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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

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Paul Simon, the poet laureate of my generation, penned this phrase in his 1975 hit album of the same name. In 1843 Daniel McNaughton, in a misguided attempt to shoot Robert Peel the British Prime Minister, wounded his secretary, Edward Drummond, who died shortly after. The case spawned the first rules to apply when an accused claimed insanity as a defense to criminal conduct. The first pronouncement was, not surprisingly, known as the McNaughton Rules.

McNaughton was found “not guilty by reason of insanity” and ordered to a mental hospital for treatment. The theory behind the rule was that mental disease had robbed the accused of the ability to reason and distinguish right from wrong.

The House of Lords set forth the rule, first indicating that in criminal trials the sanity of the accused is presumed. A legal presumption requires a jury to first accept the premise as a fact. Presumptions are rebuttable, however. Under McNaughton, “the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of 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.”

Today the defense is codified in statutes in most states, particularly Connecticut. In recent news reports, attorneys for a man accused of murdering a Wesleyan University student have recently filed notice they intend to use the defense. Notice of the defense must be given to the prosecutor who then can seek an examination of the accused to rebut the defense.

Connecticut General Statutes, sec. 53a-13 provides: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

The burden of proving the defense and the nature of the proof needed are formidable tasks for an attorney. The defense will not apply where the mental deficiency results form the ingestion of alcohol or drugs. No will it apply to repeated anti-social behavior or compulsive gambling.

As an affirmative defense the burden rests upon the defendant to prove the defense by a preponderance of the evidence. Remember, in a criminal trial the state has the burden to prove guilt by proof beyond a reasonable doubt. In contrast, the “preponderance of the evidence” is a lesser standard which we see in civil trials. We illustrate the difference by asking jurors to imagine the scales of justice in equipoise, balanced equally. If a party tips the scales, even slightly, in its favor by its proof then it has satisfied the “preponderance” standard.

Until recent years Connecticut juries were never told the probable outcome of a verdict of Not Guilty by Reason of Insanity. They were left to speculate than an accused may end up walking the streets again. Now they are informed of the process of evaluation and commitment for treatment in a secure facility.

Release after such a finding has become increasingly more difficult. In 1975 Matthew Quintiliano, a 14 year veteran of the Stratford Police Department, shot and killed his first wife. Acquitted by reason of insanity he was released shortly after when it was found that he was “no longer a danger to himself or others.” He remarried and in 1983 murdered his second wife.

In another noteworthy case an acquittee housed at Connecticut Valley Hospital was on furlough walking the streets of Middletown when he killed a young child. Another acquittee, Leslie Turner, had been released after doctors testified that he was controlled on anti-psychotic medication. His mental disease was not cured. On his release he failed to take his medication and relapsed, killing his grandmother.

These instances have led to a very strict review by the Psychiatric Security Review Board (PSRB) before an acquittee can be released, especially, if like Paul Simon says he’s “still crazy after all these years.”

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

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I have advocated for lawyers in prior posts. I firmly believe in the nobility of the practice of law. Not that I feel that there is something aristocratic about being a lawyer. What I believe in is the integrity and dignity of this profession. Like any other calling, however, we have our “bad apples.” Policing bad lawyers is an important task. The public deserves to know that our profession will not tolerate incompetence and unethical behavior.

Lawyers are bound to follow clear cut professional guidelines known as the Rules of Professional Conduct. Ethics is taught in law school. The Bar Examination tests on ethics. The Rules are designed to protect clients and ensure that the trust needed in the attorney-client relationship is paramount.

Recently, I was asked to draft questions on ethics to be administered to applicants seeking board certification as criminal trial specialists by the National Board of Legal Specialty Certification (NBLSC). I have been privileged to serve on the organization’s Board of Examiners since 2003. NBLSC certification is a rigorous process designed to identify that class of litigators who truly possess expertise as trial lawyers. Integral to the application process is determining that a lawyer not only possesses extraordinary skill in the courtroom but is highly ethical as well.

Unfortunately, too many lawyers have lost their way. Our monthly journal, The Connecticut Lawyer, publishes a column on disciplinary complaints. It continues to amaze me that there are so many of our colleagues who have failed to adhere to the high standards of conduct that govern our profession. Each month discipline of some form is reported on dozens of lawyers.

