Due Process

It’s that time of year. The invitations are out and the party plans are moving forward. You decide to stay home this year and host your friends for a blow out New Years bash. First it’s off to the liquor store for the fixings for pear martinis and mojitos. Throw in some magnums of champagne for that New Years toast, and plenty of great Cabernet to serve with the filet mignon. Someone else suggests a bottle of Patron tequila. Add the party hats and funny noise makers and the party is ready to rock.

Your friends are ready to party. First, the pear martinis and mojitos with hors d’oeuvres. Someone suggests some chilled shots of Patron. Dinner goes well and the Cab is freely flowing. By the time you pop the champagne everyone is more than a little silly and tipsy. As Dick Clark is winding down on TV; one more night cap and all the revelers reach for their car keys to head home. Sound familiar? It should; it plays out everywhere on this festive night.

Another great New Years; or is it? Hours later you are awakened by the phone. Your buddy Joe, the party guy, was in an accident. He hit another car and caused some serious injuries. You, of course are concerned, “thank God I didn’t have to drive anywhere tonight; that could have been me.” Weeks later a state marshal knocks on your door and hands you a civil summons; you are being sued by the person your friend injured. “But how can that be?” You think, “I wasn’t driving the car.”

Drunk drivers cause serious injuries and deaths each holiday season. In a recent study by the Substance Abuse and Mental Health Services Administration, 30 million Americans admitted to driving while intoxicated; 10 million people confessed to driving under the influence of illegal drugs. We have all seen the statistics on DUI fatalities and serious injuries. But here you are sitting with the lawyer your insurance company provided trying to understand why you are a party to your friend’s lawsuit. You tell the lawyer that all you did was put the booze on the bar. You didn’t hand a glass to your intoxicated friend. “How can I be responsible for what Joe drank?”

For years judges have wrestled with the concept of imposing civil liability on the person or business that provided liquor to someone who ultimately injures another in the consequence of their intoxication. For the tavern owner the Dram Shop Act was created. It provides for a civil penalty of up to $250,000.00 that can be imposed by a jury against a bar that provides liquor to an obviously intoxicated person. The thornier legal issue was the responsibility of a social host when an intoxicated guest causes injury to another. As the incidents of alcohol related injuries escalate judges are expanding the exposure of social hosts. A social host could be legally responsible if the provision of alcohol could be proven to be a reckless act. To do so there must be actual proof that the host acted in a willful and wanton manner in knowingly serving booze to an intoxicated person. Plaintiffs had to prove that the person served was demonstrably intoxicated and that the social host knew that and poured more drinks anyway.

For years defense lawyers have successfully argued that the act of the intoxicated person actually imbibing the drink is what the law calls an intervening cause. As such, it was viewed as breaking the chain of legal cause, or “proximate cause” between the provision of the drink and the later accident that occurred. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser.For decades this argument was successful. No more! In a forward thinking case, New London Superior Court Judge Robert Martin has now lowered the bar (pardon the pun).

Judge Martin has rejected that argument, allowing a case against a social host to proceed to trial. He has ruled “that the voluntary consumption of alcohol by the [drunk driver] no longer serves to bar an action against a social host for the negligent service of alcohol to an adult.” So party on this year but remember, every drink you pour leads to more than just a buzz for the partygoers. Be responsible and really have a Happy New Year.

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

Ever wonder what happens to those emails you would rather no one else reads? You know, the ones some friend of a friend thought were funny despite being off-color. You are unwittingly on the thread because someone thought you would find it witty or titillating. You didn’t read it but deleted it; or did you. How about some very private information you are sharing with a confidante, your doctor, your lawyer or your significant other? You probably thought those were only being read by the intended recipient. Well apparently not. There was an antiquated piece of legislation known as the Stored Communications Act (SCA) that essentially proclaimed that if an unopened electronic communication was stored on an internet provider’s server for more than 6 months it was considered to be abandoned. The effect was that the Government had the right to inspect and read these “abandoned” messages without adhering to the proscriptions of the Fourth amendment to the United States Constitution.

