Due Process

Since the reinstatement of the death penalty in 1976 the issue of the execution of mentally disabled defendants has created controversy and debate. In 1986 the United States Supreme Court weighed Florida’s procedure for reviewing the competency of mentally disabled condemned defendants and prohibited the execution of mentally incompetent offenders, and mandated adversarial competency proceedings.

A five member majority of the U.S. Supreme Court held that the Eighth Amendment’s cruel and unusual punishment clause prohibited the execution of an insane person. The Court did not define insanity, but the plurality decision ruled that a person must be aware of the impending execution and the prisoner must understand why that prisoner is going to be executed.

Mental health professionals urged a comprehensive psychological assessment in the process, rather than a single interview conducted only by psychiatrists. The Court determined that the condemned should be permitted to present evidence from defense mental health experts as well.

The debate did not end there, however, and in 1989 the Court again addressed the issue of whether the execution of the mentally retarded violated the Eighth Amendment proscription of cruel and unusual punishment. In that case the Court declined to find an 8th amendment violation, determining, instead, that mental retardation would be considered as a mitigating factor.

The Court rejected the claim that the Eighth Amendment’s proscription of cruel and unusual punishment prohibits the execution of the retarded. Instead, the Court ruled that the jury should have been allowed to consider the defendant’s mental retardation as a mitigating factor in weighing the punishment to be imposed. The Court determined that such instructions were essential to a jury expressing its sentence as a “reasoned moral response.” The Court declined to establish a per se rule, rather, ruling that cases should be reviewed on an individual basis to weigh personal responsibility based on individual cognitive, volitional, and moral capacity to act with the degree of culpability required in capital cases. Mental age alone is too vague a factor upon which to establish a per se rule.

In 2002, the Supreme Court revisited the issue and ruled that the application of the death penalty to defendants with mental retardation is per se “cruel and unusual,” overturning its earlier decision. Drawing on earlier language that the basic concept underlying the Eighth Amendment is the dignity of man, Justice Stevens concluded that a review of legislation in nineteen states and the federal government, established a consistency of the direction of change and as powerful evidence that society views mentally retarded defendants as “. . .categorically less culpable than the average offender.”

The majority discussed three policy considerations that weigh against executing the mentally retarded: relative culpability; the relationship between mental retardation and the purposes served by the death penalty; and the strength of the procedural protections that may not be afforded mentally retarded defendants. Because of problems with “reasoning, judgment, and control of their impulses,” there is “serious question” whether either justification advanced for the death penalty—“retribution and deterrence of capital crimes by prospective offenders” applies to retarded offenders.

The Court also acknowledged that the mentally retarded face risks not associated with the average offender: (1) these defendants may be more apt to give false confessions; (2) they may have lesser ability to effectively argue mitigation; (3) they may be less able to give meaningful assistance to their counsel; (4) they often make poor witnesses; (5) their demeanor may create an impression of lack of remorse.

According to the National Coalition to Abolish the Death Penalty, despite ranking among those states with statutory proscriptions against the execution of incompetent offenders, Texas has executed two prisoners since 2002 that arguably fell short of the competency standard. The NCADP in 2004 urged Congress to study this issue, relating this trend to the type of conduct revealed as socially abhorrent in the treatment of prisoners in Abu Ghraib prison in Baghdad.

This past week the Texas State Board of Examiners of Psychologists issued a reprimand to Dr. George Denkowski, a psychologist who has examined and cleared 14 death row prisoners for execution. His methodology has been labeled as unscientific by colleagues and defense lawyers. Dr. Denkowski has agreed not to conduct such evaluations in future cases and to pay a fine of $5,500. In 2007 a Texas judge threw out an evaluation by Denkowski finding that it did not comport with accepted practices in psychology. A recent article in the New York Times details Denkowski’s travails.

Although fictional, John Grisham’s new book, The Confession, is a riveting portrayal of a death penalty system hell-bent on execution. It captures the torment and emotions involved in a race to save an innocent man from lethal injection.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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 controversy surrounding the social media empire, Facebook, received a judicial reprieve this week. A federal judge in the 9th Circuit in San Francisco rejected arguments by the Winklevoss twins that their previously mediated settlement with Facebook creator, Mark Zuckerberg, should be set aside. The boys from Harvard apparently cried “foul” claiming that Mr. Zuckerberg used a different valuation to establish the value of Facebook. The Twins complained that they were misled and accepted a settlement in mediation that they claimed was based in fraud.

