PRESIDING CHAIRMAN: Representative Lawlor
COMMITTEE MEMBERS PRESENT:
SENATORS: Handley, Kissel, Caligiuri, Coleman, Meyer, Roraback
REPRESENTATIVES: Fox, O'Neill, Adinolfi, Aman, Barry, Bye, Dillon, Geragosian, Giegler, Godfrey, Gonzalez, Green, Hamm, Hamzy, Hewett, Hurlburt, McMahon, Morris, O'Brien, Olson, Serra, Taborsak, Tong, Walker, Wright
REPRESENTATIVE LAWLOR: --Judiciary Committee public hearing. As is the practice of this Committee and the rules governing legislative public hearings, we'll begin in the first hour with public officials.
And after that, we'll go to members of the public. There appears to be, it's not a very long signup sheet today, fortunately.
And I think, if I had to guess, if you're at the end of this sheet, you're probably talking about testifying around 2:00, 3:00 this afternoon.
So for planning purposes, it looks like we'll be able to work our way through this in a reasonable period of time.
First on the list is Speaker Amann, and he will be down shortly, so we'll skip over him, and we'll go to State's Attorney Mike Dearington, who, I believe, will be accompanied by State's Attorney Steve Sedensky.
I was just reminded of an important fact, as these gentlemen come up, that our rules call for the agency heads or the chief elected officials or municipalities or commissioners, and I was reminded that individual state's attorneys are, in and of themselves, constitutional officers under our State Constitution.
And they fall into that category. They're not like the deputy commissioners or anything like that. So I'm reminded of that over the dinner table occasionally. And so with that in mind, welcome to Mr. Dearington and Mr. Sedensky.
STATE'S ATTY. MICHAEL DEARINGTON: I think I'm first. Good morning, I'm here to speak about Raised House Bill 5832, which is captioned AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
I've submitted a short statement with a couple of enclosures. But what I'd like to do is just briefly summarize what this involves.
This is a bill, as you're all aware, which has been introduced, I think, four or five times over the last four or five years.
And it concerns, principally, three different issues, the issue about mandated sequential identification procedures with respect to law enforcement, the second issue, double blind procedures, and the third is the second half of the double blind procedures.
As far as the double blind procedures, as I'm sure you're aware, it mandates that police officers, with respect to an identification procedure, whether it's a lineup or photographs, instruct the witness or victim that the suspect may not be in the array, that there's no obligation or pressure to make an identification.
And there are several parts to the instruction. One of the enclosures includes the paperwork, or the forms, used by the New Haven Police Department. And one of them is the officer instruction for photo identification.
And then the second form is the form that is read to and filled out by the witness. With respect to that aspect of the bill, the state is already in compliance.
Three years ago, the state's attorneys recommended to the Connecticut Police Chiefs Association that this be adopted, and it was adopted by all police departments, the State Police, as well as local police departments and such.
We're already in compliance with that aspect of the bill. The second part of the double blind, the bill provides that it's a best practice that the person or official showing photographs or conducting an array not know who the suspect is, such that there would be no conscious or subconscious suggestion by the official.
Again, that's a recommended practice in the bill. It has been recommended to many departments, or to all departments, but, as you're all aware, it is, in many respects, not practical.
Small departments don't necessarily have personnel who are not familiar with a suspect of a particular investigation.
Large departments, particularly on the midnight shift, may not have people available who would not be familiar with the suspect. And that's why, in the bill, it is, at most, a recommended best practice.
And finally, with the most controversial aspect of the bill, mandated sequential identifications, Jim Clark spoke before this Committee, I think, last April and presented a rather thorough and thoughtful statement, which I've actually included to my remarks.
As you're all aware, sequential identification is a procedure that was created probably 20 years by Professor Wells and few others at the University of Iowa, based upon classroom mock situations with mock crimes and mock witnesses.
And since then, it has been touted as measurably reducing the number of false identifications.
And I hasten to point out, as I know you're aware, that the statistics are that probably 75% of all wrongful convictions are based upon faulty identifications.
Many departments in many states, or at least three states, have adopted it statewide, that is, the sequential procedure, which involves not showing simultaneously photographs or a live array but showing the photographs, for example, sequentially, one at a time.
And a number of people, there are a number of departments nationally that have adopted it. Also, I think I read that Israel and Great Britain and France are looking at that type of procedure.
And it was the end-all and the be-all when it first was presented by Professor Wells probably 15 or so years ago, or maybe up to 20 years ago. And as a result, a lot of agencies jumped onboard.
But since then, there has been counter information, based on studies, that it may not be as valid as initially thought in reducing wrongful identifications.
One of the criticisms is that the mock crime in a classroom with mock witnesses is not the same as how actual witnesses perceive things with respect to actual crimes.
So the Philadelphia Police Department, in the last two years, conducted a study which suggested that sequential identifications were not any better than simultaneous identifications and maybe, in some situations, not as good, as far as reducing wrongful identifications.
And then I hasten to point out that the methodology used in that study is now being challenged. So the bottom line is that the jury, so to speak, is still out on this.
But I just want to, in my statement, I cite a statement made by Gary Wells a number of years ago, which seems to have been lost, but I think it's really significant.
Even Gary Wells, who espouses sequential identifications, on page three of my statement, indicates, in fact, however, I think it is unfortunate that the sequential procedure has come to dominate so much of the discussion regarding lineup procedures.
Most of my research and writing over the years has been addressed at problems with lineup procedures that are independent of the simultaneous versus sequential lineup issues.
Regardless of whether one uses a simultaneous or sequential procedure, there are other important problems with lineups that have to be addressed.
And I point out that's what this Committee has addressed, and that's what we've addressed in the Division of Criminal Justice.
I go on, these other problems include instructions to eyewitnesses, the selection of lineup fillers, how witness certainty is assessed, how to eliminate inadvertent influences from the lineup administrator.
And finally, fixation on the sequential procedure is creating a certain degree of myopia with regard to seeing the broad problems with lineup.
In closing, I indicate that in the spirit of what Professor Wells has indicated, this state, in conjunction with this Committee and the Division of Criminal Justice and law enforcement, have followed his admonition that it's not just sequential identifications.
It's more the integrity of the whole system. And that's why our adoption of part of the double blind, I think, is so important.
And that is why, in conclusion, in my statement, I indicate that, in conclusion, the Division of Criminal Justice believes House Bill 5823  is premature and unnecessary, given the inconclusive nature of the research to date and the ongoing good-faith efforts being taken by the law enforcement community to address the underlying issues.
And it goes on to say that we request that this bill be rejected, although, in fact, we have adopted a good part of it. Thank you.
REP. LAWLOR: Thanks very much. And I think it might be appropriate just to have a few questions about this topic, and then we'll get on to talking about sex offenders because they seem to be pretty unrelated, although one thing that bridges the gap is the case I wanted to just throw out that as an example of the problem at least, which is the Tillman case, who, you know, Mr. Tillman was convicted of a sex offense, and it turned out that he was actually innocent.
And this is the case that gives rise to so much of the discussion, especially recently, because, I mean, people who saw, on the front page of the Hartford Courant, the photo that was identified, the photo of Mr. Tillman, compared to the photo of the guy who ultimately, apparently committed this crime, was identified through a DNA match.
You can see the great similarities between the appearance of these two men. And it is just one of many examples, and you pointed this out in your testimony, where sometimes if the only evidence is an eyewitness id, especially if it's a cross-racial identification, that the unreliability of those is very high.
And it's that concern that gives rise to the question for us, as a matter of public policy, what is the best system for conducting these photo id's to have the lowest possibility of misidentification?
And I just wanted to focus in on one comment you made at the end, which is, in my opinion, a very true statement, that you have made a very good faith effort to identify what are the best practices and make them commonplace among law enforcement agencies throughout the state, which is totally true.
And I guess the only unanswered question is is there more that could or should be done to ensure that misidentifications are as infrequent as possible.
And I guess your testimony is that there might be, but the specific language of this bill might be too much or have unintended consequences or actually be unnecessary. Is that, in essence, what you're saying?
STATE'S ATTY. MICHAEL DEARINGTON: Yes. I think it's too soon to adopt a sequential system. It should be looked at, and we should wait and see.
I think just as in all law enforcement procedures, what's really important is the integrity of the police officer. That's why training, education is so important.
And as Professor Wells indicates, there's nothing, that is the most important factor, the police officer administering the procedure.
REP. LAWLOR: And the last thing I want to throw out, and I know you were present at the meeting last week on the Commission of Wrongful Convictions, where these topics came up for discussion.
And I think it would be fair to say that there was something of a consensus of the people who are members of the Commission on Wrongful Convictions that this might be something worth taking up in the context of its deliberations, in terms of recommending additional best practices, over the next year or so.
Does it seem like something that, because one of our options here is to sort of throw this back to that panel of experts, really, to have more discussion about what would actually be effective, as a matter of state statute. So is that something you would be comfortable with if that's what we ultimately decide to do?
STATE'S ATTY. MICHAEL DEARINGTON: Well, I think the answer is clearly yes. But the information has to be available to make an intelligent decision, if we're talking on sequential, and the information just isn't there yet.
And that's what we have to wait for. And I know there are a lot of studies going on right now, and we'll see how it shakes out.
But as you pointed out, sequential, in some studies, has been less reliable than the traditional simultaneous.
And you mentioned cross-racial lines, also young witnesses or elderly witnesses. So I agree with you though.
REP. LAWLOR: Are there further questions on this topic for Mr. Dearington? Steve?
STATE'S ATTY. STEPHEN SEDENSKY: Good morning, Chairman Lawlor, Members of the Committee. My name is Steve Sedensky. I'm the State's Attorney for the Judicial District of Danbury.
I'm here to speak in support of Raised Senate Bill 699, AN ACT CONCERNING THE SEXUAL ASSAULT OF CHILDREN. It has a number of provisions in it.
I'm just going to highlight a few of them that I think are particularly significant, starting with Section 2, that permits a person close to a child to be present in court when the child is testifying in court.
I've tried a number of child abuse cases over the years. And one of the problems that typically comes up is that the testimony is needed of a close family member, and at the same time, that person is also needed potentially to sit in court with the child to provide comfort to the child.
So we are then put in the situation where do we need their testimony more than we need them in court to be a comfort to the child?
And what Section 2 does is allows that person, that close person, to testify prior to the child, the child is not in court at the time, and then to also be present in court later on as a support person for that child.
Section 3 includes child abuse cases with crimes of physical violence, as given a priority for investigation and prosecution purposes.
Section 4, as written, I know the intent is to give child abuse cases a priority on the trial list. The difficult that we have with the statute is that it automatically gives the case priority.
And in every case of child abuse, the child may not be ready to testify as soon as the case comes in.
Often, children are going through therapy and, through the benefits of therapy, are then better able to testify later on.
The suggestion that I've provided in my handout is that it be in the discretion of the prosecutor involved in the case whether or not to make a motion to give that particular case priority and that it would be focused more on the individual needs of the victim or to be able to accommodate the victim as to whether or not the case should be given privileged status.
We did make a suggestion, and our suggestion, I believe, also includes the elderly, that we could move cases up.
And the reason we include the elderly, it's not unusual, if a case sits on the trial list for a while, behind the murder case, that in a financial crime, we've had cases where the victim has died, and it was a financial case.
And if we had been in a position where we could have moved it up, that would have helped the case tremendously.
Just as an aside, you also have before you today Raised Senate Bill 694, which seeks to, AN ACT CONCERNING THE ERASURE OF CRIMINAL RECORDS, and it would put criminal records that receive a nolle or dismissal when it's part of a global disposition on the same plane as an isolated nolle or dismissal.
For example, if someone is charged with a larceny in the sixth degree for shoplifting, and that's the only charge, the case gets dismissed. The entire record gets erased of that arrest.
If the case involves, say, a burglary of a home that also involved a larceny of a theft, the prosecutor, in resolving the case, may decide to nolle the larceny in the sixth degree charge.
But those facts are still necessary for the proof of the burglary. And under the current law, the nolle remains as being visible, even though it eventually gets dismissed.
When that happens, the crimes are often so intermingled that the facts of one crime, that being the burglary, are intermingled with the crime of the larceny in the sixth degree. So we would urge you to maintain the current law on that. And thank you.
REP. LAWLOR: Senator Handley?
SEN. HANDLEY: Thank you. Good morning. When you were talking about the priority given to cases that involve children with child abuse or the elderly, it occurred to me that just as with the elderly, where somebody might not live long enough to see a trial, do you make any special consideration for someone who has been the victim of a crime, or an important witness in a crime, who's very ill and not likely to survive for a very long time because of their illness?
STATE'S ATTY. STEPHEN SEDENSKY: Under the current statute, we could move that the case be given privilege trial status. It doesn't specify specific reasons to do that.
So if that is an issue, the prosecutor in the case can move for privilege trial status, and we can do that if it involves a witness, yes.
SEN. HANDLEY: Okay, thank you.
REP. LAWLOR: Other questions? Stephen, first of all, I think this is your first appearance before us since you've actually become State's Attorney. Is that correct?
STATE'S ATTY. STEPHEN SEDENSKY: That's correct.
REP. LAWLOR: So congratulations for that.
STATE'S ATTY. STEPHEN SEDENSKY: Thanks very much.
REP. LAWLOR: And historically, you've been one of the leading experts among prosecutors on prosecution of sexual offenses against children cases, so you've been here many times to testify on those things.
So I guess it's good news to have a real expert on this topic as one of the state's attorneys, so that's great.
And with that in mind, I just wanted to ask you a question. On the DNA, obtaining the DNA samples from persons either convicted or arrested for crimes, you know, obviously, there's proposals to expand the scope of the mandate for collective DNA evidence.
One of the bills requires testing arrestees for felonies, and there's a good deal of controversy about that.
And one of the proposed solutions to that problem, in other words, a compromise, was actually suggested by some prosecutors and some defense attorneys and others, that instead of the current law, which requires collecting this DNA sample at the end of the sentence, which is what it currently requires, instead, if we change the law to say, for all persons convicted of felonies, that they had to provide a sample prior to the imposition of sentence by the court, in other words, up front, get the evidence up front.
STATE'S ATTY. STEPHEN SEDENSKY: Before their sentenced.
REP. LAWLOR: Before they're sentenced because one of the current problems apparently is what happens if an inmate, for example, refuses to give the sample? How do you compel him to do it?
And one of the proposals we've got is actually give DOC the ability to strap him down and forcibly take it. And obviously, that's awkward and risks injury to both the staff and the offender.
But as an alternative, if the goal was to ensure that not just persons simply suspected of a crime, felony, have to give it.
Instead, if you did it right before the sentence was imposed, there's the one point in the criminal justice process where the maximum pressure on the offender to cooperate is there, because if he hasn't been sentenced yet, obviously, his refusal to give the sample could be taken into consideration as a factor in his sentencing.
So my question to you is what do you think about changing the proposal to say that at the time you're convicted of a felony, you must be required to give a sample prior to the actual imposition of sentence and that if you refuse to do it, that could be taken into consideration by the judge in the imposition of the actual sentence?
STATE'S ATTY. STEPHEN SEDENSKY: That would be fine. The way you're explaining it to me is they have been convicted. They've been convicted, either after a jury trial or after a plea but prior to the imposition of a sentence.
REP. LAWLOR: Correct.
STATE'S ATTY. STEPHEN SEDENSKY: Depending on whether or not they occur simultaneously, plea and sentencing, because depending on the case, even if it's a felony, there may not be a pre-sentence investigation.
We're trying to be respectful of probation's time and, at the same time, you know, make sure that the information gets to whoever it needs to get to in terms of the sentence.
So other than the logistical issue, I don't see a problem with it. The person has been convicted, and the only thing that remains is the sentencing.
Now if they eventually do not get sentenced, you may want to have a provision that perhaps holds off on the actual testing until after the sentence is imposed.
REP. LAWLOR: Why wouldn't it get sentenced though?
STATE'S ATTY. STEPHEN SEDENSKY: I don't know. Something may come up. They move to withdraw the plea--
REP. LAWLOR: Gotcha. The logistics part, apparently, that's doable because probation is already gearing up to make sure that they can collect these samples actually in the courthouses.
STATE'S ATTY. STEPHEN SEDENSKY: We do. We actually, before our cases, we take buccal in the swabs in the courthouse.
REP. LAWLOR: So that would be, it seems like that would be a more sensible solution to the problem. It's a lot less complicated.
And the important thing, as it was explained to me, is getting as much information as possible into the data banks so that you get as many hits as possible and as many exonerations as possible.
So the more information in the database, the more likely it is you'll be able to resolve cases one way or the other more quickly.
And the current law seems to require you wait until the guy is actually getting out of jail, assuming he goes to jail. And why not do that up front, the sooner the better?
And that would eliminate the need to take everybody who, simply upon arrest, and then take it out of the data bank if they ultimately don't get convicted. It seemed like this was a reasonable compromise, and I just--
STATE'S ATTY. STEPHEN SEDENSKY: As I sit here, it does seem like a reasonable compromise. It's the first time I've had an opportunity to think about that proposal, but as long as it's after they've been convicted--
REP. LAWLOR: Right. Okay. Further discussions about, Representative Adinolfi?
REP. ADINOLFI: Thank you. On that DNA testing, which is probably better known as Katie's Law out in the field.
It's interesting to note that in Virginia, who has implemented this, that in 2003, 63 arrests were matched to other crimes. In 2004, 68 arrests were matched to other crimes.
In 2006, 69 arrests, and in 2007 through May, this is where I have the figures up to, it was 32 arrests so far.
So it does work, and it does bring out, and on the opposite end, it does, in one case, in one of the other states, in Chicago, it also found a man that was already in jail for a crime, they found somebody else that had committed it.
There were able to release somebody that was actually innocent of the crime and to get the proper criminal and convict him of the original crime along with the crimes he was picked up on. So this does work.
It would compromise in certain areas, but it would certainly make things better and bring more criminals to justice. So I'm glad to hear people are supporting this. Thank you.
REP. LAWLOR: Senator Kissel?
SEN. KISSEL: Thank you very much, Chairman Lawlor. Attorney Sedensky, it's nice to see you. I'm just trying to, this is along the lines of what Chairman Lawlor was asking [inaudible - microphone not on] a little bit of criminal work and was a special public defender.
Let's say you're negotiating, and you get a plea agreement. And it's one of those things where you want to do it that day, to try to move business along. Everybody is in agreement.
Have times moved along so much so that this DNA hit, this swab, can be done, let's say you're negotiating, and it's 11:00 in the morning.
It can be done, and then somehow it's fed into a database, and there's a check before the individual goes and maybe pleads before the judge after the lunch break and comes back at 3:00, I mean, can it all be done that fast?
STATE'S ATTY. STEPHEN SEDENSKY: In terms of taking the swabbing?
SEN. KISSEL: Well, along the lines, maybe I misconstrued it, but it seemed like Chairman Lawlor was indicating that the DNA sample would taken sort of at the same timeframe that someone is pleading but before the imposition of a sentence.
Now in a plea agreement, which is over 90% of these matters, that quite often, not all the time, if you're ordering a PSI or something, there will be the plea, and then there will be the argument.
And sometimes, it's like, all right, minimum of five, maximum of 10, and we'll argue in between. But sometimes, it's just a cut deal, and everybody knows what it's going to be.
