoms.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Domestic violence cases have sadly dominated Connecticut news in recent years. Too many disgruntled former spouses and paramours have resorted to harassment and violence rather than graciously walking away from a failed relationship. In recent years, Connecticut has made great strides in pursuing and prosecuting this behavior. In many cases it works. Sadly, in some it didn’t and there were violent confrontations and deaths.

Immediate protective orders issued by arresting police and G.P.S. tracking devices are new weapons in the fight to avoid escalating violence. Vertical prosecution is a concept that prevents revolving door cases by insuring that the same prosecutors and judges are assigned to the domestic violence docket. Victim’s advocates are available to be the spokespersons for the complainants. The Family Violence Education Program is a pre-trial diversionary program aimed at educating and reforming offenders. When someone contacts the police and issues a complaint they should be given the benefit of the doubt. The system does and should support the victims; but what happens when the accused is really the victim?

Recently I resolved a case for a client who had a longstanding series of arrests for continuous contact with a former paramour. In the past this gentleman had admitted his conduct and accepted the penalties imposed, which included a standing criminal protective order. The violation of such an order can lead to felony prosecution. Recently, the complainant made a series of accusations that led to a total of five new charges, including violating that order, violating a form of probation, and stalking.

We were on a collision course for trial and possible eventual incarceration. The client was adamant that any encounters were mere chance and not intended. None of the conduct alleged was violent or threatening. The arrest had sparked front page headlines in the local newspaper that rivaled the announcement of the first moon landing or the invasion of Normandy. One particular accusation was that the “victim” came upon the accused’s vehicle by chance and followed it for a short distance when she then claimed that he pulled in a gas station, saw her and pulled out behind her to follow her. There was a video surveillance camera that showed the vehicles in proximity to each other, hers on the street and his moving parallel in the gas station parking lot.

The client insisted he had pulled in to the station to purchase something at the mini-mart located there. In pre-trial discussions with the veteran prosecutor and his inspector we produced evidence that suggested the client was telling the truth. Further investigation by the prosecution then produced a receipt for merchandise time stamped one minute before the time signature on the video surveillance film. The dramatic evidence supported our contention that the complainant had apparently seen the defendant pull into the gas station and then, for reasons we can only speculate about, stopped, as he went in the store and shopped, and waited for him to pull out. This devastating blow to her credibility led to the dismissal and withdrawal of all charges.

This client was lucky. There was video and documentary evidence to support his claim to innocence. There was also a diligent prosecutor and an impartial investigator who took the time to assess the information we provided. The decision to withdraw prosecution was a courageous one, and one that in some circles could expose the prosecutor to criticism. In the finest traditions of our adversarial criminal justice system both sides worked together to ensure the proper result.

The case is a rarity, and certainly doesn’t suggest that there are many instances of “victim’s” abusing the system. Police and prosecutors should continue to give complainants the benefit of the doubt; but that should not mean having tunnel vision and being unwilling to listen to the other side’s claims. The presumption of innocence still has a part to play in the process.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Nothing is more integral to the protections guaranteed an accused by the Bill of Rights, than the Sixth Amendment’s requirement of the effective assistance of competent counsel. The Framers of the Constitution did not quite say it that way. “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Through decades of post-conviction attacks the courts have come to interpret that right to mean more than a warm body with a law degree sitting next to the accused.

That right to counsel has been interpreted to require that an accused have access to an attorney at all critical stages of the criminal proceedings. If the accused cannot afford counsel the court will appoint one. Once the right to counsel has been invoked in custody no questioning may continue without an attorney. Confessions that have been obtained in violation of this right have been uniformly excluded from trials.

In 1984, the United States Supreme Court, in Strickland v. Washington, defined the the Sixth Amendment’s right to the assistance of counsel. Criminal counsel must be competent and that attorney’s actions must be effective. Now, “effective” does not mean successful; nor, does it require the highest level of representation. Rather. effective counsel is one who provides that level of representation that meets an objective standard of reasonableness. As the Strickland court noted, “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled.”