Whether there is traction to their claims or not, they serve to highlight several important points about litigation. First, a settled case is the best case. Why? When cases settle each side has moved from their polarized positions toward a central, acceptable resolution. Each side “feels a little pain” as a wise old judge I knew once told me. In fact, he said the best settlement is when both parties leave the table in tears. While neither may claim to be the “winner” neither ends up the loser of expensive and emotionally draining litigation. Second, parties to litigation should perform their own due diligence before attempting a resolution. It was this second point that struck the federal judge as controlling. He observed that the brothers had a cadre of lawyers and performed their own calculations. Being well advised and having had the opportunity to make their own assessment the litigation has to end. If we are to embrace the concept of mediation to resolve disputes at some point there must be finality.

This appears to be a simple case of buyer’s remorse. Originally, news reports valued the settlement at around $65,000,000.00. That would be enough for most of us to figure out how to live comfortably! The boys in Crimson received about $20,000,000.00 up front and the rest in Facebook shares. Recent valuation of that company puts the total settlement at around $160,000,000.00 in today’s dollars. In January of this year Goldman, Sachs purchased shares of FB and the projected value of the company, based on that purchase was rumored to be about $50,000,000,000.00 Now there are certainly more zeroes in that number than in the current value of the Winklevii settlement. One can see how the boys may feel a little snookered.

Since few of my readers write checks with so many digits there is a different message for the rest of us. Mediation is an important tool to lead to early resolution of litigation. A federal judge recently ordered the NFL and the players association to return to mediation in an effort to salvage the coming football season. As the legion of lawsuits grow exponentially, our court systems cannot keep pace. Some cases need to be fully litigated, but those are not the rule. Mediation is a form of alternative dispute resolution. It allows parties to call a “timeout” in litigation. Utilizing the services of an experienced judge or lawyer as a referee, the parties can be guided to a middle ground that they could not achieve without help.

We utilize mediation in our civil practice. It is often an expeditious review of the case. Each side is forced to evaluate the strength and worth of their positions. Rather than focus on preparing for war, lawyers can spend time determining their real chances of succeeding. In addition, it allows parties to understand their financial exposure or gain if the litigation goes the distance. Lawyers should advise clients of the projected estimate of success. It requires that a lawyer step back from posturing and advocating, and instead focus on evaluating. What are my chances of winning? what will I recover if I do win? what will I lose if I do not win?

Discussions in mediation are like trips to Vegas. Not because you are cashing in big chips, but because what is said there stays there. Neither party can call the mediator as a witness; and parties should have an agreement that they can informally exchange information without fear that their words will be published to a jury if there is a trial. No one is committed to their settlement offers, The rules of evidence prohibit offering evidence of any attempt to settle a doubtful claim. If everyone follows the rules, and more importantly is reasonable and not intractable, mediation settles most cases. But apparently not if you are Harvard educated and have an exact doppelganger

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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

What was your reaction when you read that the DiMeo jury returned a verdict declining to recommend death for twice convicted murderer, Christopher DiMeo? Were you angered that this worthless person was shown mercy denied his victims? Were you relieved that jurors in a civilized society had thoroughly considered all of the complicated factors that surround this life or death decision? Or were you left perplexed wondering if there is any sense to continue the efforts in this state to execute convicted killers?

No matter where you stand on this spectrum the issue of the continued viability of capital punishment in this state will continue to be hotly debated. The next venue is the legislature which will once again take up the issue of repeal, vetoed by Governor Rell in its last iteration.

The prosecution was led by an experienced team of death penalty litigators, as was the defense. Each side presented testimony from Connecticut’s leading forensic psychiatrists, one the mentor of the other. While agreeing on much of this killer’s pathology they disagreed ultimately on whether his history gave rise to some mitigating excuse for this abominable act. How fragile is a decision when eminent doctors can reach diametrically opposite opinions on the same facts?