The Fourth Amendment protects us from government intrusion into areas where we have a reasonable expectation of privacy. That intrusion is only permitted if the government can demonstrate that there are reasonable grounds to believe that contraband or the fruits of a crime are located in a particular place. The Amendment requires either a search warrant issued by a neutral and detached magistrate or one of several very limited exceptions to the warrant requirement. Under the SCA Congress essentially eliminated the constitutional requirement of a search warrant if the electronic communication fit certain guidelines. This allowed wholesale inspections of personal emails.

Under Fourth Amendment caselaw if property is considered abandoned the former owner no longer has the constitutionally protected reasonable expectation of privacy. Thus, there is no Fourth Amendment protection. The typical example is the criminal who disposes of some contraband by putting it out on the curb with the trash. The police are free to go “dumpster diving” and seize the trash and its incriminating contents without obtaining a search warrant.

The SCA was passed in 1986. Think back to that time nearly a quarter century ago and consider how few people relied on electronic means of communication. We weren’t texting and there were no social networks. We did things like make phone calls and actually speak to someone or wrote letters that needed stamps and a postman to deliver. But there were electronic communications then, although in their infancy.

Recently the Sixth Circuit Court of Appeals held key provisions of the SCA to be unconstitutional, determining that we do have a continued expectation of privacy in emails stored on our internet provider’s server. The case involved the prosecution of Steven Warshak. Old Steve isn’t exactly a household name, until you realize that he was the creator of Smiling Bob the fictional spokesman for Enzyte, an herbal sexual enhancement supplement. Apparently Steve and company dummied up medical research studies and user satisfaction surveys that propelled the sales of Enzyte into the multi-millions. A prolific emailer, Steve contested the Government’s seizure of over 27,000 intra-company emails, many of which contained incriminating admissions. Steve, his mother Harriet, and their company were convicted of dozens of federal crimes, and appealed.

Judge Danny Boggs of the Court of Appeals, while not impressed with the enhancements promised by Smiling Bob, nonetheless was impressed with Warshak’s arguments that the SCA offended the Fourth Amendment. The result is that the search warrants are now required to seize these private communications even though they are stored on a third party’s servers. For the legal scholars among you Judge Boggs’ opinion is a good read.

So thanks to Warshak and his hyper-stimulated alter ego, Smiling Bob, we aren’t a nation of sexual super heroes, “swelling with pride”, but we can rest a little easier that the Government has to play by the rules set forth in our Constitution before it can read those emails you wouldn’t want published on Facebook.

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

At this time of year we all spend so much time trying to think of appropriate gifts for friends and family. The holiday season fosters the spirit of giving in so many of us. What greater gift can any of us provide than the gift of life? Every 11 minutes another person is added to the transplant list. For them time is winding down. Without a donor 18 people on that list will die every day. The list of potential organs for donation includes: heart, lungs, kidneys, pancreas, liver, small bowel, bone and associated tendons, blood vessels, heart valves, skin and corneas. Tissue donations are of even greater use. There are a number of websites that describe the process and answer important questions. As well, there are simple steps set out to register as an organ donor. The easiest is through the Department of Motor Vehicles. A red heart icon on your driver’s license identifies you as a donor. The New England Donor Bank website provides answers to many questions. Concerns about denial of medical services or disfigurement can be allayed by accessing their site. Every donor can positively affect over 50 lives.

Connecticut has recently amended its anatomical donation statutes, clearly defining the protocol for a donor or a donor’s family to make a bequest of this precious gift. Known as the Revised Uniform Anatomical Gift Act, Public Act 10-123 became effective October 1, 2010. The Act defines how and who may make bequests of anatomical gifts. Donor rights are clearly defined, including the right to revoke a prior designation as a donor. An anatomical gift may be made to: “(1) A hospital; accredited medical school, dental school, college or university; organ procurement organization; or other appropriate person, for research or education; (2) . . . a named individual designated by the person making the anatomical gift if the individual is the recipient of the part; or (3) an eye bank or tissue bank.”