The Supreme Court established a two part standard to determine effective assistance: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

There is a progression that is generally followed in post-conviction proceedings. First, there must be a direct appeal through the applicable appellate courts. In this State appeals are first brought to the Appellate Court, where they are decided by a panel of three judges. In cases of substantial legal issues further appeal may be made upon petition to the Supreme Court. There the entire panel of Justices review the case. Appellate review is limited to the issues raised by the trial court record. Claims of ineffective assistance are rarely apparent in the record of the lower court proceedings and thus require additional evidence outside that record. A petition for a Writ of Habeas Corpus is the vehicle by which this challenge is raised.

In the habeas proceedings expert testimony is required to establish the Strickland violation. A veteran criminal defense lawyer is engaged to review the allegations of ineffectiveness and provide an opinion to the habeas court. Habeas trials are held before a judge alone, without a jury.

In Minnesota a man was recently freed after his conviction for manslaughter was reversed in part because his lawyer presented a deficient defense. He was charged in the deaths of three people when he lost control of his Toyota Camry.

Freedom is rarely granted to habeas petitioners. Convicts with nothing but time on their hands have nothing to lose by raising the claim of ineffective counsel. Next up will be Michael Skakel, whose family has publicly threatened they will seek the filing of a habeas action claiming deficiencies in the representation Skakel was provided by embattled celebrity lawyer, Mickey Sherman. Stay tuned.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

As a baby lawyer, 35 years ago, I entered the world of politics. Not on a grand scale, mind you. Armed with about $200.00 for some low end brochures and a handful of friends, I walked door to door in Bridgeport’s north end campaigning for a seat on the City Council. Fortunately for me there were no millionaires running against me with unlimited TV budgets and personal fortunes they were willing to stake in the battle. If there were I am not so sure any legal challenge I may have considered mounting would have made it past Small Claims Court, much less reached the highest courts of the state.

Fast forward to today and the battle to select candidates for the Governor’s seat, which is heading into the final weeks. Traditionally, the tail end of a campaign sparks a barrage of TV and print ads. This year it isn’t so much about what the candidates are saying as it is about who is paying the bill. Running for political office used to be about people and their qualifications. Now it’s about who has the largest war chest. It takes money, and a truckload of it, to finance a major election. The legislature here and in other states has tried to even the playing field with campaign finance reform. In the wake of scandals involving major Connecticut politicians (who can forget the appellation coined by the prosecutor in the trial of former Bridgeport Mayor Joe Ganim, renaming the state “Corrupticut”) legislation was passed to curtail efforts by lobbying interests to buy elections. The federal courts have stymied that effort in recent rulings. The Second Circuit Court of Appeals recently struck down the ban on contributions by lobbyists as unconstitutional.

The legislature also attempted to provide public funding for candidates vying with wealthy opponents who posses the wherewithal to fund campaigns with personal fortunes. The Second Circuit joined courts in Arizona and Florida in reviewing public campaign finance laws. The focus of these challenges surround what Florida calls the “Millionaires Tax.” Here it is called a “trigger provision.” In essence, underfunded candidates can qualify for additional public funding if they face an opponent whose spending exceeds certain prescribed thresholds. So far a Florida court has rejected the legal challenge, but the appeals courts there may agree with the approach taken by the Second Circuit.

In 2008 the United States Supreme Court ruled that the “Millionaire’s Amendment” to the McCain-Feingold campaign finance bill created an “unprecedented penalty” on a candidate’s exercise of First Amendment rights by restricting personal campaign spending. That was the cornerstone of the Second Circuit’s recent ruling. Apparently the right to free speech is not really “free.” Rather, it means you are “free” to throw your personal gazillions behind a campaign and bury your under-gunned opponent.

On the one hand courts want politicians to be free from financial loyalties to special interests. Why else would there be prosecutions of pols who provide some “quid” in exchange for some fat cat’s “pro quo”? At least the Justice Department sees it that way. On the other hand, those same courts strike down as vague a law punishing mail fraud that results in the loss of a public official’s “honest services” and campaign reforms aimed at reining in wheeler-dealer lobbyists.

I won that first election, by the way. Four years later I was unseated by an opponent who out spent me, $400.00 to my $200.00. I should have appealed.

