Due Process

The criminal justice system in Connecticut is working to protect the rights of victims in many ways. In recent months the spotlight has been focused on additional protections for victims of domestic violence. But, in 1996 this state passed a constitutional amendment giving victims a voice. Known as the Victim’s Rights Amendment, it elevated victims to the status of active participant rather than passive observer. But how much real input do victims have?

First there must be an understanding of the manner in which the overwhelming number of criminal cases are disposed. Out of necessity, most criminal cases result in guilty pleas; however, defendants won’t simply throw themselves on the mercy of the court. That would be legal suicide. Prosecutors and defense counsel meet and discuss potential resolution of cases with a pragmatic eye toward early disposition. It benefits the accused; it benefits the state; and it benefits victims.

So what role should a victim expect? That question was answered by our Supreme Court in a decision to be released next Tuesday. The case is State v. Derek Thomas. Thomas was accused of repeated sexual encounters with a 15 year old victim. The victim had apparently demonstrated concern for the accused and had communicated some willingness to implore the court to be lenient. In plea discussions the state indicated that it would recommend a sentence of ten years suspended after the defendant served five years followed by probation. The charge of sexual assault in the second degree carries a mandatory minimum sentence of at least 9 months the execution of which cannot be suspended. The presiding judge participated in the plea discussions.

Our state system differs significantly from the federal system. By rule in the federal system a judge cannot participate in the plea discussions. Bargains are struck between prosecution and defense and the accused is made aware that the judge is not bound to accept what the lawyers have forged. In our state court, largely because of the unwieldy number of cases, our judges will participate in plea discussions in what are called pre-trial conferences. These do not occur on the record. As a practical matter the lawyers and the judge have to be able to speak freely and openly without fear that the press or others will repeat the talks that are aimed at seeking a resolution. If no common ground is reached conducting these talks in public could result in information being publicized that would severely impede the defendant’s ability to get a fair trial.

To some this appears to be a closed door, secretive process where back room deals are bartered. It is not. Often disputed facts peculiar to a case need to be hashed out in an informal atmosphere. Judges act as true mediators. Lawyers propose possible scenarios with the caveat that they have to ultimately get the authority of the client to bind the deal. For the state the victim’s attitude must be explored.

Before the 1996 amendment victims found themselves learning after the fact that their case was over. Too often they felt abused by the apparent secrecy of the plea bargain process. That all changed. Victims now have the right to be informed of potential plea bargains before they are completed. They have the right to be present and speak at the plea and sentencing hearings.

In the Thomas case the judge agreed to consider a lesser sentence of 5 years suspended after 1 year, and ordered a pre-sentence investigation. The probation department reported that the young victim had changed her attitude and now wanted Thomas jailed for 100 years! The judge, impressed by her concerns, was no longer willing to impose the more lenient term; and, Thomas was given the option to withdraw his guilty plea. He took an appeal claiming that double jeopardy had attached when the court accepted the initial guilty plea. The Supreme Court disagreed. The decision, authored by Chief Justice Chase Rogers, rejected the jeopardy argument. What was of greater importance was the sentencing judge’s decision to honor the change of heart of the young victim.

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

I had occasion last year to research the legal authority needed to officiate at a wedding. The occasion was my Godson’s impending wedding. He and his bride-to-be reside in Philadelphia. Shortly after the engagement my nephew, Rick, called to ask if I would perform the ceremony. Of course, I was flattered by the request, but the problem was whether I had the right to preside over the ceremony. The plan was to marry in Philly.

Lawyers are Commissioners of the Superior Court in Connecticut. While that sounds pretty lofty, the office has only limited powers. We can administer oaths and issue subpoenas and legal process, like law suit summonses. Could I perform a wedding? The short answer, at least in Connecticut, was no. One must be an ordained cleric or a Justice of the Peace; I was neither. I researched creative ways to try to accomplish this. I had no intention of subscribing to some internet quickie ordination with some fringe religious sect. In this age of enlightened social compacts with domestic partnerships, civil unions and same sex marriages, there had to be a way to honor my nephew’s request.

Like any good lawyer, I turned to the law books for Pennsylvania. Fortunately, no trip to a law library in Pa. was necessary thanks to the internet research tools provided by Lexis/Nexis. To my surprise I learned that Pennsylvania was unique among the states. Pa. is known as the Quaker State, not so named because they loved oatmeal or motor oil, but because the founding fathers were Quakers, seeking an asylum where they could practice their religion freely. What I learned is that Quakers do not have ministers or priests who preside over weddings. The community of Quakers is referred to as the Friends. In that community couples self-marry. They stand before the congregation and proclaim their vows. The community witnesses those vows and a valid, legally binding marriage is formed.

All that was required was that my nephew and his bride obtain a marriage license and declare their intentions before witnesses. I could “preside” over the service, not to make it official, but more in the nature of a master of ceremonies. That was exactly what we did on the steps of the Free Library in Philly.