Guilt was never contested. DiMeo, like Steven Hayes and Joshua Komisarjevsky, would have accepted a plea to life imprisonment without the cost of a protracted prosecution. Those costs are measured in dollars, but there is no measurement to the suffering of families of these victims who dutifully sit through days of horrific testimony seeking vindication for their lost loved ones. No matter the verdict, life or death, they leave the courthouse alone, their lives still shattered. Perhaps knowing that the killer will receive the ultimate penalty provides some measure of comfort. None of us who have not suffered such a loss can speculate how we would feel. I would suspect, however, that having invested so much emotional capital in attending this type of trial there must have been a crushing sense of loss when the verdict was intoned.

Once again the question looms: was it worth the emotional toll on the family to have sought the death penalty? As lawyers when we advise a client of the alternatives between trial and settlement–whether it is dollars in a civil suit or plea bargain in a criminal case– we perform a risk vs. benefits analysis. Certainly the defense would do that if life without parole was offered as an option. In sensational capital cases it rarely is and there really is no decision for the defendant.

The prosecution generally conducts the same type of analysis weighing very heavily the attitude of the families of victims. In this state victims of crime have a constitutional right to be part of the plea negotiation process. Article 29 was adopted as an amendment to our State Constitution in 1996. Those rights include the right to be treated fairly; to a timely disposition of the case; to be protected during the process; to notice of all court hearings; to communicate with the prosecution; to object or support any plea bargain and make a statement in court prior to the plea and at sentencing; the right to restitution; and the right to information about the arrest, conviction, sentence, imprisonment and release of the accused.

In the disposition of every serious criminal case I have ever defended the state sought victim input before any formal offer was made to resolve the matter. Prosecutors are very protective of victims’ rights under Article 29.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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 past week evidence has been unfolding in the perjury trial of baseball super star, Barry Bonds. Bonds was involved in the Government’s probe of the distribution and money laundering surrounding a California company, Balco Laboratories. Balco was testing for performance enhancing substances banned by Major League Baseball but was suspected of illegally distributing anabolic steroids. By now we are all aware of the growing legion of baseball stars whose accomplishments have been tarnished by their admissions concerning the use of steroids.

Bonds was subpoenaed before a federal grand jury that was empaneled to investigate the Balco case. In the course of the proceedings Bonds received a grant of immunity. Federal grand juries are empowered to conduct investigations to determine if there is probable cause to issue an indictment for violations of federal criminal statutes. The grand jury serves as a buffer between the citizenry and the unfettered power of prosecutors to charge persons with crimes. The concept is that a neutral and detached group of electors must first weigh the Government’s evidence before the target can be called up on to defend himself or herself in a trial.

While the concept is laudable the reality is that the Government uses the investigative powers of the grand jury to build cases and directs the flow of that investigation, leading to the inevitable result that if they seek an indictment they will achieve that end. In my business the crass phrase is the Government could indict a ham sandwich. I confess I haven’t come across a case involving the prosecution of lunch meat, but you get the point. When my Dad was practicing he used to liken it to the song from the musical, Damn Yankees: “Whatever Lola Wants, Lola Gets.”

Whenever a witness is called to testify and suspects that his testimony may implicate him in the commission of a crime that witness will invoke the fifth amendment privilege against self-incrimination. Having done that the Government has to chose either to abandon efforts to obtain the testimony or seek to immunize the witness. Neither the prosecution not the courts may inquire into why the witness believes the proposed testimony would be incriminating. To do so would, of necessity require the witness to give that very information that he is attempting to shield.

In the usual course of events the witness is called and invokes the privilege. His appearance is postponed while the Government seeks an order of immunity from the Court unless an immunity agreement has been forged beforehand. There are traditionally two forms of immunity: transactional and use immunity. Transactional immunity protects a person from future prosecution for any crimes arising from his testimony. Use immunity is more limited and protects only the use of that testimony against that witness. What immunity does not provide is a license to lie. Even with a grant of transactional immunity a witness may still be prosecuted for perjury and obstruction of justice if he lies under oath.

Once immunized the witness now must answer or face proceedings for contempt. A court may order the recalcitrant witness incarcerated up to the life of that grand jury until the witness relents and agrees to testify. In Bonds’ case he is accused of lying to the grand jury and as well obstructing justice by the alleged lies. Like so many recent prosecutions (Martha Stewart, Shelton developer Robert Scinto) the failure to be honest in response to questions from federal agents or in testimony can lead to a criminal record and jail in instances where the individual was not otherwise exposed to either.

