Due Process

The United States Supreme Court is about to decide an important segment of the continuing debate on gun control. At issue is whether the individual states, and by extension municipal and county legislative bodies, have the right to restrict or ban weapons. The constitutional impediment stems from the Second Amendment. That Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

That Amendment was created at a time when a “well regulated militia” had formed the heart of America’s effort to be free of British colonial rule. The debate is whether it has any relevance today. Gun enthusiasts have argued consistently that the Amendment guarantees the right of all citizens to lawfully carry firearms. The controversy has endured in the judicial arena and has spawned considerable constitutional debate.

In 2008 the Supreme Court struck down a ban on hand guns contained in the Firearms Control Regulations Act of 1975, in District of Columbia v. Heller. That law prohibited residents of the District of Columbia from possessing firearms unless they were grandfathered in before the effective date or were retired law enforcement. In 2002 a group of D.C. citizens brought a lawsuit challenging the constitutionality of that law. The Supreme Court ruled that in the context of federal firearms regulation the Second Amendment, “protects an individual right to keep and bear arms.” This right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” As to the restricted context of a citizen militia the Court stated: “the activities [the Second Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The court concluded that handguns are “Arms” described by the Amendment and thus may not be banned. The Court also indicated that Second Amendment rights are subject to reasonable restrictions.

An issue left open by that decision was whether it is restricted to federal legislation only, or applies in a broader context to any state or local legislation. The issue may appear to be a distinction without a difference but implicates the crucial constitutional question of states’ rights to make laws.

Chicago had passed legislation mandating registration of firearms. A series of lawsuits were brought challenging the laws on Second Amendment grounds entitled Chicago v. McDonald. The district court ruled in favor of the City, rejecting the constitutional challenge. The case was affirmed on appeal by the 7th Circuit Court of Appeals. The Supreme Court has granted certiorari. Once again proponents and opponents of gun control are marshaling their arguments. One such group is the Anti-Defamation League (ADL). The have filed an Amicus Curiae (Latin for “friend of the Court”) brief. An Amicus brief permits non-parties who have a legitimate interest to advance arguments to the Court in addition to those of the litigants. In any important public policy litigation the Court will generally allow these non-party interests to be heard.

The ADL argues that reasonable restrictions on the right to bear arms prevent extremists and hate mongers from access to guns. More importantly that brief debunks the argument that such restrictions will mean that only criminals will have guns. The case will be argued on what appears to the lay reader as arcane constitutional issues dealing with standards of review and which provision of the Constitution should prevail. The greater implication is whether the Supreme Court will provide guidance to local governments to allow these bodies to continue to develop laws that allow for the right of citizens to bear arms while, more importantly, protecting us all from the harm unregulated guns can wreak.

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 second trial of Shelton developer, James Botti, began with jury selection this week. Each side announced its potential witnesses. Prominent on the list was Shelton Mayor, Mark Lauretti. Several news reports have indicated that Lauretti is alleged to be the public official at the core of Botti’s charges.

Lauretti may or may not be called as a witness by one side or the other. The fact that his name appears on a witness list does not mean he will actually testify. Routinely we inform potential jurors, not only who will be called as a witness, but also those whose names may be mentioned in the testimony of others. Informing the jury panel of the Mayor’s name served the purpose of insuring that no one claiming familiarity with him will be selected to serve. It is not an indictment of him. That is an important distinction for the public to grasp.

Including Lauretti’s name on a list, and news leaks that he is believed to have been implicated in some scheme, put him at a decided disadvantage. He is a public figure, and one who has successfully served as Shelton’s mayor for many years. He has presided over a period of substantial commercial development that has taken Shelton from a sleepy suburb to a thriving community. He has not been indicted and charged with any crime. Despite rumor and suspicion, if the government had reasonable grounds to believe that this man violated the law there would be no hesitation in prosecuting him; after all they have been investigating Botti for six years according to news reports. The fact that they have not done so speaks volumes to those who understand how this system works.

What is decidedly unfair is if this trial is turned into a trial of Lauretti, either in the courtroom or in the press. At the core of our system of justice is that everyone accused of wrongdoing has the right to publicly defend himself in a speedy trial accompanied by a panoply of constitutional rights under the Sixth Amendment. Among those rights are the opportunity to confront one’s accusers (cross examine the witnesses  against you) and the right to compulsory process (the issuance of subpoenas to force witnesses to come forward and provide evidence).

