Due Process

Disgraced former Penn State coach, Jerry Sandusky, is back in the news once again. Prosecutors are preparing to reveal to his attorney the identity of the 10 alleged victims in this prosecution. The Sixth Amendment mandates that an accused has the right to confront and examine his accusers in a criminal trial. This right of confrontation is integral to the fairness demanded in a trial. Inherent in the right of confrontation is the right to be informed of the identity of the accusers. This enables defense counsel to conduct an adequate pre-trial investigation to determine whether there are any fertile areas for cross-examination.

The Sixth Amendment also requires that an accused be represented by effective counsel. In order to fulfill that requirement an attorney has an affirmative obligation to conduct a thorough investigation, including ascertaining whether there are issues to be raised that affect the credibility of a defendant’s accuser.

The dilemma for the prosecution, and ultimately the judge, is balancing the rights of the accused against the rights of the alleged victims. Paramount in this balancing test is the safety of the victims. Safety for all witnesses is a similar concern whenever pre-trial discovery requires their identities to be revealed. In a high profile case like Sandusky’s there is the added consideration that public disclosure will expose the complainants to the media frenzy that surrounds such cases.

In the Sandusky case the victims’ identities have not been publicly revealed. Nor will they be, given the vehicle the prosecutors will use to inform Sandusky’s attorney. Rather than file a public discovery document they are providing this information through what is known as a Bill of Particulars. A court has the right and the obligation to make sure that the prosecution has provided enough particularization of the allegations to allow the construction of an adequate defense. There should be no trial by ambush. Both sides should be fully aware of all the necessary details prior to trial. An accused’s Fifth Amendment right to due process guarantees this.

The clash between a defendant’s confrontation rights and protecting victim/witness’ identities was dramatically illustrated in 1999, when now convicted murderer, Russell Peeler, learned the identity of an 8 year old boy who had witnessed Peeler shooting someone. In pre-trial discovery the State revealed the names of Leroy “B.J.” Browne, Jr, and his mother Karen Clarke. Peeler ordered their execution. While Peeler sits on death row and awaits his fate, the criminal justice system struggled with how to avoid such a tragedy n the future. Changes to our Rules of Practice on pre-trial discovery now prohibit defense counsel from providing a copy of the any such discovery material to the client or any other person without court approval. The purpose of the rule is to avoid documents circulating around the jail that could create risk to victims or witnesses.

In the case of sexual assault prosecutions Connecticut has a statute that requires that the identity of victims of these crimes are referred to in all public filings by initials only. Sec. 54-86e of the Connecticut General Statutes (C.G.S.) mandates: “The name and address of the victim of a sexual assault . . . or injury or risk of injury, or impairing of morals . . . and such other identifying information pertaining to such victim . . . shall be confidential and shall be disclosed only upon order of the Superior Court . . . .”

The identity of a victim of spousal sexual abuse is protected by statute even where the accused has been found not guilty by reason of insanity (Sec. 54-255 C. G. S.). Identity is also protected where the perpetrator is required to register as a sex offender (Sec. 54-258 C.G.S.). When these victims bring civil lawsuits the court may also permit the use of a pseudonym rather than reveal the identity of the plaintiff.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

In June I commented on the recent decision of the Circuit Court of Appeals, United States v. Jones, that was argued in the United States Supreme Court. (See GPS Tracking: Is Big Brother Violating the 4th Amendment?) At issue was the constitutionality of police use of secretly planted GPS devices without first obtaining judicial authority with a search warrant application. The law had been in a state of flux. Civil libertarians were arguing that surreptitious tracking was an invasion into a citizen’s Fourth Amendment expectation of privacy. Prosecutors argued that there was no invasion of the home or any other protected space of a target. Rather, the device merely tracked a vehicle’s movements on the public highway. They contended that no one could expect that his movement on a highway in a car is not viewable by all who pass. Undercover surveillance vehicles could follow such a vehicle and report with impunity the areas where the car traveled. To require on the ground, human surveillance ran the risk of discovery.