And in those instances, is there any way to get all this stuff done before one gets before the judge?
You know, maybe you can take the swab, but between that and getting it in the database and, again, seeing what pops up, because part of what I'm hearing is that maybe it might have an impact on either the acceptability of that plea or the imposition of a sentence. I'm just wondering, again, sort of the nuts and bolts, the pragmatic, how that would work.
STATE'S ATTY. STEPHEN SEDENSKY: Well, just in terms of logistically what may happen, assuming, you know, victims are onboard with whatever the plea agreement is, and they happen to be in court that day, the plea gets taken in front of the judge, and the sentence is given right then and there, all right.
That's just why I had a question as to the logistical matters of it. I don't know if the Legislature would then require, because I haven't seen the legislation, would then require than a break be taken prior to the sentencing.
The person then goes into a room where they take the swab, and then the come back out, or it becomes just prior to the plea being taken.
You know, if they know the plea is going to be taken right then and there and maybe just prior to the plea being taken, I mean, there's a logistical framework that would have to be worked out.
But if it's plea, swab, sentencing, that is going to break some things up, in terms of actually the majority of cases. The majority of cases are resolved by some type of plea.
SEN. KISSEL: And that was my question because on some of the taskforces that I had served on, when it came to victim notification, because the victims have to have a reasonable opportunity to participate in this process.
If a plea agreement is reached, the notion was that there wouldn't be a requirement that the victims actually had to be present but that the wording was such that there had to be a reasonable opportunity, such that maybe there was a phone number in the file, and the state's attorney would have to make a reasonable attempt to get them involved.
And so it was a balance between the constitutionally protected rights of victims to be able to participate in this process, and at the same time, we all know, business has to move through the courthouse.
And so if the majority of cases are resolved through negotiated plea agreements, and we have an ability to reasonably notify victims to come in and participate, I'm just wondering if now, we also have this new element where someone goes, accepts the plea, they plead out, now you break, and a couple hours goes by.
And it's not even just a collecting, because I'm not, and maybe you can help me with this. There would need to be some kind of mechanical time lag for the collection.
But how fast can that DNA then be submitted to the database and then the database be searched to see if there's any match? I mean, I don't know if that takes a couple hours or--
STATE'S ATTY. STEPHEN SEDENSKY: Well, I wasn't equating the collecting and the searching as taking place at the same time because it has to be tested, and that's going to go beyond that day.
SEN. KISSEL: So that's why I don't understand when Chairman Lawlor, and maybe I have to talk to him about this, because it almost seems like the DNA is in the database to potentially impact the sentencing.
But if the sentencing is going to be that day, and it's going to take many days to get the information back as to whether there's a hit, there's no way that's going to have an impact on the sentence that's been agreed to that day.
STATE'S ATTY. STEPHEN SEDENSKY: My understanding of the original question had to do with the issue of someone who's at the end of their sentence, not being cooperative in the taking of the DNA, versus someone who is about to be sentenced, perhaps being more cooperative, and that all we were talking about is the actual taking of the sample.
It certainly does move the sample along in the testing process by having it taken sooner rather than later. But I'm not aware that they do it all in the same day, in terms of the taking and the testing.
REP. LAWLOR: To clarify, this came up in discussions about how to deal with this issue. And all we're talking about is taking the swab.
I mean, you have to be trained to do it so there's no dispute later on, in terms of chain of custody or whatever, but just to get that information on its way to being included in the databank.
There is a significant backlog in actually getting this stuff in, and there's thousands and thousands out there waiting to be catalogued.
But the real issue was under the current law, it seems to say, it does say that you obtain the sample at the end of the period of punishment, which, in some cases, could be 40 years from now.
And since the real issue is how do we get more samples into the databank of people who are already being convicted of crimes, why not do it at the beginning, rather than at the end?
The law doesn't require it to be done no matter what. All it simple says is that's when it has to be, I mean, the offender has to cooperate and allow it.
So it doesn't mean it would be an illegal sentence if you didn't gather the sample. It would be like just do it at the beginning and get it on its way earlier.
And that might deal with some of the concerns that people had about obtaining samples from people who are accused but not yet convicted.
And it would be a significant expansion on the amount of information getting into the databank very quickly.
So that was thrown out there in some of the discussions we had about one way of doing this, and I was just bouncing it off him.
But it wouldn't mean that everything would have to grind to a halt if they hadn't collected the sample. It just meant that you could have done it if you wanted to at the beginning.
SEN. KISSEL: All right, thanks. So I think I understand that we're not utilizing the results to sort of overlay or add to the judge's discretion as to what sentence may or may not be imposed.
But I guess the notion is that, as part of the plea negotiations, it will always be, all right, here's the sentence. Here's the proposal.
And in every instance, it's going to be, and your man or woman is going to have to give the DNA sample today too, boom, and if they don't do that, then that, A, may blow up the plea negotiation or I guess alternatively, it may expose that individual to a sentence that's higher than what was agreed upon.
So I guess it's the leverage of cooperate, and we'll move this through today, as opposed to, we'll check it today. And you think that that can work.
STATE'S ATTY. STEPHEN SEDENSKY: As it was presented to me today, yes. Just what you do need to know though is that the pleas and sentencing often take place at the same time.
SEN. KISSEL: Right. I guess, now, I think I'm beginning to see the mechanics of it. While that, because you're exactly correct.
Typically, after the negotiations, in other words, the state's attorney is talking to the defense counsel, all right, we'll reduce it to X, Y, Z if your guy, let's say it's guy, pleads out to this charge, five years to serve.
Go talk to your client. And of course, cooperation with the DNA sample has got to be part and parcel. Then the defense counsel comes back, talks to the state's attorney, and it's either a yes or a no.
And if it's a yes, then there's usually a lag before that individual goes before the judge. And during that lag, I guess somebody could be brought into the lockup and take the DNA sample so that as you're rolling forward, it's all a done deal.
STATE'S ATTY. STEPHEN SEDENSKY: And technically then, that would be prior to the plea.
SEN. KISSEL: Right, so, I guess, technically prior to the plea, but I think mechanically, that's the way it would probably have to work.
I can't see someone pleading, and then you stop everything, and then you go and put them in a lockup, do the DNA swab, then come back out.
But I think mechanically, you can cut the deal, while it's not formally entered on the record, and as part of, because after the defense counsel said, yeah, we have a deal, usually you don't race right in front of the judge.
There's a line of things going on in front of you. And that's when maybe mechanically, the swab can be taken. And then the individual pleads. So I think that's probably how it would shake out.
REP. LAWLOR: Senator Meyer?
SEN. MEYER: Thank you, Mr. Chairman. I think DNA is the fingerprints of the 21st Century, as your testimony suggests. I do have a concern though, and that is is there the staff to make expedited use of DNA when it's received?
Or are we looking under current staff levels and accumulation of DNA data that will not be processed and be able to be effectively used for some time?
In other words, I am concerned about the fact that we would be getting DNA through this bill but that we would not be able to process it in a manner to use it on an expedited basis.
And, you know, if that's true, then there's not much point taking it at the time of arrest. If we do have the staff, and we can process the DNA on an expedited basis, then it does make sense.
It will exonerate people who have been found guilty. It will help to catch other people who have committed crimes.
But I just want to be sure that there isn't another piece to this puzzle where we need to be better staffed in order to process DNA data.
STATE'S ATTY. STEPHEN SEDENSKY: It may very well be a staffing issue as to who you want to have take it, whether the marshal services or corrections be assigned to the courthouses, I mean, that's a logistical, and then it has to go to a lab for testing.
SEN. MEYER: Okay. But my question is [inaudible] do you know whether or not we have the current--
STATE'S ATTY. STEPHEN SEDENSKY: Oh, I do not. I was just asked the question about the general concept of doing it sooner rather than later because there's a problem oftentimes with doing it later in that oftentimes, the inmate may not cooperate.
And if it was required to do it sooner, prior to a plea or immediately after a plea, the likelihood of getting cooperation was increased and reduced risks of anyone being hurt by forcing someone to do it.
SEN. MEYER: Well, will DNA data be in the possession of the Connecticut Division of Criminal Justice?
STATE'S ATTY. STEPHEN SEDENSKY: I don't think, oh, the data?
SEN. MEYER: Yeah.
STATE'S ATTY. STEPHEN SEDENSKY: The data may eventually be, but the actual taking of the sample, I would presume, would be done by someone else.
SEN. MEYER: No. I understand that. But I got to ask you one more time, and maybe you don't have an answer to it. Do we have sufficient staff to process DNA data on an expedited basis?
STATE'S ATTY. STEPHEN SEDENSKY: That I don't know.
SEN. MEYER: Who would know that?
STATE'S ATTY. STEPHEN SEDENSKY: I would imagine the State Police lab may have that information.
SEN. MEYER: Thank you.
REP. LAWLOR: Further questions? Representative Dillon?
REP. DILLON: Good morning. I'm sorry, I missed the previous question. I was outside the room. I just wanted to follow up on your comment that it would, quote, unquote, go to a lab. What lab would it go to?
STATE'S ATTY. STEPHEN SEDENSKY: My understanding is that, in terms of the DNA testing, that goes to the State Police lab.
REP. DILLON: This may have been discussed when I was outside, but I remember there was a case that was discussed in [inaudible] recently, I think incorrectly actually, where there was a match, but the DNA was actually on the shelf among the, what, 22,000 unprocessed samples that we have already. Are you aware of that case?
STATE'S ATTY. STEPHEN SEDENSKY: I am not aware of that particular case.
REP. DILLON: Have you thought through, and I don't mean to say this in any way to be critical to prosecutors, but there have been a lot, I know Americans are religious about their science.
Sometimes we trust science more that we trust our own faith, and I don't know if we're always right about that.
But there were a number of celebrated errors in Illinois on death penalty cases that ended up to being a breakdown, either incompetence or corruption in a lab.
And there was also a rather celebrated case in North Carolina, where a corrupt prosecutor colluded with the lab director, who wanted state business and who believe his client was the prosecutor, not the people, and they withheld exculpatory evidence.
He ended up, after a rather sensation series of events, to be removed from his position. But I'm interested in many, many, many things because this opens, it exists for our existing practice, but it also does if we expand it. What kinds of controls are there over the chain of custody of evidence is my first question.
STATE'S ATTY. STEPHEN SEDENSKY: My understanding, and this is just as to how it's taken, currently the DNA is taken at the Department of Corrections and then forwarded to the state lab for testing.
A test is done, and then it's compared with any other outstanding cases that may exist that have a similar match. After that is done, a new sample is required.
So let's just say, this is my understanding as to how it works, okay, let's just say that there's a match that's done. A test gets taken at corrections as part of the statute. It's sent to the lab. It's eventually tested.
And then it matches an existing criminal case that's outstanding, let's just say an unsolved rape case, all right.
A new blood sample is then taken from the suspect, and that sample then I compared with the sample from the crime.
REP. DILLON: I'm still not clear, I mean, some of this, it sounds like if we have a backlog already, that expanding it is going to cost money, yes?
STATE'S ATTY. STEPHEN SEDENSKY: I don't know. The suggestion was an expansion, was just moving up the taking of the sample. That was Representative Lawlor.
I think the suggestion was the taking of the sample is moved up in time. Rather than at the end of the sentence, it's now done at the beginning of the sentence, or beginning when they enter a plea.
I don't know that it would be an increased number of samples being taken. The time that it's taken is just moved up to just at the time of their plea, rather than at the end of their sentence.
REP. DILLON: Well, so that's different from the bill that was originally submitted to us?
STATE'S ATTY. STEPHEN SEDENSKY: Okay. Yeah, I'm not familiar with, I haven't seen the bill.
REP. DILLON: That's radically different from the bill that was originally submitted to us, which would have brought in, you know, unlike a fingerprint, for example, would have [inaudible] if you get my DNA, you get my mother, my father.
You get all of, you know, my great grandparents. You get my sisters and brothers and their children.
And when you're doing a match, depending on who gets arrested in this state, and I think we know who that tends to be, we can look at our corrections population, and it has all kinds of implications in terms of how that is handled.
A fingerprint is just about me. My DNA is about everybody that contributed to my DNA, all of whom I'm proud of, by the way, even though I don't agree with them all.
So I'm really, I'm interested in the chain of custody right now, and I'm interested in the cost as well. And obviously, given the news about our revenue, I'm very, very concerned about the cost.
But I don't want to let go also because as we've gone further and further towards talking about taking discretion away from judges, and I know we had, I had an exchange with Judge Gold about this when he was before us.
In some ways, it gives more discretion to prosecutors. And I can remember when we had a [inaudible] prosecutor years ago, Jack Bailey saying, well, you know, he didn't have much influence over prosecutors.
And I didn't really think about it until we started changing the law more and more and more to take away more discretion from judges, that I still don't understand what checks and balances there are if you have a bad apple in the prosecutor's office.
I've worked in prosecutors' offices, although I wasn't paid for it by them, when I was just out of school, and everybody was very mission driven and terrific. But that isn't the point.
The point is what checks and balances are there? Prosecutors don't come before us for appointment. Judges do.
And the prosecutors, theoretically, I guess, every six years go before a commission, that most people in the public don't know very much about.
I always worry about checks and balances everywhere in our system. I don't know if you want to respond to that, but I just wanted to mention it.
STATE'S ATTY. STEPHEN SEDENSKY: Just in terms of the checks and balances, in terms of individual cases, certainly depending on the case, the judge certainly serves over the individual case.
In terms of the reappointment process, the state's attorneys themselves are subject to reappointment so that there is that commission there that takes input regarding individual state's attorneys.
REP. DILLON: Right. Well, think, you know, the North Carolina case was a corrupt prosecutor, and I don't know if that would have been discovered, you know, if the defendants hadn't had the money.
And I would want to believe, as an American, that we have a system that's self-correcting. And I don't want, as a legislator, to help create a system that isn't, that doesn't distribute justice equally. So I want to look at this really carefully. But I really appreciate your being here.
STATE'S ATTY. STEPHEN SEDENSKY: Thank you.
REP. LAWLOR: Thank you. Are there further questions? If not, thanks again, Steve.
STATE'S ATTY. STEPHEN SEDENSKY: Thank you.
REP. LAWLOR: Next is Kevin Kane.
CHIEF STATE'S ATTY. KEVIN KANE: Thank you, Chairman Lawlor and Members of the Committee. I think it's good for the other, first of all, my name is Kevin Kane. I'm the Chief State's Attorney.
And as was said before, the state's attorneys and the chief state's attorney all are independent officers. We have different functions. We do overlap.
We do have fairly wide experience, which, collectively, can be very helpful to the General Assembly. Some of us have had more experience in certain areas than others.
All of us probably have certain areas where collectively, we can be helpful, and none of us know everything about everything though, so I think it's good that all the state's attorneys are up here to talk to you.
I'd like to point out, Representative Dillon, just to mention an important point, is the prosecutor you talked about in North Carolina was an elected prosecutor, appealing to the public at the time when a vote was coming up about a controversial case.
And fortunately, I think, in Connecticut, in the 200 years or more we've been in existence as a state, we've not had [Gap in testimony. Changing from Tape 1A to Tape 1B.]
--and hopefully, we never will. I'd like to talk about some bills, House Bill 5919, access to police reports.
We are about on the verge of establishing a database which will be available to the entire criminal justice system with information.
What we're doing now, we have been working on it in the past. The public defenders have had access to all sorts of information from that database.
What we're about to do now is have police reports and witness statements be put into that database.
The disclosure of witness statements and police reports is governed by the rules of discovery, by the statutes, by the Constitution.
We are obligated to provide that information to defense counsel and the defense during the course of the state of a prosecution.
That obligation will not change. This will not change that law. What it will make sure of is that, as it exists today, prosecutors have to be able to examine police reports and witness statements and make sure that there is nothing in it that should not be disclosed before disclosing it.
If these reports are disclosed before prosecutors are able to look at those reports, we run the risk of what we saw happen in Bridgeport with Karen Clark and her son.
We have to be able to make a quick determination, make not a quick determination, a careful determination, as to what information should be disclosed, should not be disclosed.
We need to protect witnesses. We need to protect the integrity of the case. We need to protect the identity of informants. But that is all very carefully governed by present law. This new statute would not change that.
All it would do is make sure that this new information that's going into the database, police reports and witness statements, the release of that is controlled by prosecutors, as it is today.
I believe the public defenders are behind this and not in disagreement with it at all, as long as it's clear that the present rules of disclosure apply and will continue to apply, and they will.
So we would ask the Committee to favorably report House Bill 5919. That would be important to protect the safety of witnesses, most obviously, and I hope that we'll report it.
The other 2, Senate Bill 692 and House Bill 5034, about the DNA, what's important, I think, is that we expand the database as quickly as we can, without overwhelming the state forensic lab, which has worked through a pretty big bubble right now of cases in the past.
They're still a little bit behind. They're catching up. We don't want to overwhelm them, certainly, but we do need to expand the database. This would be a fair way to do it.
Ideally, I think, practically speaking, the best way to do it would be to take samples upon arrest. And when I say practically speaking, I'll get to one thing in a minute.
The reason for that is the controls, this is done during the course of the booking process, where mug shots and fingerprints are taken.
The purpose of this is for identification, which is the exact, same purpose as taking mug shots and fingerprints. It's just taking a buccal swab.
It can be secured as the police secure any other evidence, or it will be secured as the police secure any other evidence, secured, sealed, identified with the proper tags and marking, and sent under controlled conditions to the State Police forensic lab, where it will continue to be processed and secured, as is other physical evidence.
That's the cheapest and most practical way to do it. It's probably the way to increase the database and get the most appropriate people in the database.
It helps most, if we're concerned with the serious crimes, it helps to get samples from the people who may be more likely than other people to have committed those crimes.
If we can take samples from people who are arrested for Class A and B felonies, if somebody has been arrested for sexual assault in the first degree, for instance, it's more likely that that sample will be more valuable to put in CODIS than somebody arrested for shoplifting in a supermarket. It's a priority.
The question of whether or not it can be taken before or after an arrest is a legal question. The Connecticut Supreme Court is not, I mean, before conviction is a legal question.
There are good arguments to say it's fine. The Virginia Supreme Court has ruled on it. We've got some material in the written testimony that we've offered, and I don't want to go into the legal arguments here. It's a judgment call.
The second circuit hasn't ruled specifically on it, and neither has the Connecticut Supreme Court. It seems that the arguments that can be best made, it's likely that they will allow it to be taken after arrests.
That's not a guaranteed conclusion. It's an opinion. It's ultimately up to the General Assembly whether or not it wants to take that risk.
And I'm not prepared, and the Committee is not prepared, to hear an Appellate argument right now about it, although we've referred to it in writing there.
The important thing is expanding the database. And two other things that are important that need to be changed in the present law. Right now, people are required to submit a sample.
Sometimes, the sample is taken, is sent to the lab, and it's turned out to be an insufficient sample. I think the statute has to be amended.
Whatever is done, the statute has to be amended at least to require that a sufficient sample be taken so that we can go back and take a second sample from the same suspect, in the case where the first sample turns out to be insufficient.
And we don't have to get into the argument as to what's a sufficient sample or not. At least if the lab doesn't have enough on the first sample, we should be able to go back and take a second sample to do that.