If an anatomical gift is not specified for a particular recipient, ” . . . but identifies the purpose for which an anatomical gift may be used, the following provisions shall apply: (1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank; (2) if the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank; (3) if the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; and (4) if the part is an organ, an eye or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.”

Anyone at least 18 years old can execute a document that contains health care instructions, the appointment of a health care representative, the designation of a conservator of the person for future incapacity and a document of anatomical gift. The document must be signed in the presence of two witnesses. No matter your age or state of health, everyone should create such a document.

In 2003 we lost my three month old grandson, Christian, to SIDS (Sudden Infant death Syndrome). My son and daughter-in-law were contacted by the donor bank asking for the donation of his heart valves to save the life of another infant. Through the years the thought that Christian helped save a life has been an immeasurable comfort.

If you give no other gift this holiday season register as a donor and give the gift of life.

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

Now that the judgment of death has been imposed on Steven Hayes the next round of death penalty challenges will begin. First, there is the mandatory appeal to the Connecticut Supreme Court. Even if Hayes, like Michael Ross, wants to die (recall that Hayes’ lawyers argued that he wants to commit “suicide by state”) the initial appeal cannot be waived or withdrawn. That appeal may only raise issues that were argued either at the trial or in pre-trial motions. This is known as a direct appeal. Issues that require evidence that was not part of the trial court record must be raised in what the law refers to as a collateral attack on the proceedings, by a writ of habeas corpus. There are strict procedural rules as well.

A defendant must exhaust his procedural remedies in a particular order. Any issue based on the trial record must be raised on direct appeal before it can be considered in a habeas petition. Once Hayes’ initial appeal is decided the habeas rounds will begin. A brief review of the post conviction challenges raised by and on behalf of Michael Ross will illustrate the long path this process may take. While other death row inmates are still actively pursuing challenges, the Ross, like Hayes, wanted to die.

In 1987, Michael Ross was convicted of six counts of capital felony and, after a separate penalty phase hearing was sentenced to death on each count. On appeal, the Supreme Court upheld the convictions, but initially reversed the death sentences and remanded the matter for a new penalty phase hearing. Following the remand, Ross elected to represent himself. This led to two pieces of joint litigation aimed at securing a death sentence against Ross. In the first, the Supreme Court declined to answer seven specific questions of law on procedural grounds. In the second, the trial court rejected a stipulation between Ross and the State to waive the new penalty phase hearing and to fix the sentence at death.

In 2000, at the new penalty phase rehearing, a new jury found an aggravating factor and no mitigating factor with respect to each count. The trial court imposed the sentence of death on each count. An appeal to the Supreme Court followed once again, which led to a June 2004 ruling that affirmed the death sentences. Although he had previously elected to represent himself, at the penalty phase rehearing and on appeal, Ross was again represented by court-appointed counsel.

In September 2004, Ross discharged his court-appointed lawyers and retained the attorney who had represented him from 1995 to 1998 when he was pursuing a sentence of death. In October 2004 Ross again waived any further legal challenges to the convictions and death sentences and volunteered to be executed. The court set the execution for January 26, 2005.

In December 2004, Ross’ father, Dan Ross filed a petition for writ of habeas corpus in Rockville Superior Court, as next friend of and on behalf of his son. The petition challenged the convictions and sentences and also sought a stay of execution and appointment of counsel. Ross resisted that action. There was a consolidated habeas petition pending affecting other death row inmates that raised the claim that statistics demonstrate that Connecticut’s death penalty system is marred by arbitrariness and discrimination and thus was unconstitutional. The Public Defender’s Office was concerned that Ross’ election to be executed would have an adverse impact on the pending consolidated habeas cases.

The habeas judge rejected the petition, holding that Dan Ross lacked standing to bring the action. A subsequent appeal failed and on May 13, 2005, 18 years after his initial conviction, Ross became the first person to be executed in Connecticut since 1960.

