Did The Law Catch Up To Science? Or The Other Way Around?

If you follow appellate law in Connecticut - or if you make a regular habit of reading the Connecticut Law Journal every week - you find that things fall into a particular rhythm. The lower Appellate Court is a high-volume court that applies the law without breaking much new ground.

The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.

At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.

Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.

The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.

The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.

How to do this and is it worth it?

This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.

In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.

And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.

Appellate Court Refusals Are The Worst

Though I did succeed in getting two convictions overturned in recent months, yesterday the Connecticut Appellate Court didn't buy what I had to say and affirmed a conviction in State v. Payne. The majority opinion can be found here and the concurring opinion is here.

My argument focused on the trial court's denial of my client's motion to suppress. Quick facts: there was a smash-and-grab burglary in the middle of a the night at a liquor store in the Fair Haven section of New Haven. My client's car was spotted in the area. A brief, yet high speed (for that area) pursuit occurred, ending in my client's car colliding with the front of a house.

The police searched the car AFTER my client was already arrested. Thusly, I argued, none of the exigent circumstances that permit warrantless searches applied any longer. Further, I argued, no warrant exception applied.

One exception was "abandonment." Courts are somewhat divided over whether or not you maintain a privacy interest in property that you don't keep within your control.

The court spoke around this issue in this case, however. The majority opinion said that the record was not fit for review largely because the trial court opinion was unclear. The court said, in essence, that I had the obligation to make clear that opinion.

Trouble is, I didn't think the opinion was unclear. To me, the trial court answered the questions it was required to answer, though it was not a model of clarity. My concern was that if I tried to clear it up, any helpful points within that decision would have been picked up on by the trial court and ended my argument.

Truth be told, I cannot stand when appellate courts anywhere assert form over substance and use a technical reason to avoid opining upon an issue. Why not just give a defendant or an aggrieved person their day to be heard and ruled upon?

Why look for any possible technical reason to avoid answering the question really being asked?