The second thing is increase the penalty for refusal. If somebody is convicted of a serious crime, those are the people that we most want to get the samples from.
Those are the people who are going to be imprisoned for 10 or 20 years, and if they refuse to submit a sample and are only going to get a year more, what do they care? It's not going to impact them at all.
We would ask that it be increased to a Class D felony. The rest of my remarks about that are in the written testimony.
With regard to Senate Bill 694, erasure of criminal records on nolled charges, Attorney Sedensky spoke a bit about that.
The important part about that is when a case is nolled pursuant to a plea agreement, as the example he gave of if a person pleads guilty to burglary, the state nolles the larceny charge, and certain parts of that police report may have to be expunged.
If it's involving other crimes that are nolled, pursuant to a plea agreement, at the same time, the present statute makes sense.
It's important for the parole board and the Department of Corrections and the probation department to be able to have access to the complete factual information that is involved in the crimes for which the person was arrested, even though he was only convicted of some.
If the Legislature passes that, it may mean that certain information which the parole board and corrections and probation should legitimately have access to [inaudible] may have to be erased.
I think we need to think this out a little bit further and figure out how the statute would impact on the ability of those agencies to get information which they need and should legitimately have.
And I would ask that the Committee not act positively on that bill. With regard to Senate Bill 608, recording of interrogations, last session, the state gave us $100,000, which we are in the process of spending fast. It will be gone.
We have awarded a contract now to provide equipment for different police departments to do testing. I think we're up to do recording of interrogations, and I think we're going to see it done quickly.
There are four local police departments and two major crime squad districts from the State Police that are on the verge of doing it. We've, as I said, signed the contract. We're purchasing the equipment.
We're going to be up and doing this. In the State Police Eastern District, the State Police Western District, the City of Bridgeport, Waterford, and Meriden are going to be doing this quickly.
It involved getting the right equipment, installing it, determining what has to be done. There are issues that we are working out and we have worked out to a great degree.
REP. LAWLOR: Okay. That's an emergency alarm. There are two emergency exits. If you go out, straight out these doors, there's an escalator that goes out the front. And if you go to the right, you can go out the side.
CHIEF STATE'S ATTY. KEVIN KANE: I was talking about recording interrogations, which I just wanted to make one point.
The General Assembly can be very helpful and have a very important function [inaudible] requirements and statutes, with regard to certain areas.
There is a line though, and I think the General Assembly has been careful. And in my last few years up here, I've noticed it very closely.
There's a line where the General Assembly, particularly this Committee, has been careful to come close to but not go and over manage or micro manage certain areas where agencies have to act.
And this is an area where I think if the General Assembly goes and micro manages things like eyewitness identification and recording interrogations, at least at this point, it might do more harm than good.
Interrogations, for instance, video recording interrogations is an area we have not had problems in this state like they have had in other states.
The police are very conscientious. In my experience oftentimes, police are more hesitant to interrogate suspects when interrogation might be very helpful. It's an important tool in solving crimes.
I think the use, and what we're about to see as these departments start the practice of video recording interrogations, we're going to work through various issues, such as the equipment, whether or not it's properly functioning, one of the big problems you get is inaudible portions of conversations, the need to make transcripts, storage of data, but most importantly training police officers in interrogation techniques, which is more important, also training in the equipment.
We're about on the verge of developing that. I would hope, with regard to recording interrogations, the Legislature will let us continue along with what we're doing and see how it goes.
I think what we're going to see is a wide practice of developing of recording interrogations. That's my guess at this point.
And we're going to be able to work out the problems as we do. And there will be problems that have to be worked out.
Many of those I think we can deal with in training, but we need to know what they are, how they work, and continue with that. Thank you.
REP. LAWLOR: Thank you. And as you point out, and this bill has been before, the recording of confessions bill at least has been before us quite a few times.
And over the last few years, I think it's fair to say that your office has been willing to move in that direction, and we provided some funding, as you pointed out. And I know that it's just getting underway.
And I know last week, we had a meeting of the Commission on Wrongful Convictions, and we talked about the potential role of that commission in monitoring the success or failure of this experiment as it unfolds.
And so if the ultimate resolution this year was to authorize some type of evaluation by that commission of what's currently underway, do you think that might be an appropriate way of dealing with this?
CHIEF STATE'S ATTY. KEVIN KANE: That's a good idea. That's a good idea, yes.
REP. LAWLOR: Are there further discussions? Senator Meyer and then Representative Dillon.
SEN. MEYER: Kevin, I wanted to just chat with you about the DNA bill. I think it's, the DNA represents the greatest step forward we've had in investigative techniques in many, many years and has an ability to do much more than the fingerprint could do, in terms of investigation criminal activity as well as exonerating innocent people.
We have constituents, and we have even Members of this Committee who believe that if we permit the taking of DNA at time of arrest, or maybe at any time, that it represents an abuse.
It represents an unnecessary invasion of privacy. Those words have been used. And I wonder what reaction you have to that concern.
CHIEF STATE'S ATTY. KEVIN KANE: It's understandable why some people may feel that way, and I think that's an important question for people to have an answer to.
The actual act of taking certainly is a minimal intrusion. It requires an opening of the mouth, and the swab is taken with something that's similar to a Q-Tip and wiping the inside of the cheek just hard enough maybe to push the cheek outside so that the person taking the sample can know there's enough pressure to take the swab.
That's the physical intrusion into the person. It seems minimal. It's done during the course of an arrest, after there has been probable cause.
It's certainly a minimal intrusion which the courts, I am sure, would say is proper. The reason for people's concern as soon as you mention DNA is there's so much that can be learned from DNA.
If DNA is tested in certain ways, you can learn a person's genetic predisposition to all sorts of different conditions, physical and maybe other, mental health conditions, things like that.
That's not the kind of testing which is done by the State Police forensic lab. The State Police could not do that testing if it wanted to in a lab. They don't have the equipment, and it wouldn't take the time.
The only testing that's done, the swab is sent to the lab. It is then tested by the lab to determine, to use that portion of the DNA, and I don't have the terminology in my mind.
I have to learn it every time I get involved in it, and then I forget it. But they use that portion of the DNA, the sequence, only for identification purposes, which enables the lab then to assign a number to that DNA, which is, that number is unique to that particular DNA.
The number is submitted into CODIS, which is the databank. What's submitted does not identify the person from whom the sample was taken. It only identifies that sample, so what's in the databank is not an intrusion.
It's a number which would be unknown to anybody. If, for instance, a police department gets a hit, if CODIS gets a hit because there's another sample in there, the police department would have to inquire of the originating laboratory and police department whose sample is that.
The only thing that's known is the identification sequence from the identifier. It does not disclose anything about any personal health information.
And I think people would be legitimately concerned if we're taking samples and testing them to find out what their genetic predisposition is to diseases.
That's an intrusion that's serious and needs to be addressed. But what we're doing here is not like that. And what we're doing is no different really than taking fingerprints or mug shots.
It's solely for identification purposes. That's the only use it can be put. Now the sample has to stay at the laboratory where it's secured itself and remains there in case somebody is arrested afterwards because they're entitled to retain an expert to do their own test to challenge it on the sample, so it is kept there.
But it can't be tested by our lab. We don't have the facilities and certainly have no reason to test it, other than to use the identification code.
SEN. MEYER: Just one other question, please. I'd asked before, to a prior witness of the Division of Criminal Justice, whether or not the State Police lab has got the staff to do processing of DNA on an expedited basis.
And I think you addressed that in part in the earlier part of your testimony, which you said that the backlog of DNA data is being reduced. Could you fill us in on whatever information you have on that?
CHIEF STATE'S ATTY. KEVIN KANE: You would have to ask the State Police. They are reducing the backlog significantly.
They do have a grant from the federal government, and I don't know the amounts of the dollars or how long this grant is going to last, but I think this grant is going to expire pretty soon from the federal government, which has enabled the lab to get through that backlog.
That's one of the problems. If we suddenly unloaded a whole load of DNA samples on the lab, that would create a backlog, and the lab would have to, as it has in the past, prioritize what it's going to test, and it will take a while.
So these issues are important, but we do need to expand the database somehow, and the most desirable way, in the state's opinion, at least in the Division of Criminal Justice, is to expand it by taking the samples from those people, who we feel are the most significant people to take the samples from, and get them into the database and try to do it as quickly as possible.
REP. LAWLOR: Representative Dillon?
REP. DILLON: Hi, thank you. I just wanted to get back, and then maybe I'll leave it, although probably not. I didn't really want to talk about any cases involving Connecticut prosecutors.
I feel much more comfortable, even though I could, I feel much more comfortable talking about Illinois and North Carolina.
But I do want to say some of my background questions, first of all, on the issue of North Carolina, the fact that that prosecutor was running for office only goes to his motive. It doesn't go to his behavior and what the checks were.
CHIEF STATE'S ATTY. KEVIN KANE: I agree.
REP. DILLON: I know people in the prosecutor's office. I used to be one of the people that tortured them because they didn't bring enough charges on domestics and on rape because I thought they were too reluctant, back when I was a much more, whatever.
But so that you could very well have a prosecutor who, in their zeal, believes, well, if they didn't do this, they did something else.
Or, this is the bad guy that hangs out in that neighborhood, and I've got them on this. Their motive doesn't have to be as corrupt as the Carolina prosecutors, where it's clearly going beyond because he's attempting to reach a particular political constituency.
It could be someone who simply believes in their job. And some of it goes to how much we trust government. In my town, we have, you know, basically about a quarter of the population with their phones tapped.
I know people who had their phones tapped in the '60s. I wasn't here. And I know people who have tapped their phones.
The police department people who ran that operation [inaudible] well, most of them passed on. They're my parents' generation, but I know them. I knew them.
The people at the phone company who installed the taps, I knew them too. I knew everyone on every side. And one thing I can say, first of all, the people who did that believed that what they were doing is right.
When you get a call from the Office of the President of the United States, and you're told to form a red squad because they believe that these anti-war people are communists, and you trust government if you're a particular generation, then you do it.
And what happens is that once you have power, you use it. And one of the things that we learned with the wire tap, and I ended up almost quasi litigating it because I shared the budget committee in New Haven that had to decide how much money to set aside for a settlement and who would get it.
I didn't want to decide that, but that was what I had to do, so I ended up meeting with everyone. And one of the things that I learned was that once they had that power to do that, they just used it.
And it was a couple of guys in a room, who I counted as friends, well, you know, to the extent that we were different generations, but they were, once they could do that, they tapped the phones of their friends.
They tapped the phones of politicians that they thought were rivals to the mayor. It just spread and spread and spread. It's human behavior.
And so what I always think about now, and that's not odd, by the way. When we're worried about trolling records and whether somebody can hack into records, if you look at our federal system or a state system, very often, the bridges of security turn out to be state or federal employees who are checking on their own friends or their coworkers.
It's a natural, human thing to do. And so what I always think about when we start gathering more information, this year, I'm worried about money.
But I'm always worried about checks and balances, always, not just because of prosecutors but because of human nature.
And I'm going to think about that, maybe because I was so much influenced by the wire tap case and the way that it consumed our town and how much work it took to unwind that and to build trust.
But also, I think it's just a good thing. You know, the longer I'm in government, sometimes the less I trust sometimes what we do. We can get carried away with our own power. We're always aware of the power we don't have.
And sometimes, we don't respect the power we have and how much damage we can do. So I want to think about that very carefully.
And because, apparently, the language you're discussing on DNA is different from the language that I read, that originally came out, I'll reserve judgment until I read it. But that's always, I'm going to be guided by a certain amount of skepticism.
CHIEF STATE'S ATTY. KEVIN KANE: I'm not taking a position one way or another as to whether or not, I said it's more practical and preferable to be done at the time of arrest, but the state would like to see it done one way or the other.
I certainly wouldn't want to cause a debate about which way to go. We do need to take samples appropriately and expand the pool as quickly as we can.
That remark I made about elected DAs is probably unfortunate. Thinking about it, there are wonderful elected DAs all around the country. I see some of them. I talk to them. It's a system that works good.
I just think, I happen to think in Connecticut, and maybe I am biased, that we've had a wonderful system in Connecticut that really has been free of the kind of incidences that you sometimes see in other areas, and I was only comparing that.
I hope nobody would overreact to my remark, which I'm wishing I hadn't made now about elected DAs, because I think many of them are very wonderful, and it works well in other states.
REP. LAWLOR: Thank you. Representative O'Neill?
REP. O'NEILL: Yes. I don't see anything on the Internet yet from the Elected DA's Association, but perhaps your [inaudible] will alleviate any problems you might have the next time you go to a National Association of Prosecuting Attorneys.
I did have a question though relating to this, what we're talking about with respect to the collection of the DNA.
And as we walk through the mechanics of it, as we did with State's Attorney Sedensky, some thoughts occurred to me.
And I think Senator Kissel asked some really important questions that initially was presented, well, we'll do it after conviction but before sentencing.
It occurred to me that, well, sometimes, sentencing is going to happen pretty quickly after a guilty plea is entered. So then the discussion got to, well, after the guilty plea is agreed to but before you go before the judge, we'll do the swabbing and that sort of thing.
And it was sort of, and, again, I think Senator Kissel did an important thing by sort of recognizing that, in effect, this is going to start to seem like part of the plea negotiation.
It's, well, your fellow is going to plead guilty. He's going to get, you know, two years' probation, and he's going to have to have his swab done.
I'm wondering, is it possible that if this is at the point of time that we would be considering doing this, that the defense attorney, or the defendant himself, says, well, look, I'll take the deal, but I don't want to get swabbed.
And the state's attorney would say, well, okay, we'll waive the swabbing. Is it possible that it, in effect, will become part of the plea negotiation that he won't get swabbed at this early stage but will have, especially if he never goes into prison.
Many people are on probation. I'm wondering how that would work. Can you explain to me why that wouldn't happen?
CHIEF STATE'S ATTY. KEVIN KANE: It depends entirely, I think, on the wording of the statute.
If the statute made it mandatory that anybody who is convicted or pleads guilty to certain crimes must provide a swab before sentencing, I would think it could not become part of the plea negotiations.
It could cause some delays when the defendant has decided, if the defendant were to just decide to refuse to swab it or become uncooperative.
It could also cause delays in finding the right person and the kit there. Not every courthouse is, for instance, in the GAs, we don't have inspectors. I'm not sure who would be taking the samples.
It would depend on the word of the statutes is what I'm saying. I think it could be worded in such a way that it wouldn't be part of the plea negotiation, unless that were to cause a prosecutor to say, well, I'll change the charge to a charge other than is required.
But I don't think we would want to do that. I think prosecutors, especially if somebody decided they would refuse to swab a DNA, provide a DNA swab. You'd start wondering why.
And the suspicious nature, at least my own suspicious nature, would make me think that the reasons why weren't very good, and I'd be inclined to want it more than others.
But depending on how the statute is worded, it could cause problems. I don't think they would be great in that area though. I'm just a little concerned about the mechanics of doing it in the courthouse.
That's why my preference would have been to do it by the police at the time of the arrest during the booking process.
I know there are people who are concerned with taking samples though at the time of arrest, which is a legitimate concern, and, given the debate, it might not be something that could get through this Committee or this session [inaudible] privacy.
The other answer as to who's doing it and when it should be done is, I think we have an appropriate change now.
For instance, people submitted to the Commissioner of Corrections in our suggestion, and as we refer to it in the written testimony, is they must do it when the Commissioner of Corrections orders it done.
That prevents them from waiting until the end of the sentence, which may be 10, 15 years. The commissioner can order the sample done right then and there, and the person will have to take it or be subject to being prosecuted for a crime.
We also, at that time, could, I'm not sure if we could get a search warrant or not. I don't know that we could. I'd be happy to talk a little. If we had more time, I'd love to work this through.
I think we could do it, and I think we could do it practically, at least with regard to the actual collection process. I know we could work that through and come to some reasonable solutions.
And I don't have an answer right now off the top of my head. I'd even stay around for a few hours and think this out. And I think we could do that.
REP. O'NEILL: And we had all that time outside the building, right in fresh air to invigorate our thought process, and still we haven't got there yet.
My concern though, to some extent, was, because we've had lengthy discussions recently about prosecutorial discretion and the fact that prosecutors get to make the decision about what pleas they're going to take and that sort of thing.
But I want to be sure that we can draft a statute so that if we do it at this stage, when it's in the hands of the prosecutors, as it were, that we can draft a statute that says that it will be done, and the prosecutor can't waive, as part of the plea negotiation, that you feel that we can do that?
CHIEF STATE'S ATTY. KEVIN KANE: Allowing the prosecutor to waive it, you mean?
REP. O'NEILL: No. I think [inaudible] not allow the prosecutor to waive it. I just want to be sure we're not going to be intruding on the prosecutorial discretion if, in effect, this is, because I think Senator Kissel really walked us through it and the practical reality of how it's probably going to happen if we try to do it from the point of conviction rather than at the point of arrest, or in the area of conviction instead of the area around the time of arrest.
What we're going to have is, because of the way the court system works and the way pleas are taken and that sort of thing, there is going to be plea negotiations as part of that.
There's going to be, okay, plead guilty today. We'll sentence you, go out in the court this afternoon, and when we come back from lunch, the judge will take a plea.
Oh, and by the way, you have to have your swabbing done before you go out there. And at that point, it sort of sounds like, it has the look and feel as if it could become part of the plea negotiation.
I just want to be sure that you're comfortable that we can write the statute in such a way that it will not intrude on the prosecutorial discretion, that they won't start, in effect, trading swabbing for three years' probation instead of, or two years' probation instead of one year's probation or something like that.
CHIEF STATE'S ATTY. KEVIN KANE: Well, I think the Legislature could write a statute very well that would say anybody convicted, meaning convicted, pleads guilty, or convicted after a jury trial, must provide a sample prior to being sentenced. I don't see how a prosecutor could agree to waive that provision.
REP. O'NEILL: Okay. Thank you. Thank you, Mr. Chairman.
REP. FOX: Thank you. Representative Adinolfi?
REP. ADINOLFI: Thank you. Just a quickie, I'm in favor of, there's a few bills doing the same thing, and I'm in favor of whatever we can get.
Naturally, I'd like to see it done at arrest, but I would accept it upon conviction. But I'm wondering what happens, let's say we arrest somebody for a minor burglary, the lowest level of burglary, and he's convicted.
And we take a DNA test. Do we then go further with that DNA test? What if that DNA test shows that he could be connected to a sexual assault and murder, what do we do, go back and retry him and so on and start from the beginning again?
CHIEF STATE'S ATTY. KEVIN KANE: No. What we do is, that would be a new case. Let's say the sample is submitted to CODIS, and they get a match. They match it with, say, a sample submitted from a crime scene or victim from which no arrest has been made.
The police department that had that original case, the unsolved case, would then investigate, would have to conduct an investigation.
We get what's called a confirmatory sample from the person who submitted it. The police would go and take what's called a confirmatory sample from him that would itself would be tested to confirm the initial CODIS hit, also to ensure the identification that that did come from the suspect.
But the police would have to also do a complete investigation of the original case. And if there was sufficient evidence, they would apply for an arrest warrant, and there would be a prosecution for the new case. The old case wouldn't be reopened.
