2003 Death Penalty Hearing Testimony
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Transcript of 2003 Death Penalty Hearing Testimony
8/8/2019 2003 Death Penalty Hearing Testimony
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JUD Committee Hearing Transcript for 04/07/2003
REP. LAWLOR: Next is the aforementioned, Chief State's
Attorney, Chris Morano.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Good afternoon.It's been a very informative afternoon for all of us.
Good afternoon, Senator McDonald, Representative Lawlor,
Senator Kissel, Representative Farr, and members of the
Judiciary Committee.
I appear before the committee today to speak on four bills
on today's agenda and joining me today are several State's
Attorneys, State's Attorney Kane, State's Attorney Galvin,
as well as Senior Assistant State's Attorney Harry Weller
and Executive Assistant State's Attorney Judith Rossi.
We're here to talk about four bills………..
The Division of Criminal Justice opposes, as currently
drafted, both H.B. 6612, AN ACT ADOPTING THE
RECOMMENDATIONS OF THE CONNECTICUT COMMISSION ON THE DEATH
PENALTY and H.B. 6700, AN ACT CONCERNING INVESTIGATORY
PROCEDURES IN CRIMINAL CASES.
First of all, I want to commend the work that was done by
the Death Penalty Commission. I think Mr. Flynn's
statements today and his presentation clearly show that a
lot of thought was put into this.
However, there still are some concerns and the State's
Attorneys who have joined me today will outline their
specific objections and our concerns on these bills.
However, I think our opposition can best be summed up inone sentence. And this, I would apply to the remarks we
heard from Mr. Scheck, very interesting remarks we heard
from Mr. Scheck. Look at the Connecticut experience.
All that we heard from Mr. Scheck did not apply to one
Connecticut case. Of the over 127 exonerations of post-
conviction DNA, innocent, not one from Connecticut.
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As I read both bills, I have to wonder whether those who
study this issue and those who have presented these
proposals are, in fact, talking about Connecticut or
problems that have occurred elsewhere. We do not have
defense lawyers sleeping through capital trials. The
Connecticut Defense Bar is arguably one of the best in the
country and that includes our State Public -- Division of
Public Defender Services. Our capital felony statute is the
product of many years of thought and yes, anguish and soul-
searching on the part of the General Assembly and our
criminal justice system.
I would assert that our system is not broke and does not
necessarily need any fix, as envisioned in H.B. 6612. In
fact, some of the remedies sought in these bills are
already available under current law.
Also, police investigative techniques should not be
addressed through -- should be addressed, excuse me,
through proper training and not written into statutes which
would only provide yet another loophole to allow a
defendant to avoid his or her factual guilt and also an
unfunded mandate burden on our local police departments.
We, as prosecutors, take our constitutional
responsibilities very seriously. We take an oath to defend
the Constitution and to faithfully execute the laws that
you and the General Assembly enact and that oath includes
the enforcement of the capital felony statute that's beenput into place by this very General Assembly.
Let me state for the record my disappointment that the
Division of Criminal Justice was not included in membership
on this commission. We fail to see how this group could
possibly do a fair and thorough study without formal
participation by the agency that has the constitutional
responsibility to enforce the capital felony statute. We
also believe that our not being a part of this commission
is reflected in its recommendations, many of which we
believe ignore the experience in Connecticut.
Citing the fact that a retired police chief, with the best
intentions, who is now involved in budgetary issues, as
being a member of the committee, does not replace the
experience and the expertise that a prosecutor would have
put if he had been on this commission.
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What is the Connecticut experience? Ours is the death
penalty law that is very limited in application. The law is
difficult to invoke, difficult to prosecute, and most of
all, difficult to carry out. And that is the way it should
be. There is no question of the guilt of the individuals
now on death row. In fact, none of those individuals are
making a claim of actual innocence. The only issue is the
appropriate penalty and that too, having been decided
through a very thorough painstakingly and soul-searching
process.
In one case, State vs. Michael Ross, a total of twenty-four
jurors have heard months of testimony and sentenced the
defendant to death, not once, but twice.
Before any individual can be put to death, they must go
through a very long and detailed process. Probable cause
must be shown for an arrest warrant to be issued. A judge
must issue a finding of probable cause for the matter to
proceed to trial. A verdict of guilty must be returned and
then there must be a second trial dealing with the penalty
or the sentence.
If sentence of death is returned, the case is automatically
appealed to our State Supreme Court. Other appeals in the
federal courts are possible, as are a variety of state and
federal habeas proceedings. It is a long and complicated
process and I believe a process that respects and carries
out the law of the State as enacted by the General Assembly.
Yet, Section 10 of H.B. 6612, would allow three members,
just three members of the Board of Pardons to overturn a
death sentence. Yes, just three individuals would have the
authority to reverse the years of deliberations and
decisions on the part of jury or juries and the highest
courts of our State and nation.
Allow me to highlight some of the other specific concerns
and objections to this bill.
Section 1 deals with cost analysis. It would be difficult,
if not impossible for the Division of Criminal Justice to
compile the information requested. From our perspective, a
criminal case is a criminal case. We do not track cases on
a per client basis. Also, not every capital case begins as
a capital case. I would stress, however, that unlike the
Division of Public Defender Services, the Division of
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Criminal Justice prosecutes all cases. Further, we believe
that basic fairness and the interest of justice dictate
that equal resources be provided to both the prosecution
and the defense.
Sections 6 and 7 are another example of this. Capital
litigation training. The Division of Criminal Justice
strongly supports all efforts to improve and expand
training for our professional staff. To do so, however,
will require adequate resources and, again, we must stress
that we handle all criminal cases and allocating the
appropriate funds, both defense and prosecution must be
treated equally.
Section 8 deals with capital defense support unit. The
Division of Public Defender Services already has a well
funded and very effective capital defense unit. At this
time, this unit consists -- and correct me if I'm wrong, of
at least five attorneys who are assigned exclusively to the
defense of capital cases. At the present time, the Division
of Criminal Justice does not have a capital prosecution
unit. Staff from the Office of the Chief State's Attorney,
who have other duties, including a very, very pressing and
time sensitive appellate docket, must be assigned to assist
State's Attorneys who are also handling other cases, to do
these matters.
Funding should be provided for a capital prosecution unit.
We, too, must hire expert witnesses, as suggested inSection 8 of this bill, and provide for the many other
expenditures required for any criminal prosecution,
particularly for those matters that go through a trial.
Section 14 deals with the use of incarcerated and former
testimony. This section needlessly places an array of new
obstacles and restrictions on the prosecution. I must point
out, at this time, that those provisions were not part of
the Commission's original recommendations. This section
ignores the practices that are currently in place, such as
the rules of discovery and the rules of evidence. Again,look at the Connecticut experience. None of the defendants
currently under a sentence of death in this state is there
because of an informant's testimony, as defined in Section
14 of this bill.
Section 15, retention of evidence. The proposals regarding
the retention of evidence are overly broad and would place
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a tremendous burden on the Division of Criminal Justice
with no funding to meet that burden.
At the present time, we're barely able to keep up with the
storage of documents that we need to just to operate under
current situations. Long before a case reaches the point
where a defendant is sentenced to death, all of the
evidence has been subjected to tremendous and detailed
scrutiny by his attorney, judges, and in most cases, a
jury. We believe that the very stringent rules for the most
extreme cases are already in place, govern the retention of
evidence in an adequate manner.
Section 16, a post-conviction DNA testing in capital cases.
This section is unnecessary as it's already covered by
Section 52-582 of the General Statutes. This existing
statute already allows any person convicted of any crime to
petition for a new trial based on DNA evidence not
available at the time of the original trial.
With regard to H.B. 6700, I would like to make the
following specific observations.
Section 3, dealing with post-conviction DNA review. This
mirrors, somewhat, the prior bill. However, this section
essentially allows a defendant to deliberately ignore
certain evidence throughout the case and then use it as "an
ace in the hole" down the road when all other remedies have
failed.
The Division of Criminal Justice strongly supports the
concept of quality control and reasonable post-conviction
review. This section, however, seeks to ignore or bypass
existing remedies such as petition for a new trial or a
habeas petition. It is inconsistent with the case law and
the repeated rulings of our courts that state that such
challenges must be made in the context of a constitutional
violation.
This section gives the impression that prosecutors inConnecticut have unreasonably blocked attempts by
defendants to show their innocence based on untested DNA
evidence. Again, I ask you to look at the Connecticut
experience.
Specifically, I would suggest that you ask Barry Scheck and
I was hoping he would come after me, about the case of
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Guillermo Aillon, and the way the Connecticut prosecutors
handled that matter. I know because I was there. Mr. Scheck
came into town, he had a theory, he wanted things tested,
we met. Mr. Deerington is the State's Attorney in charge of
that case, was cooperative. The evidence was tested. It did
not pan out. Mr. Scheck went home. All parties involved
acting in a professional and responsible manner.
Let me state for the record, without reservation, that I
strongly believe in the use of DNA to review and correct
the conviction of a person who is actually innocent. And
that is obligation applies to the State during the entire
course of a prosecution, not just post-conviction. In many
other jurisdictions, prosecutors are creating special post-
conviction review units for this very purpose. And I would
not hesitate to explore that possibility if we had the
funding to do so.
Section 6 deals with wrongful conviction review panel.
While this section seems to suggest -- what this section
seems to suggest is the creation of a new process to do
what our courts, most notably our Supreme Court, through
its supervisory authority, already has the power to do. And
if there's going to be yet another blue ribbon commission,
should it not include those who are involved in these
matters, not necessarily obviously the same ones that are
involved in the matter being investigated or looked at, but
those who have been trained and those who do this every day
and have the expertise and experience? I speak ofprosecutors, defense attorneys, and judges.
We hear a lot of talk about the need to bring about
finality in criminal cases, particularly for the victims of
crime and the families of murder victims. Yet both of these
bills would seek to unnecessarily prolong these proceedings
and add new obstacles and new reasons to avoid finality. As
the old adage goes, "Justice delayed is indeed justice
denied." In these case, for the victims of crime.
For those reasons, we would ask you to clearly look veryclosely at the recommendations.
Now, Mr. Scheck spoke of some things and other people who
testified here did, as well and there are going to be
people who will speak next that will talk about the
particulars of sequential identification, of recorded
confessions, of a review panel.
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Mr. Cohen, the State's Attorney from the Stamford Judicial
District was going to attend today and speak on open file
policy. Due to the weather, he could not, however, I have
filed, with the committee, his written statement.
In addition, Mr. Connolly was going to speak on the impact
statement issue of the bill. He could not come because of
the weather, as well, but he has filed, through us, some
written testimony.
REP. LAWLOR: Can I ask you, what was Mr. Connolly's
argument on the victim impact portion?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Mr. Connolly
believes that the victim's impact statement should come
before -- it should come at a time when it's relevant to
deciding the issue.
REP. LAWLOR: So --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Not after.
REP. LAWLOR: -- he recommends a change in the statute in
that respect?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I would
refer you to his statement. I don't want to speak for Mr.
Connolly.
REP. LAWLOR: But my -- correct me if I'm wrong. My
understanding is under the current law victims are not
allowed to address the jury or the three judge panel during
the penalty phase, is that correct?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: To be honest
with you, I don't know the answer to that. I will know in a
second. I know the answer now.
REP. LAWLOR: Okay.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: There is no
clear cut answer because two different trial courts have
ruled two different ways.
REP. LAWLOR: So at a minimum, we could at least clarify the
right of the victim to address the jury or the three judge
panel in the sentencing -- in the penalty phase.
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CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct, but the
thrust of Mr. Connolly's belief and the Division's belief
is that the victim should have a right to be heard at the
appropriate time, not after it's already been decided and
it's just icing on the cake.
