Due Process

Raise your hand if you have never heard a lawyer joke. I thought so; no takers. Lawyers have been the leading butt of humor on the internet. Every cocktail party I have ever attended had its share of lawyer jokes or some character complaining how his lawyer screwed him. We are viewed as a necessary evil; but an evil nonetheless.

I grew up around the law. When I was 8 my Dad, then a full time Bridgeport cop, was schlepping his way to West Hartford every weeknight to UCONN Law School for evening classes. He did that for four tough years because to him there was no nobler profession. His sacrifice and drive is what inspired me. There is a nobility in what lawyers do. I am proud to say that. Without access to our courts we would still be settling disputes with sticks and clubs.

People commit crimes. Innocent people are wrongly accused. They get into car accidents. Their marriages fall apart. They make mistakes that put at risk all they own. They suffer injury because of another’s neglect. They are wrongfully terminated from their jobs. Their rights under some contract are ignored or violated by the other party. The list of reasons why we need lawyers is limitless.

Lawyers are problem solvers. People come to us in crisis and hope we have answers. There are no ready made solutions. There is no treatise we turn to to guide us in the tactical decisions we make and the recommendations we give to clients. We are taught to investigate and analyze facts.

Chief among the profession are the trial lawyers. Our art is in how those facts are presented. Like any artist we start with the rawest of materials: a jumble of information and emotions from our needy clients. We have to sift through all that to find what is relevant and then decide a course of action. These decisions are honed after years of experience using the instincts we have developed through our schooling and work life.

Once we have charted a course of action we need to put it into play. In civil cases we have to frame what the claim will be that is filed in court. In criminal cases we focus on what defenses may exist. Next we have to build facts; not theory and supposition. Facts that will allow 6 or 12 ordinary people on a jury to draw reasonable inferences that we hope will support what we are trying to prove.

We have to follow strict rules of evidence that exist to guarantee an orderly presentation of facts. The rules are complex and at times work against the lawyer, as judges will exclude offered evidence if it is not presented in conformity with all the rules. Trying a case is like a writing a play. There have to be moments that engage the listeners. There has to be some drama. There has to be a plot, or theme to the case. A lawyer doesn’t just throw those jumbled facts against the wall and hope something sticks. The facts must fit the theme; build on it so the conclusion becomes apparent to our “audience.”

The summation pulls these sometimes divergent facts together. Most courts permit only one hour unless the case is exceedingly complex. In that hour we get to speak directly to our jurors; to implore them to understand the play we have just directed. This is no place for the timid. Lawyers must exude confidence and inspire listeners. We seek to rally support among the jurors. In criminal cases sometimes we may reach only one or two. We pray they have the strength of character and will to stick to their positions in the deliberation room

Then we wait. Sometimes we wait for days. We watch the clock. We engage in chit chat with court personnel and often our opponents. We wonder who is the foreperson of the jury. Was that the juror who we thought appeared receptive to the evidence we presented or was closely following the summation? Inevitably there is a some note from the jury raising a question on the court’s instructions or seeking a read back of some testimony. Both sides parse out each word in that note. We watch for some sign as the jurors file out; some revelation that we are ahead on points. Did juror number 1 smile? Did I see a little nod from juror number 6? Why are they so sullen looking? Every body gesture, every face is studied. We are all praying for some sign that we may be winning. Of course there are no signs. Reading jurors during deliberation is like reading tea leaves.

The anxiety from jury deliberation is heightened in a criminal case. Civil cases are about money. Criminal cases are about a person’s liberty. When people ask me what it feels like to be a lawyer I tell them about something I studied in college as a philosophy student. It was an ancient story that existed in many cultures, called the Myth of the Year King. Each year the villagers would select a “king” who would be revered, wined and dined for that year. At the end of the cycle they would heap all of their problems on the Year King and then sacrifice him, hoping to appease their Gods and end whatever their sorrows were.

