Due Process

How does a lawyer defend the seemingly indefensible?  We are committed to the concept that everyone is entitled to the fullest protections of the law.  Ensuring the constitutional rights of the guilty protects the l rights of all citizens. These are lofty concepts; but then there is reality. So how do we sleep at night?

The range of crimes we see runs from minor, victimless misconduct to despicable acts that have occasioned great harm on others. This column has discussed in the past that as defenders of criminals, lawyers are not advocates of crime. Each of us has our means of detaching ourselves from the apparent pain and loss of victims and their families. It would be impossible to focus on the task of providing a defense if we did not. That is not to say that we don’t feel that anguish and respect those who have been victimized. As defenders we have to balance those personal feelings against the task we have agreed to accept.

Defending homicides cases most times challenges that balance. On one end of the spectrum there is the vehicular homicide, where there was no alcohol involved. Some average, decent person violates the rules of the road—speeding, running a light—and another dies in the accident. The charge is a misdemeanor, negligent homicide. In most instances the defendant is a decent person with no criminal background and who never intended to take a life. The lawyer’s role, in most of these cases, focuses on convincing the judge of the remorse of the accused.

The heinous homicide is at the opposite end of that spectrum. There is generally a clear intent to cause harm, often with little redeeming about the client. That case challenges a lawyer’s dedication to ideals. Grisly crime scene photographs and the senseless loss of life are not lost on the defender. The Cheshire homicide trial unfolding in New Haven is a prime example.

Much has been reported surrounding the gruesome details of a horrific crime. So how do these lawyers try to provide a defense? In the first instance the lawyer’s role is to objectively weigh the merits of the state’s case and advise the client whether a trial or a plea bargain is in the client’s interests. It has been reported that these defendants expressed a willingness to plead guilty in exchange for life imprisonment. The state insisted upon seeking the death penalty, and this the trial will go forward.

In a recent appearance on Good Morning America I was asked to speculate on what defenses would be advanced in the Cheshire trial. The separate trials, coupled with the news reports that one of the accused had told an interviewer that he only assaulted the doctor but stood by, “frozen” as his companion committed the murders, suggest he intends to advance what is euphemistically referred to as “the other dude did it defense.”

Connecticut law recognizes the defense of being a “passive participant” in a crime. In other words, the defendant who was present at the crime claims he did not intend the criminal act nor participate in the conduct. That defense can lead to an acquittal. It is a difficult, fact driven defense. The horrid nature of the crime too often so inflames a jury to such an extent that they cannot see how another could stand by without interceding. In addition, most often the only evidence of passive participation depends on the credibility of the defendant asserting it. In our parlance, the defendant raising this defense is “playing for the fumbles,” with little chance of success.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

As the trial slowly grinds through the seeming tedium of jury selection the immediate issues are the guilt or innocence of the accused, and perhaps whether they live or die. But there are major subplots that will play out in that New Haven courthouse. They will not be obvious to the jurors or the casual spectators; but these subplots may forever reshape Connecticut’s criminal justice process.

Dr. Petit has made clear his belief that the process is broken. On behalf of victims and their families he has voiced a need for swifter resolution of criminal cases. The Sixth Amendment to the Constitution guarantees an accused the right to a speedy trial. Victims have no such guarantees. They are players in a drama directed by others. Their continued and endless angst is the collateral damage of the right our Constitution guarantees an accused.

Delay is seemingly insidious, but it is a creature of necessity. The extreme sanction of death demands that a reasoning and moral society approach its deliberation with calm and careful consideration of all issues. Victims’ families rightfully cry that their loved ones were not afforded due process, nor any opportunity for salvation. But the actions of those who can be moved to murder should not be the benchmark that guides society’s response.

Consider the impact two long trials, marked by months of jury selection, will have on the future of our individual voir dire process. For decades, the judiciary and the legislature have fought trial lawyers to eliminate the individual voir dire, certainly for the 35 years I have practiced. Our state stands alone in affording all litigants, those accused of crime and those seeking civil redress, with this right. It is guaranteed by our state Constitution and thus can only be abridged by constitutional amendment. Judicial economy or expediency have never prevailed in the attacks on this process. The agenda of the judiciary is seeking greater efficiency in the trial process. The average voter would not be motivated by that to support a constitutional amendment.

But what if there are two long trials, in succession, each entailing 4-6 months in the jury selection process? If, at the end, these men are convicted and sentenced to die, what has such an expenditure of judicial resources accomplished? Yes, due process has been served, at least in theory; but has it been served in reality? The fear that is percolating among the criminal defense bar is that these cases will provide the final impetus for the people of this to react on a grass roots level, and repeal this constitutional right. Disgust for a system that spends so much time to simply set the battlefield could certainly awaken otherwise apathetic voters.