REP. LAWLOR: I certainly agree with that, no question.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: At this point I
am pleased to have State's Attorney Mary Galvin who can
come forward and talk about the review panel we heard so
much of earlier.
REP. LAWLOR: Can we just ask you a question?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Of course.
REP. LAWLOR: I just would be curious how you would respond
to the -- this issue has come up a few times that obviously
people have philosophical differences of opinion about the
death penalty, right and put those aside for a moment.
There's this practical argument that's emerged that if, in
reality, we haven't executed anybody in forty years and I
remember three years ago there was -- the last time we went
down this road, that issue came up and people from your
office said well, within two years we'll have the first one
executed. Well, that was three years ago and apparently the
person they were referring to is really no closer to
execution now than they were then.
This practical argument about all this angst that we go
through at the Legislature for the philosophical debate, is
this just pointless? I mean, is anyone ever actually going
to be executed in this state?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I can't
answer that question, but I can tell you if we keep taking
bills with some of the things that are in the bill here,
and start to make it more drawn out, more cumbersome, and
believe me, I don't want to streamline it to make it easy,it is not easy in the State of Connecticut, but every time
we start to go down the road and figure out how we're going
to approach this, then a bill will come out from various
people and I think if you look at the feelings of the
people who propose these bills and I say with all due
respect, they don't like the death penalty and they want it
repealed. So the strategy seems to be let's just keep
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coming up with more ways to delay it, more cumbersome, more
hoops to jump through, and then someone, such as yourself,
can say to me, well, Mr. Morano, its' been "x" number of
years and it still hasn't happened.
REP. LAWLOR: Well the irony is I remember eight years ago
when I was chair of this committee, it was my first year as
chair of this committee, that we had the same discussion
except at that time, the bill before us was to "make the
death penalty more workable" and that had been before us
for eight years and there was a lot of effort to get that
thing passed for a long time and I remember many people,
including some folks in your office said you know, why
don't you leave well enough alone? I see Mr. Weller nodding
his head.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: He won't be
speaking, don't worry.
REP. LAWLOR: But the point is, it's working both ways.
There are people who are upset that no one has actually
been executed and there are some people who have avoided
execution and want to change it and, in fact, just a couple
of years ago I think we had to change it again because of
the so-called -- the murder of Trooper Bagshaw. People
wanted to make a change there. And one of the arguments
that comes through all the time, no matter what, we're
definitely muddying up the waters every time these new
death penalties have to go back, all the way through theSupreme Court process and have we reached the point? Here
it is eight years since we made the death penalty more
workable and no one's even close to being executed and the
batting record of your office in obtaining death sentences
is the same now as it was before, which is like about two
out of three, I guess.
Why are we doing all this stuff? It definitely costs us a
lot of money and no one actually is going to be executed,
apparently any time soon, so what is the point of all this
aggravation?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think the
people who can best answer that question are the victims.
And maybe you'd better address them.
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REP. LAWLOR: Do you think they're happier that this -- I
mean, is it a service to them to have this never imposed
penalty out there or would it be better to just --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, let me
give you an example. Yesterday, as you were present, we
went to a ceremony for the Survivors of Homicide. And one
woman took me aside and she -- she's the mother of Mr.
Williams, a police officer in Waterbury who was murdered in
the line of duty. And she has been patient and waited and
been through hearing after hearing and trials and she sat
and went patiently to the Supreme Court in 2001 to hear
that case argued before the Supreme Court, 2001 and that
decision hasn't come out.
Now, I, by no means, am trying to speak poorly of the
people who have to write that decision because I'm sure
it's a very difficult one to write. But it's very difficult
for Ms. Williams to have to wait and wait and wait. And
it's very difficult for them to have to sit and see every
year bill after bill come up whose true intent, with all
due respect, might very well be just to see that the death
penalty goes down the tubes. So we can all throw our hands
up and be frustrated.
It's never going to be passed, with due respect, Mr.
Lawlor, if we keep tinkering with it.
REP. LAWLOR: But --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: It's never going
to happen.
REP. LAWLOR: That was the argument eight years ago, as I
recall, and I remember the way I felt then as I do now, is
that look, whatever we've got to do to make this thing
workable, let's just do it and then it can sink or swim on
its own merits, but even with all those changes, it doesn't
appear -- these are changes made by the pro-death penalty
folks of which there's a large majority in the Legislatureand the Governor and on the Supreme Court, as well, as I
understand it.
So, the point is, given all this anxiety we have to go
through and given -- I mean, it's my argument that this is
cruel and unusual punishment for the victims because they
have to see all this stuff going on. There's a majority
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here in favor of this thing, right, and all these changes
that have actually been enacted have been to make it more
workable, not to make it less workable.
That was the stated purpose of all the -- I mean, this
thing (inaudible) report. The actual changes in the law
were all made by supporters of the death penalty and even
with all these changes, over 40 years, still no one has
been executed. What is the point of all this stuff?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I don't
think we should be in a road race to get there. We should
take our time and we should get -- but if you start
enacting many of the sections that are in this bill,
there's just going to be incredibly more hurdles and
probably make it impossible.
REP. LAWLOR: That's an argument against the bill. I'm just
saying, given all this, why do we even have this death
penalty?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, with all
due respect, I think that the bill is an attempt, in some
cases, to be an argument against the death penalty, period.
REP. LAWLOR: And I'm against it as much as anybody is
against it, but my point is, there's a majority of people
who support this thing here and there's a governor who
supports it and there's a Supreme Court and even with abunch of changes to make it more workable, even with all
that, it still appears to be not a reality in our state.
And I'm just wondering, at what point do we pull the plug
on this policy if we're never going to actually execute
anybody and devote our resources to something where we can
actually do what we say we're going to do?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I don't know the
answer at what point, but I do know that we're not at that
point now.
REP. LAWLOR: Okay. That's all I'm asking. Representative
Dillon.
REP. DILLON: Thank you. Hi. I'm not going to impute motives
to anybody today. It's nice to see you.
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But I did want to ask a couple of questions. One sort of
just a broad one, not to ask for an answer right now. And
that was one that I posed to earlier speakers which was I
wasn't sure that we had a common definition on what a
workable death penalty is and that is, do we assume in the
back of our minds when some folks say that we don't have a
workable one that because we don't execute enough people.
So that's something I just want to leave as a background
question, not something that I think is really necessarily
up to this committee, but something we might think about
because we make claims from time to time about what that
might be and what that might not be.
And I agree with you that I think we should take our time.
I don't know if that's an argument for or against any bill.
It would seem to me that a lot of the people who are the
accused, even if they're innocent, and wrongly convicted,
very often would prefer to be executed and very often you
find that they don't like things to be drawn out either. I
don't say that because I necessarily want to take their
side, but I think very often you might see that we can make
arguments in support of the victim, but it's not unusual at
all to have someone whose had an extension over and over
and over again and just wants to get it over with. So that
we're not necessarily representing the victim here or the
accused. We're trying to say the system should work in a
particular way because I would guess if you were going to
take a poll of some folks who are on death row, they'd
rather get executed quickly rather than have to sit aroundover and over and over again and hear that they had another
extension.
And I don't know that I want to listen to them either. I'd
like to see it done right, if I know what that means and
I'm not sure if I know what that means.
It would seem to me and I know I've asked you this before
and I'm in no position to make judgments, that some of this
should have something to do with the fairness of the
application and that's one of the reasons I asked yourdepartment and I asked the public defenders all the time
about whether or not people can speak Spanish, let's say,
just to take one example. It would seem to me that I don't
know at what point anywhere along the system, someone who
is not an English speaker, knows exactly what's happening
to them and I don't know what situation I would be in if I
were arrested in another country and I had no idea what
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people were talking about and that's a growing population
here. That's certainly behind a lot of the questions that I
ask you, understanding that you need the money from the
Legislature, but we need to know how we work.
I do have one question based on your comment about
Connecticut experience. It seems to me statistically our
numbers are simply too small to make judgments and for that
reason, I don't personally necessarily have an objection to
learning from other states. I don't expect to find
Connecticut in a position that we've seen in some other
states where we had the defense counsel sleeping through
the trial. I don't believe that that's our culture here in
Connecticut and we certainly -- we have a very vigorous
defense bar. But did you mean to argue throughout your
testimony that we can't learn from other states?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: No, absolutely
not. I think we can learn from other states. The import of
my testimony was that we should not necessarily just jump
and try to legislate police technique and make it a
statutory requirement that we do it a certain way.
In New Jersey, it's not a statutory requirement. It's being
done by prosecutors themselves and that's what I would
suggest if we're going to look at some of these new
techniques, let us and the law enforcement community start
to work on it through training and phasing it in.
If we were to phase in sequential identifications, and Mr.
Kane will speak about this in more detail after me, right
away we could not keep up with it, immediately across this
state. It's a very interesting concept, but that, along
with recorded confessions. What I am suggesting to you is
let us, as prosecutors dealing with police officers, look
at it, start to do some training on it, and then see if we
could work at it amongst ourselves.
As a gang prosecutor, I loved to video tape my witnesses
even if they weren't confessions. I wanted them that waybecause I never knew when they were going to change their
story. But there are concerns on how we would do it and
this bill is extremely expansive. And while Mr. Scheck
talks a lot about how everyone loves it, I want to try it a
little bit first amongst ourselves before we make it a
statute which a violation of, could end up being another
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loophole for a person to avoid their factual guilt. That's
what I'm trying to say. There's always room for improvement.
REP. DILLON: Okay. And it seemed to me and that goes to
what's a workable death penalty and I can remember just
working on domestic cases, there are many times that we
didn't look for a very serious penalty because we were
concerned about the resources of the Department, whether or
not we could get so and so to show up and testify, the
reliability of witnesses, and we would go for lower
charges. We would be working with the prosecutor's office
and we wouldn't go. And maybe by extension -- maybe I'm
over extrapolating here, but I just assume there are many
times we just wanted to get a conviction. But we didn't
necessarily go for what a lot of people would have thought
because we wanted to get something and we knew the jury
pool, we knew the fragility of the witnesses, we knew about
the testimony. Couldn't that also be true in capital cases,
as well, that you might make it more less likely to get a
conviction if you bring the death penalty? Could it happen?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I really don't
know and I don't really follow the thrust of your question.
REP. DILLON: That if you ask for the death penalty, could
it sometimes make it harder to get a conviction for
something because it raises the bar?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: As far asgetting a conviction for the death penalty?
REP. DILLON: Right.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, certainly
any time you do that, the stakes are high, the resources
are going to be great. That's a decision that has to be
made by each of the thirteen State's Attorneys that make
that decision. And that goes back to your question that you
asked earlier about, since we don't have an Attorney
General with colonel jurisdiction, can I tell them what todo?
REP. DILLON: Right.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Connecticut has
thirteen judicial districts. Each has their own State's
Attorney. Each one of them has a constitutional freedom and
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authority to handle the cases in their district as they see
fit and but for malfeasance or a conflict or some very,
very extreme reason, I will not or cannot get involved. And
charging decisions is certainly area that's within their
discretion and actually that leads right into State's
Attorney Galvin who can talk about that. And when you're
done with me, I will have her come in.
SEN. MCDONALD: But I'm not done with you.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I knew you
weren't.
SEN. MCDONALD: Representative Farr.
REP. FARR: Yeah, I just have one question about between the
sequential id issue and, I guess, standards -- well, I
guess -- let's stick to the sequential id issue.
Right now your office doesn't set out any guidelines or
standards for law enforcement. Is that correct?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, we do
routine training with law enforcement. We are -- many of
our prosecutors are certified to teach, host classes and we
also run seminars occasionally on training with police
departments and many of the local State's Attorneys have
their own procedures that they want followed and they have
issued memos to the police departments with thoseprocedures.