Here, Bonds was not accused of a crime involving his alleged use of steroids. He, like other athletes who have admitted to this use, would have been judged in the court of popular opinion. Faced with the blemish on his career Bonds appears to have made a bad choice and now has put not only his reputation in jeopardy, but his liberty as well.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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

News reports circulated this week of the parents of a pre-schooler who have sued a “prestigious” New York pre-school for the return of their up front tuition payment. Why? Because the school was not adequately preparing their apparent prodigy for a kindergarten placement test. Mom waited merely weeks to realize that play time for her 4 year old was not in keeping with the family master plan.

I read the story, intrigued both as a lawyer and a parent. First, as a lawyer I was impressed that this attorney has now carved out a new niche in the practice of law. There are specialists in medical malpractice, products liability, toxic torts, the list goes on and on. Now we have Toddler Torts! Marketing gurus can arrange for this enterprising new breed of litigators to advertise on the sides of school buses.

As a parent however, the case has displayed to me shortcomings in the rearing of our five sons that I would never have realized. How foolish of me and my wife to have encouraged our boys to go outside and play when at the advanced age of 3 or 4 they could have been boning up for the SAT’s or learning Latin or Geometry. I realize now that they were ill-prepared for life coloring at Mrs. Lyon’s Pre-School when they could have been working on test strategies.

On realizing my parental deficiencies I immediately jotted off a memo to my three older boys, fathers of our collective 8.75 grandchildren (one is under construction, presently). Instead of Sunday dinners at Papa’s we are going to engage in a series of weekly lectures on the Classics. Summers by the pool will now be replaced with lessons in physics and chemistry. The Uno card game in the family room will be replaced by vocabulary flash cards.

I am instructing these dads that they cannot make the mistake we as parents have made. I have also written them lengthy apologies for having apparently condemned them to lives that fall short of some loftier mark. I used small words, as I now understand the serious limits on their vocabularies that our failures must have created. Of course, since my parents raised me with the same deficiencies I now understand that I could have been so much more. Instead of climbing trees or making forts, I could have been conjugating verbs in Latin as I toddled in ignorance.

I think of the so-called great minds who have been renowned throughout history– Galileo, Isaac Newton, Albert Einstein, and the like. How far more advanced we would be as a civilization if they had the advantage of learning to speak 4 languages by the age of 5!

I have considered myself a defender of our civil justice tort system. In this column I have condemned those who rail that greedy plaintiffs and avaricious lawyers are responsible for the burgeoning costs of health care. But this one strains even my pro-litigation sensibilities.

My daughter-in-law, Megan, has a school for 2 year-olds and 3 year-olds. I have just ordered her copies of Julius Caesar’s Gallic Wars in Latin. I got the books with big print and a lot of colorful pictures.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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

Forgive me for departing from the usual theme of this column, the law, to pay tribute to my oldest and dearest friend, Ray Gabriele. Early on March 11th I received a call from Ray’s former medical partner to tell me the sad news that Raymond had died suddenly that morning in his home. Dr. Raymond Gabriele was the embodiment of all that was good about the practice of medicine. The word, “doctor” was not enough to define the character of this caring and gentle man. Ray was a healer, in every sense of that word. He approached the practice of medicine not as a job but as a true vocation. His patients all became his friends. His was the compassionate touch, the reassuring smile that helped even the most seriously ill face their tribulations.

As time passed, Raymond became ill and valiantly moved forward with his life, looking for enrichment and enriching others. In recent years his health forced his early retirement, but he missed medicine dearly. He missed the hours spent in practice with his best friend and partner. He missed the opportunity to spend time with the patients he loved. He missed the challenge of solving medical mysteries.

Ray was not the kind to go quietly into retirement. No, not Raymond. He took classes in Shakespeare, audited interesting college courses and taught in a nursing program. His was a life of giving back for all the rewards that God and the practice of medicine had bestowed on him.

Raymond and I first met in 1962 as two scrawny freshman starting at Notre Dame High School. Standardized tests somehow were difficult for him and he did not place highly on the entrance exam, which led to his placement in one of the school’s less challenging programs. In a short time his teachers recognized the brilliant and inquisitive mind and Raymond was placed in the high honors program. We spent hours together studying Latin, Geometry and the like. We forged a friendship that has lasted half a century. Ray loved his years at ND and had the remarkable ability to remember even the smallest things that we did at that school.