REP. ADINOLFI: Okay. My concern there is that, I'm starting to think a little differently now. If we took it upon arrest and we didn't have the results and everything yet and the individual got a suspended sentence, or the judge slapped him on the hand and sent him home, this individual would know that he's going to be caught, that there should be a match somewhere else for crime he's convicted.
He's the only one that's going to know that. He might just disappear from the scene. There's just a lot of complications with it.
CHIEF STATE'S ATTY. KEVIN KANE: There are, and some of them are manageable. Some of them are workable, and some of them aren't.
REP. FOX: Thank you. Representative Walker?
REP. WALKER: Good afternoon, Sir.
CHIEF STATE'S ATTY. KEVIN KANE: Good afternoon, Representative Walker.
REP. WALKER: How you doing? I have two questions. You talk about this being done at the arrest. I'm sorry, I didn't hear the debate. I was coming in from the outdoors, and it took a long time.
The idea of taking the DNA sample at arrest, before somebody is convicted, before they've had a right for trial or any opportunities to talk to a lawyer, is that any way, in your mind, a violation of their personal rights?
CHIEF STATE'S ATTY. KEVIN KANE: It goes to what I said before. With regard to the physical taking of the sample, the opening of the mouth and taking the swab, done at the time of the arrest, I think the nature of that intrusion, forget about what's taken, but just the nature of that intrusion, I don't think that's any greater intrusion than is done during the normal book-making process, the normal process.
I think the opening, no, I don't have a problem. I don't, the courts wouldn't have a problem with that being an intrusion.
The question would be with regard to the information that can be learned from the DNA that's in the swab that is taken.
And what the courts have done, the Supreme Court of Virginia ruled on this because Virginia does have a statute, and many other states have enacted statutes, permitting samples to be taken at the time of arrest.
The key about that was the portion of the DNA that is used and that is tested is limited solely to the portion which goes to the identification. It's a matching of the genes.
And I can't explain it, the science, well enough now to be helpful in that area, but it's a limited portion.
There's no way in which the forensic lab tester has the capacity to do tests right now for anything going beyond that.
There's a lot of private, personal information in people's DNA that certainly goes to privacy and health and other reasons and predispositions, which probably should be, I mean, insurance companies could use it to say, we're not going to provide insurance or raise premiums, things like that.
But the lab doesn't want it for that. As long as we're not using it for those purposes, I don't see that it's any different from fingerprinting your mug shots.
If all the testing we're doing is for the limited identification of the sequence, the CODIS for identification purposes, it's just like fingerprinting and mug shots. I don't see that as a privacy issue.
REP. WALKER: If you do it at the time of arrest, who would have access to this information?
CHIEF STATE'S ATTY. KEVIN KANE: At the time of arrest, when the swab is taken, the police don't know anything. Nobody knows anything, except the swab is taken from the cheek. It's sent to the lab.
The lab then tests it. And what they do is when it's matched, they have numbers that they can give in a sequence, which will be unique just to that.
The numbers, as I said, are only for the identification sequence. They establish what that is so that if another sample comes in with those same numbers, there will be a match.
Those numbers are sent in to the CODIS databank, just the numbers, not the name of the person submitting the sample, nothing else, just those group of numbers.
If there's another sample in the databank with that same group of numbers, there's a hit, what we call a hit, and that's a match.
The Connecticut Forensic Lab would be notified there's a match, and they'd be notified of the police department that submitted the other sample.
REP. WALKER: But they would be the only people that would have access. Nobody else would have access to any of it.
CHIEF STATE'S ATTY. KEVIN KANE: Nobody else would have access. And then what would happen is the lab would notify the police department.
The Connecticut lab would notify the Connecticut Police Department that submitted the known sample to the lab and tell them there's a hit that came from Birmingham, Alabama or wherever.
The Connecticut police would call there and say, this is the number we have matched to yours. Who is that person? What is that person?
And then they'd launch a traditional investigation to see if that person could have been the person who committed the crime or whatever.
REP. WALKER: So you're saying that it's not any different than fingerprinting or mug shots.
CHIEF STATE'S ATTY. KEVIN KANE: No. And it's even less different because in fingerprinting, when the fingerprint is submitted, the name and identification of the person is right on that fingerprint record.
So that's sitting somewhere in the FBI database with a fingerprint and the name of the person who produced it.
The only information in the database, with regard to DNA, is a number from an unknown sample. And there's no way for anybody else to connect that number to a person.
REP. WALKER: Okay. We just passed Senate Bill 1700, and there were a lot of things in there. This was one of them.
I believe this one was about $725,000 between the correctional budget and Court Supportive Services, the judicial budget for this.
But unfortunately, a lot of the things that we passed in Senate Bill 1700 were not funded. So now we have to make a choice, do a lot of different things, just like we have to do in everything else.
CHIEF STATE'S ATTY. KEVIN KANE: I know.
REP. WALKER: So we look at this, and we say, okay, which one is more important, the psychiatric services that was not funded? The number of correctional officers that we say we need that was not funded?
The number of prosecutors that we need to do this that are not funded? I mean, the list goes on.
So we look at which things are really going to aid in what we're supposedly trying to do with this reform, to choose which one is more important.
If you look at it from our standpoint, which one of them do you think is the most important? Should we have the psychiatric services? Absolutely. Should we have prosecutors? Absolutely.
Should we have public defenders? Absolutely. Should we have correctional officers because of overcrowding? Absolutely. Is this in that same category?
CHIEF STATE'S ATTY. KEVIN KANE: I know. You have the toughest job, to divide up money, and I have never envied you, and I've thought, how do you do this?
And it's even more worrisome because right now, and you'd have to get this information from the Department of Public Safety, which runs the laboratory, because I don't know the dollar amounts.
REP. WALKER: I can tell you because I know the dollar amounts, $725,000.
CHIEF STATE'S ATTY. KEVIN KANE: I'm sure you do. There's a federal grant that has enabled the forensic lab work through a pretty big backlog here, and they've done a remarkable job getting through that backlog.
I believe that federal grant is due to expire. I don't know when, but that would be important to know.
REP. WALKER: Yes, it would because that makes it even more critical.
CHIEF STATE'S ATTY. KEVIN KANE: Okay. Now how important is it to have this information? Well, I can give you an example.
There was a case where we just, and I don't want to disclose the names, but we were able to arrest a person for a very serious sexual assault, based on a sample that was obtained from another state that allowed the sample to be taken at the time of arrest.
Had we not had that sample from that other state, we wouldn't have been able to make that arrest. It's a serious crime. Now we have had the cases, okay, well, James Tillman was acquitted.
REP. WALKER: But that's not at arrest, that's not at arrest. The James Tillman was after he'd been arrested and incarcerated, so, I mean, that's down the pike. So that's a different scenario.
I agree, but had we done that, you know, if we do everybody in that case, the thing that's going to happen, besides the fact that we might be able to identify people, but they, according to the Commissioner, she does do it once they're incarcerated.
So we still have that option to protect those people who, despite our great justice system, were convicted and everything like that, so we still have the ability to protect and save those and try to limit the amount of time.
But the other issue is we're going to use this, and that means we're going to have circumstances where people might be, more people might be under suspicion and other things.
So we're going to expand that universe that we have to provide correctional officers for, provide more public defenders for, provide more prosecutors for, provide more probation for.
So I'm looking at this, and I'm saying, and even the other one is the GPS, which is passive.
I mean, that doesn't even say that we're really keeping [inaudible] we got to figure out, what do we fund to make us through this process until we get out of the recession that we're in and we start to have the money flow?
I just don't see this as, I see what you're saying, but the idea is if we're trying to make places safer, we've got to make places safer in all avenues.
And having more correctional officers really might have a higher level than this. And providing more prosecutors to address those cases that we can catch has a higher level.
And providing the public defenders so they have some money to defend them, I think, has a higher level.
So that's just my opinion, but I just look at this, and I hear your debate, and I think we should have this debate and start to talk with several people about it.
But the concern that I have is that $725,000 has so much more effect in some other areas than using it on this. So thank you, Sir.
CHIEF STATE'S ATTY. KEVIN KANE: Can I try to give you my best answer to your question? Then I know.
And it's not about, initially, the bill that I saw, that we had supported, was a bill that was submitted by the Department of Public Safety or the Governor.
I'm not sure which, the Governor, that would have permitted the taking of samples from people arrested for A and B felonies prior to their conviction.
That, I think, the numbers of the people arrested for A and B felonies, there's a number, but not such a number that it would overwhelm the lab. That's one of the reasons we submitted it.
I think I said, in Public Safety, when that bill came up for a hearing, that the two things we have to worry about, the two things that people need to think about are the degree to which we would intrude on privacy, and I gave an answer what I thought to that, and not overwhelming the forensic lab and taking it beyond the resources it has.
I think if we limit the samples, if we expand it, but don't expand it so much as to overwhelm the, I think we need to expand it beyond what we do today. The question is how far can we expand it without overwhelming the lab?
That you need to know from the Department of Public Safety. I do think the A and B felonies would be a small enough sample, so it wouldn't require that additional expense there.
REP. WALKER: The A and B felonies, I believe, was $125,000 or $150,000. I can't remember exactly what. The one that was proposed at arrest and was about $510,000.
So, you know, looking at all those, I just, I understand, and I think we should have the debate.
But right now, I think we have to decide, how do we address a bill that was underfunded to make it at least try and provide some sort of safety for everybody concerned? Thank you.
CHIEF STATE'S ATTY. KEVIN KANE: I agree. And I don't know what Public Safety said they'd need to do it, and I agree.
You have to decide how much they can do within the resources we have. But we should, I think it's one of these things that we should try to expand it.
REP. WALKER: Okay. Thank you.
REP. FOX: Thank you. Are there any other questions from Members of the Committee? If not, Attorney Kane, I do have one question, and it goes back to, it seems like a long time ago, when you first started here, pre-fire drill.
We were discussing the disclosure of police reports and what's going to be accessible on the database. And I recognize your concerns but also your support of that proposal.
But you mentioned what the rule is now in the various state's attorneys' offices, I'm not sure if you called it a rule, but what the policy is with respect to access to police reports.
And I've heard varying responses that different assistant state's attorneys have given when defense counsel have asked for copies of police reports or information in a file.
And I thought I would ask you, is there a rule or a policy with respect to what information defense counsel can get from a state's attorney's file?
CHIEF STATE'S ATTY. KEVIN KANE: There's clear and absolute policies about what they're entitled to under the practice book and by rules of disclosure. They're entitled to that, absolutely, by all of that. You mean going beyond those?
REP. FOX: Well, I've heard situations where some offices, they'll hand you the police report and say, here's your copy, and that's, I think, the ideal situation for information.
Some situations, we have an open policy. We're not going to give you any reports, but you can sit here in this office and write it all down, which is not as ideal, given the length of some of the police reports. Is the policy to get a copy of everything?
CHIEF STATE'S ATTY. KEVIN KANE: I think the policy is, from all the offices, is to endeavor, and in most cases, defense attorneys are certainly allowed to see the file.
I believe in most cases, most offices, if not all offices, are allowing or providing copies to defense counsel at some point. [Gap in testimony. Changing from Tape 1B to Tape 2A.]
--morning when the defense attorney wants it because the clerical staff are busy in some offices.
I believe that every office is ultimately attempting to provide copies, in those cases in which they are going to provide copies of the entire police report, to defense counsel.
I heard a complaint the other day. I checked with the state's attorney, and he said, no. In that particular case, there was an issue with regard to that particular case, at least the one I called about.
And it wasn't provided when the defense attorney wanted it. I'm not too sure whether the particular issue that applied to that case was one that meant that that particular defense attorney wasn't going to get the entirety of that report or not.
But the effort around the state has been to provide copies to defense counsel as soon as practically possible.
REP. FOX: Okay. I'm not saying it has to be the first day you file an appearance in a case, but the objective is shortly thereafter to be able to have defense counsel have a copy.
CHIEF STATE'S ATTY. KEVIN KANE: Yes.
REP. FOX: Okay.
CHIEF STATE'S ATTY. KEVIN KANE: Not a hard and fast rule that it will be done like that, but the idea is to give defense counsel copies of police reports.
And there are some cases when that's not appropriate to do, or it's appropriate only to give a portion of the police report.
But by and large, it helps best when defense counsel will have access to and copies of the whole file.
REP. FOX: And in cases where it's not appropriate, would that be situations where, to protect the identity of witnesses?
CHIEF STATE'S ATTY. KEVIN KANE: That's the normal thing, and in those cases, we can get protective orders and other things, but, yes.
REP. FOX: Okay. Well, thank you. I think that's it. Oh, sorry, Representative Gonzalez.
REP. GONZALEZ: Thank you, and thank you for coming. My question is why the process, if this is the same process with the DNA, when they arrest a person, and now the DNA is going to be after, the Governor and the other [inaudible] they request it after they been convicted, for the DNA, why the process, if it is the same process, why do you think that this is going to cost more, or is something new, you know, with, if it is something new in the system?
CHIEF STATE'S ATTY. KEVIN KANE: The process in collecting the samples is minimal. I don't think that's a major expense at all. It's buying the kits to collect.
And that's a certainly relatively minor expense when we think, and it is a minor expense, the process of testing.
And the lab personnel required to do the testing and the numbers in the lab, that's where the expense would occur. And the Department of Public Safety are the people that have the answers to that. I don't.
REP. GONZALEZ: But is the same process, in the [inaudible] or when you get it, is the same process?
CHIEF STATE'S ATTY. KEVIN KANE: Yes. It's just increasing the volume. The question is how much can we increase the volume to go beyond the capacity of the laboratory to test within a reasonable time?
REP. GONZALEZ: Okay. Thank you.
REP. FOX: Thank you, and thank you, Attorney Kane.
CHIEF STATE'S ATTY. KEVIN KANE: Thank you.
REP. FOX: We now turn to the members of the public portion of our list. We will then alternate from that list back to the elected officials. Joe Mirione is first on this list.
JOE MIRIONE: Good afternoon. Hi, my name is Joe Mirione. I'm the President of the Connecticut Trial Lawyers Association. I'm here in support of House Bill 5935.
We support this bill. It's an act concerning the disclosure of police reports and other public records and a tolling of the statute of limitations while the police are still investigating.
We believe that this is a vitally important bill for the protection of individual rights and that it allows for the collection of information that's necessary in order to satisfy certain notice requirements and also the statute of limitations.
In Connecticut, there is a time limitation associated with most circumstances where there's been a harm. It's called the statute of limitations, in which the client must bring a lawsuit to protect their rights.
Moreover, there's many other causes of action that require notices within either 90 days, within 6 months, or 120 days in order to be able to maintain your rights.
What we have found is that the need for the police report is vitally important. There's information within the police report that is critical for giving appropriate notice to the right individuals, knowing the bar or tavern that may be involved, and very complicated and serious cases involving collisions.
All of that information is vitally important in order to properly protect your rights. And what we've learned is that the State Police who created the Accident Reconstruction Team, for example, and we applaud the efforts of the State Police in creating this unit.
Their reports are detailed and of a Professional Accident Reconstruction quality. However, most of these kinds of reports take an extended period of time to obtain.
The investigations are lengthy. And during that period, plaintiff or harmed person is without a remedy because the information that they would need doesn't exist. Or in certain situations, they may be dead.
And we find that also with dram shop matters, where a third party is harmed by a person, that they're not going to want to cooperate with the plaintiff's attorney or the plaintiff themselves.
They've often in a collision where there's insurance coverage, the insured is told not to cooperate and give information. And it's only through the police investigation that important information is gathered.
So what this bill provides for is that while the police report is still in the works and hasn't been released to the public, we seek that there be a tolling of the statute of limitations and the notice requirements until that information is gathered.
Now what's the importance of that public policy? Well, if somebody has been harmed, don't we believe that those who may be accountable should stand up for that and that if it's only because of a police report not being done, that why not allow that person to have their full plate of rights upon release of that police report?
And it also well facilitates knowing the right facts and having the right facts available at the time of the commencement of an action.
So we would ask that you support this bill. It's a bill that helps those that have been harmed and I don't believe creates a real detriment to those who may have caused that harm. Thank you.
REP. FOX: Thank you. Representative Walker?
REP. WALKER: Thank you, Sir, for your testimony. Approximately how long does it take before you actually get access to a police report currently now?
JOE MIRIONE: In a normal environment, it might not be very long. It is when you have a death or serious collision, multiple cars. The processing of that police report and the accident reconstruction can take a while.
It can take in excess of several months. It can take a year for a multi-death collision, where the accident reconstruction is being done by the State Police.
And there are notice requirements under our state scheme of 90 days, 6 months that have to be given.
And without that information, the measurements, some of the critical data, you can't give the appropriate notice. And so we're kind of in that box. This looks to remedy that box.
REP. WALKER: The person is going to be, if somebody is charged or there's a situation where somebody is going to be accused of certain crimes and stuff, they can do that before the police report has been released?
JOE MIRIONE: Well, now you raise a good question. You know, whether or not it can become public as a result of an investigation may indeed by delayed because there's a criminal element to it.
And it's not then subject to Freedom of Information and not open to the public. And you see that in cases where there may be drunk driving, and somebody is killed, and that you can't get access to that critical data until that case has gone through the cycle. And you're kind of left without a remedy.
REP. WALKER: All right. Thank you.
JOE MIRIONE: Thank you.
REP. FOX: Thank you. Are there any other questions? Representative Taborsak?
REP. TABORSAK: Hi, thank you for your testimony. Question I have here, first of all, to get a little background on what other states are doing on the issue of tolling rights, as related to those charged with crimes, are there any other states that we can look to that have similar tolling rights, related to obtaining police reports? Is there anything else out there?
JOE MIRIONE: I don't know. I will get back to you. We did examine that, and I can't, I don't want to, I will respond to you--
REP. TABORSAK: I'm just curious what other states are doing, if that's something that's been addressed.
JOE MIRIONE: When we were proposing this legislation, we did look into it. We didn't see a consensus, if that's the word I want to use, to say that this is how other states have handled it.
REP. TABORSAK: Okay. And the second question I have, as related to dram shop actions, is there a history there of plaintiffs, I guess we would say, having trouble meeting the statute of limitations?
Is that something that's, I mean, that we're seeing often? I haven't dealt with many of these cases.
JOE MIRIONE: It's a good question. And it is a real big problem because there's a 120-day notice requirement, aside from the statute of limitations.
So you have to give notice. You have to comply with the notice requirement. And you have to do it within the two-year statute of limitations. You have 120 days, and you have to file it within 2 years.
And especially in dram shop cases, and if there's a death, the person accused, where he was, where he may have been drinking, what conduct, the plaintiffs don't have access to that, especially if there's a criminal pending matter.
You're just not going to get it through your own private investigators. It's really within the hands of the police department. And that's a real big, big problem.
And you can't comply with the notice requirements without that information, and the notice is very, very specific, what bar, what time, what conduct.
Those are all kind of the requirements. So it puts you at a real disadvantage, and it's a big problem with our membership.
REP. TABORSAK: Is it your thought that this new tolling right should toll both the 120-day notice provision and the 2-year statute?
JOE MIRIONE: The notice, yeah, it does. The way the statute is presented, it goes to notices and also the statute of limitations.
REP. TABORSAK: Thank you. Thank you, Mr. Chairman.
REP. FOX: Thank you. I have a question on this. I've experienced, in my own practice, the difficulty in obtaining a police report, especially in a wrongful death action, where I'm thinking specifically of a highway accident that it took about 20 months to get the report.