REP. FARR: I mean, would it be workable to come up with
some kind of process where the local State's Attorneys in
your office got together and came up with some guidelines,
for example, on sequential id's or recording their
confessions and stuff, that we work through a process here
that might lead to some guidance for local law enforcement?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You know, we
meet every month and we have sort of an issue that wediscuss every month. And briefly we discussed this issue,
but more in the context of this bill at our last meeting.
That's something that we would have to discuss. Again, that
discussion has to take into consideration the independent
autonomy of each of the thirteen State's Attorneys.
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The general discussion when we had it, and Mr. Kane will go
into this more, I think, was that it's not necessarily
something that we're totally against. What we are against
is making it a statutory obligation as opposed --
REP. FARR: No, I understand that and I --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: But there is
validity to it. The question is, it's relatively new and we
want to sort of get to know it. One of the things that Mr.
Scheck said to me before he left was he gave me his number
and said, "I have a person whose very good about training
in this and we're having a training session in June with
prosecutors" and we were considering now bringing that
individual in to talk to us to educate us a little bit more
about it.
REP. FARR: Okay, thank you very much.
SEN. MCDONALD: Thank you. Any other questions for the Chief
State's Attorney? Representative Hamm.
REP. HAMM: I'm a firm believer in equal time and so I want
to give you the opportunity to give me your very best
argument as to why you don't support video taped
confessions.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I didn't
say I didn't support video taped confessions. What I saidwas I don't support it being statutorily mandated upon law
enforcement.
REP. HAMM: Well, then let me ask you the question directly.
Do you support video taped confessions?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think it can
be a very effective law enforcement tool. But I have
concern as it's stated in this bill. As I stated earlier, I
utilized video taped -- recording of video taped statements
of witnesses and sometimes the witnesses turned out to bedefendants when I was a gang prosecutor. I thought it was
very effective.
My concern is, the bill, as it's stated here and as we
heard testimony today on, would require it to start very
early in the process and would require so much to be video
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taped that I think two things would occur, a variety of
things would occur.
Number one, any time a camera goes on, witnesses or
individuals tend to clam up. I can remember the first time
I tried doing it, when I saw the tape, I was ready to use
in trial, luckily I didn't have to, it looked like the guy
that could have been shot down in Beirut just sitting there
very stiff and he's looking into the camera and he was very
uptight and very concerned because the camera was on him.
As you've heard from the professional officers here and
they're both not just good cops, they're great cops, they
have a problem with building repore and the way you get a
confession, you get a statement, is through honey, not
vinegar. And it's not a lot of honey when they have a
camera on them right from the beginning.
In addition, I have the concern -- two concerns about what
will be done with these tapes. Number one, they will get
out, there's no doubt about the fact that they will get out
and they will provide a roadmap to dealing with
interrogation techniques. Just as officers are training
themselves on how to interrogate, there's no doubt in my
mind these tapes will be used for counter-training.
And finally, while the law recognizes the fact that
officers can use deception to obtain a statement, perfectly
legal, while they recognize that, there's no doubt in mymind you're going to see a private attorney or a public
defender or some defense attorney some day stand up and say
to a jury in final argument, ladies and gentlemen, look at
this tape, he lied to my client. How do you know he's not
lying to you?
Now, we can file all the motions and (inaudible) we want on
that, but it's going to happen.
Those are some of my concerns.
REP. HAMM: I don't think that's quite where I was headed.
So let me try to narrow this more focused.
You don't support the bill. You have concerns. It's not
drafted the way you want. It's too soon. And you want to
have the flexibility, from what I'm hearing, to kind of
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develop your own approach to when it works and when it
doesn't work.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Are you
referring to recorded confessions?
REP. HAMM: Yes. So I guess I am trying to get an
understanding of what kind of timeline we're talking about,
whether you want it to be regulatory, whether you want it
to be uniform. I want some kind of commitment that if the
Chief State's Attorney of the State of Connecticut believes
that philosophically in video taped confessions, that we
can work out the kinks. And so, where are you? Do you want
to have the ability to do it? And if you do support it, how
are you going to bring along the folks who are underneath
you and have those concerns?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: This covers a
variety of concerns and I'm not trying to be squirrelly
with you, but I don't want to sit here -- one thing I will
never do to this committee is make a promise I can't keep.
REP. HAMM: No, I just -- tell me what the approach is. It
sounds like you're almost on the team of thinking that it's
in the interest of justice, but not yet. And quite frankly,
this is my fourth year up here and this is the third year
we've had video taped confessions and the third time that
I've had Chief State's Attorneys tell me that they have
concerns and it's not time yet.
And so I want to know if your approach is different or not
different. If you just don't support it and you're never
going to support it and it's not about anything else, then
let's just say that and then I'll know.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: That's not the
case here.
REP. HAMM: Okay. So how do we solve the issue of your
concerns so that this organization, as a matter of publicpolicy, doesn't have to feel we need to legislate it in
order to have people trust that the confessions are, in
fact, going to be able and open for all to see so we know
what's going on in there?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: What I think we
need to do is first of all, as State's Attorneys we need to
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go back amongst ourselves. Because of the separate
jurisdictions it's not so easy where I can just snap my
finger and say okay, this is what we're doing now. That's
the way our Constitution works.
So the first step would be to go back and discuss this with
the thirteen State's Attorneys. Some may vigorously oppose
it. I don't know the answer to that, but that's the first
thing we would have to do. If we came to a consensus, then
it would probably be along the lines of developing -- of
dealing also with the State Police and the municipal Police
Chiefs Association.
REP. HAMM: How long would the process take for you to get
to the initial decision of whether or not you can reach
consensus?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: With the State's
Attorneys?
REP. HAMM: Yes, just step one.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We meet monthly.
Let me talk to one right now.
And part of the issue will deal with what the definition of
a taped interrogation is. And I guess I need to ask you
this question. If you --
REP. HAMM: However you want to define it. I mean, if you
can reach consensus on what State's Attorneys believe is a
taped confession, then I would love to see your definition
and then we can compare it to the definition that's in the
bill.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Okay. My concern
is that no matter what definition we come up to, as Mr.
Farr has stated earlier, as Representative Farr stated
earlier, there's always going to be someone who says that's
not enough. So, we can probably come up with our owndefinition, but I guarantee you it's not going to satisfy
everyone. And the time period on how long that would take,
we meet monthly. It's going to take -- it's not going to be
done in one meeting. So it's going to be six months, nine
months.
REP. HAMM: Okay.
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CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I'm just
grabbing out of the air here.
REP. HAMM: That's fine. And so now we're at six and we're
at nine months. Do you have any authority to take it to the
step to go to the police officers?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, each of
the State's Attorneys in their county is the chief law
enforcement officer in their county. But I think that many
of the police officers are interested in having a better
work product, but their concern is, as was stated here,
budgetary and also the degree that would be involved in
doing an interrogation. So we would probably not want to go
and dictate to them. We would come to a consensus among
ourselves, but part of our consensus would probably involve
dealing with them and talking to them, as well.
REP. HAMM: Okay. And so what's that process like?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I've never
done it before.
REP. HAMM: Let's say you've reached your own definition of
what a taped confession is, and all of you agree that in
these circumstances, however limited they are, that you
think it's good best practice and you want now to have
police officers implement your best practice. How do you
make that happen?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, that's
going to involve, again, talking with them and once they --
if we can come to a consensus with them, then it becomes a
training issue. And then it's a matter of developing a
training program and getting that through POST.
REP. HAMM: Okay and how long with that take?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I can't give you
a --
REP. HAMM: Will it take another six to nine months?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I cannot tell
you and I'm not trying to be squirrelly. I don't want to
give you an answer that I don't know the answer to that
because POST has their own certification procedures.
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REP. HAMM: I think you know where I'm going.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I do.
REP. HAMM: It's clear you don't support a statute --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct.
REP. HAMM: -- because you want to have the opportunity to
develop procedures and regulations and all of the things
internally and that makes sense. But we have no assurance
that they'll be uniform. We have no assurance that you'll
be able to reach consensus, even among State's Attorneys.
And let's assume you even get there, we have absolutely no
assurance that the time will ever come when the police
officers in this state are in support of your definition,
much less the statutory definition. And so I don't know how
to get out of the box except that you just don't support it.
I don't know how else to reach another conclusion. And so
that's why it appears that a statute makes a little bit of
sense as far as it would establish uniformity, it would
clearly set the public policy for the State of Connecticut,
which everyone in the State would recognize as what we as
Connecticut legislators believe is the benefit of it, and
then as it plays out on the ground, we can fix it.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I don't
think a statute is the answer and I've explained my reasonswhy.
REP. HAMM: Okay.
SEN. MCDONALD: Okay. Thank you. Let me cut this off. Thank
you. And you thought the weather outside was dangerous.
Are there any other questions for the Chief State's
Attorney? Senator Roraback.
SEN. RORABACK: Thank you, Mr. Chairman. I apologize, I'vehad another committee meeting all day long. It's JF
deadline today, but I'm glad to have a brief opportunity to
ask a couple of questions. And for the benefit of
Representative Hamm, we did, in 1998, pass a law which
compelled a study group to look at the issue of video tape
interrogation. We did have a number of meetings that really
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didn't, at the end of the day, amount to much. It kind of
fizzled out.
And so I guess one of the lessons I draw from that is that
absent the Legislature's intention, the Legislature's
attention, it's hard to move this issue forward.
But I guess a general question I had is, do you know when
you do illicit a confession, how many of those confessions
are contested? Most? Some? Few?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think on the
seriousness of the charge.
SEN. RORABACK: Well, in serious case, how often is a
confession contested?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think you're
going to see it contested in the majority of the cases
because if it is not contested, and the person is
convicted, then the defendant is going to file a habeas for
ineffective assistance of counsel.
SEN. RORABACK: Okay. And so if, in most serious cases,
confessions are contested, how often do you sit there
during the time it's being contested and say, boy, am I
glad we don't have a tape of that confession versus how
often do you sit there and say, jeepers, I wish we had a
tape of that confession because if we had a tape, whoeverthe trier of fact would easily see that there was no
coercion taking place?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I've actually
had a motion to suppress where I had the tape. So I'm not
quibbling over whether or not this is a good idea. My
concern is that it shouldn't be a statutory idea. That's my
concern.
SEN. RORABACK: Okay, I understand. It's hard to square that
with your -- the concerns that you enumerate with respectto people learning the techniques by way of copies of the
tape, notwithstanding your concerns you still, on balance,
think it's a good idea?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I do, but I
think there are ways to preserve a statement and I'll give
you an example.
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When you have -- and really this is Mr. Kane's area and I
don't want to steal all his time on this, but when you have
a -- they certainly didn't do written statements forever in
law enforcement. And then somewhere along the way, they
came up with a written statement.
Now, what they do is they talk and they talk and they talk
and they reduce it to a written statement. And, of course,
then there's always motions to suppress on that, well, what
happened, or not.
What is being proposed in this bill would be equivalent to
taking not only that written statement, but all the raw
notes and everything, anything that happened before that
and having to document -- actually make a law that
everything that was done in writing, right up to the point
of where that statement's signed.
I think that would be difficult to do. I think it would be
a burden on law enforcement and I equate that also to the
same problems that we would see in video taping.
SEN. RORABACK: Thank you. I appreciate your recognition of
the complexity of the issue and thank you, Mr. Chairman.
SEN. MCDONALD: Thank you. Any other questions for the Chief
State's Attorney? Okay, now you can hand it off.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You're only asgood as who you're surrounded with and I am pleased to be
surrounded with some excellent State's Attorneys and staff
members and the first one is State's Attorney Galvin.