But what if at the end either of these men is acquitted or spared the death penalty? Keep in mind that separate trials encompassing two rounds of jury selection, evidence and (0n conviction) penalty hearings may take the better part of two years. The resources needed to complete these cases will have placed an enormous financial burden on an already underfunded justice system. Law libraries have been closed, employees furloughed and judicial vacancies will not be filled because of the lack of funding. The legislature attempted the repeal of capital punishment in the last term for this very reason, only to have our lame duck governor veto the act. Many believe if the state fails to obtain this penalty in cases that on their face appear to cry out for extreme justice, this will signal the final demise of the death penalty in this state.

It has been repeatedly reported that the defendants have expressed a willingness to enter guilty pleas in exchange for life sentences without parole. It has also been prominently reported that the state will not agree, apparently in deference to the wishes of Dr. Petit. One cannot fault this man for seeking the same sanction that was visited on his innocent family. I am no proponent of capital punishment but would feel no differently than him if my family had suffered this way.

Yes the system seems broken but two protracted trials will only widen the breach. Other families and defendants will remain in queue because their trials cannot proceed as long as all of these attorneys and this judge are directed at this case.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

Jury selection began this week in the trial of Steven Hayes one of two men charged in the brutal deaths of Jennifer Hawke-Petit and her two daughters in 2007. The process, known as voir dire, is slated to take 4-6 months. A jury of 12 regular members and 4 alternates will eventually be seated to hear the evidence scheduled to begin on September 13th. Two additional potential alternates will be selected in the event that any of the others are unable to attend the commencement of evidence. Those extra alternates will be discharged at the start of the evidence.

The trial of Hayes has been severed from that of his co-defendant, Joshua Komisarjevsky. The defendants have mutually exclusive defenses that cannot be presented to a single jury in a joint trial- the “other dude did it” defense. It is expected that Komisarjevsky will claim that he was merely present and participated in the assault of Dr. Petit but not the rapes and murders. Efforts were considered to impanel two separate juries that would sit in tandem and hear most of the evidence together. In that instance the juries would be excluded from testimony that pertained to one of the two accused but not the other. Deliberations would be separate, as would the verdicts. This process has been followed in other states. There is an economy of effort, avoiding the duplicate presentation of evidence. The stress on the family of the victims would obviously be less with a singe trial.

Unfortunately, this state does not possess a courtroom that could accommodate 36 jurors. The alternative is separate trials. What makes this more onerous is the prospective length of each  trial. In capital cases jury selection proceeds slowly. Each juror is questioned by the lawyers in the absence of the other panel members. Connecticut is unique in that we are the only state that permits this individual voir dire. Efforts have been expended for decades to eliminate and streamline this process. Many believe that this trial may be the death knell of the individual voir dire.

By contrast, in the federal court, a large panel is assembled in the courtroom and in most instances the trial judge puts a series of questions to the entire group. The lawyers present proposed questions to the judge and are granted the opportunity to individually question jurors whose responses are concerning. That examination is either handled at a side bar conference or a separate anteroom adjacent to the courtroom.

In controversial federal cases lawyers will prepare jury questionnaires that are propounded to the prospective panel well in advance of jury selection. The lawyers then have the opportunity to advance arguments to excuse some of those jurors in advance of the actual voir dire. In the trial of former Mayor Joe Ganim we utilized such a questionnaire to whittle a panel of over 150 to a manageable number that were brought to the courtroom. Jury selection was completed in one day.

Connecticut’s one day jury service policy militates against this. Each day begins the same, with a smaller panel, 20-30 jurors. Court begins at 10:00 with the introduction of the lawyers and naming of witnesses. The Court gives a preliminary charge informing jurors of the nature of the charges. The Court then entertains issues such as hardships and travel plans that would prohibit someone from serving. Individual questioning does not begin until about 11. A careful capital questioning takes about one hour for each party.

In this case there are two major issues that will consume the lawyers and add to the length of voir dire. There has been massive pre-trial publicity. That requires careful examination to determine whether the juror can still be impartial and open minded. In such a case it would be unusual to find someone who had no prior knowledge of the case.

The second issue is finding “death qualified” jurors. A death qualified juror is one who is not so opposed to the death penalty on moral or religious grounds, that they would not be able to return a verdict of death in an appropriate case. One who is a proponent of capital punishment may serve as long as they convince the Court that they are capable of also considering life imprisonment as an alternative to death.