We have innocently become acquiescent to our phone carriers being able to identify areas where our phones have been through their own GPS technology. Many are unaware that they are broadcasting their locations with each use of the phone. Most don’t probably care, particularly if you are law abiding and not committing crimes. In a recent murder case my partner tried GPS triangulation was used by the prosecution to demonstrate that our client was in very close proximity to a remote murder scene shortly after the victim went missing from her job.

In addition to Jones’ personal counsel, a coalition of defense organizations and civil libertarians banded together and filed an Amicus Curiae (friend-of-the-court) brief. An amicus brief is permitted on application to an appellate court by groups or persons claiming a substantial interest in the appeal. Usually, a court will only receive written and oral arguments from actual parties to the controversy. One must have what the law refers to as “standing”– that is a direct interest in the litigation, or one whose property rights or persona;l constitutional rights are directly affected by the case.

In its amicus brief the group, led by the National Association of Criminal Defense Lawyers (NACDL) argued that the use of GPS devices without the authority of a judicially issued search warrant not only implicated the target’s Fourth Amendment privacy rights but also associated privacy rights protected by the First Amendment.

In authoring a majority 5-4 decision, Justice Antonin Scalia noted, “The Government physically occupied private property [the suspect's automobile] for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” In a tactical miscue prosecutors argued before the Court that the intrusion of a tracking device was trivial, actually conceding that it would allow tracking of the justices’ own vehicles. Nothing like personalizing the proffered harm before the tribunal!

Many see this as paving the way for a number of major privacy decisions in cases pending before the Court on issues involving email and cellphones. While the Framers of the Constitution could never have foreseen the evolution of technology and communication devices, nonetheless they forged a document in the Constitution that is fluid and allows for the change in times from 1791.

The decision does not forbid the use of GPS tracking. It merely interjects a review by a neutral and detached magistrate whose findings must be based upon reasonable grounds to believe that the use of the device will lead to information involving criminal conduct. George Orwell will rest easier in his grave knowing that Big Brother must still pay heed to the Bill of Rights.

Football legend Joe Paterno died this week. Unfortunately, his integrity and legend were mortally wounded months ago when the revelations about accused pedophile, Jerry Sandusky, erupted. JoePa, the Penn State legend, and leader of Linebacker U. deserved better than the legacy Sandusky’s behavior has thrust upon him.

You can debate whether Paterno did enough when then graduate assistant Michael McQueary came to him with complaints of Sandusky’s alleged sexual assault of a young boy in the PSU locker room. Did he do enough by passing the complaint along to superiors or should he have gone the further step and called the authorities outside the University? Was he protecting PSU by “keeping it in the family” or following the appropriate chain of command? All are moot questions now.

What does linger is the stench that Sandusky has cast upon this sports icon. JoePa deserved better from a man that was his friend. Whether you believe that Paterno did too little out of loyalty to his longtime assistant, or acted to protect his beloved school, one thing is clear: there is one man who can restore the gloss to this coach’s legend–Jerry Sandusky.

He and his publicity seeking attorney can do the right thing– accept responsibility. End this charade of a defense that he was only trying to teach a kid how to properly soap himself up in the shower or just liked to wrestle naked with young boys.

Acceptance of responsibility is a major factor in the rehabilitative prong of our sentencing schemes. It reflects an honest attitude toward one’s past transgressions and a willingness to change. More importantly, it demonstrates respect for the victims, saving them the further indignity of having to take the witness stand in a public trial and relive their ordeals. In this case, young men who were allegedly sexually abused by another man. One can only imagine the scars that they bear that fester beneath their skin.

If Joe Paterno was truly your friend and mentor; if you are truly saddened by what your selfish behavior has done to this man, then step up Jerry; be a real man and a real friend; take your punishment. Wipe the dirt off the legend of JoePa that you so selfishly soiled.