STATE'S ATTORNEY MARY GALVIN: Thank you very much, Co-chair
McDonald, Representatives. Senator McDonald.
I'm honored to be here today on behalf of --
(INAUDIBLE-TAPE SWITCHED FROM SIDE 2B TO SIDE 3A-SOME
TESTIMONY NOT RECORDED)
STATE'S ATTORNEY MARY GALVIN: --- and that is Section 4 to
do with the authorization of committee wherein the bill
would require that a committee comprised on Connecticut's
thirteen State's Attorneys and Chief State's Attorney be
required to review any case before it can be charged as a
capital case for the death penalty.
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And I'm here today on behalf of my fellow State's Attorneys
to testify that we believe that such a statute would be a
clearly unconstitutional infringement upon our powers,
duties, and responsibilities as State's Attorneys under the
Connecticut Constitution.
The history of Connecticut's prosecution and I should note
that I don't believe I was chosen to speak on this because
I'm the oldest in the group or present --
SEN. MCDONALD: Just the wisest, perhaps.
STATE'S ATTORNEY MARY GALVIN: Well, thank you very much.
REP. DILLON: Because your father was the president of
(inaudible-microphone not on)
STATE'S ATTORNEY MARY GALVIN: Perhaps. But I am interested
in the history not just of Connecticut prosecution, but
prosecution in general. And probably the core function of
state and local prosecutors across this country, the job
that we guard zealously, independently and hopefully with
great integrity is our charging function. It is recognized
in Connecticut as common law. It's recognized in case law.
Justice Borden did a great decision in State vs. Dills on
the history of our powers.
Connecticut was the first system of independent public
prosecution in this country, as I'm sure you all know,dating back to 1704. Our system was revised with the
Constitutional Amendment in 1984. Throughout this time, the
common law powers of the State's Attorneys to charge crimes
is never been touched. And it remains untouched to this day
in case law, in common law, in statute, in constitution.
This bill would be a totally novel -- it would, in fact, be
revolutionary. We believe it would be unconstitutional in
that it would clearly infringe on our individual,
independent, charging authority and responsibility under
the Constitution.
You might say well, who are you? Who reviews your decisions
if you're an independent constitutional officer? And that
answer is also found in history and it comes from a number
of sources. The courts review our decisions and require us
to proceed only when we have probable cause and sufficient
evidence.
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Appellate Courts routinely review our decisions, sometimes
rather harshly and pretty directly. In addition, the
Legislature, at time, directs what we can do by defining
what a crime is and that's the job of the legislation and
that leads to probably what is the center of my argument
and that is, that our government here in Connecticut is
based on a series, systems of checks and balances. Checks
and balances that have now worked with only minor issues
and problems for almost 300 years.
And that system of checks and balances requires that the
Legislature define the crime. The prosecutor charge the
crime. And the court make sure that we have probable cause
and sufficient evidence to bring that.
In the course of this system that we have developed
throughout history, the function to charge is with the
prosecutor. This authorization committee and I should do an
aside here. I think it's interesting that Mr. Flynn
indicated that the one reason for such a committee would be
if we had geographic disparity. And on the other hand he
said we have no proof of geographic disparity.
That -- if that is so, the only reason for such a committee
would be because we State's Attorneys are not doing our job
the way we're supposed to. And I would submit that that
just is not the case here in the State of Connecticut.
So not just constitutionally, but practically there is noreason for this committee. If there is a problem that we've
heard from the commission, it is that the cases that
haven't been charged capital, not the cases that have been
charged. Mr. Flynn indicated there is no one on death row
where there is a claim of factual innocence. So, what an
authorization committee would really need to look at if
there is a problem is not those cases being charged, but
those cases which haven't been charged.
And this bill does not allow the committee to look at cases
that aren't being charged by the State's Attorneys. So thisbill doesn't address what, at least in a kind of cloudy
sense, is being put out there, is the problem.
The testimony today indicates that this bill is modeled on
the federal government and I have to disagree with that.
That may have been the intent, but this bill is not modeled
on the federal government.
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First of all, the system of federal prosecution is totally
different than that of state and local prosecution. With
all due respect, state and local prosecutors across this
country prosecute 98% of all crime or better.
The federal system of prosecution is a centralized system
of prosecution with all power emanating from the United
States Attorney General. The system of prosecution in
Connecticut and in most other states, Delaware, New Jersey,
and Rhode Island aside, other than those, the system is
decentralized. We have a decentralized system of
prosecution that leaves the charge and function in the
state and local prosecution.
If we are to model ourselves on the federal system, I think
what the committee would see would happen is we would have
all cases that qualify on the basic elements of the crime
before a committee and I think what you would see is a lot
more cases being prosecuted as a death penalty case than
what we currently have.
So, to conclude my argument, one, this section of the bill
is unconstitutional in that it infringes on a prosecutor's
charging authority.
But even if one were to put that argument aside, this bill
does not do what I think purports do to and if, in fact, it
were to be modeled on the federal government, it might do
exactly what its proponents don't want and that is tocreate not fewer, but more cases for capital felony
prosecution.
Let me just end by saying that in speaking for my fellow
State's Attorneys on this section of the bill, I want to
assure this committee that we all take our responsibility
to charge fairly and truly and with integrity very
seriously. And that no case is ever charged or not charged
without acknowledging and without reflecting on our
constitutional responsibility.
If this were to be done by committee, the individual
accountability that we have before Connecticut's Criminal
Justice Commission would not lie. There would not be the
same type of accountability that is the bedrock of the
checks and balances that have kept Connecticut's system
clean and without major problem, for we're coming up on our
300th anniversary.
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SEN. MCDONALD: Thank you. I have just a couple of questions
first.
You said you are speaking today on behalf of all of the
State's Attorneys. Are the comments that you've shared with
us today the uniform position of all of the thirteen
State's Attorneys?
STATE'S ATTORNEY MARY GALVIN: The meeting at which was
designated to speak for the State's Attorneys, I believe
that there were a couple of State's Attorneys not present.
They've not expressed dissent from this, but I am confident
that every State's Attorney believes this bill would be an
unconstitutional infringement on our charging authority and
if I can just confer with Mr. Kane.
(Pause)
That's fair to say.
SEN. MCDONALD: Okay. Thank you. Are you suggesting -- well,
I guess I got confused by your argument. You suggested that
this is an unconstitutional infringement on the charging
authority of the individual State's Attorneys, you're not
suggesting that the federal model is an unconstitutional
construct, are you?
STATE'S ATTORNEY MARY GALVIN: Not at all. What I'm saying
is the federal system is totally different than ours.
SEN. MCDONALD: Decentralized.
STATE'S ATTORNEY MARY GALVIN: The U.S. Attorneys are not
independent constitutional --
SEN. MCDONALD: More centralized than we --
STATE'S ATTORNEY MARY GALVIN: -- officers. It is totally
centralized. We are not totally centralized and with the
type of crime that the federal prosecutors and the U.S.Attorney prosecutes, a centralized system is and has been
appropriate for the history of our country, but state and
local prosecutors who prosecute 98% of the state and local
crime, we have to be decentralized. We have to have
independence in our charging function or our whole system
falls apart because we're not longer accountable.
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SEN. MCDONALD: Well, you would think if any system should
be decentralized, it would probably be the federal
government, but --
STATE'S ATTORNEY MARY GALVIN: Well, I'll defer to your
opinion on that, Senator.
SEN. MCDONALD: That's just my opinion. You also suggested
that there were sufficient checks and balances in the
system to deal with divergent viewpoints on whether or not
a death penalty should be charged or not charged and that
through the judicial process, those things are more
appropriately addressed and resolved. Is that a fair
characterization of your testimony?
STATE'S ATTORNEY MARY GALVIN: I think what I'm saying is
that the charging function in each individual case is
vested in the local State's Attorney where and to kind of
pick up on what Representative Dillon said before, a number
of factors go into the charging decision and those may
include factors such as the nature of the crime, the nature
of the criminal, and we could go through and I could
probably give a half an hour seminar on different factors
that appropriately go into charging and that
constitutionally go into charging.
We are checked, yes, by a judicial finding as to whether we
have probable cause, whether there is a sufficiency of the
evidence. That is the check that the judicial system putson our decision to charge.
SEN. MCDONALD: Okay. But an internal peer review analysis,
you wouldn't find to be helpful in making these charging
decisions?
STATE'S ATTORNEY MARY GALVIN: I think that many of us do
employ an internal peer review process to make these very
serious decisions. The problem with this bill is that it
mandates a committee of prosecutors that are not the
independent State's Attorney for that district to be partof this decision.
And that just -- I mean, that is revolutionary that exists
nowhere that has a system of state and local prosecution in
this country has this kind of system. As I say, the states
that are under an Attorney General aside, our history is
the independence of the local State's Attorney. This would
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totally turn that on its head and be the first time in our
history that the charging function was taken from the
State's Attorney. I think that's a dangerous precedent to
start for reasons that we could philosophize about over the
course of our 298 year history.
SEN. MCDONALD: I've heard your point. It just seems to me
that when a criminal prosecution is undertaken, it's not
Morano vs. Doe or Cohen vs. Doe or Connolly vs. Doe. It's
the State vs. Doe. And if all of those State's Attorneys
represent the State, I don't understand how that infringes
on the constitutional authority of the State to be making
those charging functions in the furtherance of the State's
interest, not in the furtherance of individual State's
Attorney who happen to occupy those positions.
My concern and my question to you then is, let's assume
that our experience in Connecticut was different than it
has been and we had a State's Attorney who systematically
went about doing -- went about charging specific targeted
groups in a disproportionate and potentially discriminatory
fashion. Wouldn't it be better to have the internal control
functions, if you will, of the State's Attorney available
to remedy that situation before it was unleashed into the
court system and would take years and years and years to
resolve through a court system?
STATE'S ATTORNEY MARY GALVIN: Well, I think that the
judicial system is set up to handle a prosecution thatviolates due process of equal protection. It can be
addressed by a motion to dismiss before years and years in
the appellate process. So, I think that there is a check in
process for that.
And just to answer your earlier question, if I may, as far
as where do I get this -- each independent State's Attorney
from, it's actually Article 23 or based on the new
codification Article 4, Section 27 of the State
Constitution talks about the State's Attorneys for each
judicial district. And so we are independent constitutionalofficers.
If we weren't, if we were like the federal government, then
we -- I'd be here with a very different argument, but based
on current activities from the federal government on the
death penalty, we would probably be having a very different
discussion today here.
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not necessarily about anything that's already happened.
Partly by looking at the experience of other states and I
don't know -- I don't see a relationship, but it doesn't
hurt sometimes to be preventive, you know.
It does have to do with the fair application of the law and
I think that was some of the business with the
geographical. And I'm thinking, if we were going to set
forth a series of principles that say what's a workable
death penalty statute and it wasn't necessarily one that
where a lot of people get executed or one where nobody gets
executed, it would be something in between. Not because the
truth is always there, but because, you know, I just don't
think that what's would happen.
It seems to me that if part of what we're going to try to
do is to reduce the amount of variation, that is to make
sure that something's uniformly applied, that if you're
correct about the constitutional anchor of the structure,
that that will be very difficult in Connecticut. Is that
true?
STATE'S ATTORNEY MARY GALVIN: No, because it's done through
the court's application of our constitutional principles of
equal protection and due process. If what you're saying is
that the application and just this would be in theory, if
in theory the application of the death penalty law by a
group of local State's Attorneys was not being applied with
equal protection to all similar situated people, not beingapplied with due process, that is a function of the court
to enforce. Those are constitutional requirements. That
would be a violation of the Constitution.