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

Now that the verdict is in in the first Cheshire case following the imposition of sentence on December 2nd, the focus for Steven Hayes turns to the appeal process. Appeals in capital cases are automatic, meaning that a defendant cannot elect not to appeal. The process is lengthy and is part of the reason that Hayes will not see the executioner for many years to come.

In the usual criminal case following the verdict a defendant must preserve the issues to be raised on appeal by filing certain post conviction motions with the trial judge. The purpose is to renew previously raised issues and to give the trial judge the option to cure any such errors by revisiting the ruling and possibly overturning the verdict.

Such motions are rarely granted. When they are, the State then has the right to an appeal to challenge the trial court ruling. In my practice only one such motion was granted following a client’s conviction. In that case the client was convicted of murder conspiracy. Following the conviction the Supreme Court redefined the law of conspiracy and the trial judge was persuaded that his jury instruction did not conform to the new mandates. Absent something of that dramatic nature trial judges will almost always deny the post conviction motions. Those motions are filed and argued in advance of sentencing. Judges will generally rule from the bench but in complex cases a judge may elect to issue a written decision.

An appeal must be filed within 20 days of the imposition of judgment of sentence. A defendant can petition the court to extend the time to file an appeal. Generally, that request is made while a defendant seeks the appointment of the public defender to handle the appeal. Except in capital cases, the failure to file the appeal within the allotted time will result in a waiver of the appeal rights and the judgment becomes final.

The imposition of the criminal sentence is not delayed by the filing of an appeal, except in death penalty cases. Defendants sentenced to a term of imprisonment are required to begin the sentence unless an appeal bond is allowed. An appeal bond is not mandated and is a discretionary decision by the trial judge. In capital cases there are no bonds.

Once the appeal is filed the defendant, now known as the appellant, must order the trial transcript. The appellant’s brief is due 45 days following the delivery of the final portions of the transcript. In lengthy and complex cases the transcripts may be voluminous. Once a request is made by appellate counsel the court reporter begins the transcription process. It is a lengthy one and consumes much of the time that appeals take. Unfortunately, time constraints and funding issues limit court reporters complying with such requests. Most employ a transcriptionist to create the paper transcript.

Once the transcript is delivered it is the very rare case where counsel can file the appellate brief in the initial 45 day period. Often the appellate lawyers were not the trial lawyers and require the complete transcript to identify the errors to be raised. The issues on appeal are limited to those presented on the record to the trial judge during pre-trial hearings or the trial itself. Issues requiring facts that do not appear on the record must be raised in collateral post judgment actions, by either a writ of habeas corpus or a civil Petition for New Trial.

Once the appellant’s brief is filed the state is given 30 days to respond. Again there will be several extension requests from that side as well. Once all briefs are filed the case must await assignment for oral argument, again taking months. Following arguments the Court is under no time constraint regarding the time needed to issue it’s decision. The Justices caucus following oral argument and often reach a consensus based on the preliminary research they and their law clerks have performed. The Chief Justice will assign the case to one of the panel to draft the majority opinion. That draft is usually circulated among the Justices for comment. Those dissenting will author their own analysis. Eventually the opinion is published. It would not be surprising to see this appeal taking two years for resolution.

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

In today’s litigious society no profession is exempt from malpractice claims. Lawyers, like doctors and dentists are held to the standards of care generally accepted by the profession for like services. In the context of post conviction review of a lawyer’s effectiveness in defense of a criminal case, the standard to which that lawyer is held is a minimal one: that is, that lawyer’s actions must be the minimum the profession would find acceptable.

But is that the standard when a lawyer professes to have skills greater than the average attorney? Look at the sometimes outlandish claims by TV ads, or those plastered on the side of every bus in town. The advertisers are making implicit promises of greater expertise than rock bottom minimum competence. Would you be persuaded to hire a lawyer whose ad proclaims: “I’m only as good as the least effective member of the legal profession.” Does all of that puffery create a higher standard of care? Certainly your expectations are elevated when the advertiser tells of his her phenomenal success, recovering millions for former clients.