And it was very complicated. There were a number of different vehicles involved. But towards the end of that, you know, towards that period, you're realizing there's a two-year statute of limitations that you're pressing up against.
And so I understand the objective. And then I also though wondered, will this then change the statute of limitations date for every case if we toll it for two years from the date of the report?
Because what if one town doesn't release, doesn't get the reports done for a month, one gets them done in 24 hours?
So I could see confusion. I think there may be a solution somewhere. I don't know if you've thought of that.
JOE MIRIONE: Well, we have. And your question is now will the statute of limitations arguably be extended almost indefinitely?
And in a theoretical case, you could have that because this bill proposes that it tolls until the document is made public. Is that a reality? Very unlikely.
I mean, this really looks to those matters where there's active police investigation but the cases are not yet closed, that there's reconstruction going on.
So you're not looking at an infinite amount of time. You're looking at something that may take two years to collect.
But more importantly, there's a notice requirement. If there's, for example, a municipality involved or there is a defect in the highway, and that gets, that's a really pressing time because you may only have 6 months to give that notice, or 90 days.
REP. FOX: But I'm just thinking of rather than have a different statute of limitations for every negligence case, which this could realistically do, does it make sense maybe to try to think of a way to seek court, not necessarily intervention, but at least a notice to the court that, in a timely manner, that you have, you know, this is the claim that you intend to make?
The report is not available. You've made good efforts to obtain the report, you know, maybe by some form of an affidavit.
I'm just thinking it through as you're testifying. I understand the goal, and I'm just trying to come up with a solution.
JOE MIRIONE: Sure. And unfortunately, that scheme doesn't exist in Connecticut, where you can petition in advance, saying, we don't have all the information, but please protect the rights of the harmed person.
That doesn't exist for us. This actually seems to be a pretty reasonable tool because it may affect only a very small percentage of cases.
And you generally see it in cases where there have been significant injuries and that requires the resources of the State Police and their Accident Reconstruction Team. So the frequency of it I don't think opens the door for a lot of cases being in this category.
REP. FOX: Okay. Well, thank you.
JOE MIRIONE: Thank you.
REP. FOX: Thanks for your testimony. Next, we have Robert Farr.
ROBERT FARR: Representative Fox and Members of the Committee, I'm Robert Farr, Chairman of the Board of Pardons and Parole. I'm also speaking today as the Acting Chairman of the Sentencing Taskforce.
I've submitted written testimony, but let me give you the shortened version of it. The taskforce was created in 2006.
And the taskforce is a useful form to allow key members of the criminal justice system to discuss various proposals and changes in our criminal laws.
To date, the taskforce has supported two bills that were subsequently approved through the Judiciary Committee.
The first was the act that created a diversionary program for persons with mental disabilities, that was adopted in the January session.
The second was a bill that was entitled probation terms and offender behavior that allows for review and early termination of probation based on successful supervision.
It's my understanding that that particular act has been heard by the Committee and favorably reported out by it.
The taskforce has an interim report that has been submitted to the Committee. I don't know if it's yet been distributed, but it's an interim report dated March, 2008, that spells out the various activities that the taskforce has participated in since its creation.
We set up four subcommittees. The subcommittees have had outreach meetings. We've had a number of various meetings to date.
This bill, if passed, would create a permanent, would establish a permanent sentencing commission, which is what the majority of states in this country have.
In creating permanent commissions, different states have different models as to who serves on those commissions and also what the charge of the commission is.
In some states, there are sentencing guidelines that have to be adhered to by the judges, and the commission makes recommendations on those.
Some states have no guidelines, and the commission is a commission that merely examines their statutes and makes recommendations for changes.
In some states, there are requirements that before any formal criminal statute is considered by the Legislature, it's first vetted through the commission.
And other states, when the commission makes a recommendation, they, and I believe in one state, it actually becomes law unless the Legislature does not take any action to reject that proposal.
The taskforce has not had an opportunity to really discuss the particulars of this bill that's before you today.
It was our hope that what we would do is essentially continue to make the taskforce continue beyond next December when it's charged with completing its work and have the taskforce actually come back with a recommendation as to the shape that this commission could take.
And we would, I'd look forward to answering any questions from anybody here about this taskforce. I know a number of people have attended some of those meetings.
REP. FOX: Thank you, Chairman Farr. Are there any questions from Members of the Committee? Senator Kissel?
SEN. KISSEL: Do you want to say nice words about anybody that's attended all those meetings?
ROBERT FARR: Well, one of the subcommittee Chairman has been Senator Kissel. He's done an outstanding job. And Representative Walker has been there, and other Members of this Committee have attended various meetings.
And I think everybody would concur that it's been a very, very useful forum because it's an opportunity to discuss a lot of these bills.
And the two bills that were, the two that I mentioned, the one on the diversionary program was an example of how this commission can be very helpful because when that was first proposed by the probation department, there were a number of concerns raised about it.
One of them, I think Senator Kissel raised, was that in its original format, it was going to allow multiple opportunities, an unlimited number of opportunities, to take advantage of the program.
The police that were on the, representatives of the various police departments that were there had concerns about their inability to get information about the first crime if the person comes back a second time.
The bill that was actually submitted to the Legislature corrected both of those and ultimately had the support of people who were concerned about that.
So it is a great opportunity to shape a lot of this legislation. I think it hopefully will take some of the burden off of the Legislature, and certainly the Judiciary Committee, of having to go through that process.
REP. FOX: Thank you very much.
ROBERT FARR: Can I make one other comment?
REP. FOX: Of course.
ROBERT FARR: Attorney Kane had testified on the erasure of criminal records bill, I believe it's Senate Bill 694, and did comment that it would present problems for parole. And I just wanted to concur that that is a problem.
In my capacity as Chairman of the Board of Pardons and Parole, it would present serious problems.
I don't know how you would erase part of a police report. If an individual was charged with three different charges and, say, included a sexual assault and ultimately was stipulated down to a less serious charge of a simple assault, I don't know how you go back and erase the various parts of the police report when it's all in one incident.
And if it meant that we didn't get information that we currently get, then I think that it would be a real mistake to pass that bill in that form.
REP. FOX: Okay, thank you. Senator Kissel?
SEN. KISSEL: Yeah. Along those lines, I mean, I was listening in my office as I was scrambling to have a banana, at least get some food today.
And is there any discussions going on between proponents of that particular bill and yourself or other folks that--
ROBERT FARR: I don't know who the proponent is. I haven't been told. I saw that bill for the first time on the agenda the other day, and I read it in detail today.
SEN. KISSEL: Mr. Chairman, did not that President of the Trial Lawyers just come and speak on that bill?
REP. FOX: No. That was the tolling of the statute for the civil claims.
ROBERT FARR: That was a different one. The bill that's the erasure of criminal records, I don't know who's the father of that bill, or the mother of that bill.
SEN. KISSEL: Does perhaps either yourself or Chairman Lawlor know? I just think with our JF deadline being Monday, and if there's a chance to have people work out their differences, I always think that's good to try to do, as opposed to that bill's probably going to die.
REP. FOX: I don't specifically know who the generator of that bill was. I do recognize what Chairman Farr and Assistant State's Attorney Kane testified to. It's difficult.
How do you decide which part of the police report indicates the crime that they ultimately plead guilty to, as opposed to some other crimes that they may have been charged with? So I can understand the difficulty. We'll try to look into where it came from.
SEN. KISSEL: We'll do it this way. We're making an announcement that if you like Senate Bill 694, let us know. Thank you, Mr. Chairman.
REP. FOX: Chairman Lawlor?
REP. LAWLOR: Thank you. Good afternoon, Mr. Chairman.
REP. FOX: Good afternoon.
REP. LAWLOR: I missed the first part, so I apologize. But I just wanted to underscore the one bill I think was, I'm assuming, on the top of your list, or near the top. It was the Sentencing Commission.
ROBERT FARR: Yes.
REP. LAWLOR: And you may be aware of this, but I just wanted to report to you that the other day, we voted on a bill involving terms of probation, the length of the probation period.
And I think it was unanimously approved in this Committee, and I think the main reason was that it came to us as the result of lengthy discussions by the Sentencing Taskforce, which you Chair.
And the idea that it came here with everyone's approval, the police and the prosecutors and the public defenders, and the list goes on, the victims' groups, and I think that's a great model for dealing with what are usually kind of technical changes that would make an important public safety difference.
And the idea that we can ask a group consisting of all the various points of view to take a look at things and to come back to us with unanimous recommendations would really help in the future as we kind of work our way through these complicated criminal justice problems. So I'm grateful for all the work you've done on that one.
ROBERT FARR: Thank you. And I just, during my testimony, I expressed some concerns. We didn't have a chance to go through the particulars of the bill that's before you.
And there's some concern on the, with the members of the commission, if this makeup of this bill is too large or not.
And what I had suggested is it may be that you give us a charge to come back and recommend a more formal structure in the future, going forward, because I think that that, you know, different states have different models.
In some cases, you know, the original taskforce was chaired by the Chairs of the Judiciary Committee. And that's a model that's used in some states.
And other states, they actually have, the chief justice of the Supreme Court, I believe, Chairs in some states. In other states, there's somebody from the Governor's office that Chairs it.
So there's a lot of different models in terms of how you formulate it. And I would hope that we could have the opportunity to get some input into the permanent structure so that whatever you pass this year is not going to be permanent.
REP. LAWLOR: Okay. That makes sense. And the only way this stuff is going to work is if there's a true consensus about every aspect of it.
And so if what you're asking for is authorization to figure out what the permanent [inaudible] should look like, it seems like that's very reasonable, and we'll try to do that.
ROBERT FARR: Okay. Thank you very much.
REP. LAWLOR: Next is Chief Strillacci.
CHIEF JIM STRILLACCI: Mr. Chairman, Members of the Committee, good afternoon. I'm Jim Strillacci. I'm the Police Chief from West Hartford, and I'm speaking on behalf of Connecticut Police Chiefs Association on several bills.
I'll speak briefly on them, and if you want me to amplify anything, I'd be happy to. There are two bills regarding DNA before you.
The Connecticut Police Chiefs have, for a number of years, since March, 2000, I believe, testified in favor of expanding DNA testing because it's the best scientific method currently available to identify people.
Two bills before you, House Bill 5034 and Senate Bill 692, would each require pre-conviction collection of DNA for people arrested for A and B felonies. These are serious offenders.
We like it because the change recognizes that people often do re-offend after arrests and while on bond, between the arrest and conviction.
It's also axiomatic among police that we don't usually arrest people for their first offense. People who are arrested for serious crimes frequently have other crimes that they've committed and have not been caught for.
This bill would allow sampling of DNA, which may lead to solutions of these unsolved crimes. It will save investigatory time and will help resolve cases for victims who are waiting for solutions as well.
The Governor's Bill, House Bill 5034, provides for taking a sample at arraignment by core officials. Senate Bill 692 would have police take them at the time of arrest and before the subject's release. We can do either.
We're certainly open to either suggestion. The Governor's bill would be cheaper for us because we wouldn't pick up the expense. But the actual collection is not very expensive.
It's essentially a high-tech Q-Tip that you're using, and it's pretty easy to administer to testing. That makes a difference.
The Governor's bill also expands the post-conviction testing to a handful of misdemeanors, which may be suitable for testing.
Expanding the DNA database increases the odds that we both convict the guilty and absolve the innocent.
The identification by DNA has released a number of people who have been convicted or suspected wrongly, and it's really our best tool for that.
As we're familiar, many people were arrested and give false identifications, phony names. Having another way of checking their identity would prevent some innocent person from being arrested or rearrested further down the line for that person's offense.
So we support these bills. The State's Attorney testified on House Bill 5832, eyewitness identification. A couple of years ago, we did adopt some measures to eliminate suggestion from the eyewitness identification.
I think your package includes the New Haven's form. It's identical to the form that my department uses. I think actually, I drafted it on my computer, so they all look alike.
We work together on that taskforce to try and come up with pre-identification instructions for the witnesses, to make sure that they knew they were under no obligation to identify somebody, that the person may or may not be in that lineup, and also instruction for the officer who is doing the identification, to eliminate the possibility that you'd steer a witness one way or the other.
The double blind id is a little difficult for small department to administer because we may not have somebody available that's not familiar with the case.
So these measures have been adopted to try to speak to that aspect of the concerns. The other aspect is on the sequential identification. And frankly, it doesn't matter to us what particular way.
We can do sequential almost as easily as a simultaneous array. Simultaneous is a little easier to preserve for evidence.
You can take a picture of the lineup with six or eight or ten pictures in it, and you know exactly what the witness saw. Sequential is a little harder to capture.
However, we want to make sure before we legislate a particular method that it's the right one. And the jury is really still out on this.
The proponents have spoken to a number of academic studies on sequential lineups, and we'd like to point out that there haven't really been field studies of this that have supported it.
There was a notable study in Illinois, which there was a report on it in 2006, which actually found the opposite, that the sequential lineups had a higher error rate than the simultaneous.
Now there have been people who have objected to the methodology there, and I don't claim to be a scientist and really know how they came about that.
But the most recent professional literature on this has said that, really, there's no consensus as to which method is better. The NIJ Journal from October, 2007, had a very complete discussion of it.
And they really recommended against jumping the gun legislatively until scientists rate on this, to choose one or the other.
And we're quite happy to embrace whatever the best mousetrap is, once science determines what that mousetrap is.
I'd be happy to answer questions on these or any other bills before the Committee if you wish.
REP. LAWLOR: Are there questions? Did you submit written testimony?
CHIEF JIM STRILLACCI: We will submit something. My counterpart, I thought he was going to bring it, but he's absent today. We'll get something to you.
REP. LAWLOR: Are there additional questions? If not, thanks again. Next is Representative Kalinowski. Is he still here?
REP. LAWLOR: And we're alternating back and forth now between the state officials and the members of the public. But I think we should be done here in a relatively short amount of time for those of you concerned about timing, probably two, three more hours all together.
REP. KALINOWSKI: Good afternoon, Chairman Lawlor, Committee Members. I'm Ray Kalinowski here to testify in support of Raised Senate Bill 692.
Kevin Kane was very comprehensive in his explanation of some of the various facets of this bill, so I'll really kind of condense my testimony here. You do have my written testimony.
But I would like to underscore some very important points concerning this bill, which will provide law enforcement with the tools they need to properly identify serious repeat criminals.
Earlier this session, we saw a bill similar to this bill passed through the Public Safety Committee, of which I'm Ranking Member.
Unfortunately, that bill did not pass out of Committee. Some of those opposed to the concept have stated that obtaining DNA sampling from an individual is a very intrusive violation of one's right to privacy.
And a government body has no right to maintain such a database because it is the exclusive property of the individual.
Actually, there are four states in the country who have statutes that proclaim indeed that DNA is the exclusive rights of individuals. They are Alaska, Colorado, Florida, and Georgia.
However, the courts have held that the state may create and store a photographic and fingerprint record that established a permanent record of the identity of all arrested individuals.
If the police are allowed to keep fingerprints or a photograph as a biometric identifier, it is hard to see why they cannot keep a DNA profile properly limited to the identifiable characteristics of that individual.
The DNA profile is a series of numbers, I believe there are 13 numbers, that have no meaning, other than being a molecular sequence.
I think State's Attorney Kane explained that well. It's very much like a social security number or a passport number.
And access would be limited to law enforcement personnel investigating specific crimes where DNA trace evidence has already been found.
You know, we all have, in recent months, as legislators, heard from our constituents about things that happened in the recent past in Connecticut and that we should make our laws better so that individuals feel safer in their homes.
So allowing DNA testing of persons who have been arrested for Class A and B felonies is a step in the right direction, although it was made known to me earlier today that the Governor's bill, House Bill 5034, they are agreeable to removing the arrest language and pleading it upon conviction.
And they are going to propose some JFS language to that effect. In summation, let me just say that 11 states have enacted legislation requiring DNA sampling for felony arrests.
DNA sampling upon the arrest of individuals will aid crime victims and bring closure to cold cases.
The longer the Legislature waits to pass this important measure, the longer the trail may be of crimes which could have been prevented.
So I strongly urge this Committee to pass Raised Senate Bill 692. If there are any questions, I'd be glad to answer them.
REP. LAWLOR: Thank you, Ray. Are there questions? Senator Meyer?
SEN. MEYER: Representative Kalinowski, I don't think there's any legal issue about DNA, and you're suggesting that in your testimony.
The courts have indicated that the taking of a DNA sample is, there's nothing unconstitutional about that action.
Indeed, I remember as far back as the 1950s, aging myself, where the United States Supreme Court, in the case called Irvine v. California, permitted a stomach pump of a defendant for purposes of identification.
So I don't think we have a legal problem. I think we have a policy issue in Connecticut. Are we going to take what I think should be the step forward in requiring DNA samples to be given?
And I think it's good for both people who have committed crimes and those who have not committed crimes to get that as early as possible.
I do recognize you said that the Governor has changed her bill to make it at the time, I guess, of conviction instead of arrest. So I just want to concur with your statement about the fact that we don't have a legal constitutional issue in this.
REP. KALINOWSKI: Yes. Let me add that, you know, we, as individuals, routinely shed DNA on an everyday basis as we move throughout this world.
We leave it on coffee cups, drinking straws, cigarette butts. If we cut ourselves and bleed in the street, that's DNA, and it's not properly thought to be private property.
If I got in an accident in the street, and I bled on the sidewalk, would that prevent someone from coming and keeping that DNA for other reasons? Is it mine? Who does it belong to?
But I think that's been well established. We've all heard of police exploits, maybe on surveilling a suspected individual and waiting until he gets through with his coffee or smoking a cigarette and retrieving that piece of evidence and using that to analyze his DNA to match it up with the possible crime. So your comments are well taken, and I think we're pretty comfortable in that regard.
REP. LAWLOR: Representative Adinolfi and then Representative Dillon and then Representative Gonzalez.
REP. ADINOLFI: Thank you, Representative Kalinowski. Thank you, Mr. Chairman. It's been interesting to note, we've been hearing a lot about DNA today, and there's an organization out there that runs a child identification program.
It's called the CHIP program. Maybe you had it, or it's been in your town at your firehouse or police station.
And one of the things they do is they take a DNA sample of the children that the parents can keep in the refrigerator.
And one of the things they also do, and I'll say we because I'm involved with the problem, is we teach the children how to spit, or expectorate, if you will.
And we tell them, if you're ever apprehended or someone picks you up in the car, expectorate and spit all over the place.
And we had a case in Massachusetts where some kid was abducted and did use this. The driver drove about a mile and let him out because of all the DNA evidence there.
So DNA could go two ways. Here, when we want to do it with possible arrestees that could be convicted, it works that way too.
It works where it could help a criminal that really thinks he's innocent, and he might even volunteer to have his DNA taken, especially if it's a rape case or something like that.
Where he knows in his own mind that he's innocent and this would prove it, he might even volunteer for it.
But there has been some concern about some of the privacy of this. It's my understanding, from the literature I've been reading, that once the DNA testing is made, that the statistics taken, they could actually remove the genetic and family history portion of genetics from that DNA file and only remain and hold for records the part of the DNA that identifies that specific individual individually.