As just an aside, I haven't mentioned this, but I think it
may just be of interest for some of the committee to know
that many of us State's Attorneys have set up committees
within our offices to review death penalty decisions. In my
office, I, whenever a case comes in, that based on the
facts might conceivably qualify, I designate a committee
and we review multiple aspects of this case before we makea decision one way or the other.
REP. DILLON: Well, I'm just remembering and this doesn't
relate to the death penalty, per se, that there was a
prosecutor in the eastern part of the State who did a
number of things that I thought were improper and it had to
do with all kinds of things involving politics and
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personnel and so forth and I thought this person was way
out and I kept calling Jack Bailey, who just said, "I can't
do anything." And that person, over time then, was not
reappointed. I think the appointment period is eight years.
Is that it?
STATE'S ATTORNEY MARY GALVIN: That's correct. And as I said
in my comments, accountability does come at least in part --
REP. DILLON: Well, I had nothing to do with that decision.
I think that there was just an accumulation of things and I
believe it was done on other grounds, but there were a
number of -- there weren't just red flags, they were
whistles, there were a lot of things going on that lots of
folks were reporting to us and so that a tremendous amount
depends on the character and comportment and behavior and
judgment of that one person, if everything you're telling
us is true about the decentralization. And I don't know if
that's an argument for or against this particular section.
If we're in a political climate where folks are pushing an
easier application of the death penalty, it seems to me
that we're going to have to look a lot more carefully at
how State's Attorneys are appointed --those people who are
appointed simply because some much more will be at stake.
And because there could be eight years and so forth.
I don't know, I'm just making that argument. It may be a
good idea anyway, but it seems to me that in a case like
that, even though it's a tiny number of cases, you know,since death is if not swift, certain, maybe not that
either, but more certain than in other cases that we should
be really looking carefully, very, very carefully at the
individuals that are appointed in the thirteen localities.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: If I could
interject. Justice Zarella chairs the Criminal Justice
Commission and has started a procedure and he started it
with the reappointment of a majority of the State's
Attorneys just recently, that those interviews are open to
the public. And that, I think, addresses a lot of whatyou're saying. And I know -- I think you were reappointed
recently?
STATE'S ATTORNEY MARY GALVIN: Uh-hum.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: And yours was, I
think, open as was Mr. Kane's. I know I just went through
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that and as did the new State's Attorney for Litchfield
County and that goes a long way to really examining these
individuals in the public forum.
STATE'S ATTORNEY MARY GALVIN: Most importantly, I know you
said cases. It is case. And I believe in our now 298 year
history, that is the case. We're not perfect. In my
remarks, I said "with historically over the course of
time", you know, which is minor glitches, one case. That's
it.
REP. DILLON: I wouldn't know and I'd love -- I hope you're
not inviting me. I'm not lonely. Trust me, I don't need to
go, but I'm glad to hear that they are open. It just seems
to me there would be a lot more scrutiny on the folks that
get those positions than there maybe once was as the stakes
rise. I could be wrong.
STATE'S ATTORNEY MARY GALVIN: Believe me, the scrutiny is
pretty intense.
REP. DILLON: I know that the scrutiny is intense, but the
other issue, especially given the tremendous authority, is
one of the tests of the system is the ability -- its
ability to cleanse itself of actors who can bring the --
call the functioning of the system itself into question and
that's true across, whether it's a church or a state or
whatever. If you have an individual whose an actor who has
poor judgment, who can bring down the institution, you wantto know how the system can correct itself and so I'm glad
to hear that those are open.
STATE'S ATTORNEY MARY GALVIN: And that's why checks and
balances are so important.
REP. LAWLOR: I want to ask a question. Gail wanted to ask a
question. But good afternoon, Attorney Galvin.
STATE'S ATTORNEY MARY GALVIN: Representative Lawlor.
REP. LAWLOR: I, believe it or not, was actually listening.
There are members of the committee watching in their
offices right now, just so you don't think this is --
STATE'S ATTORNEY MARY GALVIN: Thou does protest too much,
Representative Lawlor.
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REP. LAWLOR: Yes, that's right. But in any event, I just
want to follow-up on a couple of things.
First of all, this notion of the independence of State's
Attorneys and its constitutional dimension, right. Just
some historical facts because I'm not 100% sure, but
originally was there not one State's Attorney for each
county? Is that what it was in the good ole' days?
STATE'S ATTORNEY MARY GALVIN: That's correct. And as you
know, within the Constitution, the districts will be
established by law, is what the Constitutional Amendment
says.
REP. LAWLOR: So there are eight counties. How many
districts are there now?
STATE'S ATTORNEY MARY GALVIN: There are now thirteen,
arising from what was originally eight counties.
REP. LAWLOR: Okay. And we've been struggling, beyond the
death penalty. Some of us here have had some concerns about
not so much uniformity, but sort of a disparity of
sentencing throughout the State. So, some prosecutors have
one approach to a particular kind of situation, others have
a different approach and I think almost everybody would
acknowledge that depending on where you go in the State,
there are very different types of treatment and
prosecution, depending on the culture that's sort of grownup in that judicial district, under the tutelage of
whomever the State's Attorney is.
So, if, in fact, this proposal has a constitutional flaw,
as you've identified. In other words, it takes away from
the State's Attorney the constitutional charging decision,
would another potential solution to the problem be a
procedure that you folks adopt on your own to convene and
discuss, at least, without a vote, let's say, on what to
do, but to have a collaboration on these charging decisions
in light of the fact this is the most serious decisionthat's made in the State and in light of the fact there is
this sort of concern that's out there in the public, which
we're both accountable to, about -- however it might be
explained, I'm not sure, but it does seem as though there's
a disproportionate number of death penalty prosecutions in
one specific judicial district and would it not allay that
concern in part by simply having a discussion about
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charging decisions in an attempt to come to an agreement
among the State's Attorneys about some standards which
should be adopted by individual State's Attorneys as they
make these decisions?
Would that be -- not that we would mandate it, it's just
that I assume you guys could do it yourselves.
STATE'S ATTORNEY MARY GALVIN: What I said is that -- and I
just speak for myself on this issue, I've already
instituted a committee within my office to review when
we're deciding whether or not to charge a capital felony in
a case so that I know I'm already doing that and I believe
that a number of the other State's Attorneys are also doing
it. I have not taken a --
REP. LAWLOR: I don't mean to interrupt, but my question
was, not just within your own district, but with your
counterparts throughout the State because obviously there
one time was proportionality review built into the death
penalty statute. It's not there now, but it's certainly a
legitimate issue to raise on appeal. And in order to avoid
that, wouldn't it be a good preventative measure to at
least have a discussion on that issue with colleagues to
avoid the potentially successful argument down the road
that on the proportionality review issue that nowhere else
in the State of Connecticut would a death penalty be sought
under these conditions and would not conferring with
colleagues help avoid that problem?
STATE'S ATTORNEY MARY GALVIN: Well, Mr. Weller, I think, is
going to address the specific issue of proportionality and
I would defer to his expertise on that, but I just want to
say that I don't agree with the premise, if there is one
here, that we have geographical disparity is an inherent
function of one State's Attorney charging more cases.
There's a lot of reasons that I believe that that's
happened, which don't have to do with geographical
disparity. And I don't think the numbers are statistically
significant and I thought it was interesting that if Iheard Mr. Flynn right, I think he basically agrees that the
numbers are not there to make that statement.
REP. LAWLOR: Okay. Well, I guess beyond the issue of the
death penalty itself, this issue of some sort of statewide
standards in terms of prosecutorial decisions is an issue
and you know, with Mr. Bailey and now with Mr. Morano,
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we've tried to talk about at least some type of statewide
training or ongoing -- because in the Legislature we're
trying to establish, as best we can, a statewide policy and
we do this in all the other divisions of state government
and I'm wondering how we might do that for prosecutors.
Again, beyond the death penalty, I mean obviously,
different cases are treated very differently, different
procedures are interpreted very differently throughout the
State and I assume at some point it's got to reach -- I
mean, you could get to the point where you've got a serious
problem and I wonder how we might approach that, given the
constitutional neatness of the process.
STATE'S ATTORNEY MARY GALVIN: I think you're familiar with
the fact that the National District Attorneys Association
has promulgated national standards on prosecution and what
a factor should go into a charging decision.
I think that one of the things, if you're asking what the
Legislature could do to help, is to appropriate more money
to send prosecutors to training where they can be
nationally trained on prosecution standards for the
charging decision.
You know, in the interim, this type of training is done, as
you know, within local offices and Judith Rossi, Jack
Cronin, from the Chief State's Attorney's Office do
training, but I think this is the kind of training that we
really need help from the National District AttorneysAssociation and courses are available and we need the
funds. I think that some people are of the opinion that
there's this great disparity on jack-lighting deer or
stealing from lobster pots from part of the State to part
of the State. I'm not sure that there is and I also want to
say that I think sometimes local geography should play a
factor in your charging decision. Stealing from lobster
pots is not the same problem in Torrington that it is in
Milford. And it is a huge problem when lobstering is good
in my district. And I'd better aggressively prosecute that.
Is that wrong? Well, if it is, I guess the public will letme know in tomorrow's editorial.
REP. LAWLOR: It's not wrong, but I think it seems -- I
think most people that learn of it think it's unusual that
you could become a prosecutor tomorrow right out of law
school and not do what you have to do if you want to be a
public defender of it you want to be a police officer or in
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the Attorney General's office. There's no formal beginning
or a real one, aside from this is what the insurance
consists of and stuff like that.
I know -- Chris, maybe I'm wrong. Is there a formal
orientation program beyond just the administrative details
for prosecutors like a two or three week --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You and I have
discussed this. Since I've been here -- I've been in this
position since the 23rd of December. The first thing that we
looked at was the issue of training and I asked for an
analysis and you know I brought all of that paperwork the
first time I came up before this committee because you said
you were going to ask it and you didn't ask it. Today, I
don't have it, but I will forward it to you.
I was amazed at the amount of training that members of the
Division have already had in a variety of issues. What I
would like to do and what I am already planning to do is to
increase the training of our prosecutors and the new
prosecutors.
Now, Mr. Deerington, in his judicial district, already had
an internal training program that he set up. In addition,
he has a mentoring program that he set up. It's something
that I would encourage all the State's Attorneys to do.
We are scheduling in June, a two-day seminar whereprosecutors will come together and we will have some large
presentations, some large seminars on large scale issues
and then it will be broken down into other issues that are
really related to the amount of experience.
There will be a section for newer prosecutors.
Unfortunately, our newer prosecutors, most of them have
been laid off. So that's kind of --
REP. LAWLOR: By the way, how many actually -- we're asking
how --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: How many did we
--
REP. LAWLOR: How many prosecutors got laid off in this most
recent --
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CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We lost eleven
full-time prosecutors and a total of about 37 prosecutors
including per diems.
REP. LAWLOR: Out of?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Out of our total
enrollment. Our total enrollment was 525, 530, maybe a
little bit more. That's personnel, but for prosecutors,
it's I think 260-something.
REP. LAWLOR: So like twelve, thirteen, fourteen percent?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: It was about
thirteen, fourteen percent, I believe.
REP. LAWLOR: And in the early retirements, how many do you
think you're going to lose?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Again, we aren't
going to know because we get these -- they don't have to
decide until June 1st, but I anticipate -- we have twelve
people I know of that are going to go June 1st, three that
have gone as of the first of this month, and I anticipate
another twenty have called to inquire. So we're going to be
hurting.
