Due Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week Governor Rell signed a landmark patient’s rights bill, requiring disclosure of medical errors. The new law gives patients access to information compiled by the department of Public Health on adverse events reported by hospitals or surgical centers. While a great step forward in protecting patients by insuring that adverse events are not withheld from public scrutiny, the law doesn’t go far enough. Adverse events that occur in a hospital or surgical clinic are a fraction of mal-occurrences that can lead to potential malpractice actions.

Medical and dental errors that occur in the confines of a doctor’s office will not be affected by this new law. A major focus of my practice is representing plaintiffs in dental malpractice cases. With the exception of oral surgery, most adverse dental events occur in a practitioner’s office. There is no peer review committee to review such events. If patients do not file complaints with the Department of Public Health (DPH) or engage a lawyer to investigate a possible malpractice lawsuit, there is no independent review of a dentist’s actions.

Since 1986 the legislature has continued to address how malpractice cases are filed. Plaintiffs are now required to append to the civil complaint an unsigned copy of a report from a similar health care provider, setting forth, in detail, the basis for the claims of malpractice. This requires that the plaintiff commit to a theory of his or her case before having an opportunity to depose the target health provider. Plaintiffs’ experts are often hamstrung in their review by a paucity of information contained in a medical or dental record. The new law will aid potential plaintiffs by the required disclosure of adverse events.

The new law also mandates mediation in all medical and dental negligence actions that are filed after the effective date of July 1st. While laudable, the act will have little impact on the course of malpractice actions. I have always been a proponent of mediation as a vehicle to bring two motivated litigants together to settle their dispute. The key to successful mediation is that both parties must approach mediation in the hope of achieving a fair settlement.

Medical and dental malpractice insurance policies all contain a “consent to settle” clause. Regardless of the merit of the claim, defense attorneys and claims handlers are powerless to negotiate a settlement unless the doctor consents in writing. It is the rare case where a practitioner is willing to concede a mistake early on in litigation. There are too many potential adverse consequences that health providers fear. Cases that are settled are reported to DPH and a national database. In some instances, the provider can be subject to disciplinary action and, in the extreme, loss of insurance. Those cases that do settle do so only after there has been a thorough discovery by each party of the opinions of experts.

In those instances where a defendant doctor has consented to settle, we approach mediation very seriously. In order for the mediator to effectively guide the parties a thorough synopsis of the case and the claims of malpractice and damages is necessary. In our office we prepare a detailed mediation position statement to educate our mediator on the elements of our case. It is time intensive. In those instances where there is a sincere effort by the defense to discuss settlement it is well worth the investment of the attorney’s time. In addition, plaintiffs’ expectations are heightened when mediation is suggested.

The mandatory mediation required by this new law is a “toothless tiger.” It does not mandate that the health professional consent to settle. It contains no adverse consequences for the health provider who stubbornly refuses to mediate and settle a meritorious claim. While a step in the right direction, the new law will only be effective if there is a disincentive for those who refuse to participate.

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