I am happy to report that the young couple is thriving and happy. But now even the Quakers have been replaced as the most creative of weddings. Welcome to the age of the wedding robot. Seems like in this age of technology growing exponentially, a Japanese company has created the perfect non-denominational officiant–Mr. (or Ms.) Roboto! Reading this article in today’s Post brought to mind the 1973 Woody Allen classic film, Sleeper. There Allen takes the part of a robotic waiter. Seems like Woody was decades ahead of his time. I can only wonder what’s next, holograms and virtual wedding guests? Next there will be robot judges presiding over virtual divorces. Did George Orwell see any of this coming?

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

The Hartford Courant has reported on an opinion of the Connecticut Supreme Court that is scheduled to be released tomorrow. The case is novel in that it applies the law of equity to an increasingly growing social relationship– the live-in, unmarried couple. (For those of you playing along at home go to the following site and then scroll down and click on the link to Allstate Insurance v. Palumbo to read the opinion in its entirety: http://www.jud.ct.gov/external/supapp/archiveAROsup10.htm.) Allstate Insurance, the “good hands” people, successfully sued Stephen Palumbo to recover more than $60,000.00 that Allstate paid to Palumbo’s fiance to resolve a fire insurance claim.

Palumbo moved into the home of his fiance, Lisa Deveau, and agreed to share expenses with her. Forty years ago when my wife and I were engaged such an act would have been looked upon as “living in sin.” Today, it is not only socially acceptable but appears to be the preferred precursor to actually tying the knot permanently, especially in this age when failure in marriage is more common than success. Palumbo, being the handy sort, apparently wired a hot tub in the home incorrectly, leading to a fire in its heating element that caused extensive damage to the home. Allstate insured Ms. Deveau and paid the claim.

Deveau apparently forgave Palumbo, but Allstate had other thoughts. It started a lawsuit under a doctrine called “equitable subrogation.” Subrogation is a legal doctrine that allows an insurer to stand in the shoes of its insured after paying a claim, and bring suit against the offending party to recover what it has paid on the loss. So, Allstate becomes the alter ego of Deveau, and sues the fiance. Even in this age of relaxed social mores and evolving romantic relationships, starting down the path to marriage via a lawsuit is hardly a sound basis for success. I can’t imagine telling one of my grandchildren, “Back when we were engaged Grandma sued Papa!”

I won’t bore you with the legal details, but suffice it to say that the trial judge bought into Allstate’s theory and returned a verdict against the well-meaning, but electricity challenged fiance. A panel of three judges in Connecticut’s Appellate Court agreed with the trial judge. The case wound up before our Supreme Court and Justice Joette Katz. Justice Katz recognized what had eluded the four judges before her, equity means a court can do the right thing! In the first appeal the Appellate Court affirmed the verdict but the Supreme Court, led by Justice Katz, reversed the decision and returned the case to the trial court with the direction to enter a verdict for the defendant.

I knew Justice Katz when she was an assistant in the Bridgeport Public Defender’s Office and then as a trial judge. Not only was she a bright and insightful lawyer, but someone who saw the practical implications of what judges decide.

Courts exercise strict judicial principles in many instances but when a party brings an action that invokes the court’s equity powers that party is asking a judge to look beyond the strict application of the law and do what is right under the circumstances. Justice Katz did just that, ‘‘The object of [equitable] subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it. . . . “

Too often in the law we “pigeon-hole” people or issues. Katz refused to “. . . assign the relationship to whichever category is the closest fit to determine whether subrogation is proper.” The couple were not married nor was this a true landlord and tenant situation. It simply didn’t fit a recognized pigeon-hole. So Justice Katz did what we hope judges will do– what she thought was the right thing.

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

When I first began to practice law there was a court reporter in New Haven, an elderly gentleman, who took down the court proceedings, verbatim, in long hand, using a fountain pen. Granted he was probably using shorthand, a technique which has also probably gone the way of the dodo, but nonetheless remarkable even in that low tech era.

Courtrooms were festooned with pictures of old Yankee judges, looking austere and formidable, most dead at least a century or more. Courtrooms looked like scenery from the Scopes “Monkey” trial, in the era of Clarence Darrow and Oliver Wendell Holmes. There was this aura of ancient majesty and formal dignity that pervaded the courthouse.

Today our courtrooms are modern, somewhat sterile-looking structures. Gone are the dark wood paneling and heavy oak furniture. The old Yankees have been taken down and probably discarded, replaced by portraits of recently retired judges, men and women (there were no old Yankee women judges way back in the day). The old court reporter with his ancient fountain pen has been replaced by tape recorders and stenographers utilizing real time transcriptions. Lawyers and judges frequently refer to computer monitors in front of them.