But as far as training, one of the things that I'd like to
do with training and I've talked to Mr. Smyth about this,is he has a week long program. I don't know if he still
does this, but at one point had a week long program for new
prosecutors where they dissected and --
REP. LAWLOR: The Public Defenders.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: -- be nice. The
public defenders. Where they started to look at a trial
from the beginning and they learned about it all the way
and at the end they either did a trial or did a final
argument. I would like to mirror that separately, but maybeon the same campus and at the end of that time, have his
people take on my people and let's have a little mini
trial. What would that do? I think it would be excellent in
training. It would also build civility amongst the two
divisions, which is something that I really strongly
believe in and it would really increase the ability of both
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sides to present cases effectively and serve their
respective clients in a courtroom.
Training is a major concern. It's been addressed and I
don't think that point has gotten across to you and I would
like to sit with you and show you how much it has done in
the past, but I do think it can improve and we're already
scheduling that with the program that is scheduled in June
and we'll continue to do better.
REP. LAWLOR: Because it seems like aside from like union
meetings and softball games, the prosecutors from one
district don't tend to meet up with prosecutors from other
places very often.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, that's the
purpose of this June meeting. There has not been, in a long
time, a overnight thing where they all got together and
they not only have to meet and go to a seminar, but they're
also going to meet and they're going to break bread
together, they're going to talk about things together and
I'm hoping that that will sort of get more of a cross
county feeling about things. But make no mistake about it,
prosecutors call each other on the phone all the time to
get ideas and to talk about questions. We're not all
polarized in our own little offices.
REP. LAWLOR: Okay. Are there other questions?
Representative Hamm.
REP. HAMM: Attorney Galvin, I just want to make sure I
understand this constitutional underpinning.
STATE'S ATTORNEY MARY GALVIN: Okay.
REP. HAMM: Are you saying that if I look at Article 4,
Section 27, I am going to find that prosecutors
constitutionally have the right to charge or that I'm only
going to find constitutionally that prosecutors are
independent?
STATE'S ATTORNEY MARY GALVIN: You're going to find that
there is a constitutional officer State's Attorney in each
judicial district. The concept of the charging function is
found in common law, in the case law, and also in
prosecution standards.
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REP. HAMM: Well, --
STATE'S ATTORNEY MARY GALVIN: This is a core prosecution
function --
REP. HAMM: That's why I'm asking you the question againbecause I heard very clearly your statement that the
strongest reason you're opposing the Section 4 of the
proposed bill is that it was constitutionally going to
offend your charging authority. Since all it's talking
about is review of charging. And so that's not quite true,
is it?
STATE'S ATTORNEY MARY GALVIN: Yes, it is because inherent
in the office of prosecution at common law and in the case
law is the charging function. It's inherent in the --
REP. HAMM: Is that interpreting Article 4, though?
STATE'S ATTORNEY MARY GALVIN: That's how courts and that's
how the common law has --
REP. HAMM: So it's case decisions?
STATE'S ATTORNEY MARY GALVIN: And common law.
REP. HAMM: Okay. So you are maintaining that the charging
authority is constitutionally supported in our State
Constitution?
STATE'S ATTORNEY MARY GALVIN: Yes, I am.
REP. HAMM: Okay. I think reasonable minds can differ on it.
REP. LAWLOR: Just out of curiosity on that topic. Does that
mean the Legislature couldn't impose, let's say, specific
standards on specific charging decisions as part of the
statute?
STATE'S ATTORNEY MARY GALVIN: That would be my position,yes.
REP. LAWLOR: That we can't?
STATE'S ATTORNEY MARY GALVIN: You can define the crime, but
you cannot dictate the prosecutor's decision whether to
charge and how to charge, other by how you define the crime.
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REP. LAWLOR: Okay.
REP. HAMM: That's very strange.
REP. LAWLOR: That's an interesting question.
STATE'S ATTORNEY MARY GALVIN: Well, actually when some of
us started as prosecutors under Mr. Arnold Marckle, this
would have been one of his very early and often (inaudible)
in the mentoring process of training.
REP. LAWLOR: Are there other questions? Is anyone else
going to testify?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Yes, at this
point I would call Mr. Kevin Kane to speak on sequential
id's and recorded confessions.
STATE'S ATTORNEY KEVIN KANE: Thank you, members of the
committee for having both the interest to hear from us and
the patience to hear from us. I know it's --
REP. LAWLOR: Every Monday we do the same thing. Monday and
Friday of this week.
STATE'S ATTORNEY KEVIN KANE: I'm here to speak about two
concepts that are apparent in H.B. 6612 and H.B. 6700 that
deal with investigative practices with regard to the
recording of interrogations and photographic and impersonallineups or show-ups.
With regard to the video tape or video/audio recording of
interrogations, two state courts have required it, Alaska
and Minnesota. Alaska has decided that the Alaska State
Constitution requires interrogations to be recorded. The
Minnesota Supreme Court said their constitution doesn't
require it, but under their supervisory powers in the State
of Minnesota, they will do so.
Our Connecticut Supreme Court in 1996 in the case of Statevs. James, J-A-M-E-S, decided the issue was raised in that
court whether or not our State Constitution requires the
recording of statements or confessions or interrogations
and they said no, the Constitution doesn't and the court
declined to exercise its supervisory powers so as to
require it to be done for various policy reasons.
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These are issues. The control of police practices during
the course of investigations, particularly with regard to
interrogations and lineup and photographic identifications
are issues that the courts are uniquely qualified to deal
with on a case-by-case basis and have done so.
That's why we've had the whole training of cases from
Escobito through Miranda and on, Innes and all of these
cases in which the court looked at cases individually and
set up rules with regard to interrogation and interviews
and putting requirements on the police departments.
And the same things happen in the area of photographic
lineups and identification with a whole line of cases that
began back in the 60's with a trilogy of cases called Wade,
Stovolt, and Denno, were the names of the defendants.
The problems of these bill is having the Legislature enact
requirements which, whether you call them best practices or
good practices and there are certain good things in these
proposals and there are certain good ideas, but having the
Legislature enact requirements that would apply these
practices to every case, could end up not quite so throwing
the baby out with the bath water, but curtailing
interviewing and interrogation in cases where they
shouldn't be curtailed, inviting cases -- inviting courts
to suppress statements or confessions or either/or or
verbal confessions made during them or suppress valid in-
court identifications which are, in no way, influenced by apossibly suggestive photograph show-up.
With regard to that, say you have a person who knows the
perpetrator of the crime, who has seen the perpetrator of
the crime many times before the crime, recognizes the
perpetrator as being somebody who lives down the street,
somebody that he or she had shown in the past. And a police
officer -- maybe the witness knows the person by sight, but
doesn't know their name.
The police officer tries to clarify who the person could beand makes -- shows one photograph to that witness.
Possibly, in all likelihood that might be suggestive show-
up of one photograph to that witness. The witness says,
that's the person. The police officer did it more to make
sure he had the right name. The witness has no doubt that
the witness knew who that person was. Under the terms of
H.B. 6700, that witness would be precluded in court saying
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that's the person who robbed me or whatever. Even though
that witness knew the person and that wasn't a question.
Get back -- there's one -- Texas, with regard -- I want to
go back to video recordings and audio recordings of
confessions for a minute. One court in the State of Texas,
I mean one legislature enacted a statute and that statute
it provides that no oral statement made during a custodial
interrogation may be admitted unless the interrogation was
-- unless the statement was recorded, video recorded or
audio recorded. It did not require the entire investigation
to be -- the entire interrogation to be recorded and it
provided for exceptions.
One of the exceptions was -- and I don't have the exact
language before me, they're handy. One of the exceptions
was if the statement was found otherwise to be truthful. In
other words, if the statement lead the police to finding an
instrumentality of the crime or finding the body of the
victim or finding some other evidence, so it could be
independently proven to be true, that was an exception. So
even under the statute enacted in Texas, it was not as
broad and preclusive as this.
The problem we have and I think to answer a question that
was posed, I think if any one of us State's Attorneys in
the judicial district we're in, said to our police
departments, in our judicial district, you people better
record every single interrogation from beginning to end anddo it from now on, I think most of the police departments,
if not all of them, would comply with our request or order.
Well, why haven't we done it? Why haven't I done it in New
London? I thought about doing it more recently when I
looked at this and really got into this issue, as I did in
the past few months.
And it bears -- it does bear a lot of analysis and a lot of
work and a lot of thought on our part. What are some of the
problems you have with doing this with regard to requiring
video and audio recording of interrogations? We've hadseveral cases where we've had multiple defendants, all of
who have to be interviewed at the same time. Simultaneously
you can find somebody's lying, somebody's not and one of
the ways you do it is try to compare what they're telling
at the same time and maybe go back and forth. Most police
departments do not have the facilities to do that. They
might be able to get a camera and I don't think many police
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departments video tape drunk drivers anymore. When I was in
Middletown in the 70's, the Middletown Police Department
did it all the time. I think they've gotten away from that
for various reasons and I don't think most of the police
departments -- they may have video cameras to carry around,
portable video cameras that they can carry around and video
tape various things, but they don't have the facilities,
certainly to be able to video/audio record multiple
defendants simultaneously -- who were simultaneously being
interviewed.
One of the bills before us would require it to be done if
it was in a courthouse, for instance. We've had cases in my
office where we've had one defendant in the library and
another defendant in another office and our office in New
London is none too big. But we can separate people into
different offices for sometimes. Sometimes -- not
sometimes, but their lawyer is present sitting in the room
with them with the police officer questioning them. Those
are not recorded. We don't have the facilities to record
them, number one. Number two, each person has his or her
own lawyer there. There are cases where we've gotten
cooperation and in a case we just finished recently, State
vs. Carpenter, where we had multiple defendants. The key to
that case was one night when we interviewed, one Friday
night we were there until midnight with the defense
attorney, his client, another attorney, his client and they
were each at separate portions of the office and we were
trying to iron out which was true. One was saying no, hewas the shooter. Somebody else was saying something
different. And we had to go back and forth to the tune.
Now, we didn't have the facility or the means to record
those conversations and if we had recorded -- the other
question about them, besides the logistics and equipment,
is there are many defendants who would be reluctant to talk
on camera. We have many cases where people are interviewed,
are interrogated, and they'll verbally, orally give it up,
orally give a statement, but say I'm not going to sign
anything, I'm not going to put anything in writing.
(INAUDIBLE-TAPE SWITCHED FROM SIDE 3A TO SIDE 3B, SOME
TESTIMONY NOT RECORDED)
STATE'S ATTORNEY KEVIN KANE: -- Attorney Scheck suggested
and said in Minnesota, I believe, the recording is done
surreptitiously. That might be one way to deal with it if
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every department could have interview rooms where we could
have concealed cameras and concealed recording equipment
and that might get over the hurdle of reluctant -- people
who are reluctant to talk. And then the interviews could be
recorded in their entirety.
We would play that to the jury and then we're deceitful and
the defense attorneys are going to portray us as the police
as being deceitful and sneaky by surreptitiously recording
interviews like that and turn it against us.
There are reasons to hesitate and I have hesitated very
much in instructing police departments to do this.
The advantages of it are obvious. You get a document on the
record of a tape recorded confession of the defendant or a
tape recorded statement. Often times, many of these
statements are more valuable for untruths or what's not
said than what is said and it would be nice to have those
things on video tape and audio recorded. And it would be
nice if the Legislature would give us some money to local
police departments to be able to set up rooms and to be
able to have equipment and to encourage it more and make it
easier to do and to train people to interview and
interrogate both witnesses and suspects.
This would be an involved process to do it properly.
One of the reasons I don't think this has been done inConnecticut is fairly clear. There hasn't been a need to.
The Supreme Court has the authority and the exercise of its
supervisory power to order it. The Supreme Court has seen
many, many, many confessions and interrogation cases come
before it. Our Supreme Court has not hesitated to reverse
convictions or order new trials. Our Supreme Court has not
hesitated to adopt rules, very stringent rules with regard
to custodial interrogation, with regard to determining when
a person is in custody and when a person is not in custody,
when a person must be given Miranda rights, and when it's
not necessary.