So how do you deal with a complaint about your lawyer? Connecticut has a Statewide Grievance committee. It is made up of attorneys and lay people. The process of filing a grievance against a lawyer is straightforward.

First, visit the state’s Judicial Department website, www.jud.ct.gov. Navigate to the section on attorneys. There you will find information about the composition of the Grievance Committee and guidance to filing a complaint. Forms are available at the court clerk’s offices or online. You do not need a lawyer to proceed.

The website suggests that you first attempt to resolve your matter with your attorney. We are often contacted by potential clients looking to change lawyers because they do not feel they are being adequately represented. Most of the time it is because they are not getting called back in a timely fashion or kept abreast of the progress of their case. I encourage these people to call their lawyer and sit with him or her to lay out their concerns. Often it is a matter of a busy lawyer not realizing that a client feels ignored.

Once a complaint is filed it is assigned to a local bar committee to investigate. The lawyer is informed of the complaint and required to respond to the committee with an explanation. Failure to respond will lead to disciplinary action. Once the response is filed it is reviewed by the local Grievance Panel. Each of Connecticut’s thirteen Judicial Districts has a local panel. If the panel does not find probable cause to sustain the complaint it is dismissed. The grieving party is notified and has a right of appeal.

If probable cause is found the matter is referred to the Statewide Committee for a full evidentiary hearing. Following that the Committee can impose certain levels of discipline. If the offense is serious the lawyer is referred for Presentment to the court. This can lead to disbarment.

Discipline includes reprimand, suspension and ultimately disbarment. Proceedings against lawyers are public matters. If no basis for discipline is found the matter is dismissed. If there is a basis to chastise a lawyer it is publicly reported. Integrity has a price.

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

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President Obama has nominated U.S. District Court Judge Robert Chatigny to fill a vacant seat on the Second Circuit Court of Appeals.

The nomination has caused a stir in Connecticut’s legal community, as an outgrowth of a controversial position Judge Chatigny took during the final months of litigation aimed at stopping the impending execution of serial killer Michael Ross Ross became the first person executed in Connecticut since 1960 when he elected to abandon his appeals and allow his execution to take place.

The controversy centers on a phone conference in which the judge purportedly threatened Ross’ appointed counsel with disbarment because he did not believe the lawyer was effectively representing Ross. Ross wanted to die; and, most people believed he deserved that fate. By abandoning his appeals it was argued that Ross was detrimentally affecting efforts to challenge the constitutionality of the death penalty process in Connecticut.

Ross is dead and that legal battle continues. Now, however, a group of prosecutors have complained that Chatigny abandoned his role as a neutral and detached magistrate and took on the mantle of advocate. These lawyers believe he should not be elevated to a judicial position that is second only to the U S. Supreme Court in terms of prestige. What this highlights is how we select those who judge us.

In the federal system District Court and appellate judges are appointed by the President with the advice and consent of Congress The appointments are lifetime. The idea is to insulate these arbiters from the caprice of politics and thus insure a neutral judiciary.

In contrast some states elect judges. That process carries with it the risk that accompanies all elected offices– political allegiance. Those who advocate for the election process believe that judges should be accountable to the electorate for the decisions they make.

In our state judges are appointed by the Governor with the advice and consent of the Legislature. Appointments are for eight years. In the long past such reviews were deemed perfunctory and rarely was a judge not reappointed. Not so in recent past. Our state judges have become more accountable and the review process for reappointment is no longer a rubber stamp. Controversial judges have failed to garner the necessary support to pass through the Judiciary Committee and several have resigned rather than face the damnation of a negative vote.

As trial lawyers we are asked to evaluate a judge before whom we have tried a case. After every trial we receive a questionnaire aimed at evaluating a judge’s demeanor, judicial temperament, clarity of rulings, among other criteria. Some lawyers have abused the process and have used this as a tool to blackball a judge because the lawyer lost the case. Every trial has a winner and a loser. The outcome should not be determinant of a lawyer’s true opinion of the judicial caliber of the trial judge. Some of the best judges I have been privileged to appear before presided over cases where I did not prevail. Facts make the case, but bad judges can distort those facts and effect the outcome.