If Mark Lauretti is unfairly dragged into Botti’s trial he will be afforded none of those rights. Botti’s jury will return no verdict against him but he will be exposed to damage to his reputation in the court of public opinion. 

It is laudable if the government has determined that it could not prove any wrongdoing against the Mayor by the necessary quantum of proof– proof beyond a reasonable doubt. Indictments are based on a much smaller measure of proof; what the law refers to as a “scintilla of evidence” called probable cause. Indicting in a situation where the prosecutor knows the evidence won’t meet his trial burden would be a perversion of the prosecutor’s duties.

Rich Meehan defended Bridgeport Mayor, Joseph Ganim in his corruption trial. He 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 national news today reports that the shooting death of a 52 year old former Olympic medalist, Dave Laut, has led to the arrest of his wife. That he was an Olympic medalist in the past is noteworthy; that he was shot and killed by a spouse is not that remarkable. Too many marriages end in violent tragedy.

Jane Laut was arrested and charged with murder. Her lawyer, Ron Bamieh, immediately issued a statement that she ADMITS to the killing. Wait a minute!! Aren’t lawyers supposed to deny their client’s culpability? Don’t lawyers obfuscate and confuse so the truth is lost somewhere? You are probably thinking, “With lawyers like this who needs the prosecutor!?” Lawyer Ron is not off his legal rocker, nor is he committing legal malpractice. Shrewdly, he has reacted to set the stage for a battered wife self-defense.

Universally the laws in this country recognize the affirmative defense of self-defense. One is permitted to use reasonable force, even deadly force, to protect yourself, and others. Generally, most self-defense statutes have core requirements. First, there must be a reasonable belief that force is about to be used against you. If you perceive that deadly force is about to be used then you may respond by using deadly force. Measuring that belief requires defendants, in almost all circumstances, to testify. Lawyer Ron has simply set the table early.

The law also requires in most instances that you must first retreat to a barrier; that is, don’t shoot if you can run away or hide. The use of force must be a reasonable reaction to an immediate threat. One can’t be confronted with possible violence, escape it and then later think about coming back to fight back. This is the issue that arises in most battered spouse defenses. Did she shoot when immediately confronted with impending harm, or did she simply tire of the beatings and decide to finally fight back? The former is self-defense; the latter is murder.

How does a jury gauge what is a reasonable reaction to impending deadly force? Does the law require that to legally shoot an assailant one must wait until he is just about to pull the trigger? Is it enough if he simply says he is going to shoot, but displays no weapon? How about if he is reaching into his coat as he is voicing the same threat? There is no hard and fast rule. Juries are instructed that it isn’t their belief that governs but what they conclude the defendant’s belief was at the time of the confrontation. That is, what is a “reasonable belief” of impending harm is measured by jurors putting themselves in the defendant’s place at the time of the incident.

Oliver Wendell Holmes, the noted Supreme Court Justice and legal scholar, once wrote, “Detached reflection cannot be demanded  in the face of an upturned knife.” Calm reflection in the jury deliberation room, distant from the threat, isn’t the guide. Lawyers, like this one, need to reconstruct the scenario in such vivid, dramatic fashion, that a reasonable juror would say, “I would have shot, too.”

Or as the famed trial lawyer, Gerry Spence, is rumored to have once said, “Some people just need killing.”

It’s not vigilante justice; it is a reflexive reaction to perceived harm triggered by our instinctive fight or flight response.

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.

Marcus S. was 19 when he stabbed his father to death in his bed. He was found wandering, nearly catatonic, in the driveway of the family home. Marcus’ mother was a dynamic woman who had been crippled by disease and had taken her own life days before. Marcus, later diagnosed as a paranoid schizophrenic, in a state of delusion, believed that his father had been responsible for his mother’s death and  planned to kill him next.

When I met Marcus days later he was virtually uncommunicative. I retained the former director of the psychiatric facility then located at Fairfield Hills Hospital in Newtown, the late Dr. Robert Miller. Marcus was charged with murder; our defense was  legal insanity. Eventually, the prosecutor reduced the charge to manslaughter in the first degree. After a trial to the Court Marcus was found not guilty by reason of insanity (NGRI) and committed to the custody of the Psychiatric Security Review Board (PSRB). He was sent to Whiting Forensic Institute, the state’s secure psychiatric hospital in Middletown. He resides there today.