A recent opinion from the Office of Legal Counsel, advisors to the U.S. Attorney General, may be paving the way for legalized online gaming. The opinion does not deal specifically with legalizing online gaming sites; rather, the advisement focuses on federal prohibition of internet sales of state lottery tickets. The opinion specifically addressed the lawfulness of proposals by Illinois and New York to use the internet and out-of-state transaction processors to sell lottery tickets to in-state adults. The Justice Department was concerned that the Federal Wire Act, 18 U.S.C. 1084 may prohibit states from utilizing the internet for in-state transactions if the same transmissions cross state lines

The essence of the opinion is that the interstate transmission of wire communications pertaining to state authorized lotteries do not relate to a “sporting event or contest” to which the Wire Act applies. In a number of circles this is being touted as the forerunner to online interstate gaming.

From time to time internet sites have sprung up to permit or promote online gambling. Illegal gambling, often mob related, utilizes these sites to accept wagers that are charged to credit cards. A recent federal gambling prosecution in this state focused on local bookmakers who were taking action based upon the illegal online sites. Prosecuting the creators and those who maintain these sites is virtually impossible given the manner in which the sites are created.

For decades Connecticut had taken a paternalistic approach to its prohibition against gambling. It wasn’t until the early 70′s when the Lottery was first created that this state first abandoned its puritanical view of gambling. Early decisions by our Supreme Court looked upon gambling as an evil that lured the wage earner to risk his family’s meager income. The worker had to be protected from himself by the state.

I recall when the Lottery was first created I was an intern working in my Dad’s office. My father represented several of what he referred to as “gentleman Bookmakers.” These were independent, small-time guys, not mob affiliated. One fellow in particular was a steady customer. he went about his “business” without harming or threatening anyone. By and large the police left him alone until some Mayor or politician demanded a crack down on these “evil-doers.” There would be a raid and the bookie and his several runners were rounded up. People rarely went to jail for bookmaking, usually paying a hefty fine and some probation.

When the Lottery was created my Dad decided to raise a constitutional challenge to the new law. His argument was that the State of Connecticut had become the biggest “bookmaker” in the state. No longer was the state the pater familias, caring for the wayward wage earner. Now that the Lottery could reap millions in income without raising taxes our puritanical views changed. It was left to me as the intern to fashion the challenge that the new lottery laws denied equal protection under the Fourteenth Amendment to our bookie clients.

I threw myself into the task and crafted what I convinced myself was a masterful constitutional challenge that no judge could ignore. Meanwhile the Lottery was an instant financial windfall for the state. Our client’s case was assigned to an old, nearly retired judge in the Circuit Court, then the lowest of our three court branches at the time. This old timer was close to retirement and his assignment as a Circuit Court judge had him way down on the judicial totem pole.

I remember reporting to my friends, after a very painful oral argument, that I would have had more success, and perhaps a more attentive audience if I had argued the case in front of some of the rummies who hung around the area where the court was located. What I painfully learned that day was that some very old, almost irrelevant minor court judge was not about to tell the State that this new found wealth was unconstitutional.

Now housing the most successful casinos in the western hemisphere it is unlikely that we will ever revert back to our puritanical roots.

Happy New Year to Connecticut’s media. On January 1st new rules took effect, passed by the Rules Committee of the Judicial Department, now allowing for the televising of nearly all criminal proceedings. What was previously an experiment is now going to be a permanent addition to our criminal courts. Matters involving allegations of sexual assault and juveniles will not be televised. Juvenile cases are not considered adult prosecutions and are conducted in sealed courtrooms. Victims of sexual assaults have long been provided anonymity in our recorded criminal proceedings. The victims are referred to by initials in all published court records.

The new rules spell out the procedure for a media application for permission to televise. One stationary camera and microphone will be permitted. Jury selection and jurors will not be televised. Conferences between lawyers and the Court at the bench are also off limits, as are discussions between an attorney and client or shots of the papers at counsel table. Preserving the anonymity of jurors during the trial is particularly critical. The reactions of TV pundits like Nancy Grace and the resulting public condemnation of the Casey Anthony jurors proves the need to protect jurors from exposure during the trial. Connecticut does not favor sequestering jurors during trials, even those as sensational as the recent Cheshire cases. Displaying the faces and names of jurors creates a risk that someone will attempt to influence or threaten a juror.

