Makes Me Want To Throw Up, Too

Ken Webster got busted for selling crack within 1500 feet of a school in Torrington, Connecticut.  Bad boy.

He was charged with the sale and related offenses and convicted at trial.  He was sentenced to something like 23 years in prison but only having to serve 9 before he'd be on probation for 5 with, I suppose, the rest of the 23 hanging over his head.  (This was Connecticut and I neither know nor particularly care about how their sentencing scheme works.)  The case went up on appeal.  

Webster said that there wasn't enough evidence to convict him of that 1500 foot thing that cranked up his sentence.  See, he sold those drugs from his car, while driving the buyer around the block.  For a little bit they were more than 1500 feet from the school.  The appellate judges, as appellate judges do when they're faced with with that sort of technical argument, carefully parsed the statute.  They recognized that it was ambiguous and that those sorts of ambiguity must be resolved in favor of the Webster.  Then they giggled at the very idea of actually doing that and said,

AFFIRMED!

Wait.  No.  They didn't.  Holy Shit.  Webster won.  They ruled in Webster's favor, overturned his conviction on that count.  So, of course, the state appealed, asked the Connecticut Supremes to weigh in.  Which they did.

The justices did, as justices do when they're faced with with that sort of technical argument, carefully parsed the statute.  They recognized that it was ambiguous and that those sorts of ambiguity must be resolved in favor of the Webster.  Then they giggled at the very idea of actually doing that and said,

COURT OF APPEALS REVERSED!  CONVICTION AFFIRMED!

Really.

And all that's trivia and it's not why I'm writing.  And it's not why Gideon wrote about the Webster decision.  Or why Scott Greenfield did.

They wrote about, and I'm writing about it, because of the other issue.  The one that the court of appeals didn't bother with because undoing Webster's conviction took care of it.

See, the trial judge fucked up.  He didn't tell the jury about one of the elements of the offense, one of those things that unless the state proved beyond a reasonable doubt Webster would be innocent.  So the jury didn't get to decide if Webster was guilty.  They decided he'd done some of the stuff that makes up a crime, but not all of it.  

You know, it's as if they convicted him of robbing the bank without having to know or decide whether the bank was robbed.  Or whether he did it.

It was some 43 years ago, in 1970, in a case called In re Winship, that the Supreme Court said that one requirement of the Constitution - that thing the conservatives and the liberals and the libertarians and the radicals all say they believe in absolutely - is that nobody can be convicted of a crime unless the government proves beyond a reasonable doubt every fucking element of the offense.

Nobody.  Not kids.  (Winship itself concerned a juvenile.)  Not adults.  Not in the federal courts.  Not in the state courts.  Not in Ohio.  Not in your state.  And not in Connecticut, the Nutmeg State, the Land of Steady Habits.

So Webster was, and there's really no getting around it, convicted improperly.  He should not have been.  No technical quibble about how to construe the statute.  No squishing around the edges.  The conviction was wrong.  Plain and simple.  Or, at least, simple.  (Read on.)

The court of appeals, to recap, didn't need to reach this question because they'd already determined that he didn't violate the statute.  But the five wise justices of the Connecticut Supreme Court who heard the case did.  And they looked at the law.  And they looked at the Constitution.  Even in Connecticut, the fucking Constitution State f'rgodssake, you might think that would count for something.  Of course, you'd be wrong.

For the justices looked.  And they looked.  And they said.

Not my job.  I don't give a shit.  You can wipe our collective asses with your Constitution.  Fuck it.  And fuck Webster.

Oh, they didn't say the judge got it right.  They didn't even say "close enough for government work."  They just said that they didn't care.  No flies on them.  Because, you see, Webster's lawyer didn't object at trial.  And on appeal, his lawyer didn't say that the error was "plain."   He just said that Webster's constitutional rights were violated.   

He didn't jump through the right hoops, so it doesn't matter.  So said them all.

It fell to the Chief Justice, one Chase T. Rogers, to point out that even if Webster's appellate lawyer had jumped through the right hoops it might not have mattered.  (It is, after all, only a basic constitutional right that was violated, not anything important.  And he may only spend 9 years in prison and another 5 or so looking over his shoulder, so it's not like it's any big deal.)  She added a brief concurrence.

I agree with the majority's conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court's decision in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.   

To which Gideon eloquently responded,

Those 6 lines make me want to throw up.

And which led Scott Greenfield to say,

And like Gideon, it makes me want to throw up.

I've said too many times to bother linking to that I don't pretend to know what justice is and that I'm not particularly interested in it. But if I neither recognize nor deal with justice, I've got more than a passing recognition of injustice. 

William Marbury was appointed justice of the peace by President John Adams on his way out of office.  Marbury's commission was to be delivered by James Madison, Secretary of State in the new, Jefferson administration.  Madison refused.  Marbury asked the Supreme Court to order Madison to give him his commission.  The great Chief Justice of the United States (that's the actual title today, though at the time it was Chief Justice of the Supreme Court) John Marshall, wrote the Court's opinion.

Marbury, he said, had an absolute right to his commission and Madison had no right to withhold it.  And he quoted Blackstone.

[I]t is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.

What was true in England, he said, must be true here.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Which you'd think might pretty much settle the matter.  Marbury had a right.  Without a remedy, there is no right.  But ooops.  Even though Congress enacted a law giving the Supreme Court the power to order Madison to deliver the commission, the law was unconstitutional. 

We remember Marbury v. Madison as the case that established (whether by recognizing or inventing out of whole cloth, depends on your point of view) the power of judicial review.

It is emphatically the province and duty of the judicial department to say what the law is.

We tend to forget that what the case actually did was say that Marbury had a right, but no remedy.  Because, you know, doing the right thing wasn't worth shit in those days any more than it is today.  Of course, Marshall didn't say that it was "the province and duty of the judicial department" to do anything relating to justice.

Chief Justice Rogers serves on the Board of Directors of the State Justice Institute ("Improving the Quality of Justice in Our State Courts").*   Don't be holding your breath.

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*She was nominated by his Barakness and approved by the Senate, which says no more than what you already likely knew about both Obama and the Senate.