And our Supreme Court has not hesitated to do so and
they're in the best position to, because they review cases
constantly, to see whether or not police officers or
prosecutors have either abused things or gone too far and
to set limits and this is an area which is more
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appropriately dealt with by the courts rather than by the
Legislature.
Massachusetts is -- the Supreme Judicial Court of
Massachusetts has said, in opinions, two or three of them
in recent years, police officers should understand the
benefits that can be obtained from recording
interrogations. And they should be aware that some day they
maybe required to record them.
What that can do is start getting messages to police
officers and people who train police officers to start
considering this and using it.
The difficulty would be saying when are we going to require
them to be recorded and if they're not recorded, what are
the sanctions going to be? Do we want to throw out
confessions that might be otherwise truthful because the
recording requirement was not followed? When do we want the
recording to begin? Will recording really answer all of the
problems? Or are we always going to be left with what was
said before the recorder was turned on? What was said in
the police cruiser on the way to the station? What was said
before the person got into the police cruiser? What was
said down in the booking room or the processing room before
any interview started? How do you define standards and when
do you require it?
Those are the difficulties and those are why when theLegislature tries to enact blanket rules there, we may end
up with hindering obtaining -- barriers to obtaining the
truth rather than assistance in obtaining the truth, which
is what we really want and what we really need.
With regard to sequential id's and blind (inaudible). Those
maybe very good ideas. Mike Deerington did quite a bit of
work on that and has done quite a bit of work on that over
the winter.
New Jersey has -- the Attorney General in New Jerseyproposed what Mr. Deerington's conversation has indicated
where guidelines for police officers to follow, but they
were recommended, not mandated guidelines.
There are studies that have been done with regard to
sequential id's and blind identification, meaning the
officer whose conducting the show-up does not know who the
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suspect is in the group of photographs. Those are,
obviously, beneficial. It would help us with the juries
saying, if we put on an out-of-court identification, that
the officer conducting it didn't know who the suspect was,
so he could not have conveyed that to the witness at all.
But one of the studies and one of the main proponents of
that study says sequential id's may not work for young
people or old people. I don't know why. They're doing
further studies on this. This is an area which it looks
good, it looks like there are beneficial things to be
gained by using sequential id's, but according to some of
the people who have -- according to this one particular
expert whose name escapes me. I can find it in a minute,
but I don't want to take more time than necessary. He said
the jury is still out on this issue and there maybe certain
groups where this is not beneficial and does not lead to
the truth. I think we need this as an issue that we do need
to study.
REP. LAWLOR: Can I just ask about that, Mr. Kane? I think
that in those categories, I think what they're saying is
that for old people, young people there may not be any
difference between a sequential and a traditional show-up.
It's not that they're less reliable for young people. It's
just that there maybe no benefit for doing it, but I don't
think they've argued that there's any downside with any
particular group to have a sequential blind photo id as
opposed to the more traditional way of doing it.
So, I don't think anyone would argue that it's worse for
young people, it's just that there may not be the benefit
of a blind sequential i.d.. I think that's the case.
STATE'S ATTORNEY KEVIN KANE: Well, I think the proponent
that Mr. Deerington was discussing was Gary Wills whose a
professor from the University of Iowa. And he says there
are two shortcomings with sequential identification. That
is, showing one photograph at a time. The first shortcoming
deals with a group of people who are either minors orsenior citizens. Since each category needs points of
references, and cannot accurately look at photographs
individually and make identifications. What that means, I'm
not too sure on. One way it sounds like it might cause more
of a problem because they may use the point of reference
just to pick out the person who looks most like the
perpetrator. What I'm saying is this is an area that we
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need badly to explore through some training and studying.
We have done quite a bit working with police officers in
our jurisdictions.
New London has a computer system now where they're able to
show a witness -- they're able to pick a group of eight or
nine or ten or twelve, they use photographs of similar
people on a computer. And do a lineup on one page and I
look at this thing and I say, my God, we've got twelve twin
brothers here I this lineup. I couldn't pick out the person
and I just say him this morning in court, because these
people look so much alike.
It's remarkable how similar the identification is. Whether
or not it would be better or easier to do sequentially, it
just might be. I think it's an area where we really should
study and we should give it some serious looking at and
maybe we, first of all, should require that, but I would
hate to see it put in a statute.
One of the provision in H.B. 6700 provides that if a
witness is improperly -- if an out-of-court identification
procedure is conducted, that that witness may never testify
in court and they never make an identification in court.
Now, that problem would be disastrous because as I said in
the beginning, that flies in the face of the whole Supreme
Court juris prudence that says if the in-court
identification is independent of the out-of-state show-up,
it can be admitted. Now, the State has a burden of showingit's independent and can show it by showing such things as
the witness' opportunity to observe at the time the crime
was committed whether the witness knew the person before
the crime, many things like that.
So the risk that we have suppression of an identification
with this procedure is risky.
Now, the other thing is, I've been a prosecutor for thirty
years and I can't remember many, off the top of my head, I
can't remember one case that depended on an individualidentification of a person. And recently -- and those are
the cases that worry. Juries know how -- and I don't want
to use the word "we". Juries know -- it's common knowledge
with jurors, at least, without any education, the weight
that they should give to in-court identifications or the
personal identifications. That's the person who robbed me
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there. Jurors are hesitant to accept that. Police officers
are hesitant to accept that and so are we.
I don't think there's one death penalty case here that
depended on an eyewitness identification. An eyewitness
identification is a circumstance where the witness
recognizes the person and says yes, that's who did it, but
it is a circumstance and that's it. There's a lot more
investigative work that is done with regard to a case.
There's a lot more corroboration with regard to a case.
But these are areas which we should explore and we are
exploring and we are going to work with police departments
to try to develop better identification procedures. Whether
this is the one that we should develop and be the be all
and the end all of identification, I would hate to see that
written into a statute right now.
As far as lineups go, I don't think that's -- you know,
lineups have been conducted for years and years in this
state, an in-person lineup as opposed to a photographic
show-up.
Right now, with regard to photographs in the Motor Vehicle
Department, we have terrific access to photographs even
with people who aren't arrested. We can get blow-backs from
the Motor Vehicle Department and get good photographs of
people, so we're not using mug shots.
Are there any --
REP. MCMAHON: (INAUDIBLE-MICROPHONE NOT ON)
STATE'S ATTORNEY KEVIN KANE: Pardon me.
REP. MCMAHON: (INAUDIBLE-MICROPHONE NOT ON)
STATE'S ATTORNEY KEVIN KANE: Well, not necessarily good and
that's a problem we always have with mug shots. You may
have a person whose been arrested fifteen years ago and haschanged an awful lot. That is one of the problems with
these photographs.
REP. LAWLOR: Representative Farr.
REP. FARR: On the sequential identification, I guess --
I've been reluctant to suggest that we should do this by
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statute, as well, in terms of statutorily defining a system
of identification because things change, our knowledge
changes, etcetera.
But I wonder if we couldn't set up a process whereby there
are some guidelines in Connecticut that can be upgraded and
changed by whoever is establishing these guidelines.
Instead of what appears to be the system now where it's
kind of ad hoc and everybody does whatever they want in the
various jurisdictions and that isn't even the State's
Attorney's issues. I mean that's every police department
that's got their own system.
STATE'S ATTORNEY KEVIN KANE: It is. It's a lot of training
through POST and through the State Police Training Academy
and in-service training that it can be done. It's not just
the training, but it's the studying it too. Both are
involved.
There is a professor down at Yale, the Connecticut Mental
Health in New Haven whose doing a study on the impact of
stress and the ability of people undergoing -- who have
undergone various amounts of stress to make
identifications. How helpful that will be, I don't know.
That's involved with the people he's studying are in the
military. Whether that can be objectively analyzed and what
we can learn from that, I'm not too sure. But there are
studies that can be done and should be done and I think the
areas to work through, the best areas are POST and theState Police Training.
REP. FARR: But the problem with POST is it doesn't
establish -- does POST establish a best practice?
STATE'S ATTORNEY KEVIN KANE: No, they just establish
training and departments, to a pretty good degree, follow
recommendations from POST.
REP. FARR: And does your office get involved with POST at
all?
STATE'S ATTORNEY KEVIN KANE: Very little.
REP. FARR: I see --
STATE'S ATTORNEY KEVIN KANE: I used to teach there at one
time --
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REP. FARR: -- maybe the Chief State's Attorney --
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: There are
prosecutors throughout the State that are certified to
teach at POST courses. Mr. Cronin, I believe, does it.
Where did he go? I think he left. Mr. Cronin does it. I
know Mr. Shugrue does it, various other prosecutors do. So
we are in --
REP. FARR: Right. But I think what you're saying is you
teach individual courses.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct.
REP. FARR: But who sets the criteria? Who sets the
curriculum at POST? Who establishes what it is that's going
to be caught? Does the State's Attorney's Office get
involved in that?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, the POST
Advisory Council is set by statute and the Chief State's
Attorney does sit on that. I have attended -- in my brief
tenure I've attended some of those meetings already and
they have dealt primarily with issues of whether the person
had the minimal requirements to be certified as a police
officer in the State, things of that nature.
REP. FARR: But you haven't had discussions about this type
of topic?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We have not, but
I will explore whether that is a relevant topic for
discussion at those meetings.
REP. FARR: Okay, thank you.
STATE'S ATTORNEY KEVIN KANE: Can I just say one thing?
There are many technical issues too. We have discussions,
for instance, with regard to the use of digital photography
and I, right now, have been telling the police departmentsin New London jurisdiction and we have talked about this
ourselves as State's Attorneys to a degree to which we
should not be allowing the police departments to rely at
least solely on digital photography and leaving that to
technical things. There are evidentiary issues that have to
apply.
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If a statute were to require or if we, as a matter of
policy, we, I mean the Division, were to require police to
record interrogations and interviews, if we got over the
other questions about who, when, where, what suspect meant,
who the accused was, where, whether it should be in a
cruiser or in the station, then, what kind of equipment
should be used, many should be using digital recording
equipment, should we use tapes, what should be done with
all of these? There are a lot of issues that have to
hammered out.
Digital recording is excellent. Digital photography is
excellent, but they can be easily manipulated. And there
are evidentiary issues that are involved.
These are things which the future is coming at us fast and
the age of technology we have to deal with those issues,
but these issues are very realistic. I would like us to be,
us as a Division, and the police, law enforcement in
general, to deal with this, to take the bull by the horns
and start dealing with some of these issues before the
Legislature enacts binding requirements.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You know, in
recognition of these issues, we meet monthly and that's a
meeting that's set by statute. All the State's Attorneys,
Chief State's Attorneys --
REP. LAWLOR: Do you mean the Legislature commanded theState's Attorneys to actually meet every month?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Yes, they did.
REP. LAWLOR: And you abide by it?
STATE'S ATTORNEY KEVIN KANE: They did.
REP. LAWLOR: There's not a constitutional problem there?
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, we find itvery constitutionally enriching.
REP. LAWLOR: Just out of curiosity.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: But at any rate,
probably a common law, but anyway, we have, in the last few
meetings, are addressing sort of the issue of the day and
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one of those issues was digital photography. Another was
open file policies of discovery policies. So there is a
healthy dialogue now going on between the State's Attorneys
and I find -- I introduce the topic and I sit back and I
watch the best minds of prosecutors debate this thing and
it's, I think, been very beneficial to all of them and it's
something we're going to continue to do and probably will
take up some of the issues we've talked about today. I know
we will take them up.