Most people don’t pay attention to the small print disclaimer that the Bar requires, advising that past success is not an predictor of future success. Is that lawyer held to a higher standard of care? One would think so, but that is not the law. Once again, even in the context of a malpractice claim, a lawyer’s conduct is measured against an objective standard of minimal competence.

What distinguishes many legal malpractice cases from those claims involving other professions is the requirement that the plaintiff not only prove that there was a deviation from accepted standards, but the claimant must also prove the case within the case. That is, the plaintiff has to prove that had the original claim been filed on time, he would have prevailed. Take for example the following: Mr. Jones hires lawyer Smith to sue his doctor for malpractice. Smith accepts the case but fails to fully investigate and allows the two year statute of limitations to expire without starting suit in court. The failure to commence a lawsuit within the applicable statute of limitations is clear cut malpractice. But that is not enough to Jones to prevail in his malpractice claim.

Even with such a clear deviation by Smith, Mr. Jones must be able to prove that had Smith filed a timely lawsuit, Jones would have prevailed. Jones new lawyer has the greater burden of also establishing the negligence of the treating doctor had the original claim been pursued.

Malpractice claims against doctors must be established by expert testimony from a similar health care provider. If the target doctor is board certified in a particular specialty the expert must possess either board certification or such experience and skill that the trial court is convinced of that expertise. To establish the negligence of Smith in many instances requires a legal expert as well as the medical experts. Lawyer Smith has the opportunity to defend the case by disputing the claim of legal negligence; and failing that, Smith can then attack the underlying claim.

While it may appear to be an injustice to expect the damaged client to satisfy two burdens, legal malpractice cases, unlike medical claims, do not require a demonstration that the lawyer filing suit has conducted an adequate investigation before filing. Medical malpractice claims cannot be filed without a certificate of good faith, accompanied by an unsigned opinion from a similar provider. In fact, the requirement is so strict, that courts are dismissing what appear to be meritorious claims because the good faith letter is somehow deficient. No such requirement attaches to the filing of a claim against your lawyer, your accountant or your insurance broker.

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

Twelve people, cast together by the random act of a computer selecting them for the pool of candidates to be interviewed for inclusion in the first of the two Cheshire home invasion cases, reached a decision last week that reflected the conscience of our community. As the evidence unfolded it was clear that Stephen Hayes was a merciless murderer who deserved no sympathy. The brutal evil of his act demanded retribution. Even those who adamantly oppose the death penalty saw its utility in this case. The verdict in the guilt case was a given. If anything it was the dress rehearsal for the real battle: the penalty phase.

The evidence of aggravating factors was so intense that in the end Hayes’ legal team was left with little else to argue other than he deserved to be sentenced to the agony of a life in prison and not the release that execution would bring–”suicide by state” is what they called it. When the verdict was announced news reports noted that Hayes smiled, apparently satisfied with the jury’s decision.

In four decades of trying jury cases I have seen clear cut cases decided in a matter of minutes. This, to me, was going to be such a case. The four hours of deliberations on the guilt phase even seemed unnecessarily long, given the mountain of incriminating evidence and the concession that he had raped and strangled Mrs. Petit.

I fully expected that the verdict on the penalty phase would be as swift. It was not. as the weekend wore on the question arose that perhaps there were those in the jury room who, despite all they had witnessed, nevertheless could not vote for death. In the end they were unanimous. There was nothing mitigating the horror that Hayes had visited on the Petit family. In the end, this group of strangers had calmly and patiently reviewed the evidence and arguments before reaching their verdict.