Preserving client confidentiality is the driving reason behind prohibiting filming counsel and client exchanges. The public’s right to know, which stems from the First Amendment, does not permit unfettered intrusion into the behind-the-scenes exchanges between a defendant and counsel. Bench conferences are intended to be outside the hearing of the jury. If those conferences were recorded by the media it would create a risk that jurors could ultimately learn information that was specifically kept from them to preserve the fairness of the trial process.

The biggest issue facing lawyers and judges alike is how to conduct themselves under the constant spotlight of the media. Judge Ito, who presided over the O.J. Simpson murder trial, is the model for what judges should NOT do. Ito was enamored with the spotlight and it diverted him from conducting himself with appropriate decorum. In contrast, Judge Belvin Perry, who presided over the Casey Anthony trial, was the model of judicial temperament and decorum. Televising trials should cause judges to work assiduously to ensure the fairness and balance of the process. The written record of a trial fails to display judicial demeanor. A judge’s body language and voice inflections can have an impact on a jury’s perception of certain testimony. The visual record is undeniable if a judge crosses the boundaries of impartiality. Under the correct circumstances televised trials provide needed transparency to the criminal justice process.

Lawyers playing to the TV viewers have no place in the courtroom. It is not a stage. There is always an element of theater in a successful trial lawyer, but with limits. A lawyer should comport himself or herself in front of the cameras no differently than if there were was no camera there. The added by-product of the televised camera will allow the public to truly gauge the effectiveness of an attorney. As lawyers we should feel compelled to act with the respect and decorum the courtroom demands. It is not the Gong Show.

The unfortunate downside to televised trials is the ability of TV producers to edit what is actually shown to the public. I favor a C-Span type approach, where the evidence is displayed in its entirety, without editorial bias. That bias was apparent in the manner in which HLN and TruTV televised portions of the Anthony trial. The commentators, for the most part, displayed an anti-Anthony bias in the commentaries that accompanied the televised testimony. As a veteran of many appearances on the former CourtTV I came to understand that not everything that occurs in a trial can fit within the format of a program. Constraints of time and the need to focus on the most critical evidence certainly justify editing content for the viewers. Editing content to fit the bias of a media commentator should not be permitted.

Unfortunately, there is nothing our judges can do to ensure the fairness of comments and presentation to the public. We have to trust in the integrity of the media. One would hope that those who make the editorial decisions are guided by the same demand for transparency in their actions that they are demanding of our courts. If the coverage of the Anthony trial is any foreshadowing, I don’t have a high degree of confidence in that regard.

To listen to Joe Amendola, the attorney for embattled former Penn State coach Jerry Sandusky, in the weeks leading up to his Tuesday preliminary hearing, this was to be the first stages of the battle. Reportedly, his client was looking forward to exercising his right to confront his accusers in a public forum. Shockingly, the hearing did not go forward. Citing tactical considerations Sandusky’s lawyer waived the hearing and the matter is scheduled next for pre-trial discussions.

Pennsylvania follows a practice that had prevailed in Connecticut until the late ’70′s. When I first began to practice law in 1975 no felony prosecution could proceed to trial without a finding of probable cause by a judge, after an evidentiary hearing. Hearings in Probable Cause (HPC’s) were commonplace. Experienced lawyers differed in their approaches to such hearings. A defendant could elect to waive his right to a hearing. He remained clothed with the presumption of innocence and the matter moved toward trial. The growing crush of criminal business was a prime factor in the revisions to our practice that eliminated HPC’s in all but Class A felonies.

The necessity for the HPC derived from the Fourth Amendment’s requirement of a judicial determination of probable cause before a defendant could be held to answer at trial. In the instances where hearings went forward a finding of probable cause was almost a foregone conclusion. The state’s burden at this stage was to establish that reasonable grounds existed to believe that a crime had occurred and that the accused was responsible. That burden was met by the production of a scintilla of evidence. That standard differed significantly from proof beyond a reasonable doubt, the standard needed to convict.