REP. LAWLOR: And by the way, I think it needs to be pointed
out that one function of the Legislature is to enact
statutes, but another function is to surface issues which
are legitimate to be discussed and whether or not it has to
take statutory form as a separate issue, but many of our
forums help sort of galvanize public opinion or allow
people to weigh in pros and cons and many of the things
that are talked about here are ultimately adopted by
regulation of just by practices and that's part of, I
think, the legitimate role of the Legislature. I think that
ought to be pointed out that I would agree that maybe some
of these proposals don't need to actually appear in the
statute books, but nonetheless, are, in fact, best
practices.
And I just want to -- Mr. Kane, you mentioned the
psychiatrist from Yale. Was that Andrew Morgan?
STATE'S ATTORNEY KEVIN KANE: Yes.
REP. LAWLOR: And I believe he's actually doing training for
-- he's doing research on the military applications of
stress and identifications, etcetera, but I think he's
doing training on sequential lineup as he goes to these
different local police departments and I believe he's
leaving in his wake, so to speak, these practices.
STATE'S ATTORNEY KEVIN KANE: I think he is and I think
that's why Mike Deerington has been speaking to him. Mike
couldn't be here. He was going to be here just to addressthis issue, which he's more familiar with than I am, with
regard to this.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Mr. Scheck also,
when we spoke before, he testified and after he testified,
said that he would help facilitate an introduction to an
individual who is very knowledgeable in training in this
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area and we intend to reach out to that person and bring
him to our June training session.
REP. LAWLOR: He might end up being Andy Morgan, so we'll
see.
Representative Dillon.
REP. DILLON: Thank you. Just a couple of things. I was
interested in your testimony about -- on the question of
the taping. Some cities are doing the taping already, is my
understanding.
STATE'S ATTORNEY KEVIN KANE: Yeah.
REP. DILLON: And my concern about taping, I've always been
very sympathetic to it, very often had to do with younger
defendants and probably a younger defendant in a small town
just because a younger defendant might be more easily
intimidated simply by being there, not because of any
conduct on the part of the police, although I am also
sympathetic because my uncles were all New York City Police
Department people and their experiences made me think that
the police needed something to protect them because very
often they couldn't win on some cases, given the pressure
from all kinds of places.
And it was easier to protect the officers with the
document.
I'm particularly intrigued though by a couple of things and
I just want to notice them, not necessarily dwell on them.
And one of them was in Barry Scheck's testimony. He did say
that 81% of the exonerations that he had gotten came from
false i.d.
Now, I have no context for that. I know the denominator is
127, but I don't know to what extent he picked cases
because it might be easier. I know that's interested in DNA
and so obviously that might lead him to some cases wherefirst of all he could focus on the case, the 20% of the
cases where there were some biological evidence and then
zero in on the issue of the i.d.
So I'm not saying that I'm totally swooning over that
number, but because I understand that there was a selection
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process that lead him to choose certain cases and I think
that's fine because that's what he was trying to do.
But 81% is a number of such magnitude that I think it
should give us pause to put something in place and so I'll
be very, very interested in what competitive proposal you
would come forward with because whether or not they
selected the cases, that's a big number and that tells us
something.
And it's still no matter how many inflammatory cases come
out about the behavior of younger defendants, it still
seems to me intuitively true that a younger defendant is
going to be more easily intimidated simply because they're
there no matter what.
And there's one other little thing that was mentioned by
Mr. Scheck that has always troubled me and that is the
perhaps inadvertent mention of one of the officers in an
interrogation of something that only the perpetrator could
have known because that is the kind of a thing that's
introduced very often at trial, that not because they're a
malefactor in any way, but simply because they're into the
interrogation might not even think about that category if
evidence or might not have direction about what they should
or shouldn't say and simply because they're doing the good
cop/bad cop thing which is absolutely proper, and with some
defendants you'll never get anything any other way, but
that category of information of things that only could havebeen known by the perpetrator, troubles me simply because a
good police officer whose simply trying to do an
interrogation who might not be reading the papers every day
because it drives him crazy and maybe wouldn't want to read
the press, wouldn't necessarily always reflect in the heat
of the interrogation on exactly only would be known to the
perpetrator and I would really like to -- that's one of the
reasons I'm sympathetic to the taping and I'd like you to
think about ways of addressing that if you're going to be
opposing the imposition of a statewide standard.
STATE'S ATTORNEY KEVIN KANE: We have and that's one of the
benefits of recording.
With regard to Mr. Scheck's observations, he has great
experience in New York and nationally. My experience in
Connecticut has been over the years and I've seen it become
more increasingly so, that police officers, prosecutors,
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and juries are much -- are very aware of the need to go
beyond an identification by a witness to prove a case. It
could be initially and it could be in other states if a
witness says that's the person who robbed me, there's very
little more investigation done. The person is indicted and
charged and a jury has to decide.
Here, over the years, I've seen and certainly with regard
to prosecutors in my office and around the State, we've
very concerned with evidence that goes beyond eyewitness
identification of a witness and certainly don't want to
rely on that.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I know I had a
rule when I was prosecuting, it was just a rule that had
been taught to me by an older prosecutor. When you have an
i.d., a photo i.d., you never go to trial on a one photo or
one person or one person identification. You're not
comfortable with two, you're going to have three and there
had better be some corroboration. So that was just sort of
a rule that was taught to me when I was learning how to do
this.
REP. DILLON: Don't forget the younger defendants and don't
forget the characterization, the certain evidence that you
would only know if you're a perpetrator.
SEN. MCDONALD: Thank you. Are there any other questions?
Senator Roraback.
SEN. RORABACK: Thank you, Mr. Chairman, just briefly.
Attorney Kane, did you submit written testimony?
STATE'S ATTORNEY KEVIN KANE: No, I didn't.
SEN. RORABACK: Oh, okay.
STATE'S ATTORNEY KEVIN KANE: I'm sorry, I didn't. I was
planning to and over the weekend we got carried away onanother case and I didn't --
SEN. RORABACK: You don't need to make any excuses, that's
okay.
The reason I asked the question is that when I look at the
Division's testimony, conspicuous by its absent, is any
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written testimony on the question of video taping
interrogations. I think it would be helpful for me and many
other members to have a --
STATE'S ATTORNEY KEVIN KANE: I'd be happy to prepare
something and write something up.
SEN. RORABACK: -- formal position statement.
SEN. MCDONALD: Do you want it on video tape? Any other
questions?
SEN. RORABACK: Thank you, Mr. Chairman.
SEN. MCDONALD: Thank you very much.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Thank you. I
have one other person and due to the lateness of the hour,
we could do it on written testimony.
SEN. MCDONALD: I appreciate that because there are a lot of
people who have been very, very patient here and we need to
keep moving. Thank you very much.
CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We appreciate
the opportunity. And the easy and the hard questions, as
well. That's what it's all about.
SEN. MCDONALD: Okay. And forgive me, I'm trying to figure
out, maybe you guys can help me. I believe the next speaker
-- Chief Salvatore has spoken. Mr. Scheck has spoken. From
the public -- is Ron Gold here. Actually, there was Bob
Perski. Is Bob Perski here? Please come forward.
And not that I could have changed anything, but I do want
to apologize to everybody who has been so patient and
waiting their turn to speak. Clearly, it's an issue of
great importance and I just hope you will be tolerant as we
listen to everybody.
Good afternoon.
ROBERT PERSKI: Good afternoon. I want to thank you for your
patience in still being here to hear my three minutes. I
was told to have three minutes, so that's what I have.
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The people I represent were probably not argumentative or
not legal, but we do care and work with these people.
My name is Robert Perski. I'm an active member and the past
president of the ARC of Connecticut, which advocates for
people with developmental disabilities. We, in the ARC
membership, have 24 chapters throughout the State. We're
very interested in the electronic recording of the H.B.
6612 and H.B. 6700.
Personally, I work with and write about persons with
developmental disabilities who were coerced into confessing
to murders and rapes they did not commit across the United
States and I'm an author of a couple of books and I have
files on over 100 persons with developmental disabilities
that the ARC believes were coerced in giving false
confessions.
Nationally, we can name Jerome Bowden in Georgia. He was
executed. Johnny Lee Wilson in Missouri, pardoned. Earl
Washington, Jr. in Virginia, pardoned. Dave Vasquez in
Virginia, pardoned. Delbert Ward in New York, acquitted.
Barry Fairchild in Arkansas, executed. Gerry Frank Townsend
in Florida, was mentioned, pardoned. Robert Wayne Sawyer in
Louisiana, executed. Howard Neil in Mississippi on death
row, and Richard LaPointe in Connecticut, life without
parole plus sixty years.
In the recent famous Illinois death penalty box score inwhich twelve persons were executed and thirteen were set
free, Anthony Porter and Alex Hernandez both were persons
with mental retardation in that group.
We, in our narrow, powerful focus, believe that when our
people are placed in a pressured interrogation room for
long hours, they will confess to assassinating President
Lincoln. We believe that that can happen. We believe it's
so because there's a widely little rascal in all of us
that's called the will to believe. You let in run in your
noodle long enough and pretty soon somebody's guilty orsomebody's innocent and you can pull it off without even
having any evidence.
I understand the power of the will to believe because I had
five kids at the same time, all teenagers and they would
take tools out of my toolbox and not put them back and
every time I found that out, I would just (inaudible). I
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would call cold court and I'd act like a judge and I would
be stern and I would be mean. And when I was at my
crescendo, quite often my wife came along, took me my the
hand and took me to the place where I left the tool.
And I understand the power of the will to believe in that
I've sat in many courtrooms in this land where a defendant
with a developmental disability was accused of a rape or a
murder and the whole case was based on an awkwardly signed
confession that was printed out by an interrogator. No
stenographic record. No electronic recording. And at trial,
the detectives were well practiced in articulation because
this is what they do all the time and they described what
went on in the interrogation room and once in a while the
defendant takes the stand and he stumbles over his words
trying the best to describe what went on and the two don't
match.
Even so, most juries are prone to believe the articulate
detectives and not the defendant, the person we care about
and want to have justice.
We have a great believing in the court of our land because
we feel that this is where people with the wills to believe
innocence or guilt can come together and the court will use
every tool they possibly can use to whittle down these
wills to believe until they can come to a verdict that's
fair and a verdict that's true.
So, I have a great feeling for the police. I have a great
feeling for the prosecutors and the defense and I have a
great feeling for the court of our land where this can
happen and I guess I'm a guy who would say thank goodness
for a new truth telling tool called DNA. I noticed that
this year you're not blocking it as much as maybe four or
five years ago and I thank goodness for another truth
telling tool which is electronic recording because I
believe if you vote electronic recording, the judges and
juries will have the first chance that they've ever had to
hear what went on in the interrogation room firsthand andnot secondhand.
And we in the ARC believe with all of our hearts, we're not
legal people, we just have hearts and we know our people
and when they hurt.
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As a matter of fact, this morning one of the people we
really care about and we understand his idiosyncrasies and
the front page shows how he was beaten to death with video
cameras there, I guess, and that shook us to our socks when
our people somehow don't have the justice that they need
and in the case of Richard LaPointe in Manchester, we the
members of the ARC, believe that if his nine hour
interrogation had been electronically recorded, he would
have never been arrested or convicted.
SEN. MCDONALD: Thank you very much. Are there any
questions? Thank you very much, Mr. Perski.
Next is Deborah DelPrete-Sullivan, followed by Ron Gold.
ATTY. DEBORAH DELPRETE-SULLIVAN: Senator McDonald, with
your permission, could Patrick Culligan, whose also signed
up on that same list, but later on, be able to come up with
me? He's signed on the State official list.
SEN. MCDONALD: There are a lot of people who have been
waiting an awful long time. We're going to stick to the
list.