The net effect is that most death qualified juries tend to be weighted heavily in favor of the death penalty.

Lawyers will attempt to plant seeds of defense or doubt as well as attempting to condition jurors to keep an open mind on penalty if guilt is found.  The judge will not allow the lawyers to propound hypothetical questions that mirror the anticipated evidence in an effort to reveal how a juror would react to that hypothetical. Questions are limited to those that expose bias or lack of impartiality. The trial judge in a capital case will give the lawyers wide latitude because of the extreme penalties involved.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

The Connecticut Post reported three tragedies this past week. One was the shooting death of a popular court clerk. Her husband is charged with her death, and a surviving child has to grope with horrific grief. In another case a 77 year old well respected member of the Hispanic community apparently shot his 65 year old wife multiple times and then turned the gun on himself. Their lifeless bodies were found in a car in a local commuter lot. The separate obituary for the wife was a tear provoking tribute by loving children for a wonderful mother. The last story was a young Turkish immigrant released on bond from his second domestic violence arrest against his wife who returned home, murdered her then turned the weapon on himself. In each instance, friends, family and neighbors struggle to understand how this could happen.

Domestic violence (known in the courts as DV cases) continues to challenge the criminal justice system. In the recent past the state created its system of what it calls “Vertical Prosecution.” Prior to that DV offenders came and went through an endless revolving courthouse door. Little heed could be paid to whether these people were multiple offenders. In a busy Geographical Area courthouse, with over 100 cases on an arraignment docket and an overtaxed and underfunded staff, it was not always possible to research past incidents between the same couple that were the focus of an arrest for disorderly conduct, breach of the peace or a misdemeanor assault.

In fact, it wasn’t until 1983 when Tracy Thurman obtained a two million dollar civil verdict against the Torrington Police Department for failing to protect her from an abusive husband, that the system woke up and realized more had to be done to recognize the potential for serious harm in the loving relationship now gone sour.  Thurman successfully claimed that the police had a policy of not arresting suspected abusive husbands and boyfriends that failed to accord victims of apparent domestic violence the same protections as victims of unrelated assailants.

The system is much improved now. Vertical prosecution in the larger courthouses means the same team of prosecutors and staff assigned to the domestic docket.  Defendants appear each time before the same judge. Repeat offenders are quickly recognized and their conduct is monitored as the cases proceed. Prosecutors often attempt to divert first offenders to anger management and other intense therapy programs. Repeat offenders face substantial increase in penalties. This effort is aimed at ending the revolving door that had been the previous hallmark of the ongoing domestic dispute. Even these improvements can only do so much.

A defendant must appear before the very next session of the court following an arrest. In every other criminal arrest when a defendant is able to post bond that initial court appearance does not occur for one to two weeks. In DV cases a family relations officer interviews the parties and recommends either a partial or full protective order. The partial order prohibits further physical or sexual assaults or restraints but allows contact. The full order banishes the offender from the home and away from the victim.  Once issued it requires the offender to surrender any weapons. Violations of the order are not tolerated and harshly punished. Victim Advocates are made available to the complainant to provide a voice and explain the process.

There was a protective order in effect for the latest victim mentioned above. That order allows police to act immediately to seize the offender who appears to violate that order and it appears the West Haven Police were trying to find him. Unfortunately that piece of paper can neither stop one hell bent on murder or the bullet that he fired.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

In our previous segments we discussed the role of an expert and the court’s gatekeeper function.  Typically jurors think of experts as highly educated with complex technical expertise. In most instances that is correct; but not in all cases. To qualify to give an “expert” opinion the witness need only possess more knowledge about a given subject than the average juror. In the Joe Pesci comedy, My Cousin Vinny. Marisa Tomei plays the Brooklyn born girlfriend of Pesci who accompanies him to Alabama to defend his cousin for a murder. Tomei is the daughter of a mechanic, raised in a garage, and is offered as an expert in general automotive science to prove that the car driven by the murderer could not have been Vinny’s cousin’s. Although a comical rendition, this can occur in a courtroom. Sometimes, the “blue collar” expert, relates better to the jury.

Preliminary to seeking the “expert’s” opinion an attorney must lay a foundation by eliciting the witness’ qualifications, education, training, and experience. The lawyer will focus the expert on the facts of the case at hand and eventually seek an opinion. Often, opposing counsel objects to the witness’ qualifications.