Survivors of sexual abuse and victim’s rights groups are apparently outraged at the ruling this week by District Court Judge Janet Bond Arterton dismissing the indictment against Douglas Perlitz. The former Fairfield U. grad has been awaiting trial for multiple counts of sexual improprieties alleged to have been committed on young Haitians. None of the allegations against Perlitz claim that he victimized anyone in Connecticut. Rather the Government was attempting to bootstrap its Connecticut prosecution based on his fund raising within the state and other minimal contacts.

The basis of Judge Arterton’s ruling is that Connecticut is not the proper venue for this indictment. To the uninitiated it appears that Arterton’s ruling somehow sets the stage to free a potential predator. That is a gross misreading of the case. Courts can only bring criminal defendants to trial if they have appropriate jurisdiction. Jurisdiction is an important legal concept. First the court must have the lawful authority over the subject matter. In a criminal case that jurisdictional issue focuses on the conduct. Is it a violation of federal law? To be so it must implicate interstate commerce. Without that element prosecution would be the sole province of the state where the conduct occurred.

The basis for any federal criminal law is that it affects actions between the various states. The “interstate commerce” requirement is usually easily met. Transactions do not necessarily have to be across state lines as long as there is some conduct that utilizes something that moves in interstate commerce.

Venue is a separate issue. It is the question of whether the location chosen to adjudicate the issues has the appropriate contact with the crimes alleged. Defending oneself in the federal system is a costly matter. The Government has virtually limitless resources. Only the most experienced–and thus by definition– most expensive lawyers defend federal criminal cases. Every advantage goes to the Government. The Grand Jury can work for years assembling evidence and building a case for the prosecutors. When an indictment is issued the federal rules require swift movement toward a trial. If the Government was not required to chose the locale where the conduct occurred it could seek to indict a Connecticut resident in any state. Connecticut cases could be brought, on a whim, in California or Alaska, or wherever the Government chose. How then does the Connecticut defendant mount a defense? Witnesses would be difficult to bring to the trial. The costs would increase exponentially.

Perlitz has not won his war. He has won an opening skirmish. Judge Arterton has set the stage for the Government to seek to indict him on charges in districts where they allege that he boarded flights to Haiti. Having won this skirmish he may end up facing multiple prosecutions in the various states that were points of embarkation for his Haitian travels. It may turn out to be a Pyrrhic victory.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Accused killer Steven Hayes is attempting to get a judge to rule that his “confession” to police should be excluded from his trial. Hayes is claiming that the failure to tape record the interrogation in a death penalty case presents a major constitutional impediment to the admission of the statement before his jury.

The Fourth Amendment to the Constitution protects against unreasonable searches and seizures. The Fifth Amendment guarantees the right to be free from self-incrimination; while the Sixth Amendment guarantees the right to counsel at all critical stages of the proceedings. In short, interrogations of prisoners in police custody must follow the proscriptions of these three Amendments. The so-called Miranda warnings require police to inform suspects that they need not answer questions, and have access to a lawyer. If police fail to abide by these dictates the accused can seek to have the court suppress or exclude the confession from evidence in the case.

For decades the courts have examined cases where an accused claims that his confession was given involuntarily. We have come a long way from the days of rubber hose interrogations. Custodial interrogations can overwhelm the innocent at times. Threats, deprivations, long exhausting hours all can combine to overbear the will of the weak minded. Our case-law is replete with instances where judges have invalidated a confession because of the manner in which it was obtained. Amnesty International USA published an extensive critique of police interrogation practices, chronicling a number of cases where police used questionable tactics to extract confessions from suspects who were ultimately found to have been wrongfully convicted. The article, entitled “False Confessions: Scaring Suspects to Death” appeared in a 2007 issue of Amnesty International Magazine (http://www.amnestyusa.org/amnestynow/false_confessions.html). The author describes something called the Reid Technique, an interrogation tool designed to cause increasing tension and disorientation.

In recent years there has been a growing movement to record interrogations, particularly in a murder case where the death penalty is a possibility. In Australia, for example, an unrecorded confession will not be admissible, ” . . .if the confession or admission was made in circumstances where it was reasonably practicable to tape record [it].”

Recording interrogations allows a reviewing court to see firsthand the manner in which a statement was obtained. It can eliminate the need for countless court hours spent reviewing witness testimony about the questioning process. It protects the police as well as the accused. Over 450 law enforcement agencies are now recording interrogations. Eight states are now mandating such recordings. In death penalty cases where there is a “confession” a lawyer who fails to challenge the confession, including whether it was given voluntarily, falls short of the Sixth Amendment’s requirement for effective assistance of counsel.