In 1975 the U.S. Supreme Court decided Gerstein v. Pugh, ruling that the judicial determination of probable cause for a warrantless arrest did not require an adversarial hearing. Following that ruling sworn affidavits were appended to an arresting officer’s report. An in camera judicial review and a finding of probable cause was all that was needed. The HPC became superfluous.

HPC’s are still required for crimes punishable by life imprisonment or death. Before the practice changed an HPC was looked upon as a discovery bonanza. At that time Connecticut did not favor open, early discovery of the particulars of the state’s case. Witness statements could not be obtained prior to the completion of that witness’ testimony at trial. Having the opportunity to cross-examine a witness in advance of trial was a tactical bonus. Today defense lawyers are provided early access to the prosecutor’s file, eliminating the need for a dry run-through of the state’s case at a preliminary hearing.

Many lawyers will opt to waive the HPC, particularly in street crime situations. If a critical witness testifies at the HPC he is subject to full cross-examination. There are two important considerations for the lawyer. First, the witness’ testimony has been preserved and since he was subjected to cross the defendant’s Sixth Amendment confrontation rights are satisfied. If that witness fails to appear at trial the recorded testimony is admissible in his stead. Second, exposing the witness to the theories of a defense lawyer’s cross only allows the cunning, street-wise witness to better prepare to field the examination at trial. Given that probable cause is so easily established, little is often gained from conducting the hearing.

Amendola claimed the waiver was based on tactical reasons. He then spoke for an hour outside the court, castigating some of the victims, claiming they are motivated by the chance at big dollars in lawsuits against the University. If there is such a point to be made it could have been done effectively through an aggressive cross of the alleged victims. Amendola chose a press conference instead. His client would be well served if Amendola read the Rules of Professional Conduct in his state: “Rule 3.6. Trial Publicity. (a) A lawyer who is participating . . . in the . . . litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Taking on the complainants in a press conference is like only playing a football game in the locker room.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

If you are a bilked investor, reeling from the revelations that your money that was to be segregated in the coffers of commodities broker, MF Global, you are looking forward to the testimony of former CEO Jon Corzine before the House Agriculture Committee. Mr. Corzine was originally expected to take refuge behind the Fifth Amendment. Corzine would appear to hold the answers to many of the questions surrounding the crash of MF Global, especially how investor money became commingled and lost. Despite the protection the Fifth offers Corzine’s prepared statement, reported today, indicates that he will answer questions. News reports indicate that he has no answer to that crucial question.

But what if he changes his posture and pleads the Fifth? We all know the most famous of our constitutional rights: “No person shall be . . . compelled in any criminal case to be a witness against himself.” A part of Americana, the Fifth was born out of the resistance of English Puritans in the seventeenth century to forced confessions. The concept first appeared in a petition to the English Parliament in 1647 by members of a political movement called the Levellers. The Puritans brought the concept to the New World and it eventually was incorporated into the Bill of Rights.

Taking the fifth, pleading the fifth, taking the nickel–no matter the reference–it is the single greatest protection afforded under the Constitution. In 1966, in the landmark case of Miranda v. Arizona, the Supreme Court declared that police had an affirmative obligation to inform those in custody of the panoply of rights guaranteed by the Constitution, central among those was the right to remain silent. Every criminal lawyer knows that the best thing a client can do when confronted by the police is to exercise this right, at least until an attorney can be retained.

As with any constitutional right, the Fifth can be waived. When that right attaches and what constitutes a valid voluntary waiver has spawned hundreds of judicial decisions. In a criminal trial that right means that the prosecution cannot compel the accused to take the stand and testify. A witness summoned before a grand jury, or a Congressional hearing, can safely invoke the privilege without the necessity of explaining to anyone, including the court, the reasons why the witness believes that answering questions may lead to self-incrimination. If the invoking witness was to be forced to justify the use of the privilege, that person would be inadvertently exposing precisely the information sought to be protected. The privilege wold be defeated in its very exercise.