So I wanted to make that statement to put that to, you know, to rest, that we might not be interfering with the person family of the individual that the DNA is taken.
REP. KALINOWSKI: Yes. As Kevin Kane, indicated, limited to just identifiable characteristics and on file that way.
REP. ADINOLFI: As a matter of fact, while I've got the mic here, in Chicago, they did a case study there of serial killers and rapists.
And they showed that 60 violent crimes, including 53 murders and rapes, would have been prevented with DNA taken upon arrest. So there's a lot of value to what we're trying to do here.
And like I said before, I'll accept any compromise that puts us in the direction of getting us in the position where we're able to arrest or find more criminals that are out there than we are now. Thank you.
REP. KALINOWSKI: If I may, we have a bit of a dichotomy here because most people favor the broadening of the database itself. However, how is that accomplished?
If you want to expand that particular database to be broadened upon arrest, that could do it. In fact, we could have the whole population of the United States submit DNA samples somewhere in their lives, but that would be a huge undertaking.
But I think it would go a long way. Well, it may or may not, but it would be certainly a database we could draw upon to exonerate people and solve crimes faster and easier. But that's a totally different question.
REP. LAWLOR: I think Representative Dillon was next.
REP. DILLON: Thanks so much for coming today, and I respect your opinion a lot. Without piling on, I know it's a different kind of fact pattern, but I think on the question of ownership, I was mentioning to Senator Kissel, but I think it was a 1990 case that was Moore v. the Board of Regents in California, where he had a patient at the state hospital whose DNA was taken by the physicians who operated on him who then used his DNA to create a cell line and patented his DNA.
And when he sued to get it back, and they created a line of profit, the courts ruled that basically, he didn't own his DNA, even though his doctor had taken his DNA.
So I'm not thrilled with that particular, it's not really just in terms of Fourth Amendment, or what's left of the Fourth Amendment, but in terms of the case law, I think you're absolutely right that the issue of ownership, and if you were in Holland, for example, I think your blood still belongs to you when it leaves your body.
You know, different countries have different laws about who owns what. I could be wrong about that, but I actually wrote about that on another matter.
So I don't think the ownership is really the question. I guess the issue of, part of the point of this is to get it into the federal database, and my concern is about the potential abuses of government.
I don't know what control, I mean, we might put language in that restricts the state. Let's say, I could say some future Governor cannot sell our DNA the way that, for example, they're selling the lists of nurses or doctors who are licensed to private vendors so that they can raise money.
I mean, you know, a lot of publicly gathered information is sold for profit by our own government, and that's controversial in some areas. And in some, it's settled practice.
I suppose that we could put language in that would prevent our own state government from selling that information. But getting back to, and I don't know if you were here when I talked about the wiretapped cases in New Haven.
Because I knew the people who were tapping people's phones who were in my parents' generation, and I also knew the people whose phones were tapped, who were my generation, and one of the people tapped, as a threat to the government, was Senator Lieberman. So, you know, we're not, it just expanded because they could do it.
REP. KALINOWSKI: That was in the late 1960s, wasn't it, in New Haven?
REP. DILLON: That's right because they got a call from the President's office, and they formed a red squad, and they trusted the government, and they believed what they were doing.
And they were not in bad actors, except in retrospect because they did what they could do because they could do it.
And it expanded to political enemies, neighbors, people who you thought were cheating on their husbands, whatever. It just expanded because somebody controlled the machine.
But they were people who acted in good faith. They did. And there are bad actors, and I mentioned them in another setup, but it's always [inaudible] the question is who controls it and what kinds of checks and balances.
Let's say I were going to go crazy on JF Day and say, we have to put language, well, everybody goes crazy on JF Day, and insist on language that prevents the State of Connecticut, in the future, from selling any of that data.
Let's say some researcher wants to come in 20 years from now and look at the length between genetics and proclivity to crime and decides that they want to go around to the different states and start buying up DNA and do research on that.
In my view, that would be tainted research for a number of reasons, but times change. Once you have it, you have it, and the climates can change.
If we were to put that language in when we take up this bill on Monday, which I expect we will, that still wouldn't really deal with the issue of what the federal government would do because the whole point of this is to get it into the federal database. Am I right on that?
REP. KALINOWSKI: Yes, correct. You referred to a period in New Haven. In the late '60s, I worked in law enforcement in New Haven during that period and am familiar with the individuals involved and that process used and the information that was elicited through wire tapping, etc.
And it was a period disgraceful, if I may say. And I've carried that lesson with me as I've went through my career in law enforcement for many, many years. But I do understand what you're saying and sympathize with most of your concerns.
REP. DILLON: Thanks.
REP. LAWLOR: Next is Representative Gonzalez.
REP. GONZALEZ: Good afternoon. Right now, the process, as far as I know, is when they're going to release you, they will do the DNA [Gap in testimony. Changing from Tape 2A to Tape 2B.]
--DNA to go with me. But now, as they arrest you, and they will do the DNA. And let's say they will do the DNA when they arrest you, but then your case got dismissed.
REP. KALINOWSKI: Dismissed or nolled or you're acquitted, yes.
REP. GONZALEZ: Okay. Then what's going to happen with my DNA?
REP. KALINOWSKI: Then it will be expunged from the databank.
REP. GONZALEZ: How can we prove that that's going to happen?
REP. KALINOWSKI: Well, that's for the Committee to draw rules and regulations and statutes to make that happen, if I'm correct in that assumption. Any Committee Member, please feel free.
REP. GONZALEZ: Okay. Thanks.
REP. LAWLOR: Further questions? If not, thanks, Ray. Next is Lynn Warner. Is Lynn here? Rich Deparle, is he here? Okay. Paul Rosow?
Following Paul will be Brian Carlow and Karen Goodrow together, and then we'll go back to the state official list and Colleen Murphy.
PAUL ROSOW: Hello, my name is Paul Rosow, and I'm here in support of House Bill 5920. I'm here representing the Connecticut Coalition of Property Owners, which is the state's largest landlord property owner organization.
We have chapters in Hartford, Bridgeport, Stamford, East Hartford, Manchester, as well as the Connecticut Association of Real Estate Investors.
Collectively, our members own over 20,000 rental units throughout the State of Connecticut. This May, it will be two years since the Judicial Department centralized the small-claims division.
Small claims is a very important piece of our membership's business. It gives us the ability to recoup some of our losses that occur due to nonpayment of rent, eviction, or damages.
The backlog is tremendous, and the time to get to trial is unacceptable. I would like to share with you some statistics.
There are approximately 90,000 small claims cases filed per year. Each filing is handled at least four times.
There are approximately 20 people in the small claims department to handle these 360,000 transactions and also answer phone calls and work at the window.
Additionally, there are 40,000 wage executions annually that need to be reviewed and signed. Each wage execution has to have at least four copies signed.
A typical small claims case today takes between 230 to 312 days to get to trial, not judgment, just to get to trial. Before centralization, it took 36 to 114 days to get to trial.
A typical wage execution today, to be signed, takes four to five months. Before centralization, you could get it signed the same day or there days later at the most.
At least six times, we have met with the Judicial Department across the street, and we always were told, it will get better. This May, it will be two years since centralization, and the delays are worse than ever.
Chief Court Administrator Judge Lavery, in one of his meetings, told me that small claims is their lowest priority.
This situation not only hurts landlords, but it also hurts tenants who are, for example, suing for their security deposit.
Small claims was put in place so that all Connecticut residents could get into court for a low fee and get their opportunity for their day in court.
Three options have been discussed. Number one, 100 more personnel could be funded and assigned to the small claims court system to make the existing centralized system work.
Number two, small claims filings could be decentralized, and the Judicial Department could go back to the old system.
And number three, housing-related small claims filings could be moved back to the Housing Courts.
Number three, moving back to the Housing Courts, is the easiest and most cost-effective way of handling this problem.
We have tried to work with the Judicial Department for almost two years, six different times, and they just cannot get it done.
This is why I'm here today in front of you to ask you to favorably report on House Bill 5920. Thank you very much.
REP. LAWLOR: Thank you, Paul. Are there any questions? Senator Handley?
SEN. HANDLEY: Thank you. Good afternoon. Much of what you've said, I live in Manchester, and I've been hearing from both sides of the situation, tenants and owners of property, that this is a problem.
Do you have any sense of what the cost would be? Because this is always something we have to, we don't, in this Committee, have to be concerned about it.
But down the road, we're going to have to be concerned about it. Do you have any sense of what the cost would be to reestablish the court somewhere close to what it was?
PAUL ROSOW: Well, there's six housing sessions in the State of Connecticut. And before the centralization, the Housing Courts handled the small claims issues for housing.
They still have the same staff that they had before the decentralization. So I don't believe it's going to be that big of a cost to flip it right back to them.
I'm sure that you're going to maybe hear from that that, you know, we can't do it. We're overwhelmed.
But the bottom line is that the number of housing cases, at least in the Hartford housing session, for evictions, is at the same amount as it was five years ago, and they have the same personnel.
So I don't see it costing that much money to bring it back to the Housing Courts and relieve the stress from the entire small claims system.
SEN. HANDLEY: Thank you.
PAUL ROSOW: You're welcome.
REP. LAWLOR: Are there further questions? If not, thank you very much.
PAUL ROSOW: Thank you very much.
REP. LAWLOR: Next is Brian Carlow and Karen Goodrow, and they'll be followed by Colleen Murphy. Is Colleen still here? Then we'll go back to, is Jane Murphy here, Jane Murphy here? Okay. She'll be coming up shortly, and then LaResse Harvey. Is LaResse here?
BRIAN CARLOW: Chairman Lawlor and other Members of the Committee, thank you for allowing us the opportunity to be heard. My name is Brian Carlow. I'm the Deputy Chief Public Defender.
We are here on behalf of the Division of Public Defender Services. And Susan Storey, the Chief Public Defender, who's over my right shoulder and I'm sure is taking notes as to how well I do before you folks today.
Also sitting with me at the table today is Karen Goodrow, which, thanks to this Legislature last year, we were able to have a full-time innocence project as part of our division.
And Karen, subsequent to that being created, was appointed by our commission as Director of that project.
She's here principally to speak with respect to issues about the eyewitness identification. It's an area which, obviously, she knows quite a bit about because that's central to that line of work.
And I'm going to be speaking about some other issues as well. We did submit written testimony, and just very, very briefly with respect to that, Raised House Bill 5919 is a bill that has to do with access to police reports and witness statements.
We don't have an objection to that, just so long as there's language that makes it abundantly clear that that in no way restricts defense lawyers' ability to obtain discovery, pursuant to our rules of practice and pursuant to our laws both constitutional and those passed by this Legislature.
And I would just note that in terms of our testimony today, we are here really presenting in a somewhat different manner.
Generally, over the years, Karen and I were both advocates in the courtroom, and we were fighting battles, you know, the defense lawyers against the prosecutors.
This year, I think, in terms of what we've got to say, is a little bit different because the focus in this Legislature, I think it's fair to say, is based upon, or a lot of it has to do with the driving force of public safety.
And I would submit to you that the positions we're taking today are not Democratic or Republican, are not criminal justice or Division of Public Defender Services.
They really are all to enhance public safety and to get to the bottom line through this process, which I would submit to you is to identify the true perpetrator in the context of criminal activity.
So with that sort of overview in mind, we did submit some testimony, or we will on taped confessions. We understand that Criminal Justice is going to be doing a pilot program. We absolutely encourage that.
We think that's a very appropriate way to go. And we would hope by the time this Legislature convenes next year, that they will be able to report back and tell us what they think in terms of what would be best practices.
In terms of the bill that has to do with child witness in the sexual assault cases or assault cases, some of the language talks about an exception to the sequestration rule, which basically allows for someone who's known and with who the child feels comfortable to actually sit with them during their court testimony.
On the first level, we don't have an objection to that, but we think there should be a finding that if that person is a witness, or going to be a witness at trial, there should be a finding that there really is no one else who's available.
And again, that's to try to honor that time-honored idea that witnesses should not be hearing other witnesses testifying. The idea there is to try to get to the most truthful and accurate testimony.
I want to talk just a little bit now, and I'm here to answer whatever questions there may be, in terms of the DNA issue.
The law, as it stands today, is that anyone in the State of Connecticut convicted of a felony has to submit a DNA sample. That is well-established law. It has no constitutional barrier.
Court after court after court across this country has found that that is fine, that those folks have a lesser expectation of privacy.
The flaw in the law, we would suggest, and I think it's been identified, is that the law, as it's written now, does not require those samples to be taken until prior to discharge from probation or prior to discharge from the Department of Corrections.
That, to us, makes absolutely no sense. So the general idea of expanding the database, because DNA is an incredible tool, we absolutely agree with that, and we would certainly join in and would submit that that language makes sense.
Make it mandatory. I'm not saying that the law, as it's written now, requires them to wait. It allows them to wait. And we would submit they shouldn't be allowed to wait.
The A or B felony piece does create, certainly arguably, and according to the Supreme Court in the State of Minnesota, an absolute constitutional bar.
There are two states in the country that have decided this issue as to whether arrestees can be forced to give samples. Virginia, which says it's okay, Minnesota, which says it's unconstitutional.
I want to talk about the Virginia piece just for a second because we've heard mention even today that the Virginia example is a perfect example of why you [inaudible] arrestees, because Mr. Foster, the person who now a warrant has been sworn out for in the James Tillman case, is sitting in Virginia.
And the argument is but for the arrestees' provision in Virginia, Mr. Foster is never identified. That's not accurate.
Mr. Foster, pursuant to our laws, as they are on the books today, not only was obligated but in fact gave a DNA sample. So the question would be, well, why wasn't that match made?
Our understanding is the match wasn't made because that sample at that time was one of the approximately 28,000 samples that are sitting on a shelf somewhere waiting to be tested and waiting to be put into the databank.
So the idea that somehow Virginia is what found Mr. Foster, I guess on one level is true. It's because of the backlog.
And let me, I've worked with the lab for a long time, and let me in now way, I don't want any of my comments to be taken to mean that I think the lab isn't doing the work that they're doing in a very prompt fashion.
It's a resource question. So before we expand to A and B felons, arrestees, which I would suggest has constitutional barriers, I would submit why don't we focus on the 28,000 that are there, that the law has decided are appropriate?
One other point on the A or B arrestees, you keep hearing said to you that it expands the database greatly. That's a fallacy. It doesn't.
Anyone charged with an A or B felony, under our law, as it exists today, if they are convicted of any felony when their case is over, classified or unclassified, is required under our law to give a sample.
So all those folks are going through the databank anyhow. And of those folks charged with A or B felonies whose cases are nolled, dismissed, or there's an acquittal are expunged.
They're not going to be in the databank. So this huge expansion we keep hearing about, who are those folks? Those are people who are charged with the most serious felonies we have, A and B felonies, who are ultimately, when their cases are over, are convicted of only a misdemeanor.
I have this wonderful listserv where I could then send around to all our lawyers in the State of Connecticut, basically asking the question, because I was in the courtroom for a very long time, and I can't remember the last A or B felony that I had that resolved ultimately for a misdemeanor, I asked, how often does this happen? It's exceedingly rare.
So what you're doing with that piece is a minimal expansion of the database to people, I would add, ultimately through the court process.
These A or B felonies are the most serious of the serious cases resolved for misdemeanors, which suggests that there was something problematic in that case, that's the expansion.
Balanced against that is the idea that these folks are giving up a huge privacy interest. The biological sample is kept in the lab forever, unless, under the law, expunged. It's kept there.
The information, it's an incredible amount of information. You've heard said to you that the identifiers, and there are 15 of them that are presently used in DNA. You've heard them referred to junk DNA, or they don't respond to anything medical.
That, at one point, was believed to be the case. That is no longer the case. There is medical information even involved in those 15 particular locations on particular chromosomes.
So to somehow suggest that this is not an important privacy issue, I would submit to you the literature flatly rejects that.
So we have no objection at all to an expansion of the process to get those samples in as early as possible and that there would be funding so that there's not this backlog where samples are sitting on a desk or on a table or in a room somewhere.
The problem we have is we think the arrestees expands it very minimally, does not get to what I think folks are trying to get to, and runs into, I would submit, significant constitutional problems.
Now I would, with your indulgence, would turn over to Karen to speak about the eyewitness identification issue, and then we're more than happy to answer whatever questions there may be.
KAREN GOODROW: Good afternoon, thank you for having us here. I would like to, before I jump into the id bill, just speak briefly about Raised House Bill 5933, which is the compensation act.
The Connecticut Innocence Project does support that bill, AN ACT CONCERNING THE COMPENSATION OF WRONGFULLY INCARCERATED INDIVIDUALS. As you all know, of course, you passed an individual act for Mr. Tillman.
And I think what this raised bill tends to do is to start with some sort of base standard by which we can work for the next time around.
I think there was some discussion about having an expedited process through the claims commissioner.
And again, our office would support that, a way in which an individual who has been incarcerated wrongfully could be fairly and equitably and efficiently, if you will, compensated.
I know that this body is aware of all the pro bono work that was done on Mr. Tillman's behalf, long beyond me, Brian, and Suzanne in the public defender's office.
And McCarter & English, who graciously has been housing us for the last two years, spent enormous, and continues, frankly, to spend enormous amounts of pro bono hours assisting.
But there are things, basic things, like housing, food, clothing, employment skills, that individuals have to face when they get released. So I would encourage you to seriously consider this act.
With regard to the identification bill, I did miss Mr. Dearington's presentation this morning, although I understand some of what he has said we have discussed in the past.
I've also had an opportunity, because of our fire drill, frankly, to speak with State's Attorney Kane outside, and it seems as though, echoing a little bit of what Brian just said, we actually do have a consensus with regard to a large portion of this proposed bill.
And the consensus would be with regard to allowing, or ensuring, if you will, the best practice, not with regard to sequential, although we support sequential, but double blind.
And speaking to Kevin outside, I don't want to speak for him, especially since he's not here, but he said, yes, you can quote me on this. He is actually in support of that where practical.
And the proposed bill does include that language, where practical, the police officers should ensure that a double blind procedure is utilized.
We've also heard, and I think Chief Strillacci just mentioned this, that the Chief State's Attorney's office has promulgated, if you will, some of their own best practices.
But I think that was specifically in response to the Connecticut Supreme Court case of State v. Ledbetter.
And I believe attached to Mr. Dearington's testimony is the one-page instruction that the New Haven Police Department gives to eyewitnesses.
And essentially, it says it's just as important to protect the innocent. Just because we're asking you to look at these photos doesn't mean that somebody who we think committed the crime is in here, etc. You have it before you.
But those are precisely the best practices, if you will, that were articulated in the Ledbetter decision.
And essentially, if in fact a police department does not follow that, the Supreme Court says at a trial, the jury has to be told that these procedures weren't followed.
What we propose, I think, is just a logical and common sense extension of Ledbetter. And again, it's important to note that the Chief State's Attorney's office is on the same page with regard to double blind when practical.
And the sequential issue, I think our colleague, Steve Saloom, is here from the Innocence Project in New York, and he will speak to this.
It seems as though that when this issue has arisen at various states, folks have gotten bogged down. And we certainly don't want to lose what we think is the meet of the proposal if we get bogged down on the issue of sequential.
I would like to respond briefly to the Illinois report, also referred to sometimes as the Mickenburg Report. Again, Chief Strillacci mentioned this.