Lawyers are the modern day Year Kings. We absorb life’s problems. We try to solve them, but sometimes the burden destroys us as well. Think of that the next time someone asks, “Did you hear the one about two lawyers….”

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 the jury in James Botti’s federal criminal trial settles in to the task of deliberating his future I am reminded of Peggy Lee, the old torch singer from the 1950’s, who recorded the existentialist ballad, “Is that all there is?” The haunting lyrics reflected an almost fatalistic pessimism about life.

“Is that all there is, is that all there is? If that’s all there is my friends then let’s keep dancing. Let’s break out the booze and have a ball. If that’s all there is.”

So after years of investigation and months of build up, is that really all there is to the Botti corruption investigation? What of all the speculation that Mayor Mark Lauretti would be unveiled as another in the long line of public officials that have painted Connecticut as “Corrupticut”? What line do people like Monty Blakeman and Robert Scinto get in to reclaim their reputations that have been sullied by inference?

Was this really a corruption investigation or some private vendetta by a few disgruntled people in Shelton who didn’t get what they were looking for or had a different political allegiance?

“If that’s all there is then let’s keep dancing.”

Will there be other indictments? Is the government going to keep dancing? If not, then why not, given the tenor of the Government’s claims about Botti’s “purchase” of influence.

And what of Shelton; a town that rose from sleepy middle class suburb to a hub of commercial development that matched its rapid affluent population increase? How do such allegations affect a town’s ability to continue to attract developers? The Route 8 corridor was a natural for commercial development as the suburban population growth moved north. But do developers now shy away from pitching projects here for fear that they will be whispered about and cast as villains?

“Let’s break out the booze, and have a ball.”

Regardless of Botti’s fate, the larger questions remain unanswered. Even if this jury is persuaded of his guilt beyond a reasonable doubt will it end here? This seemed like hardly the test case to float to see if a jury would believe that Lauretti’s administration is tainted. That is especially so where the case seemed to hinge on whether you believed that Botti’s claims of influence buying were real, as the government contended, or overblown puffery, as the defense maintained.

Are these questions going to be answered or are we all going to join in when Peggy Lee sings:

“And so I sat there watching the marvelous spectacle.
I had the feeling that something was missing.
I don’t know what, but when it was over,
I said to myself, “is that all there is . . .?”

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.

This column has discussed in the past the work of the Innocence Project in freeing wrongly convicted defendants. Nationally, over 250 inmates have been exonerated, many after decades in prison. But not all the work of vindicating the wrongly convicted has fallen to the lawyers from the Innocence Project. Connecticut recognizes the right for an inmate to challenge a conviction on the grounds of actual innocence, long after any appeals have failed.

The legal remedy sought is the issuance of a Writ of Habeas Corpus, loosely translated from Latin as “Let us have the body.” It has been called the Great Writ. It’s origin dates back to the English Common Law. It is an order of the court commanding that a prisoner is to be brought before the court to determine whether or not his confinement is legal. It has been afforded constitutional protection under Article I, Section 9, clause 2 of the Constitution, which states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The right to the Great Writ has been suspended only twice in our history; the first time by Abraham Lincoln in 1861 during the Civil War. George Bush suspended the Writ in 2006 as it applied to enemy combatants. allowing for the unlimited detention of suspected terrorists without access to lawyers or trials, and without formal charges being lodged.

Habeas attacks on convictions are not uncommon. There are prescribed rules that govern their applicability. One cannot bypass the route of a direct appeal in filing an application for Habeas relief. Direct appeals review facts and rulings that are apparent in the trial court record. When there are issues that require an adjudication of facts outside the trial record Habeas proceedings allow a petitioner to present testimony to support the claim for relief. The Writ is abused more than it is rightly sought. Many disgruntled defendants have sought to challenge their convictions on the grounds that their attorneys were ineffective. The vast majority of those claims are no more than “sour grapes”–when all else has failed blame the lawyer.