What was most remarkable about the process were the comments of the jurors after. After a trial, and as the jury is being discharged by the court, judges will instruct them that they are now free to discuss the case. They are also told that they should keep their deliberations secret. These people and the alternates who were also excused, had carried a heavy burden since the evidence had commenced. They could not discuss the case with anyone; not with each other, nor with their family or friends. Each was left to carry home the vivid, disturbing images that every day brought. Jurors who do not abide these instructions can undo a verdict in a lengthy, emotional trial.

Despite the evil they witnessed, each of these people honored the oath that they took as jurors. They were impressed with the magnitude of the decision that they were asked to make. Theirs was not a knee jerk reaction. Their careful deliberation demonstrated their collective concern for the sanctity of a life and death decision. No one would have faulted them if they went into that jury room and immediately decided on death. Instead, they gave to Stephen Hayes the consideration he had denied his victims.

I have ended every final argument in each criminal case I have tried with the same message to the jury: what you do in that jury room today will be final. It will be final for the defendant and it will be final for you. If, a week from now or a year from now while you are going about your life , and the thought occurs to you, “If I had it to do over again I would vote differently” you can’t come back. I think these jurors will be able to move on knowing that they did the best that they could.

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

December 7, 1941, “A day that will live in infamy” in the words of FDR, held a brighter promise for a young married couple, Rita and Charlie James. That they purchased a modest 5 room cottage on a quiet street in Fairfield, Ct. The James family would have to wait until the conclusion of the war to move into their dream home. Eventually they did, and raised two children, Barry and Charlene. Neighbors helped each other. Lifelong friendships were forged.

Eventually Charlene married and moved out but Barry remained. He graduated from Sacred Heart University and after earning his Masters degree he started a career in human resources. Barry’s home life surrounded Rita and Charlie. Eventually two nephews and a niece, his godchildren were born to Charlene and her husband Bob. Like many, Barry had a few bumps along the road of life. But in the main he was a good and decent man. He served on Fairfield’s RTM and as a Park Commissioner.

Barry’s passion in life was Yale football. With Charlie he became a season ticket holder, even traveling to away games. One particular photo his family cherishes was Yale’s trip to play the University of Hawaii, with Barry and Charlie holding their sign, “For God, country and Yale.”

Together with Rita, theirs was a symbiotic relationship. Like other disparate organisms in nature, these three had created an interdependence from which flowed a single unit bound by love. For 59 years this bond grew, often through the simple mundane tasks of life: trips to the dump, lunches at the diner, church, and always family.

In the spring of 2006 another hopeful young couple moved to the James’ neighborhood. Jonathan Edington was a 29-year-old patent lawyer. He brought his pregnant wife and two-year-old daughter. Early on he met his next-door neighbor, Charlie, whom he would later describe in his testimony as “this proud man.” Edington admired the wonderful loving relationship he witnessed in this family.

But Edington had another side. On August 28, 2006 that other side emerged. It started with a phone call from his wife, Christina. The family was returning to Fairfield after a vacation. Their two year old was apparently fearful of returning home. Christina reportedly quoted the child as having some vague fear of Barry. “I assumed she meant Barry James,” was all that Edington reported in his later testimony. From that assumption he claimed his mind began to race. He imagined untold, horrific acts by Barry James. With that, Edington took a carving knife with a 7” blade from his kitchen. “I wanted to just ask him about my daughter.”

According to Rita’s testimony, Edington paced to and fro in his driveway, eventually cutting through the screen of Barry’s first floor window and vaulting into the room. It was another Pearl Harbor for Rita and Charlie. Like those unsuspecting Hawaiians, the James family had awakened to another simple day, not knowing it was to shatter their lives and end Barry’s. Barry and Charlie had returned from the diner with a grilled cheese sandwich for Rita. Barry fetched the mail and was sorting it in his bedroom, his back toward the window that his killer would use to invade the sanctity and peace that flourished in this home for 64 years. Rita put down her half eaten sandwich and walked to the door of Barry’s room. There she saw Edington jump onto her son’s bed from the open window. He began to pummel Barry in the back. The autopsy later revealed he had been stabbed twice in the back and cut several times on the head.