I believe when Mr. Dearington was here, he may have mentioned a Philadelphia study. With due respect to him, I think he's actually thinking about the Chicago study.
And that was, as I understand it, an attempt by the Chicago Police Department to put it into place under real-live circumstances. The studies of Gary Wells, the professor who's been studying id issues now, golly, for about 30 years.
There is, and we will provide a written copy of this after our testimony, a very cohesive response from the attorney general's office from the State of Wisconsin, essentially indicating why the Chicago report is inconsistent with what actually occurred there.
If I could just briefly mention, in that study in Chicago, there was no use of instructions to the eyewitnesses. There was no assessment with regard to confidence levels.
I don't know if you know what I mean when I say confidence levels. That's the point at which the eyewitness looks at the photographs and does or does not give a statement about his or her level of confidence.
There was no mention of this, no attempt to utilize this in the Chicago report. Multiple procedures were not addressed.
Oftentimes, if a police officer is trying to see if there's an identification that can be effectuated, there is a multiple procedure utilized.
And the notion is of course that that can influence, if you will, the eyewitness's testimony. And perhaps most importantly, there was no information in the Chicago report with regard to the selection of non-suspect fillers.
In other words, how many times did the individual who was asked to look at the photo array pick out somebody other than the suspect? And that is a key piece. So I would encourage you to read through that.
We would ask that the bill be passed as it's written. But we understand that, as a compromise, in reflecting consensus, we certainly could live with, if you will, it's a good start, to live with the protocol that's been adopted in Ledbetter and the notion of double blind. Thank you. I'll take any questions that you may have.
REP. LAWLOR: Thanks to you both. And, Brian, I'm glad you underscored at the outset that the role of the public defender oftentimes is to help us understand the practical impact of decisions we make here.
And it's not even inconsistent with public safety the vast majority of the time. And you guys were the ones who came up with some ideas of how we could think through this DNA sampling process that might make a lot more sense.
For example, what I was discussing earlier with some of the prosecutors, moving that to the beginning of the process rather than the end, even though you'd think common sense would tell you under the current law, they could just do that anyways.
But that would certainly add a lot. And since you mentioned it, the backlog on the cataloging of these DNA samples, my understanding, and correct me if I'm wrong, is that there is actually federal money available to pay for the testing.
And the Department of Public Safety has actually contracted with private providers that are going to do this. And it's supposedly going to be completed in a relatively short amount of time, and that as long as we have a backlog, there will be some federal money available to pay for it. But in any event, hopefully, we'll catch up on that relatively soon.
BRIAN CARLOW: Yeah. That is my understanding, and we certainly think that's a good thing. Getting those resources in to get those samples into the databank we are absolutely supportive of.
REP. LAWLOR: Because it does cut both ways, right? There's innocent people who will be exonerated. There's guilty people who will be apprehended.
And in the cases where the wrong guy got convicted it the first place, you can now go out and find the right guy, because for every wrong guy convicted, it means some guilty guy is out there committing more crimes.
BRIAN CARLOW: And that's exactly right. And that really goes to all of our bills here again, which I would submit, really get to sort of the truthfulness and accuracy of the process.
And that is exactly the other piece. I mean, certainly, we are advocating for our clients, but every time there is a wrong person incarcerated, someone who in fact committed the crime is still out there.
So that's absolutely correct. And, you know, when we're in the courtroom, I'm fighting for the person sitting next to me. But now, in my new world, taking a step back, you can see it a little broader, and I think that's absolutely true.
REP. LAWLOR: Further questions? Representative Gonzalez, then Senator Kissel.
REP. GONZALEZ: If we pass this, this DNA bill, what do you think that is going to be the process with the ones that are already in jail? What's going to happen?
If they're going to do the DNA when they get arrested, so that means the ones that we have already there, and they are supposed to do the DNA when they're released, so what's going to happen?
BRIAN CARLOW: It's really two groups of folks. You would have folks who have been convicted of a crime, convicted of a felony, who are in corrections.
And I would think it would probably make the most sense to some language in saying, for any folks who have been convicted of a crime, who are now doing their sentence, the DOC is mandated to, within 30 days, 60 days, whatever the number is, to take those samples and get those over to the Department of Public Safety immediately.
REP. GONZALEZ: And those are going to be done by corrections.
BRIAN CARLOW: That would be done by the Department of Corrections, which does, as the process is right now. They're the ones taking them now. They're just, and I don't want to speak for the Department of Corrections.
Certainly, they have the ability to do that. My understanding is, anecdotally, from what I'm hearing from former clients, is that they tend to take it at the end.
And the idea is just don't allow that. Force them to take it up front to get that information in as early as possible.
REP. GONZALEZ: Okay. Thank you.
REP. LAWLOR: Senator Kissel?
SEN. KISSEL: Thank you very much. I want to thank Chairman Lawlor. He just answered my first question regarding the taking of the DNA.
And just to confirm because, clearly, apparently, it was your idea, but as part of the plea negotiations, and then if someone cops a plea, then the DNA can be taken at that time, as part and parcel of the whole transaction?
BRIAN CARLOW: Yeah. I'm really not sure that it needs to be part of the plea negotiation but at the point in time when an agreement is reached.
I mean, we've all known, part of our discussion with clients today is if you plead to this felony, and the judge asks them at the canvas, have you been told that as a result of this conviction, you're going to have to give a DNA sample?
So we have those discussions. But whatever the plea negotiation is, if ultimately it results in the enter of a plea to a felony, the idea would be that it's taken then.
I know there's some concerns with waiting until after they're sentenced. And I think they're sort of, to come up with an example, you get someone who was just given a 30-year sentence or 20-year sentence.
When they're walking in to corrections, they're probably, in some circumstances, not in the most cooperative of moods. I recognize that. We absolutely recognize that.
That's why we also discussed the possibility of having that sample be taken prior to the plea but before sentencing takes place.
UNIDENTIFIED SPEAKER: After the plea.
BRIAN CARLOW: I'm sorry, yes, thank you very much, after the plea but before sentencing takes place. Because the point in time where the conviction is final is upon sentencing.
So the way that that could happen is the sample is taken after the plea is entered, but before sentencing, and given to the Department of Public Safety and held until the judgment becomes final.
And then it is, well, now it's probably put in that line of 28,000, so as a practical matter, there's not going to be any delay at all.
SEN. KISSEL: Right. But, again, on the whole, the mechanics of it, because my recollection of the way it would work is there's a plea offer. You go back to your client. You talk about it. He or she says okay.
Then they say, all right, we'll do it this afternoon. And in that intermediate period of time, while the individual has not officially, they've said, yes, we'll take the plea, although they have no officially gone before the judge and said, yes, I'm guilty, and I've been, and the judge enters the sentence, that DNA sample could have been gotten in that little period running up to that.
BRIAN CARLOW: Yeah, but I don't think it needs to happen then. They walk into court. They're in front of the judge. They're given the entire canvas. They plead guilty.
Now they are going somewhere that day. They are either, A, going home or, B, going into corrections. At that point in time, before they leave the building that day, they give the swab.
SEN. KISSEL: But do you think they'll be as cooperative prior to that?
BRIAN CARLOW: Here's why they would be then. Because they're not sentenced yet. So the incentive for them to cooperate and give the sample, the judge ultimately at sentencing date does not have to accept the deal.
One of the factors the judge could consider in terms of that would be whether or not the person complied with the giving of the sample.
SEN. KISSEL: Well, I'm confused because a lot of, well, maybe I just wasn't dealing with the A and B felonies. Most of them were lesser charges. But usually, it's like boom, boom.
In other words, there's a plea agreement. You talk it over with your client. They've accepted it. Now you get in the line to get your case finally disposed of.
The state's attorney's office will be notifying the victims, see if they want to come in and chime in.
And at that point in time, the canvas and the agreed-upon sentence is all done at the same time. You're saying that's not how it works?
BRIAN CARLOW: Well, no, in some cases it does. But you still got a, would it require, okay, someone goes in and enters the plea. And would it require a 15-minute break between plea and sentencing? Sure.
But I don't really see a downside to that if the benefit is getting the samples into the data bank earlier.
So, yes, I agree with you. In court, every day, people go in. They enter the plea. They're given a sentence. The idea that you would then slow that down just a little bit, in terms of that day, I don't think it's a particularly bad thing.
I don't think it's a costly thing in terms of resources. It's you've now entered your plea, report to the department or CSSD, which is probation, who are in the building. Go give your swab.
You could have a little form that they bring back to court, that they've now submitted, and sentencing goes forward.
So it's not going to delay the process. It's not going to require other court dates. But it's at a point in time which is going to ensure that it's early post-conviction as opposed to later.
SEN. KISSEL: How about something where we sort of tell you it's got to be mandatory. These are the terms. And let you folks all figure out exactly the timing of it all. That will probably work?
BRIAN CARLOW: Only because--
SEN. KISSEL: It sort of seems like a little herky-jerky of go, plead, stop, 15 minutes, and, you know, during that 15 minutes, what happens? Someone goes and pleads. They don't get sentenced.
I mean, if I was the judge, it's like, I just saw this person 15 minutes ago. You're breaking how that day's business is going to be done.
And I think when you jam all that into very busy courthouses, I think it might get a little, it doesn't sound, theoretically, like a problem.
But I think that taking cases sequentially and just getting rid of them, here we are, and so do you see philosophically, as a public defender, a problem with if there's a meeting of the minds between defense counsel and the state's attorney's office, and then the swab is then taken prior to walking in the courtroom so that's just a done deal? I mean, are you against that?
BRIAN CARLOW: If that is, I mean, the reality is anyone could give a sample by consent anytime, so, yeah, as long as that's part of it, and the client is indicating that's what they're willing to do, and as long as the sample, which, as a practical matter wouldn't be, is not put into any system until the judgment becomes final, which, in your example, is going to be 15 minutes from now.
SEN. KISSEL: Right.
BRIAN CARLOW: I don't have a problem with that.
SEN. KISSEL: Okay. And I think, as a practical matter, the realities of the technology, we have many years to wait before some quick analysis is done, and it's like, ah-hah, that way.
I just think that practically, that's probably how it would roll forward. On the other matter, when you were talking about the cases, and I have to be honest, I don't have that kind of familiarity with the cases that you cited.
But you had stated you'd prefer the bill as presented to us. Clearly, there are some folks that have some concerns regarding that. And you had said that there's a common ground.
And I'm just wondering if there's, I don't want you to negotiate against yourselves, but is there language that would be the common denominator between you folks and the other folks such that on Monday, it's not real controversial? And maybe down the road, we can make it better. But I think your part--
KAREN GOODROW: [inaudible - microphone not on]
SEN. KISSEL: Now I'm talking about the double blind and all that stuff.
KAREN GOODROW: The double blind. And I see, oh, I thought I saw, yeah, Mr. Kane is actually back in the room. Now he can actually speak for himself, and I'll stop speaking for him, which I think makes him nervous.
As proposed in our bill, the language says, when practical, the police should, and I'm paraphrasing, but the police should utilize double blind procedure.
It's my understanding that Mr. Kane does not object to that. The issue is with regard to sequential. We stand by our belief that sequential is appropriate.
And again, the Illinois study, there are issues with that. But I think, as written, in fact, that gives the police actually more leeway than my understanding of other state statutes, where it does not include that language, when practical.
SEN. KISSEL: I guess my concern is a very practical one, given the fact that it's Thursday, and our JF deadline is Monday, and knowing how things have operated in the many years that I've served here is that if we get a talker on our hands on Monday, after a half hour, it's going to be yanked, and nothing is going to happen.
And if there's some sort of half a loaf is better than none, and while everybody may not be real happy with it, then my guess is that given short session, one day to go, take what you can. And that's what I would--
KAREN GOODROW: Sure. And maybe what we'll try to do is take a walk down the sidewalk again with Mr. Kane and, because we got a lot of information out of him on that occasion. So we'll try to do that.
SEN. KISSEL: And maybe the police chiefs too and whoever has to sort of sign off on this, only because, again, we do really good things when we take a step back and work incrementally.
When people sort of doggedly just want the whole enchilada, it just never really happens, and the years go by. I find that unfortunate. I'd rather do a little bit of good in a short session than nothing at all regarding that.
KAREN GOODROW: Agreed, thank you. I appreciate it.
REP. LAWLOR: Representative Walker?
REP. WALKER: Thank you. Good afternoon. You drew my attention when you said that we have approximately 28,000 backlogged in the DNA labs.
The reason why you drew my attention is because we don't have 28,000 people that are incarcerated in our correctional facilities.
So that means that some of those were not processed when they, you know, at the end of their conviction.
Once the swabbing was done and everything, that means that we've got people that are no longer, you know, anywhere around us, that we haven't even processed. Is that true?
BRIAN CARLOW: Well, and those are the numbers that I've heard from the lab. But let's assume those numbers are accurate. I have no reason to believe that they're not.
And you're correct, I think the number is about 20,000 incarcerated. But that number would also include folks who never went to prison and just had felony convictions.
REP. WALKER: Oh, okay. I forgot about that, yup.
BRIAN CARLOW: But sort of the bottom line is does that mean that there are several thousands of folks who are not incarcerated now whose samples are on a shelf and really ought to be processed? We would certainly agree with that.
But I think that's where that difference in numbers, the people that get probation for maybe a D felony, first time, C felony, maybe some drug offenses, who are convicted of felonies, had to give the samples, but are still on probation and never went into prison.
REP. WALKER: Well, then the next thought that I would have is that, okay, probably the 28,000, because it is when they're leaving or just before they're leaving or etc., and we're talking about an additional 20,000 that are incarcerated that we have to do catch up on for whatever reasons.
Economically, I'm looking at it from the dollars' perspective. Economically, is it feasible for the lab to actually process all of these in this time frame to warrant us to rush to change the way we're doing it now?
And too, the value of what we would be doing it for makes me concerned also. So I don't know if you have any thoughts on that.
BRIAN CARLOW: I do. And that's really exactly kind of the position we're coming from, that the expansion should be much more, a sort of expansion of what we've already got, to get them done, rather than expanding to a whole new group of folks.
My understanding in terms of dealing with that backlog, because the staff at the lab does not have the person power to be able to do that, that they are going to be receiving federal money to outsource those, not evidentiary samples, known samples, which are much easier to process, much easier to double check to make sure that ultimately, the genetic profile that's determined is an accurate one.
What I think their plan is, again, I don't want to speak for them, but what I've heard is they plan to outsource lots of those to catch up over the course of the next few years.
REP. WALKER: In that case, I know everybody says the accuracy is 100%, 100%. But if we outsource these, I guess I'd be also concerned about the accuracy of all of the results.
I don't know that, again, I don't know. This is not, I don't know that much about forensics and all that, but if we're outsourcing, I've seen outsourcing.
I mean, we've had people diagnosed with cancer when they've outsourced their tests, and then they've found out, oops, my bad, you know. It wasn't your swab. It was somebody else's. So I'm just a little concerned about that.
BRIAN CARLOW: Here's the way they do it, and I think that is much less of a concern of mine. The way that they do it is this. They will outsource them, and they will get back a genetic profile.
Whether they do it themselves or they outsource it, it comes back to the lab. Now there is a hit, either through the feds or through the state.
The next thing that they do, as I understand it, is go to the original biological sample, which is why they keep them, and that's the area where sort of all that genetic information is.
And by number, they check it again to make sure that the outsource, or to make sure that their original test matches up. Once they have that, they're still not done.
They then go to get a warrant to go to the suspect to get a sample, and that's the sample. The databank sample is not the one used in any subsequent prosecution.
It's the one that's pursuant to the warrant that's really three steps removed. So the check to the outsourcing, and why I don't have a major concern, A, because the areas of DNA where you hear there's questions or that aren't that clear are virtually never known sample.
They're virtually never the mouth swab or the blood taken. The samples that are much more difficult to interpret are the one that are at a crime scene that are degraded. There may not be very much.
Those are the ones that I think you have to be much more careful. And outsourcing of those would present incredible problems to me and have throughout the country.
That's where states have gotten into a lot of trouble, outsourcing the evidence. The knowns are much easier, and ultimately, as a lawyer, now I have a client who's had the original match databank.
They've checked it. They've gone and got a warrant. Well, I always have the ability to go swab my client's mouth, send it to my own lab, and check to see what his profile is. So that's one piece that's much less of a concern.
REP. WALKER: How much did it cost you to get yours done?
BRIAN CARLOW: Mine? Or--
REP. WALKER: No, not yours, your clients'. Are you in the database?
BRIAN CARLOW: What am I supposed to say? Senator, I don't recall? Is that--
REP. WALKER: Well, thanks for the promotion, but, yeah.
BRIAN CARLOW: It's about $1,500 for us to go get someone to test a sample, that we can send a sample up for them to go give us a genetic profile. Some labs will do it less. I think we can get some places that's probably as little as $500.
REP. WALKER: $500? I'm going to go cross check that with DOC's cost to make sure they're not charging us too much. Thank you.
REP. LAWLOR: Well, just to clarify, when we sent out these knowns to be catalogued, it doesn't cost $500 per sample, I don't believe.
BRIAN CARLOW: Oh, no, I'm talking about, oh, no, I have no idea [inaudible] it's when I, as a lawyer, call up one of these labs and say, hi, I'm Brian Carlow from Connecticut, and I'd like you to run this sample for me.
And they say, well, how many do you have? I got one. They say, okay. So that's probably the retail-plus price. I would be willing to bet it is much, much less expensive for them to do it in the group that they're talking about putting out to.
REP. LAWLOR: I think, if I recall, it's like in the $20 or $30 range, maybe not even that high. But just to underscore one thing that maybe was discussed before you came in, Representative Walker.
The feds do reimburse us for the cost of having this backlog catalog, that's for sure. And I believe, it's not that they're going to contract it out. I think they've already done it.
And much of it might have already been completed in the last six months or so. So I think that's well underway. And one concern is the federal money may disappear in the relatively near future.
So they're trying to get as much done as possible right now. That's the current situation, as I understand it, so just to be clear.
Oh, and on a couple other statistics, since they came up, last time we checked, I think it's somewhere between 35,000 and 40,000 felony convictions per year in the state, the vast majority of whom are not going to prison.
So I think you can imagine how quickly that piles up. So I just recall those statistics. But in any event, that's the scale of it. Representative Gonzalez, I think, was next.
REP. GONZALEZ: You already answered half of my question. But the other one is can anybody tamper or make a mistake with those results?
BRIAN CARLOW: Well, I mean, certainly, if anyone is inclined to do that, they certainly can, although, you know, sort of the, you're talking about the outsourcing?
REP. GONZALEZ: Right.
BRIAN CARLOW: I think their probably incentive would be not to do that because they don't have a vested interest in what happens in the criminal justice system, I wouldn't think, in the State of Connecticut.
Their vested interest is continuing to get the contracts. So I think the last thing that they would want to do is have one of their samples come back which turned out to be wrong.
And then I think that would probably be a, if they can't process a known sample, I think the folks in our lab, with the time I've spent with them, would be very concerned about letting them do anything else.
So I can't imagine where there would be a real incentive. And these are all out-of-state places. I think their vested interest is getting more contracts.
REP. GONZALEZ: Thank you.