But there are cases where the system has broken down and innocent people have been wrongfully convicted. The burden of proof rests on the inmate; and the burden is exceedingly heavy. Last week two men convicted 16 years ago succeeded in satisfying that burden. In a scathing decision Superior Court Judge Stanley Fuger ordered two the two men freed. George Gould and Ronald Taylor were junkies and thieves with lengthy criminal histories. In 1996 they were charged with the execution like slaying of the owner of a Fair Haven bodega.

Their convictions rested on the testimony of another junkie, Doreen Stiles. Lawyers for the two men presented that witness who now has recanted her earlier testimony. The law does not favor recantations. Most are viewed skeptically by Habeas courts. The great difficulty stems from the inability to assess which version by the recanting witness should be believed. In the usual Habeas trial the court has only a sterile transcript of the earlier testimony. Those factors that permit a jury to judge credibility are missing. Without seeing a witness’ demeanor and manner of responding it is impossible. Judge Fuger, however, was presented with the unusual circumstance that Stiles’ earlier testimony had been videotaped. She was ill and unable to attend the earlier trial. Thus, not only was she now saying her earlier testimony was perjured but the judge was able to compare the manner in which she testified on both occasions. His clear conclusion was that she was now finally telling the truth.

What is more perturbing is her claim that the investigating detectives bought her perjured testimony by taking her to buy drugs. The prosecutor has moved for an emergency hearing before the Appellate Court to block the immediate release of these men. His efforts may be better spent investigating whether two officers sworn to uphold the law have committed the greater sin of abusing their power to circumvent the law.

Domestic violence is at the forefront of legislative news in Connecticut. Hearings are being held on ways to ensure the safety of victims of pending cases. The recent killings of a court clerk at her home in Bridgeport and a murder suicide in West Haven have brought a stark focus to the dilemma of protecting victims of relationships gone bad who are at risk for repeated violence. One of the more controversial proposals seeks to require defendants in pending cases to submit to GPS monitoring.

There can be no argument that domestic violence is epidemic. Efforts at protecting potential victims as well as controlling abusers have increased in recent years. Many organizations have been created, devoted to promoting awareness and advocating for victims.

Typically one accused of a domestic violence crime, regardless of whether there is serious injury or merely the threat of it, is required to appear at the next session of the court. A representative of the Family Relations office interviews the accused and the purported victim and provides input to the prosecutor and the judge. A criminal protective order is issued. Depending upon the seriousness of the acts alleged and the attitude of the complainant, it may be either a full protective order– requiring the defendant to remain at least 100 yards from the victim and to have no contact– or a partial protective order, which would allow contact but prohibit any threats or violent conduct. The protective order gives police the instant authority to act if a potential confrontation erupts from a violation of the order. In addition, violating a criminal protective order is, in itself, a serious crime.

While a protective order may work in many cases, a piece of paper can’t stop a knife or a bullet and one bent on violence. Advocates of abused spouses and domestic partners have called for stronger measures to attempt to ensure safety. GPS monitoring would alert police if a defendant violates the 100 yard restriction,allowing them the instant opportunity to take the offender back into custody. The issue is whether the intrusion into the privacy of one cloaked with the presumption of innocence is constitutionally warranted.

George Orwell in his classic 1984 foretold of a world where Big Brother was always watching and monitoring. Individual freedom and thought was sacrificed for what was perceived to be the greater good of society. Opponents of GPS argue that tracking the movements of one merely accused of crime intrudes on the freedoms guaranteed by the First Amendment. Proponents claim that this intrusion is minimal when contrasted with the injuries or loss of life of their loved ones who were victims of multiple violent acts committed by one already on bond. In emotionally charged prosecutions the concept of innocent until proven guilty is significantly blurred. Domestic violence and sexual crimes highlight this. Who has the greater rights at stake: the victim of crime or the one accused?

Electronic monitoring of pre-trial defendants is not a new concept. Many defense counsel have argued for lower bail for clients who are willing to wear an electronic monitoring device to ensure home confinement while awaiting trial. Some jurisdictions, in particular the federal criminal courts, will employ electronic monitoring to ensure home confinement as part of a split sentence imposed following a conviction. In each of those instances the defendant welcomes the opportunity to be released from custody at the cost of this intrusion on personal privacy.