The insanity defense has ancient roots. Under the common law it was referred to as the McNaughton Rule. In 1843 Daniel McNaughton was tried for murder in England. The British Court established the defense of insanity: “…it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”

That rule has been codified by statute in Connecticut. An accused qualifies for the defense if he suffers from a mental disease or defect (i.e., brain damage) such that he is either (1.) unable to distinguish right from wrong; or (2.) conform his conduct to the requirements of the law. If successful that defense does not guarantee freedom; rather, it involves a process to evaluate the current condition of the acquitee. The goal is twofold: treatment for the mental disease or defect; and protection of the community.

Traditionally, the defense has been difficult to sell to juries. For decades jurors were not told of the probable outcome of such a verdict. As such, many were reluctant to make this finding for fear that a murderer or other criminal would walk free. Eventually Connecticut required judges to instruct jurors that this was not the case. Nonetheless, jurors perceive that an insanity acquittal is tantamount to forgiving heinous crime. When John Hinckley shot President Reagan his assertion of the insanity defense nearly caused the demise of that defense.

Now, on a finding of NGRI the acquittee is subjected to an intense psychiatric evaluation to determine if he still suffers from mental disease or defect, and is either a danger to himself or to others. A report is made back to the Court and after a hearing the Court can commit the acquittee to the custody of the PSRB for a period as long as the maximum penalty for the underlying crime. The PSRB orders periodic evaluations and conducts hearings once every two years to monitor the status of the acquittee. The PSRB carefully evaluates the mental status and propensity for violence of those in its charge. If an acquittee is approaching the end of his or her commitment the PSRB possesses the authority to extend the commitment to protect either the acquittee or the community.

Marcus’ original commitment expired in 1999 but he remains psychotic and continues in the custody of the PSRB today. Treatment provided to today’s acquittees does have the goal of rehabilitation, as well as protection of society. Gone are the days of Willowbrook in New York, where the mentally disabled were often forgotten. Today, despite severe funding shortages, dedicated mental health professionals provide treatment under difficult conditions.

This week Marcus appears before the PSRB for his biennial review. He remains mentally ill and will probably never be released. His illness was responsible for his father’s death, not his conscious mind. I recall examining the crime scene and finding his 6th grade school photo. There he was a delightful looking youngster filled with promise. It was a drastic contrast to the catatonic killer I first met. Today he tries to understand what propelled him to commit patricide. It will be a lifelong struggle.

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 debate over capping damages in medical malpractice cases was ratcheted up this week with a controversial new court decision. Doctors and lawyers have squared off over the issue of whether juries and verdicts are spiraling our of control. Lawyers argue that caps harm injured plaintiffs; while the doctors claim that excessive verdicts have driven up the cost of health insurance and medical care in general. They claim that overly generous juries force them to practice what they refer to as “defensive medicine,” ordering uneeded tests to protect their backsides from aggressive patients who they believe are only waiting to sue them.

This past week the Illinois Supreme Court upheld a lower court decision finding that Illinois’s statute capping non-economic damages in medical malpractice cases is unconstitutional.  In 2006 Frances Lebron sued Gottlieb Memorial Hospital on behalf of her daughter Abigail who had suffered brain damage during a hospital procedure. Illinois’ legislature had passed a statute limiting non-economic damages to $500,000.00.

In personal injury and malpractice cases there are two categories of damages: economic loss and non-economic loss.Economic loss represents the hard dollars in the cost of past and future medical treatment and lost earnings suffered as a consequence of negligence. Those damages are readily provable and easy for a jury to comprehend and compute.

Non-economic damages represent the intangible effects of an injury. Injured parties may be compensated for permanent impairment– the whole or partial loss of use of a bodily function. Using guidelines published by the American Medical Association physicians can objectively measure the percentage of loss or impairment as a result of an injury. Typically medical-legal reports written by doctors will refer to such a loss, for example with a low back injury, as 25% impairment of the lumbar spine. In that instance, the doctor has evaluated the loss of range of motion and the resulting pain, and using the published guide, translated that into the percentage loss as compared to a fully functional person. In our example, the injured party has only 75% of the full lower back function of a normal individual. Jurors are then asked to assign a dollar value to that.

The other major intangible component of non-economic loss is the value of pain and suffering and emotional distress. It is subjective, and often jurors feel they have little guidance in computing this. The only real guide given by courts is that such damages must be fair and reasonable. That may seem to be vague but it represents a time honored concept that juries should weigh each individual case based on the facts, and are in the best position to gauge the value of this loss.