In the gallery where the lawyers wait for cases to be called there is a flurry of finger tapping on Blackberries, IPhones and an assortment of PDA’s as emails. tweets, text messages bounce back and forth in the techno cosmos. We don’t try cases any longer without our computers. Power point presentations are de rigueur in final arguments. The law has come of age! I attended a proceeding as an observer this week where a colleague was about to cross-examine a witness. That witness is scheduled to testify in a matter I will be handling soon. As I sat in the gallery in court I was emailing suggested questions to my colleague. He would steal a glance at his PDA and posed my questions during his examination.

So now some character has appealed the revocation of his supervised release program because the judge in his case, then New York federal District Court Judge Denny Chin, used a Google-search of the internet in his consideration of the case.

The defendant, Anthony Bari, had done a bid in “Club Fed” for bank robbery. Seems like Mr. Bari had an affinity for other people’s money that he couldn’t control and was now on trial for violating the terms of his supervised release (the new equivalent of federal parole) accused of robbing another bank. Video footage captured an image of someone looking remarkably like Mr. Bari wearing a yellow rain hat. Coincidentally Bari owned the same type of hat. He claimed in his hearing that there was nothing unique about this particular hat, To confirm his suspicions Judge Chin turned to his computer and the Googled yellow rain hats. To “Google” has now becomea commonplace verb much like “xeroxing” something entered the lexicon. Bari complained that the Judge was utilizing information outside of the record of the evidence presented in court.

The Second Circuit Court of Appeals disagreed (for those playing along at home you can read the court opinion at United States v Bari, No. 09 1074-cr, 2010 WL 1006555 (2d Cir. Mar. 22, 2010)). Judges do not decide cases in a vacuum. They bring the knowledge gained from everyday life into the courtroom. The Appeals Court ruled that Judge Chin’s use of the internet was akin to taking Judicial notice of commonly known facts, which is permitted. Interestingly, cases have been reversed where it was later learned that jurors have done the same thing. We now routinely tell jurors that they cannot resort to the internet to research issues germane to the case. The great danger now that cell phones are allowed in our courthouses is that techno-savvy jurors will reach immediately for their smartphones at every recess to check out the facts, the lawyers, news reports about cases, etc..

There is a portrait of that old time court reporter hanging in the court house. Imagine the look on his face as he stares down at a room full of texters and tweeters madly working their thumbs. The law is going digital.

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

Walk the yard at any prison and poll the population. See how many really guilty people there are in the prison population. Most will tell you they were railroaded by some conspiracy among the prosecutor, the judge and most of all their lawyer. There are no guilty clients! Kennedy cousin, Michael Skakel is about to join that group.

Men and women convicted of serious crimes and sentenced to long terms of imprisonment have nothing but time on their hands. Time to reconsider the decisions they made in handling the case. Time to talk to the jailhouse lawyers that are everywhere in jails. Time to convince themselves that despite their actual guilt their shyster lawyer did them in.

That is the reality of being a criminal lawyer. When the jury rules against you and all appeals have failed then it’s time to blame the lawyers.

The Sixth Amendment requires that all accused of crime are entitled to the effective assistance of counsel throughout the adversary proceedings. This right attaches at the time of arrest and continues through the appeal stages. The United States Supreme Court established the gauge by which a lawyer’s effectiveness is to be measured to pass constitutional scrutiny.

In 1984 the Court handed down its decision in Strickland v. Washington. It isn’t important who Strickland was or why he complained. The Court recognized that an effective attorney is integral to the efficacy of the adversarial process. A two part standard was established. First, the petitioner must demonstrate that his counsel’s performance fell below an objective standard of reasonableness. Second, there must be reasonable probability that if the lawyer performed adequately the result would have been different.

The Sixth Amendment does not guarantee the best of all possible legal representation. It requires that the lawyer be held to the minimum standard that would be objectively acceptable to criminal lawyers. It is a difficult burden to establish. Rightly so. There must be finality to any litigation. The victims require it and a defendant needs to accept a final determination.

Robert Kennedy, Jr. is to be applauded for the support he has given to his cousin. Too often family ignore and forget loved ones in prison. He has made some very strong statements about the competence and character of Skakel’s trial counsel, Mickey Sherman. That Sherman was a TV celebrity was well known long before he was retained by Skakel.

The case was investigated by a one man Grand Jury, a lengthy process, long before Skakel was charged. Following his arrest Skakel made bond and the case moved slowly toward a trial. If Sherman’s representation was so constitutionally deficient and if he, as Kennedy charges, was more preoccupied with celebrity than trial preparation, then where was Kennedy and the rest of the family during all that time.

The Connecticut Supreme Court fueled the flames with critical comments in the decision that affirmed the denial of Skakel’s recent petition for new trial. The majority opinion and the dissent are longer than most murder mystery novels. Did that Court intend to establish that Sherman’s representation offended the Strickland standard? Hardly. Those comments are what are referred to in legal jargon as dicta. They are not rulings by the Court that would establish the Sixth Amendment violation about to be raised. They are legal asides and observations by those justices that have some relevance to the issue they were deciding, but will never be looked upon as binding legal conclusions that will guarantee Skakel the new trial he desperately seeks.

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