Whatever side of the debate one is on there is one thing that is clear, the present system does not work all the time. Protective orders are to meant to limit the opportunity for emotions and violence to escalate. Whether an ankle bracelet is more effective than a piece of paper in stopping a bullet remains to be seen.

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 trial of Shelton developer James Botti continues in New Haven federal court. Botti is charged with bribery, conspiracy and mail fraud. At the center of the Government’s case is the claim that Botti bestowed gratuities on public officials in Shelton, principally Mayor Mark Lauretti.

New Haven veteran trial attorney, Willie Dow, represents Botti. Dow is no stranger to public corruption cases. He successfully brokered a plea deal for John Rowland, helping the former Gov avoid a Ganim-esque lengthy prison sentence. In this case he represents the alleged gift giver, not the recipient.

Bribery, like ballroom dancing, requires two people. You can’t bribe yourself. Essentially, the crime requires proof that something of value was given in exchange for consideration by the recipient. In the law we refer to that exchange as a quid pro quo, Latin for “this for that.” Merely providing a gift to a public official with nothing expected in return doesn’t rise to the level of a federal bribe. If it did then every President who ever accepted a replica football jersey from the Super Bowl winners would be serving time in the federal pokey.

Most governmental entities have ethics rules. In Connecticut the need for clear-cut ethical guidelines on gifts became apparent after the Ganim case in 2003. Mayors and Governors, like state representatives and senators, are frequently the object of the largesse by lobbyists. The Ganim case was defended on the theory that there was no brightline guidance on when a politician can accept a gratuity. The jury in that case set the bar, however; rejecting the argument that the gifts given to Bridgeport’s Mayor represented general gratuities not tied to specific projects. (Full disclosure: I was Joe Ganim’s lead counsel.)

That case followed the Department of Justice playbook for prosecuting politicians. It followed closely on the heels of the successful prosecution of former Providence mayor, Buddy Cianci. The feds began each case by “flipping” potential witnesses close to the mayors. In the typical investigation evidence is compiled on these possible “co-conspirators.” With enough evidence to indict the target is then persuaded (”flipped” as we say in the law business) to trade cooperation for leniency. Add a few thousand wiretapped conversations, a little “quid pro quo” and “voila!” you have a bribery indictment of a public official.

The Botti case doesn’t fit the corruption playbook; a fact not lost on lawyer Dow. Now, every trial lawyer loves a good theme in a case –something to resonate with the jurors as the trial progresses. For Johnny Cochran and O.J. it was, “If it doesn’t fit, you must acquit!” Dow’s mantra is words to the effect of, “Do you see Mark Lauretti sitting in this courtroom?” As mantras go that one gets the point across. If this is truly public corruption why hasn’t the mayor been charged? It’s a question that jurors will have to ponder. Does it rise to the level of a defense for Jim Botti? That one will have to be answered by the verdict.

The real question is does it make sense? What does the government gain by trying Botti without formally charging Lauretti? Why expose their evidence in a potential future corruption indictment of the public official? If they have provable evidence of corruption in Shelton why let a cagey trial lawyer like Willie Dow create credibility issues with witnesses who may later form the core of that prosecution?

With Cianci, Ganim and Rowland, the government offered leniency to the gift givers in exchange for the bigger prize: the public official. They followed the playbook and won. It remains to be seen if this different approach carries the day. Maybe you can win Dancing with the Stars without a dance partner!!

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.

DNA evidence has now become the definitive means of identification. The number of people exonerated after a wrongful conviction has reached more than 250. Was it cause for celebration or lament? Certainly the efforts of groups like Barry Scheck’s Innocence Project should celebrate their achievements in finally obtaining justice for persons who have languished in despair in prison, many on death row, wrongly convicted for crimes they did not commit. Decades and lives have been lost in the interim. Now a group of lawyers from the Connecticut Innocence Project are examining the conviction of Erik Rasmussen in the 1988 slaying of his wife.
These are cases where biological samples were preserved, samples obtained, in most instances, before the advent of DNA testing. The science has matured and with it a powerful tool has emerged. DNA now provides a means for law enforcement to solve otherwise cold cases.