In a wrongful death case involving a collision between my client’s motorcycle and a truck pulling a horse trailer, the defense hired an engineer with a doctorate in mechanical engineering. His opinion is that the bike caused the collision because of excessive speed. A thorough exploration of his background revealed that he has no formal training in accident reconstruction but rather has concentrated his teaching career in nuclear design. The doctor presents an authoritative manner, but in reality knows little more than the average person on the issue of motorcycle collisions. The defense counters that formal training in the field of accident reconstruction isn’t necessary and that any issue in that regards goes to the weight the jury should assign to the testimony.

Certain types of cases require expert opinion. For example, in this state a lawyer may not institute a medical malpractice case without possessing a report from a similarly trained expert that details the specific violations of the medical standards of care. In addition, to qualify to testify in a malpractice case that expert has to possess credentials similar to those of the defendant health care provider, and must have either practiced or taught in that field within 5 years of the alleged malpractice.

Courts will not allow an expert to give an opinion on what is described as the “ultimate facts in issue.” The danger in allowing the expert to go that far is that the jury will not make an independent assessment of the expert opinion but will rather blindly accept it, and feel bound to take the opinion as fact. There is a distinction.

Jurors are instructed that they are not bound to accept an expert’s opinion regardless of how qualified the expert is or how authoritative the expert appears to be. Despite having little knowledge of the complex subject jurors are free to reject an expert’s opinion.

A danger trial lawyers face in presenting complex scientific evidence is avoiding allowing the case to become an esoteric debate between competing experts. When the debate becomes highly technical the risk is that jurors will simply turn off to the discussion and decide the case on other grounds, or ignore the expert debate altogether.

A skill that trial lawyers develop is the ability to understand the science of a case and lay it out in a common sense layman’s approach to guide the jury.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

The judicial system received sad news this weekend as a good friend and a good judge died. Gerry Esposito was the type of judge you would hope to come before when you represented someone who had made mistakes in life, but had redeeming qualities. He was a judge of the people. There was no pretense about this man. Too many lawyers when they are elevated to the bench become very full of themselves. My Dad used to say that they sprouted wings. Gerry started his career as a prosecutor in Derby in the lower court; not the most glamorous venue in the state. Gerry fit that place. He was a working man’s prosecutor and became a working man’s judge. His counterpart in that jurisdiction had a crusty disposition and a reputation for being tough (sometimes too tough) on crime. Gerry, in contrast, warmly greeted lawyers and was always willing to listen. Make no mistake, he was not a softie. He ably, and at the appropriate time, aggressively represented the state; but he had a sense of compassion. He brought that same sense of compassion to the bench. I had the privilege of appearing before him as a judge on a complex personal injury claim. He never practiced personal injury law. The young lawyer opposing me seemed intimidated in the courtroom. Gerry called a recess after his ruling against her and called us both into chambers. He regaled her with his favorite spiel he would give any time I appeared in a case with him. He would talk about my dad, the wise old sage, and my son, Mike, the  legal star in the making, and then he would break it off on me. This young lawyer didn’t know what to make of that. I did; Gerry was my friend. This was his playful manner. He disarmed pretentious lawyers with this style. He could bring the biggest egos down to the size of the rest of us mortals with his wry wit. He offered to conduct a settlement conference on our case and gave his off the cuff opinion of value. Neither of us liked that number and the following year when the jury returned its verdict that was exactly what they awarded. Gerry came from immigrant roots. He was fluent in Italian and you often heard him speaking it around the courthouse. As a judge he seemed to attract assignments to far off venues and last was sitting in Torrington in the Juvenile Court. Some judges perceive that type of assignment as purgatory; not Gerry. That was a place where a man like this could quietly do a great deal of good. He was preparing to retire when a massive coronary felled him.  The Chief Justice should require all of the new judicial appointees to become familiar with how this man approached his position; they would learn humility and what a true sense of justice is.

Last column we discussed the role that experts play in litigation.  Because “expert testimony” can be especially persuasive the trial judge must decide whether a witness possesses the qualifications to give seemingly authoritative opinions. In addition, the judge sometimes must determine that the “science” the witness will discuss is legitimate or junk science. The United States Supreme Court has described the trial judge in this circumstance as a “gatekeeper.”

In 1997 our Supreme Court adopted this requirement in State v. Porter. “[T]he judge’s role is to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value.” The judge must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and whether that reasoning or methodology can be applied to the facts in issue.”

Expert testimony is admissible when (1) the expert is qualified to testify competently regarding the issue; (2) the methodology by which the expert reaches his conclusion is sufficiently reliable; and (3) the testimony assists the jury to understand the evidence through the application of scientific, technical, or specialized expertise.

