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.

When Silence Doesn't Equal Silence

As anyone who has watched any crime show knows, you have the right to remain silent. Anything you say can and will be used against you. So watch out. I cannot tell you how many cases I have represented defendants in when their own statements are what sank them. If words of your guilt come out of your own mouth, that is the most potent evidence there is.

Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.

What does this mean? Why would you care?

It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.

I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.

Wouldn't a non-guilty person have spoken up?

Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?

These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.

Our Constitution permits silence. In fact, per Miranda, it is a right.

Or maybe, it was a right. Now you need to break your silence to assert it.

CT State Police Make 76 DWI Arrests Over Holiday Weekend

The Connecticut Post reports today that the Connecticut State Police made 76 arrests for DWI over the Memorial Day weekend. The story can be read here.

Increasing DWI enforcement over holiday weekends is nothing new for local departments and the State Police. In fact, if you hang out at courthouses enough, you'll here people say they expect the Tuesdays after Memorial Day, Fourth of July and Labor Day to be unusually busy due to extra DWI enforcement.

So what to do if you are one of the 76 who were arrested?

Well, first, call a lawyer. Only an experienced lawyer that knows the details of Connecticut's complex DWI laws can make sure your rights are protected throughout this process. Because don't forget, not only will your license be suspended, but there is the possibility that you could go to jail or wind up with a criminal record if your case is not handled properly.

Second, understand that the proceedings in court and those before the DMV are NOT the same. Your license will be suspended by the DMV unless you ask for and win a hearing before it.

Your license will also be suspended a second and unrelated time by the judge in court if you do not handle your case correctly.

These suspensions do NOT run together. If your license is going to be suspended by both the judge and the DMV, getting these suspensions to run at the same time does not happen automatically. Instead, it must be carefully planned and negotiated.

Third, if the DMV finds that you refused a breath test, your license will be suspended for six months (at least) and you cannot get a work permit for the first half of the suspension. Remember: just because the arresting officer said you refused a breath test does not mean that you did so. The law is very detailed in this regard. If the arresting officer said you refused to take a test, SEEK THE ADVICE OF A LAWYER IMMEDIATELY.

Lastly, do NOT miss court, no matter what. There are no good excuses for missing a court date.

Legal help is only a phone call away. If you have questions about what to do or what your rights are, call a lawyer.

Memorial Day Weekend Is DWI time

As the persistent radio and TV ads make plain, local enforcement of DWI laws are upped over holiday weekends. Memorial Day is no exception.

The question I get asked a lot is "should I take the test?" This question refers to the blood, breath or urine tests police officers are permitted to seek after arresting a motorist for DWI. This is no easy question to answer, but here are a few guiding principles.

1) The prosecutor does not REQUIRE tests in order to convict you of DWI. While he or she may prefer test results to strengthen the case, they are not required to find you guilty. Instead, witnesses can testify to your condition. These witnesses include your own passengers, people who may have been with you prior to your arrest, police officers or other witnesses. Therefore, by taking tests, you are giving a potent piece of evidence against you.

2) You have a right to refuse a breath, blood or urine test. Per our federal and state constitutions, you do not need to give your consent to these tests.

3) In Connecticut, if you refuse a test, the DMV will suspend your license for at least 6 months. Per DMV regs, you cannot get a work permit for the first half of your suspension, no matter what.

4) You have NO right to pick the type of test. The arresting officer does that.

5) The prosecutor cannot use the tests against you at trial unless they comply with the statute. If your lawyer is on his toes, tests that do not comply with the statute must be suppressed (i.e. not used at trial).

So, to answer the original question, what to do?

Refusing a test means no license, unless DMV finds, after a hearing, that you did not refuse a test.

Taking a test means that you are handing over potent evidence against you.

In short, if you have absolutely no DWI or driving history and there was no accident, it is probably safest to consent to the tests so that you can minimize suspensions and have a shot at a work permit.

If you have a bad driving history, including previous DWIs, handing over game-changing evidence that a prosecutor will use against is probably something that is best to avoid.

Above all else, get a lawyer, Only an experienced, competent lawyer with a thorough knowledge of DWI law can make certain your rights are protected, both in court and before the DMV.

Courtside trial tomorrow

Tomorrow I am on trial in Bridgeport. It is a courtside trial, meaning there will be no jury, only a judge. The case poses some interesting issues and I am looking forward to it.

My concern?

Tomorrow is the Thursday before a three-day weekend. It is going to be in the mid 90s. I hope there is someone around to hear us.

Cheshire 5k And Slowing My Son Down

Just finished a humbling 5k in Cheshire, Conn. to benefit their local YMCA and youth swim team. It was all a part of their "Healthy Living Expo." I ran it with my son, a rather athletic lacrosse player who was also running in his first ever 5k.

It started on a hill, went down a hill and through a neighborhood, south on the New Haven to Northampton rail line, up a steady hill, the up a hill on Route 10. He lost me for good on the second to last hill.

After, they gave awards to the best finishers. Kids in his age group were probably catchable for him. I slowed him down. That was humbling.

How Cases Get Transferred to the CT Supreme Court

I sometimes wonder what I get out of my Connecticut Bar Association membership. Three or four times a year I get a copy of the Connecticut Bar Journal and every other issue has a long article that is probably a sleep aid to non-lawyers, but is of interest to me.

Anyway, former Supreme Court justice David Borden wrote a short (by lawyer standards) essay on the whys and hows that the Connecticut Supreme Court transfers cases. On occasion and from on high, the Supreme Court reaches down to takes an appeal from the lower Appellate Court before they rule.

Appellate lawyers often had no idea why this would happen, nor know how to make or prevent it from happening in any particular case.

Justice Borden would know, since he is the fella that came up with the guidelines for why it happens. The mystery is gone, at least if you read the Connecticut Law Journal.

I would link to the article, but it is not on the CBA website. Back issues can be found here.

This same issue also has in it a "Roadmap to Connecticut Procedure." Though this headline uses most peoples' three favorite words ("procedure," "roadmap," and "Connecticut") if you are a litigator, it is a good read. Can never go wrong going back to fundamentals.