In a criminal trial the accused has the right to testify and the right to elect not to testify. When a defendant declines to take the stand the judge will canvass that person in the absence of the jury, not to expose why the privilege is being exercised, but to insure that the defendant is aware of his rights and is making a knowing, voluntary waiver. Following that the court will instruct the jury that they may draw no adverse inference from the witness’ failure to take the stand.

In the case of the witness who invokes the privilege in the grand jury, the Government has the option to abandon its efforts or seek to immunize the witness. In the latter case the prosecutor would apply to the court for a grant of immunity. Again, the court cannot inquire of the recalcitrant witness why the privilege was exercised. Once immunized, the witness must testify or face being held in contempt. In the grand jury scenario the court can order that witness incarcerated until the witness either relents and agrees to testify or that grand jury’s term has expired.

Corzine has made it known that he presently intends to answer most questions in the Congressional inquiry. Ron Blagojevich was just hammered with a 14 year sentence, increased in part because he testified falsely at his trial. Unlike Jerry Sandusky, who can’t seem to shut up, Corzine may be well advised to “take the nickel.” If that occurs, for those who saw their money disappear, the questions will remain unanswered. Unfortunately, that is the American way.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

California Judge Michael Pastor sentenced Dr. Conrad Murray this week for the death of pop icon, Michael Jackson. Pastor delivered the maximum allowable sentence with sharp words of criticism for the fallen physician. He ordered Murray to serve four years, as well as make restitution to Jackson’s estate in excess of 100 million dollars. Murray was denied an appeal bond and immediately remanded to custody; but how much real “time” will Murray serve?

The increase in violent crime in the latter half of the last century led to tougher sentences. In turn prison populations increased past the point where the aging prison infrastructure could accommodate the influx. The result: institution of programs designed to find alternatives to actual incarceration while still paying lip service to the concept of getting tough on crime. Prison overcrowding often led to violent offenders being granted early release where many again committed additional violent crimes.

Many jurisdictions embraced the concept of indeterminate sentences. Rather than a flat term of years, an offender received a sentence ranging from a lower to a potentially higher term. After some minimum period of the lower term the inmate was now eligible for release on parole. The parole decision was to focus on the inmate’s adjustment while incarcerated, balanced against the need for society to be protected from further crimes.

Connecticut was an indeterminate sentencing state until 1981. Prior to that date a court could only sentence an inmate to a lower term of no more than one-half the maximum provided for that offense and a higher term up to the maximum. Thus, a five year felony sentence could be no more than two-and-one-half to five years. Inmates were eligible for parole release in advance of the expiration of the lower term, based on complicated “good time” credit rules. Inmates earned as much as five days per month credit which further reduced the minimum term.

In 1981 we moved to the concept of determinate sentences. Now a judge imposed a flat term of years. The defendant convicted of a five year felony could be sentenced to the full five years. In many instances the court would insure that the offender was also subject to probation by imposing a higher term then suspending that after a lesser period followed by a term of probation. Probation ran from 1 to 5 years (today sex offenders are subject to greater terms of probation from 10-35 years).

Despite the change to determinate sentencing, prison populations were increasing almost exponentially leading to programs like transitional supervision. Inmates were being released after they served a small fraction of the sentence.

In the mid-90′s sentencing reform advocates succeeded in passing laws referred to as Truth-in-Sentencing. The focal point of these laws was the violent offender. States and the federal Bureau of Prisons now required violent offenders to serve 85% of the determinate term imposed before they could be released. In most instances parole was abolished.

In this state, non-violent offenders serve 50% of their term before release. Violent offenders must serve 85% as of legislation that became effective on July 1, 1996. A link to the Department of Corrections website lists the specific offenses which are subject to the 85% requirement (http://www.ct.gov/doc/cwp/view.asp?a=1520&Q=270074&docNav=|)

As for Dr. Murray, California was among the states that adopted truth-in-sentencing laws in the mid-90′s, but news reports are indicating that due to jail overcrowding Murray will serve no more than 50% of his sentence. I suppose we should now refer to this as “half-truths-in sentencing.”

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.