By their nature these components of non-economic loss are fact specific. No two cases are alike. For that reason no arbitrary value should be assigned to all cases. While proponents of tort reform decry run away verdicts, the real truth is that they are few and far between. When juries award millions of dollars they are evaluating horrific personal loss for that individual plaintiff. It isn’t the Lotto. Those verdicts reflect the serious residual effects of devastating injuries, taking into account the age of the injured party, the extent of that person’s projected life, and the daily pain and anguish visited on that person through another’s neglect. For that reason there should not be a cookie cutter cap applied to all cases. Someone permanently brain damaged at age 20 with a 53 year projected life expectancy should be entitled to far greater compensation than a 60 year-old who suffers the same injury; yet that is what artificial caps on damages do.

The Illinois court reasoned that the legislative cap on damages violates the separation of powers doctrine which is at the underpinnings of state and federal constitutions. Judges possess the inherent power to review jury verdicts in light of the evidence to determine if the verdict is excessive. In that event a judge can order a remittitur; that is, reduction of the award. The Illinois court determined that the statute capping damages acted essentially as a “legislative remittitur” and thus encroached on the “inherent authority of the judiciary.”

Proponents of tort reform in that state are already critical of the decision. Doctors cry that unbridled damages verdicts have unfairly led to a large increases in the cost of malpractice insurance. Not true! Malpractice is what accounts for those verdicts. Malpractice is what drives the cost of that insurance. If a health professional fails to adhere to the established standards of care they should not be bailed out by legislative fiats.

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.

Two weeks ago as the court system was bracing for the start of jury selection in the Cheshire home invasion case I was sitting in my office. My secretary buzzed me and matter of factly said, “Ashleigh Banfield on line 1.” I had met Ashleigh three years ago. She was an anchor co-hosting the afternoon segment of CourtTV with Jack Ford. I had been doing legal analysis as a guest talking head for CourtTV when I got a call from her producer inviting me on the show. I was thrilled. Like so many I had become a huge fan of Ashleigh after her heroic work reporting as the twin towers collapsed. It vaulted her on to the national scene. I followed her career on MSNBC and had been anxious to meet her.

Over the years I had been privileged to get to know her during repeat appearances on CourtTV.  Ashleigh called because she was on the way to New Haven to cover the jury selection and was looking for some local background. CourtTV (now TruTV) had shut down its New York operation in November of last year and its remaining anchors, including Ashleigh had been set adrift. I was thrilled to hear that she had signed on with ABC to report for Good Morning America and 20/20. Later that day one of the booking producers for GMA called and invited me to appear the next morning as a guest to discuss the upcoming jury selection in the Hayes murder trial.

It was decided that they would come to my home in Shelton for a live remote. I was told to expect the satellite truck around 5:00AM!! They came early. There I was at 4:30 making coffee for the camera crew as they converted my living room into a mini-TV studio for a three minute live shot that was to kick off at 7:30. I was called the night before by one of the script writers for a pre-interview interview. We discussed the case and settled on three questions for Robin Roberts to ask me. The writer reminded me that the segment was 3 minutes and would bump up against a hard break– a commercial segment that could not be delayed. After years of CourtTV I had mastered the short answer.

It was quite a production. My 18 year old son, Richie, has been accepted into the film studies program at the University of Tampa for the fall so he stayed home to observe.

The segment started with a lead-in from Ashleigh, live from New Haven. I was thrilled because this was her first report since joining ABC. Following that Robin Roberts came to me. Now doing live TV is disconcerting. There is no forgiveness. When I did appear on CourtTV I was usually in a satellite studio on a different floor from the host. There was a monitor that allowed me to not only view the trial testimony but see the host as well. Seeing the person you are speaking to makes the conversation flow seamlessly.

For GMA there wasn’t a two way feed. They (and their 7 million viewers) could see me but I could not see Robin. She was great. The conversation went as planned; and to the viewer it appeared to be spontaneous because Robin is such a pro. That day, and for days after I heard from friends and colleagues. People called from all of the country to congratulate me. It was totally different from my CourtTV days. I enjoyed my experience on CourtTV but next to GMA it seemed like “Mass for the shut ins”. No one ever mentioned in passing that they had been channel surfing and caught my appearance on those programs. In fact, even my wife and kids stopped watching. My only loyal fan was my mother. GMA is a whole other deal! They even put my segment on their website.

http://abcnews.go.com/video/playerindex?id=9610556

Ashleigh sent me a text message congratulating me. The next week they called again. I wasn’t available; but I was thrilled that I was on their list of legal analysts.