Ray wanted to join me at Notre Dame University but family finances would not permit it. Instead Ray distinguished himself at Kings College, staffed by the same Holy Cross Fathers that founded both our high school and Notre Dame University. He distinguished himself academically at Kings, but standardized testing again inhibited his dream to study medicine. When he was not admitted to a U. S. medical school Ray chose to go to Italy to study. His Italian was limited to a little slang he picked up as the grandchild of Italian immigrants. In two months in Italy he mastered the language and distinguished himself in medical school. In the summers he returned to St. Vincent’s as an extern and there he met another foreign medical student, Arnold, with whom he would start his medical practice.

As Raymond progressed from intern to internist he developed remarkable diagnostic skills. I remember when my mother was gravely ill in her mid-seventies and her condition had perplexed specialists brought in to consult. Ray’s medical intuition led him to believe she had myocarditis, an infection that attacked the heart muscle. He told us that the treatment for people under 50 was a transplant. He put my mom in a medically induced coma with massive steroid treatment, and saved her life.

He was humble, never seeking praise and shying away from the limelight. His reward was the gratitude of those he healed and those he comforted through illness. To him a patient baking cookies or bringing in peppers from the garden was all the praise he needed. Raymond was never one for the trappings of success. It was life’s simple pleasures he enjoyed like dinners with his wife, Linda and the accomplishments of his children, Raymond and Lauren. His joy was in making their lives richer.

As we age we will all lose friends, some closer to us than others. As years pass many of them will be forgotten. Anyone who was blessed to have known Raymond Gabriele will never forget him. His is a legacy of love and friendship and family. God Bless you, Raymond.

In 1984 the United States Sentencing Commission began the process of promulgating uniform sentencing guidelines to bind federal judges in the imposition of criminal sentences. The goal of the Commission was parity in sentencing. Of concern were disparate sentences for similar conduct based on the district where the crime was committed. Offenders in New York should come to expect the same range of sentences as similar offenders in California or Nebraska. What developed was a burgeoning volume of rules and enhancements. Myriad appellate decisions soon followed as prosecutors, defenders and judges sought to refine the limits and exceptions to the new rules.

Early commentators described the Guidelines as “draconian” stripping judges of otherwise wide ranging discretion in passing sentence. While laudable at first, the effect was to hamstring judges. Older, more experienced jurists who were used to a system where judges were free to judge, often artfully attempted to find the means to circumvent the Guidelines to follow their judicial instincts. Prosecutors appealed lenient sentences. Unhappy defendants appealed what they perceived to be harsh sentences.

Of particular emphasis in this evolution was the confusing system of sentence enhancements. Many were the result of the inclusion of what was called “other relevant conduct” in the computation of a Guidelines sentence This allowed prosecutors to seek an enhancement of the penalties by reference to facts that were never formally charged. They argued that these facts demonstrated additional criminal conduct that better defined the offender.

Slowly, the various Circuit Courts of Appeals began to differ on the application and appropriateness of many enhancements. Defenders challenged enhancements that were never part of the formal indictment and were based on the sometimes unsubstantiated and unchallenged information in the prosecutor’s files. In 2005 the Supreme Court found the mandatory Guidelines unconstitutional. The landmark case of United States v. Booker found that an enhancement that was proven by the lesser standard of “preponderance of evidence” offended the Sixth amendment. A companion case saved the Guidelines from total obliteration by ruling the Guidelines to be “advisory” and not mandatory.

Lawyers began to argue for non-Guidelines sentences. More appeals followed. In Gall v. United States the Supreme Court ruled that it could not be presumed that a sentence outside the advisory Guidelines range was unreasonable. Many judges found this as justification for less reliance on the Guidelines.

Prosecutors continued to battle where less severe sentences were imposed than that contemplated by the now “advisory” Guidelines. This week the Supreme Court moved the ball closer, once again, to the pre-Guidelines days of reasonable judicial discretion when it released its opinion in Pepper v. United States. Pepper originally plead guilty to serious narcotics charges prior to the Booker decision. He had cooperated with law enforcement, a reason under the Guidelines for a judge to depart downward from the Guidelines mandated sentence. That judge reduced the sentence by 75%, prompting prosecutors to appeal. The 8th Circuit Court of Appeals reversed the sentencing judge. When Pepper received a more severe sentence another appeal followed. Back it came for resentencing after the Booker decision.