She heard Edington say something about his daughter and heard her son respond, “I don’t even know your daughter!” Edington recounted the same brief conversation in his later testimony. The savage butchery continued. He knocked Barry to the floor, plunging the knife so deeply into Barry’s chest nine times, that even 2” of the knife handle had pierced him. Rita watched in horror as the slaughter continued. To this day she laments that at 87 years old, she did not throw herself on Barry to try to save him. Edington finished his violent act, forever killing as well the peaceful lives of Rita and Charlie. Barry called out for their help.

The 911 call to Fairfield Police was played last week for a Bridgeport jury. In it the frantic pleas for help from Charlie and Rita rang through a silenced, reverent courtroom. At 91 years old Charlie struggled to understand what he and Rita had just witnessed, while Barry’s lifeblood saturated the rug at his mother’s feet.

The police and EMT’s arrived immediately. Barry was taken to the hospital where heroic efforts to reclaim his life from this butcher failed. What started as an average day ended at 5:42 pm when he was pronounced dead. Meanwhile Sgt. Gunter had run to the rear of Edington’s home and observed him at the kitchen sink, cell phone snuggled against his shoulder, washing Barry’s life from his bloodied hands. Gunter described his demeanor as, “cool, calm and collected; not agitated.” The jury heard Edington’s call to 911, where he spoke calmly, in a soft monotone asking for an ambulance.

Three days later, as the family instructed countless callers to watch for the obituary in the Post, Edington stole the only thing that Rita, Charlie and Charlene had left, Barry’s good name. The headline that morning was that Edington suspected that Barry had molested his daughter. The police investigated, and Barry’s family fully cooperated. The Edingtons did not. Christina hired pre-eminent criminal lawyer, Willie Dow, unwilling to give a formal statement to police. A medical expert, trained in assessing evidence of sexual assault, examined the child, and found none. A trained forensic interviewer evaluated her and she expressed absolutely no fear of Barry or the home. A thorough investigation by Sgt. Hine and the police found no evidence at all to substantiate the wild claims of the Edingtons.

Edington eventually plead guilty to intentional manslaughter and was sentenced to only 12 years. At that sentencing the James family spoke. Edington did not. He never expressed remorse or sorrow. Months later he sent a venomous letter to the New York Post regurgitating his vile, unfounded accusation, and accusing the police of conspiring with the family to cover up the imagined wrongdoings.

An eminent psychiatrist examined him for his defense lawyer, according court filings. An obsessive-compulsive who suffered from borderline personality disorder, he wasn’t legally insane, but was unbalanced enough that when Christina’s hysteric accusations were made he went into an uncontrollable rage.

Last week the James family sought justice from a civil jury. In my opening statement I told the jury that this case represented the contrast between the rule of law and misguided vigilante justice. The jury responded. Edington chose to represent himself. He testified in a rambling narrative, punctuated by frequent tearful pauses. He told of his daughter and extolled Rita and Charlie. He said he never apologized because it wouldn’t matter; he could not bring Barry back. But he clung to that distorted belief that Barry, a man with such severe diabetic neuropathy that he had to be helped up and down stairs and even out of a chair, had somehow entered his home and abused his daughter. But it did matter. It mattered to Rita, Charlie and Charlene. It mattered to the jury.

In my final argument I recounted the testimony of Charlene about the weekly visits to Barry’s grave where Rita talks to him and tells him again and again that she should have done more to save him. Charlie has descended far into dementia, propelled in large part by the loss of his best friend. When she was able to get out of the car Rita always put a small pebble on the grave. In later years she would ask Charlene if any visitors had left pebbles, honoring Barry’s memory.

I told the jury that I was intrigued and researched this tradition. It stems from a Jewish custom when there were no headstones, only a mound of pebbles as a monument. By adding a pebble each visitor reaffirms that the deceased will never be forgotten; that the monument to that life is unfinished. Yesterday Barry’s jury added their pebbles to the monument for Barry. The rule of law prevailed.

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