The F.B.I. prohibits the recording of interrogations as a matter of policy. This practice has lately come under fire, highlighted by the recent firing of Arizona U.S. Attorney Paul Charlton. Charlton became a vocal critic of this policy following a plea bargain in a brutal murder investigation. Apparently the F.B.I. believes that recordings would dissuade suspects from talking and reveal interrogation practices that may adversely affect jurors’ perceptions of the process. When an accused claims his confession has been obtained involuntarily he can seek to have a court suppress it. If the judge rules that it is admissible then the accused can attempt to persuade the jury to ignore it as involuntarily given. Congress is now reviewing the F.B.I. policy.

While recording of such interviews has merit, presently the failure to do so does not rise to the level of a constitutional defect in the process. Nevertheless, the issue will ultimately be addressed by our Supreme Court if Hayes is convicted.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Troubled popstar/actress Lindsay Lohan met her Waterloo this week when Judge Marsha Revel sentenced her to ninety days in jail for violating her probation in two DUI cases. Judge Revel was unmoved by the actress’ tearful apology. Lohan went from childhood Disney star to posterchild for booze and drug addled celebs. Her ninety days of soulful retrospection at the “greybar hotel” will be followed by another 90 days in a rehab facility.

Criminal sentences have multiple purposes. Punishment is central to most sentences, especially when incarceration is mandated. Deterrence is important. Criminal sentences have to serve as a message to others that this type of behavior is not tolerated in a law abiding society. In Lohan’s case the judge had to consider the legion of impressionable youngsters who follow this Diva’s career. No matter how penitent she appeared or the progress that she appears to have made in battling her addictions, there had to be consequences for her unwillingness to follow the rules set down by her probation. How does Judge Revel or any other judge respond to the next offending youngster whose lawyer points to Lohan’s antics and argues for yet another chance? My wife has this thing about people, in her words, always “getting a pass.” She thinks, and rightly so as the mother of five, that there should be accountability. apparently so does Judge Revel.

An article that appeared after her court appearance actually focused on some not so subtle message displayed on Lohan’s manicured nails at the sentencing. A celebrity manicurist noted that kids are now going to go crazy following this trend. If her fingernail message can have such a potential widespread effect you can understand why the judge felt that her refusal to follow the rules could go viral as well.

Rehabilitation is also a primary goal of criminal sentences. For first offenders, unless the conduct is extreme, rehabilitation becomes the primary goal. Probation is a privilege. It is an opportunity to demonstrate that the offender “gets it.” In some instances merely having the potential for prison hanging like the Sword of Damocles is enough. Probation means that a court has sentenced a defendant to jail time but suspends the execution of the sentence for some period of time while the offender is monitored. With limited budgets and overwhelming caseloads, probation officers everywhere struggle to help young offenders find the right path. In this economy there are fewer programs available to aid offenders in reforming their behavior. If Lohan was allowed to break the rules without consequences, regardless of the validity of her excuses, those among her followers who embrace her “bad girl” ways would likely do the same.

Punishment in our criminal courts is usually progressive. First offenders generally get a break. Many times people who have violated the terms of their probation are even cut some slack by the next judge. At some point, however the system has had enough. Jail follows. With each offense the likelihood of jail and the extent of the time increases. Someone on probation who is arrested for a subsequent offense faces the prospect of a separate prosecution for violation of probation. A separate arrest warrant is obtained with an additional request for bail. Even if the individual is ultimately acquitted of the crime that precipitated the violation, that person can be found in violation of their probation. The level of proof needed to prove a violation of probation is significantly less than that needed to get a conviction of the underlying offense. Probation cases require proof by a mere preponderance of evidence compared to the proof beyond a reasonable doubt standard for criminal trials.

In our state there is an unwritten rule of thumb in probation violation cases. Plea bargains start with the state looking for the imposition of 50% of the suspended sentence, with additional jail time for the new offense. In those instances where there has been a minimal violation but with a sincere effort to rectify that violation judges can be persuaded to give the offender another chance; but not with a world of Twitter followers like in Lohan’s case.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com