Pepper’s case went up and down the appellate ladder–four times in all. The last challenged the failure to take into consideration extraordinary rehabilitation Pepper had accomplished since the imposition of the original sentence. From a drug addicted drug seller, Pepper had gone back to school; married with a child and employed, he had also reconciled with his family and completed an extensive treatment program. He argued that these factors should be considered. The courts disagreed, until this week. The Supreme Court has now mandated that judges should consider extraordinary post sentencing rehabilitation. Discretion is slowly being returned to our judges. Sentences should reflect the individual being sentenced not some rigid set of rules attempting to be universal in their application.

Connecticut needs to take note of this evolution as we have now created a state sentencing commission to investigate imposing guidelines in our state courts. Let’s let our judges, judge.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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

Venue is the legal term ascribed to the location of a particular court proceeding. Generally, criminal cases are tried in the locale where the crime is alleged to have been committed. There are times, however, when pre-trial publicity is so overwhelming that the public’s right to know collides with the defendant’s right to due process and a fair trial. If you have not heard or read anything about the Cheshire home invasion case then you must live under a rock in some remote corner of the planet. The publicity surrounding the case was already extensive, long before the Hayes trial commenced. It increased exponentially through the guilt and penalty phases of that case.

Now, his co-defendant, Komisarjevsky faces the bar of justice but the dilemma facing his legal team is how to select an impartial jury, untainted by the massive publicity to date. In a recent legal maneuver his defense has sought a change of venue, looking to move the case from New Haven to Stamford. That request is not without precedent. The trial of serial killer, Michael Ross, was moved from New London to Bridgeport because of the inability to select an unbiased jury in the locale where most of Ross’ murders occurred. Komisarjevsky’s lawyers claim the Hayes trial demonized him.

The due process right to a fair trial requires that a jury be fair and impartial. It does not require that they be completely ignorant about the case. Notorious crimes attract news coverage. With the advent of the internet the public’s ability to gain information becomes almost instantaneous. Whether it is morbid fascination with the macabre or curiosity fueled by the saturation of news coverage, the grizzly details from the Hayes became almost common knowledge. How then does the court find jurors who have not formed an opinion?

Our rules provide two instances where a venue change is appropriate: ” . . . (1) If the [judge] is satisfied that a fair and impartial trial cannot be had where the case is pending, or (2) If the defendant and the [prosecutor] agree.” Here the state opposes the defense request. The standard then for the court is. “When extensive publicity surrounds a criminal trial, a defendant’s right to an impartial jury can be affected in two ways: (1) where the pretrial publicity has so saturated the community that prejudice is presumed; and (2) when the accused can demonstrate actual prejudice in the jury panel.”

Defense lawyers have an obligation to seek a venue change if they reasonably believe that an impartial jury cannot be seated. Fortunately, Connecticut’s individual voir dire (where lawyers question each prospective juror outside the presence of the others) provides the best vehicle to explore the extent of the juror’s knowledge and whether it will unfairly impact their impartiality.

The defendant bears the burden of demonstrating that he cannot otherwise obtain a fair trial. Generally that determination is not fully ripe until there has been an unsuccessful effort to seat an impartial jury. The mere fact that jurors report that they can put aside their prior knowledge and beliefs about a case is not enough. There are some people so anxious to sit on a sensational case that they will save anything to pass muster. In the wake of cases like O.J. Simpson and Robert Blake, where jurors become mini-celebrities, with TV appearances, book deals and even entertainment agents being hired, there is an incentive for some to lobby to be picked. Although at least one appellate decision has stated, “There is nothing inherently suspect about a juror’s testimony that he can judge a case fairly and impartially.”

The standard for Judge Blue is simple. Does the juror pass this test: ” . . . can [the juror] lay aside his impression or opinion and render a verdict based on the evidence presented in court?” Determining whether to believe that juror can only be achieved with an exhaustive examination.

Rich Meehan is a nationally certified civil and criminal trial specialist and the 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