I agree with the failed reappointments of some of our past judges. There have been instances of racial comments, sexual harassment and total incompetence. Culling the judicial herd of those people preserves the integrity of the system. Using the review and reappointment process as political payback for a decision adverse to the lawyer/lawmaker is a gross distortion of what the process should be.

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

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Trials often require expert testimony to provide opinons that only one possessing certain training and experience can describe. Although experts are most often highly credentialed PhD’s or doctors; an expert, however, can be anyone possessing knowledge in an area beyond that of the average juror. The classic comic example is mechanic/hairdresser girlfriend, Miss Vito, in My Cousin Vinny. A knowledgeable car mechanic can qualify as an expert in automotives, without any college training at all.

Once a proper foundation of the expert’s training and experience is developed, the expert may give an opinion based upon the facts of the case and a reasonable degree of certainty in the expert’s field. An expert may not testify to possibilities, nor engage in speculation and conjecture.

Jurors are instructed that they may accept or reject part or all of an expert’s opinion. Average people, from a varied array of backgrounds, are the ultimate arbiters of often highly technical disputes. The challenge for the trial lawyer is to educate the jury on the background of the expert and the basis for the expert’s opinion.

In three decades trying complex cases I have had a legion of experts on the witness stand, ranging from the Miss Vito’s of the world, to Yale and Harvard professors. The examination starts with a recitation of the expert’s education and training, professional associations, honors, awards, publications or teaching experience. Once that foundation is laid the jury now has a basis to credit the opinion that will follow.

Next comes a review of the evidence through a hypothetical question that asks the expert to assume certain facts from the evidence. Often those facts are disputed, which later presents a platform for the opposing counsel to challenge the opinion on cross-examination. Hypothetical questions are lengthy, as the lawyer recaps the facts from prior testimony.
With the exception of standard of care experts in malpractice cases, experts are not permitted to give an opinion on the ultimate fact in issue. That is viewed as invading the fact-finding province of the jury.

Recently I had the unique experience of testifying as an expert in criminal trial practice. The issue was whether a defense lawyer had failed to provide effective assistance of counsel to a convicted client, as required by the Sixth Amendment to the Constitution. My opinion was that he had not.
I agreed to testify at the request of a young lawyer who I had trained some years back. The experience was enlightening. I realized how difficult it is when you, as a witness, want to testify but are dependent on the questions put to you.

Because the manner of such an examination is highly technical the prosecutor repeatedly objected to the phrasing of the questions posed. As the witness I could not offer my take on whether the form of the question was or was not proper, nor suggest to my fledgling friend how to rephrase to avoid objection.
It was difficult to sit, silently, watching this part of the legal drama unfold. Most of the objections were whether the lengthy hypothetical question contained appropriate references to the evidence. I agreed with some of the limitations placed by the judge in sustaining the objections, but not all. I found myself wanting to be lawyer, judge and witness. I came away with a greater appreciation for the countless experts I have offered who have sat patiently, and endured the legal wrangling before being able to state an opinion. As frustrating as it was for me, I could only imagine how the non-lawyer feels sitting in that “hot seat.”

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

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In the world of opera and sports it’s a well known colloquialism that “It ain’t over ’till the fat lady sings!” The image conjured is the Valkerie, Brunhilde, adorned in Viking horned headdress, singing a final Wagner aria. Sports teams have rallied to this saying since the mid ’70′s. It has been attributed to a variety of sports writers, as well as the Orioles legendary manager, Earl Weaver. But has the Fat Lady sung for Michael Skakel?

On Tuesday the Connecticut Supreme Court issued its ruling rejecting his appeal from the denial of his latest bid for a new trial. The question now arises: when is a criminal case over? In capital cases we have come to understand that challenges to a conviction can run on for decades. Will that be the case for this Kennedy cousin?

The law does seek finality in litigation. At some point there has to be a winner and a loser and the contest should end. In civil trials the process is simple: first the jury, rules then there is an appeal. If the appeal is lost, then game over.

Criminal cases are significantly different. Constitutional issues are rare in civil cases. They are implicated in nearly every criminal trial. For that reason there are a multitude of challenges that can drag a case on for years after a jury verdict.