This past week my wife and I escaped down to our house in Port Charlotte, Florida for 5 days of sunshine (unfortunately, it rained for 4) to escape this cold winter. Steven Hayes decided to try to kill himself that week and GMA came calling again.  This time it was to be a live remote from Florida. That morning at 4:15 I heard the beeping as the satellite truck was backing up in front of my house, God these people get up early! The night before I had to run out and buy a blue blazer for the shoot. Once again it was Ashleigh’s lead in and then a chat with Robin.

Here’s the link to that piece:

http://abcnews.go.com/GMA/accused-connecticut-killer-coma-reported-suicide-attempt/story?id=9724004.

I could really get used to this, if they would only sleep a little later!!

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.

Steven Hayes, presently on trial for the murders of the Petit family in the Cheshire home invasion case, apparently wanted to short circuit the process that is seeking his execution. This weekend it was reported that Hayes had attempted suicide. It was speculated that Hayes had been faking taking medication prescribed for him, stockpiling it for his attempted grand exit. Hayes is no stranger to suicide attempts, having failed in one last year. He was purportedly on a suicide watch. I don’t know what the Corrections people were watching but they missed this one–big time.

The irony, lost on no one, is that as a civilized society we reserve to ourselves the right to kill in retribution for murder. If an accused wants to end his own life every modern medical means will be pursued to revive him. In this case Hayes was placed in a medically induced coma. His trial has been suspended awaiting the outcome of treatment.

His is not a unique situation. There are many reported cases of death row suicide attempts that have been thwarted. In addition, if a death row inmate becomes mentally incompetent his execution is delayed. Forced treatment is imposed, including psychotropic drugs, to restore his mental competence so he clearly understands that he is being executed.

That one in particular gets me. I understand why every effort is expended to revive one who is only accused, and not yet convicted, of a capital crime. After all, the system is built on the concept of innocent until proven guilty, even in the most heinous of crimes.

There is now uncertainty in the progress of Hayes trial which is in its third week of jury selection. Should Hayes survive, the next issue will be whether he has sustained any cognitive damage that would impede his ability to participate in his defense. The law provides that if an accused is unable to understand the nature of the proceedings or assist his attorney in his defense because of a mental disease or defect, the court must evaluate his competency before the case can proceed.

Either the prosecutor or defense attorney can raised the issue of competency at any time in the process, including, as in this case, in the middle of jury selection. The judge also possesses the authority to order a competency evaluation on his own motion.

Once the process is invoked the case is suspended and the accused is sent for a psychiatric evaluation. A report is due back to the court within 45 days and a hearing is then held. If the Court finds, based on the expert evaluation, that the accused is competent then the case proceeds. In this case if that process is invoked jury selection will likely remain suspended. The evidence in this trial is not slated to commence until mid-September. Four jurors have been chosen so far. A hiatus of several months would not necessitate a mistrial.

In the ordinary criminal trial, where evidence immediately follows jury selection, a court would most probably enter a mistrial. The chosen jurors would be released and the process would start from its inception, once competency is achieved. Of course, the possibility exists that the accused will be found incompetent after evaluation. In that instance, a court will order a mistrial and the accused will be sent for treatment in an effort to restore him.

Treatment efforts can continue up to the limit of the prison term for the crime or 18 months, whichever is less. If, in that time, the defendant is not restored, then the prosecutor can enter a nolle prosequi (Latin for “I chose not to prosecute”) or the court can enter a dismissal. In either event, if the defendant does become competent at a later date he can be rearrested so long as the statute of limitations has not expired. There is no statute of limitations for murder. For most other crimes it is 5 years from the date of the event. Double jeopardy does not attach in this instance since there has not been a factual adjudication,

If the defendant continues to be incompetent and the charges are dismissed he is not released into the community. Rather, that defendant then goes through the civil commitment process and can continue to be held in a secure psychiatric facility, indefinitely.

A major issue for the Petit family has been the delay in these cases coming to trial and the time these two trials will take. With the delay this suicide attempt may occasion there will be even more heartache as they wait for justice.