One inquiry must focus upon the expert’s principles and methodology, not on his conclusions. The proffered expert testimony must be “scientific,” that is, that it pertains to “scientific knowledge” and is based upon a scientific methodology.  The judge should rule out testimony based upon “subjective belief or unsupported speculation.” An expert’s bare assurance of validity is insufficient to allow his opinions to proceed to the jury.  Rather, the party presenting the expert must be able to show that the expert’s findings are based on sound science, which requires some objective, independent validation of the expert’s methodology.

Porter, identified several factors a judge should consider in deciding whether the evidence is reliable, including:

(1) whether the scientific theory or principle has gained general acceptance; (2) whether it has been tested and subject to peer review; (3) the known or potential rate of error; (4) the extent to which the theory or principle relies on the testifying expert’s subjective interpretation and judgment, rather than objectively verifiable criteria; and (5) the theory or principle has been developed and implemented for in-court use or for non technical purposes.

The desire for expert testimony has created a “cottage industry” in the law: expert referral services. Many of these services produce witnesses with lofty credentials who are no more than “hired guns,” willing to attest to anything tangentially related to their field, for a price. Every expert examination begins with the lawyer laying a foundation through the expert’s testimony describing the witness’ education and training.  A dazzling recitation of post-graduate degrees, academic honors and professional societies can be deceiving.

For example, I recently tried a wrongful death case involving a collision between my client’s motorcycle and a truck pulling a horse trailer. The defense hired a professional engineer with a doctorate in mechanical engineering. His opinion is that the bike caused the collision because of excessive speed. A thorough exploration of his background revealed that he has no formal training in accident reconstruction but rather has concentrated his teaching career in nuclear design. The “expert” presented an authoritative manner, but in reality knew little more than the average person on the issue of motorcycle collisions.

An expert must be more than a highly educated person, but rather someone whose training and education has focused on the reliable scientific information on the issue at hand.

Next: What Experts Can and Cannot Tell Juries

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

Expert witnesses are required in complex litigation where issues arise beyond the common knowledge jurors share. Complex criminal and personal injury cases, commercial and construction disputes are some of the varied legal controversies that require the use of expert witnesses. The party offering such testimony must prove that the witness is qualified under Connecticut Rules of Evidence, by demonstrating that the witness possesses special knowledge as to the very matter on which he proposes to give an opinion.

Our Supreme Court has observed that, “[t]he true test of admissibility of expert testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.”

The expert must have a special skill or knowledge, beyond the knowledge of the average juror, directly applicable to the matters specifically in issue.  Merely being highly educated is not sufficient to qualify as an expert. Expertise in one field does not justify opinions on countless other matters.

In one criminal trial the court excluded the testimony of a physical anthropologist on the issue of identification. The proffered expert’s methodology was essentially to take photographs of the defendant in a similar manner as those taken during a bank robbery, and juxtapose his photographs with the surveillance photographs.  Based on that comparison the expert was prepared to testify that the defendant was not the individual in the surveillance photographs.  The Court excluded the expert’s opinion despite the proof of his credentials in anthropology because he lacked expertise in photographic analysis, a separate field. One may be expert for one purpose but not possess the requisite qualifications for all purposes that the testimony is offered.

In medical and dental malpractice cases experts are required to prove violations of the applicable standards of care and the causal link to the plaintiff’s injuries. To qualify the expert must meet very strict standards established by statute. Thus, a doctor trained in one specialty does not necessarily possess the requisite qualifications to testify on all aspects of medicine, but, rather, must be what the law describes as a “similar health care provider”:

“If the defendant is a specialist certified by the appropriate American specialty board, is trained and experienced in a medical specialty, or holds himself out as a specialist, a similar health care provider is someone: 1. trained and experienced in the same specialty and 2. certified by the appropriate American board in the same specialty (if the defendant’s treatment or diagnosis is outside his specialty, a specialist trained in treating or diagnosing that condition is considered a similar health care provider). For other defendants (e. g. , non-specialists), a similar health care provider is someone: 1. licensed by the appropriate regulatory agency of Connecticut or another state requiring the same or greater qualifications, 2. trained and experienced in the same discipline or school of practice, and 3. with five year of active practice or medical teaching prior to the incident that gave rise to the claim.”

Judges will allow testimony if the expert has sufficient training, experience, and knowledge because of his practice or teaching in a related field of medicine for at least five years before the incident that is the basis of the claim.

Next: The trial judge as “gatekeeper” on the offer of expert testimony.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.