If you are keeping score at home this is the progression. A trial requires findings of fact, either by a court or a jury, leading to a verdict. Next there is an appeal to Connecticut’s Appellate Court. There are no factual hearings conducted at this level. The appeal focuses on what has been produced in the record of the trial proceedings. The issue is generally whether the judge has made errors in rulings. Although rare, one can also challenge the sufficiency of the evidence but high deference is paid to the jury’s verdict and this challenge almost never succeeds. All evidentiary issues are viewed in a light most favorable to sustaining the verdict.

If you lose in the Appellate Court you can petition for Certification to the Connecticut Supreme Court. Only significant legal issues will compel this Court to agree to further review. Again, the facts are those established at the original trial.

If the defendant loses at this round is he done? No! Next he can file for a Writ of Certiorari to the United States Supreme Court, claiming a federal constitutional issue. Petitions for Cert. are even more rarely granted. Done yet? Not quite.

In Skakel’s case his new lawyers claimed to have discovered evidence not available before his trial which, if heard by his jury, would have likely lead to a different result. In our state there is a statute that allows a party to file a civil case entitled, Petition for New Trial. It is appropriate if there is truly newly discovered evidence that would not have been found with due diligence before the original trial. In this type of proceeding there is an evidentiary hearing. The burden is on the defendant to introduce credible new evidence. There is no jury. A judge reviews the trial transcripts and determines whether or not to believe the newly proffered evidence. In Skakel’s case veteran trial judge, Edward Karazin, was not persuaded. Next came the appeal. This one went directly to the Supreme Court although it could have first been ruled on in the Appellate Court. Confused yet? The Fat Lady is grabbing her helmet and spear; but wait, there’s more.

Welcome to the world of Habeas Corpus. This column has visited this topic in the past. (Justice Delayed But Not Denied.) It is a post conviction collateral attack. There are prescribed rules that apply. One cannot bypass a direct appeal on an issue. Habeas proceedings usually implicate facts not found in the trial record. For that reason there are evidentiary hearings at this stage.

So what is next for Skakel? His current lawyers have vowed to keep fighting. The next issue will be whether his trial counsel, Mickey Sherman provided effective assistance of counsel as required by the Sixth Amendment. The test in that instance is whether Sherman’s efforts fell short of the minimum required of attorneys in the handling of such cases. The test is not that he could have done a better job, but rather, the job he did was woefully inadequate. To give this perspective there have been death penalty cases that have not been granted habeas relief where there was a claim that court appointed counsel actually fell asleep at the trial!

Skakel’s cousin, Robert Kennedy, Jr. excoriated Sherman in a piece published in the Atlantic Magazine, accusing him of a number of deficiencies.

Stay tuned for this one. If he loses at that level will it end there? You guessed right; it won’t!

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

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The James Botti trial ended in split decision Thursday. Earlier in the day the court accepted a partial verdict. Botti was convicted on one count of the indictment with the crime of mail fraud. The jury reported they were deadlocked on the remaining two counts. Judge Haight then delivered an instruction known in the parlance of federal trial law as the Allen charge.

The instruction, often the subject of defense complaints that it is coercive, stems from a decision of the United States Supreme Court in 1896. The purpose of the charge is to ask the jurors to reexamine their opinions and endeavor to reach a consensus. Jurors are instructed: “. . .that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard [for] and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” Allen v. United States.

Despite the instruction the jury remained deadlocked, leaving the judge no choice but to declare a mistrial. In legal terms it is a do over. Double jeopardy does not attach absent a factual determination. In this instance, the Government is free to seek another trial on the remaining charges; but will they? Is the evidence enough to declare a clear winner?

One school of thought is that the same evidence presented to a different jury could lead to a conviction. Of course, it may also lead to an acquittal. What confounds the question is the inability of the parties to learn what hung this jury up. Where were they undecided? Was it on the proof of Botti’s involvement or the lack of proof relating to the involvement of other necessary parties?

One can’t conspire alone. Only one member of the conspiracy need be prosecuted; conspiracy can be proven to include unindicted co-conspirators. So what was it here? Did the evidence fall short of supporting the government’s claim that Mark Lauretti was a willing participation in the “scheme” alleged? Or was there not enough proof that Botti sought to conspire with anyone else?