When an individual is arrested he is required to submit to photographing and fingerprinting. Those mug shots and prints become part of a database available to law enforcement, not only in the case under investigation, but also for future investigations. It is what the law refers to as non-testimonial evidence; that is, evidence obtained in a manner that does not violate an accused’s Fifth Amendment right to not incriminate one’s self.
When a case commences the state can seek to compel an accused to provide other types of non-testimonial evidence, such as handwriting exemplars or swabs for DNA testing.

If you are believed to be operating a vehicle while impaired police have the right to request a blood, breath or urine sample to test for the presence of alcohol or drugs. They cannot compel it, but the penalties for refusing to submit can keep an operator off the highway for a substantial time.

DNA samples are collected in a non-invasive manner. A buccal swab can be obtained with less inconvenience than obtaining a throat culture in your doctor’s office. In reality there is no real difference between the collection of DNA and fingerprinting an accused.

In a country that exalts individual liberty we resist any attempt by our government to catalogue us without our consent. Police departments offer fingerprinting services to parents in the event a child is abducted. We all have social security numbers, We need driver’s licenses to operate a vehicle. We save our banking and credit card information on computer databases to accommodate online shopping. A macabre entrepreneur in Iraq is now offering tattooing so that future maimed victims of suicide bombers can be more readily identified.

Would some of those 250 newly exonerated defendants have avoided conviction if the law had mandated collection of DNA? Perhaps, for those of more recent vintage. But civil libertarians point out that in instances where DNA can exonerate, an accused can voluntarily submit to DNA testing, and obtain the same result.

Pet owners can have identification chips implanted in the family dog or cat. Is it just a matter of time before we do the same for newborns? I don’t believe that mandatory DNA collection rises to that level, but George Orwell may have had a point after all.

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.

“If it doesn’t fit you must acquit!” That mantra has taken on iconic status since it was spoken in September 1995 by the late Johnny Cochran in the now infamous trial of O.J. Simpson. I can still see Simpson standing there, arm raised,that quizzical look on his face as he tried to fit the shrunken leather glove on his hand. That moment is a classic in the annals of courtroom history. It established Cochran as a superstar and branded prosecutors, Marcia Clark and Chris Darden, with the stamp of legal ineptitude. Even more so, it has left a generation of lawyers searching for the next spell-binding catch phrase that would cut through months of evidence and propel a jury to an acquittal.

I have to confess I’m one of those lawyers who has searched for that magical phrase. Cochran’s intonation was like a secret hypnotic. As I say it to myself now I can see the tableau: Judge Ito (who never got his own “People’s Court” type show) looking down at a befuddled Clark and Darden–those two wondering if they would be working at a car wash after one of the greatest classic legal tactical blunders of all time; Cochran, oozing class, imploring the jury to remember O.J. vainly trying to put on the so-called bloody glove; and the Juice sitting there, doing his best to look innocent.

O.J. is in the news again.This time the Juice isn’t on trial for the umpteenth time; but he is dealing still with the courts. Seems there is a battle over the suit he wore when the jury acquitted him of the murders of Nicole Brown and Ronald Goldman. The Goldman family has dogged Simpson ever since a civil jury awarded damages to Nicole’s estate. Her father has fought a Jihad-like battle to corral Simpson assets. Now the controversy surrounds who owns the suit. The verdict: it will be donated to the Smithsonian Institute in the names of Nicole and Ron. The lawyers have argued that it is a significant piece of legal Americana.

It is still questionable whether the Smithsonian will want it. One thing is certain, having seen enough of O.J. in courtrooms over the last 15 years: the suit, like the damned glove, isn’t going to fit.

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.