The evidence did not rise to the level of proof beyond a reasonable doubt, at least to some members of this panel. Criminal verdicts require unanimity. Clearly there were jurors who did not believe the proof sufficient to overcome the presumption of innocence; while there were also those who believed it did.

The choices for the prosecution regarding Botti are simple. They can be satisfied with convictions on 3 of the original 7 counts charged; especially since federal sentencing guidelines will lead to a sentence of incarceration. They can argue that justice has been served. On the other hand, if they are sincerely convinced that the holdouts on this jury made a mistake, they have the option of seeking a retrial. They can argue that a hung jury is not an acquittal.

But what of the City of Shelton and Mark Lauretti? The prosecutor argued that Lauretti and Shelton are corrupt. Even with a reduced panel of 11 jurors they could not sustain the weighty burden of proof. Mayor Lauretti fought back this weekend iwith a strongly worded statement. The lack of finality by this jury will surely be argued by Lauretti supporters as proof that the government has failed to prove the serious claims made against the Mayor.

Will Lauretti be indicted? If the proof did not lead to a unanimous conclusion where Mayor Lauretti did not actively participate in his”defense” how likely is a conviction when he is in there swinging with his own legal team?

In the weeks that follow I imagine that both sides will see this as a victory of sorts. Should the case be re-litigated or has the government taken its best shot and fallen short? If so, they should accept “defeat” graciously and move on. One thing is clear, the mistrial gave us no answers, only more questions.

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

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The trial of Shelton developer, James Botti, hit a snag this week during jury deliberations. It was reported to the court that one of the jurors had brought her personal journal into the jury room and was persisting in reading passages from it. After a hearing that took precious time from deliberations the court excused the offending juror and ordered the trial to continue with the remaining 11.

How often do jurors hear admonitions from the judge and then proceed to disregard them? Unfortunately, probably too often. The difficulty in discovering these breaches is the secrecy that must surround jury deliberations. Unless another juror reports the misdeed to the judge it goes unnoticed.

In a recent trial in Stamford my partner, Ed Gavin, was confronted with a similar issue. There a juror approached a state’s witness while the evidence was still be presented. It was reported to the court and a hearing was conducted. When interrogated that juror claimed that others in the jury room were discussing the evidence and voicing opinions about the defendants and at least one of the lawyers, despite the court’s clear instructions that they were not to do so until the case had fully concluded. In that case the judge conducted hearings that exhausted two days to determine whether to allow the trial to continue. The alternative was to declare a mistrial. The issue now will be presented on appeal to the Appellate Court.

Botti’s lawyer, William Dow, requested a mistrial when the juror was dismissed. His motion was denied, and certainly will be an appellate issue if Botti is convicted. That the court saw fit to discharge a juror who has ignored her oath and the court’s instructions is not the issue. The problem concerning Dow is that the case continues with only 11 jurors. There is federal legal precedent allowing that. In the state court this would not be permitted.

Jurors have been excused during deliberations in other cases, both here and in other states. In those instances the trial judge recalled one of the excused alternate jurors and ordered the panel to begin their deliberations anew. The alternative of a mistrial is a drastic remedy for this breach. The time and expense of a retrial should only be incurred if there is no other reasonable alternative. The cost of private criminal defense counsel, particularly in high profile, complex cases is enormous. Most people cannot afford one trial, much less a do over because a juror acted improperly.

In this instance the juror’s transgression did not adversely influence the remaining panel members. The foreperson and others reacted quickly to dissuade her from reading aloud from her missive. Jurors in many instances are allowed to take notes during the evidence and utilize those notes in their deliberations. What is prohibited is bringing external items into the jury room.

In this age of instant digital communication and social networking, there have been growing incidents of jurors Tweeting on Twitter or posting on MySpace or Facebook during deliberations. We have gotten to a point that too many people feel the urge to publish their every whim and thought. Do we really need to know who is shopping for shoes or having a bad hair day? In every day life we can ignore these posts if we chose. When they reveal juror misdeeds in an ongoing trial they cannot be ignored.

Both sides of the Botti trial deserved better from this discharged juror. It is a serious obligation; that is why we administer an oath to jurors. It is a shame that it wasn’t taken seriously in this instance.

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