REP. LAWLOR: And I just want to offer, because I remember having extensive discussions with the State Police how they actually do this, I believe even the samples that are sent out to private contractors, the State Police routinely, 1 out of 100 or something like that, double check what the contractors are doing just to keep quality control.
So I think they go to great extents even for the stuff they've contracted out, even before someone is identified as a suspect, just to make sure the results they're getting are accurate.
So I do think they're doing a pretty effective job in that department. Any other questions? If not, thanks to both of you, and thanks again.
People may have forgotten, but you were the two involved in the exoneration of Mr. Tillman, and we continue to be grateful to you for that work. And I'm sure he is as well.
KAREN GOODROW: Our honor to do it, thank you.
REP. LAWLOR: Next is Jane Murphy. Is Jane still here? LaResse Harvey, then? And Colleen Murphy will be next. Oh, I'm sorry, Marty, I forgot about that. Go ahead. I forgot the Majority Leader of the State Senate, that's the other part of the Legislature, is here.
LARESSE HARVEY: It is afternoon, so good afternoon, Judiciary Committee, Leadership, and Members. My name is LaResse Harvey, and I am the Policy Director at A Better Way Foundation.
We use research, public education, advocacy, and organizing in order to create progressive drug policy and criminal justice reform in Connecticut.
A Better Way Foundation is a statewide advocacy organization with more than 3,000 members throughout the State of Connecticut.
A Better Way Foundation organizes a coalition of more than 50 groups and 4,000 supporters across the state.
Thank you for the opportunity to address the Judiciary Committee and its Distinguished Members.
Today, I'm here to speak in opposition of Raised Senate Bill 692 and House Bill 5034. Our forefathers did not agree with Britain's term of guilty until proven innocent.
They believed it was the state's responsibility to prove someone's guilt of a crime. The basic presumption of innocence until proven guilty is an American citizen's right.
DNA taken from people who are arrested but not yet convicted or proven guilty is in clear violation of the Fourth Amendment right.
The Fourth Amendment states, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall be issued but upon probable cause.
The amendment guards against unreasonable searches and seizures. It specifies that judicially sanctioned search and arrest warrants must be supported by probable cause.
This bill will allow the search of and collection of a person's most intimate part of their being, their DNA. [Gap in testimony. Changing from Tape 2B to Tape 3A.]
--DNA is really found at a crime scene, and testing is not foolproof. Mistakes have been made in the collection, breakdown, and reporting process.
Though DNA has been used to rectify thousands of wrongful convictions, the collection of DNA does nothing to protect a person's charge of a crime but not yet convicted of that crime.
As law enforcement investigate cases, they may arrest many people that ultimately are not convicted of a crime, and these laws will force people only suspected of doing something that in the end may be found to be not connected to a crime they are accused of.
Recent Connecticut history shows that this Committee has not only led the State of Connecticut but served as an example to other states' criminal justice reform.
The Distinguished Leadership and Members of this Committee have worked to ensure that the unintended consequences suffered by Connecticut residents are stemmed and eliminated.
The efforts to reform Connecticut's criminal justice system are not all hype. We know we have a flawed criminal justice system, and to give that system more power over a person who has yet been convicted of a crime is not the correct direction voters, this Committee, and the state should go in.
DNA is not like a fingerprint. DNA contains the most private information about a person. DNA determines our genetic code, what diseases we are susceptible to, and our family history.
Police, forensics, scientist services, and researchers using the database will have access to people's DNA without their consent.
Fingerprints is a primary method of identifying a person, outperforms DNA and all other human identification systems to identify more murderers, rapists, and other serious offenders.
Fingerprints solve ten times more unknown suspect cases than DNA in most jurisdictions. Fingerprints remain the most commonly used forensic evidence worldwide.
A Better Way Foundation does not agree with Public Act 04-188, AN ACT CONCERNING DNA TESTING, passed and signed in 2004, but it does state any person that has been convicted of a crime, a criminal offense against a victim who was a minor, a nonviolent sexual offense, or a sexually violent offense, or a felony and has been sentenced on the convictions shall, prior to release from custody, submit to the taking of blood or other biological sample for DNA analysis to determine identification, characteristics specific to that person, including those on probation and parole.
Public Act 04-188 appears to accomplish what advocates of this legislation here today are trying to accomplish without violating a person's Fourth Amendment rights.
There is no reason for a new law that ultimately will damage and abuse innocent citizens in this state. Thank you.
REP. LAWLOR: Thank you very much for your testimony today. I just want to, just so the Ambassador of the United Kingdom doesn't get angry at us, just to be clear that one of the good things we got from the British was the presumption of innocence.
It was the continental countries, where there's a criminal code without the common law. They have the presumption of guilt oftentimes.
But the British system, the English system, is that you were presumed innocent. So they'll get angry at us, you know.
Speaking as an Irishman, right, Marty, we can say that you got to watch out for those English when they get angry at you. In any event, are there questions? Senator Kissel.
SEN. KISSEL: Thank you very much, Chairman Lawlor. Hi, great to see you. A Better Way Foundation, regarding the proposal that had been bandied about recently that, it sounds to me you're not real keen about the DNA. But if it was upon conviction, is that something your organization could live with?
LARESSE HARVEY: Well, it's currently the law now, and if there was some talk to, or you wanted to meet with some of our members, then we could have a discussion.
But it's up to our community groups that we work with and the organizations that we work with. So you'd have to sit and talk with us as a group to get that response.
SEN. KISSEL: Okay. Well, if it does leave this Committee, which I couldn't predict right now, but if something does leave the Committee, and, granted, it's the law that it's upon conviction, but as a practical matter, it also states that, or it's not occurring until people are actually leaving the Department of Corrections, and it's at the tail end.
And we're trying to get it at the front end. But still, the trip wire would be the conviction.
LARESSE HARVEY: Well, under the current law, they could take the DNA at any time. They just choose to do it at the end. When you're a ward of the state, you're a ward of the state.
SEN. KISSEL: Right. So I'm saying that if we made a statute that said they had to take it at the front end upon conviction, you still would have to talk to your members?
LARESSE HARVEY: Correct.
SEN. KISSEL: Okay. Thank you.
REP. LAWLOR: If not, thanks again. Senator Looney, my apologies, and then we'll finally get to Colleen Murphy.
SEN. LOONEY: Good afternoon, Chairman Lawlor and Members of the Judiciary Committee. I do note here that Senator Kissel seems to be outnumbered by ten to one right now on the Committee.
And for that purpose, I just want to note that I was a House Member for 12 years before moving to the Chamber with a more comfortable chair. So I just wanted to put that on the record first.
I'm Martin Looney, Senate Majority Leader, representing New Haven and Hamden. And I'm here to express my support for several bills on today's agenda, first of which is Senate Bill 608, AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
Secondly, House Bill 5832, AN ACT CONCERNING EYEWITNESS IDENTIFICATION, Senate Bill 694, AN ACT CONCERNING ERASURE OF CRIMINAL RECORDS, and Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION.
First, I wanted to speak about Senate Bill 608, AN ACT CONCERNING THE VIDEOTAPING OF INTERROGATIONS.
I've long been an advocate for the taping of custodial confessions and believe that this procedure protects both the police and the suspects in the interrogation process, while historically, we know that law enforcement officers have viewed required taping of confessions with some skepticism and trepidation.
Once they begin the process, many of them become advocates for it. And if you'd like more information on the taping of confessions and the positive response from law enforcement, I'd be pleased to share with you a report from the Northwestern University School of Law that was entitled Police Experiences with Recording Custodial Interrogation.
Taping of confessions would ensure greater accountability in our judicial system. Secondly, House Bill 5832, AN ACT CONCERNING EYEWITNESS IDENTIFICATION, would represent another improvement in the accuracy of our system by addressing the notorious conundrum posed by eyewitness identification.
Everyone involved with the criminal justice system is aware that eyewitness identification can be a double-edged sword. It is prone to stunning inaccuracy.
In fact, even sometimes victim testimony, as was the unfortunate case in the case with Mr. Tillman, it is prone often to stunning inaccuracy but is at the same time perhaps the most compelling testimony in a courtroom.
Therefore, we have an obligation to ensure that this testimony is as accurate as possible. And House Bill 5832 would reduce the probability of error or of undue influence by law enforcement but, among other things, requiring that the lineup or photographs be shown in sequential order rather than simultaneously and that when possible, the person conducting the identification procedure should not know who in the lineup or photographs is the suspected perpetrator and that the fillers in the lineup generally fit the description of the suspected perpetrator.
This proposal would increase confidence in the investigative techniques used by our criminal justice system.
Thirdly, Senate Bill 694, AN ACT CONCERNING ERASURE OF CRIMINAL RECORDS, would resolve inequity in our current system.
In general, whenever a charge in a criminal case is nolled, as we know, after 13 months, the police and court records, as well as the records of the state's attorney, are erased. That nolle is converted into a dismissal.
However, if the nolle charges contained in an information with other charges that are not nolled, the record is not erased, and this diminishes the value of the nolle.
Senate Bill 694 would require that a charge deemed nolled be erased after 12 months regardless of the disposition of other charges on the same information.
The current situation is unfair to defendants. There is not a logical distinction between a nolled charge, which is on an information alone, and one that is on an information with other charges.
The current system may create extra work for the court system as in order to protect their clients.
Defense attorneys may begin requesting that nolled charges be placed on a separate information from those with the different dispositions.
So I believe that Senate Bill 694 would create a sensible and practical change that is fair to defendants and would enhance overall deficiency in our system.
Also, Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION, would fix a technical problem in Public Act 07-243, passed last year, that dealt with the release, sale, and accuracy of conviction information, among other things.
One part of this act addressed the fact that when the Judicial Branch sells conviction information to private entities, who are performing background checks for employers, generally for a fee, the records are not updated when a pardon has been granted or charges have been nolled.
After passage, it became apparent that a technical problem in the act would make compliance by consumer reporting agencies difficult. And Senate Bill 704 would rectify this situation.
This measure is extraordinarily important because producing background checks with outdated information can have a devastating consequence for residents who have straightened out their lives and are making every attempt to be productive citizens of our state.
The language of this bill, I believe, reflects an agreement among all of the parties involved. And I believe it is a solution which will have a positive impact, both for individuals and for the society in general.
Finally, it recently came to my attention that while a board of pardons and paroles is required to provide reasons for denying a petitioner's request for an absolute or full pardon, the statutes do not require the same when a petitioner who applied for an absolute pardon is granted instead a provisional pardon.
The board could choose to provide these petitioners with the reasons for the denial, but it is does not.
This is really counter to common sense than a petitioner for a full pardon, who is granted a provisional pardon, should be supplied with the reasons for this position so that that petitioner might make an educated and informed choice as to whether to apply for an absolute pardon at a later time or what the particular deficiency was in his application that resulted in only a provisional pardon.
So I would urge that you include language that will accomplish this in one of these bills that's passed by the Judiciary Committee in this session.
So thank you for raising all of these extraordinarily important bills, and look forward to working with you on all of them in coming weeks. Thank you, Mr. Chairman.
REP. LAWLOR: Thank you, Senator. Are there questions? If not, thank you very much.
SEN. LOONEY: Thanks very much.
REP. LAWLOR: Next is Colleen Murphy. And Ms. Murphy will be followed by Raphael Podolsky and then Tim Phelan.
COLLEEN MURPHY: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. I'm Colleen Murphy, and I'm the Executive Director and General Counsel of the Connecticut FOI Commission.
I'm here today to talk to you about one bill and one section of that bill because it impacts the Freedom of Information Act.
And the bill is House Bill 5935, AN ACT CONCERNING THE DISCLOSURE OF POLICE AND OTHER PUBLIC RECORDS AND THE TOLLING OF TIME PERIODS FOR BRINGING A CIVIL ACTION WHILE POLICE INVESTIGATIONS ARE PENDING.
The FOIC takes no position on Section 2, which is the section that deals with the tolling provisions. With respect to Section 1 however, the Commission has some concerns.
And we were very interested to see if we could ascertain what the purpose of this introduction of this bill was, but so far, I haven't gleaned that.
When the gentleman from the Trial Lawyers Association spoke, I believe he was just directing his comments to Section 2.
So here's what we have to say about Section 1, that there's no need for the change proposal in this section.
Current law contained in 1-213(b)1 provides that nothing in the FOI Act shall be deemed in any manner to limit the rights of litigants under the laws of discovery of this state.
The proposal seeks to remove and replace one word from this section, the word limit, and replace it with the word affect.
The stated purpose of this amendment is to provide that the FOI Act does not affect the rights of litigants in criminal or civil proceedings.
The Commission doesn't know what is meant by that statement of purposes since the law concerning FOI requests and its relationship to discovery request is crystal clear at this point in time.
The current language that I reference in 1-213(b)1 has been interpreted in a positive way that ensures that FOI requests will not be denied on account of the fact that a person may be involved, at present or some time in the future, in litigation.
I'd like to just direct the Committee's attention to a 2000 Supreme Court decision entitled Chief of Police Hartford Police Department v. FOIC, and I referenced this more in my written testimony to you at length.
In that case, Justice Borden made clear that the provisions of the FOI Act do not affect or limit discovery rights, and discovery rights do not affect or limit the provisions of the FOI Act.
Thus, discovery can't be used as a mechanism to stop FOI requests. Each request must be considered under the applicable disclosure and exemption provisions set forth in the act.
And conversely, the act cannot be used as a shield or as a basis to take records out of the discovery process.
It should be noted that if the Legislature changes the language with that one word change, it will revert to language that previously existed in the statute but was changed from affect back then to limit in 1994, following another Supreme Court decision.
That case was Gifford v. FOI Commission, which, at the time, caused quite a stir. And it was decided on other grounds, but referenced to the discovery provision contained in the FOI Act in dictum and indicated that public access to arrest records, the subject of that case, during a pending prosecution would affect the rights of litigants and was not permissible.
Following Gifford, the Legislature inserted the word limit in the place of affect. Justice Borden later stated in Chief of Police that such dictum was ill advised and that the purpose of the language in the FOI Act concerning discovery was to ensure that the two processes are independent of one another.
One is guided by the rules under the FOI Act, and one is guided by court rules. So as indicated, we are not clear what the intent of the bill is.
If it's just to clarify, we think there's no need. If however, the intent is to reverse the current state of the law, the Commission would like to voice an even louder object, for doing so would prohibit people from exercising their rights under the FOI Act if they're involved in current or possible future litigation.
This would truly be a giant step backward and would, for the first time, make someone's motives or status for requesting public records inappropriate inquiry and basis for denial.
For these reasons, the FOIC urges rejection of Section 1 of the bill. And I'm happy to answer any questions.
REP. LAWLOR: Thank you. Are there any questions? If not, thanks very much. Next is Raphael Podolsky. Is Tim Phelan still here? There you are, okay. You're next and then Commissioner Danaher.
RAPHAEL PODOLSKY: Thank you, Mr. Chairman. My name is Raphael Podolsky. I'm with the Legal Assistance Resource Center, and I'm here to speak on House Bill 5920.
The bill addresses a problem that persists and will not go away. I know you've heard from a representative of a property owner group. And it's a problem that needs to be fixed.
This bill proposes one way of doing it, which I think is probably the most practical way, although there may be other ways to address it as well.
The problem is when the Judicial Branch switched to a centralized small claims system that was designed to make maximum use of computer technology, I think it greatly underestimated the number of people it would take in order to do all the work involved.
And the result has been a very massive backup in the small claims system. It appears that without a significant increase in staff, it's really not fixable from Judicial.
It's something you should explore with Judicial, but I think that's the case. What this bill proposes to do is deal with housing separately. And there's reasons for doing that that I think are sensible reasons.
The housing cases make up about 3.5% of all the small claims cases, but they have their own very different profile. There's a much lower default rate in housing. People actually show up and appear and defend.
The housing cases, by the way, are things like security deposits and property damage and bad ground.
There are a lot more pro se litigants. It has much of the feel of kind of a People's Court rather than the rest of small claims, which is essentially a Collection Court with a very, very high default rate. Very few people respond.
In addition, in landlord/tenant matters, you cannot decide cases on the [inaudible] you always have to have a hearing, even if it's a default case.
And there are historic links to the Housing Court. The small claims, until two years ago, housing small claims was part of the Housing Court.
So there's legitimate reason why you might want to take the housing cases in small claims and treat them in a different way than you treat all the other small claims cases.
It seems to me there's sort of two possibilities here, and I would hope the Committee would make sure that at least one of these happens.
The one that's in the bill is to move the cases back to the Housing Court. And the thing you should just make sure happens is make sure that there's adequate, if you do this, that there's adequate staff in the Housing Court to take the return of the cases.
Another possible way of doing it would be to actually create sort of a separated-out, designated unit within the centralized small claims that is going to pull all the housing cases out as soon as they get them, put them on an entirely different timing track, and move them very, very quickly.
I'm not sure if that's practical within Judicial, but it's another possible way of doing it.
But I think it's really important that something be done so that the situation changes because it becomes very, very discouraging. I'm actually Chairperson of the Citizens Advisory Council for Housing Matters, which has received many complaints, on both the landlord and the tenant side, about sort of the major, major slowdown that has occurred.
So it's something that's very much worth fixing or getting Judicial to fix. Thank you very much.
REP. LAWLOR: Thank you very much. Are there questions? If not, thanks. Next is Tim Phelan. And Tim will be followed by Commissioner Danaher and then Steve Saloom and Kevin Hennessy.
TIM PHELAN: Thank you, Chairman Lawlor, other Members of the Judiciary Committee. My name is Tim Phelan. I'm the President of the Connecticut Retail Merchants Association.
As many of you know, CRMA is a statewide trade association that represents some of the world's largest retailers and many of the states' mainstream merchants.
Also included among our members are various companies that provide background screening reports to employers.
I'm here today to testify in favor of Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION.
We are very pleased and appreciate very much this Committee's willingness to raise this bill for drafting and now holding a public hearing.
We are also very pleased to report that we worked very closely with the various parties involved in this issue to see that all our goals are met.
In particular, we'd like to thank Dina Berlyn from Senator Looney's office and various members of the Judicial Department that worked with us and helped us craft this legislation, or this compromise.
The bill before you today is the result of those meetings and a very healthy give and take between the private sector, advocacy groups, and the Judicial Department to clarify the processes that take place so that we can accomplish what the sponsor of the original bill, Senator Looney, intended.
From our perspective, all we wish to accomplish on this issue is to be able to provide accurate and timely reports to many employers who rely on background screening while reviewing applications for employment.
We think this bill before you accomplishes that, and we urge your continued support. Thank you very much.
REP. LAWLOR: Thank you, Tim. Are there questions? If not, thanks. Next is Commissioner Danaher. And Commissioner will be followed by Steve Saloom, Kevin Hennessy, and then the last public official is Representative Williams, who is going to testify together with Maureen Fonti.
COMM. JOHN DANAHER: Good afternoon, Representative Lawlor, Members of the Judiciary Committee. My name is John Danaher. I'm Commissioner of Department of Public Safety.
I come before you today to testify regarding 3 bills, 1, House Bill 5034, AN ACT CONCERNING DNA COLLECTION FROM CERTAIN ARRESTEES, Senate Bill 35, the registration of sexual offenders, and House Bill 5033, AN ACT PROHIBITING SEXUAL OFFENDER NAME CHANGES.
With regard to the first bill, AN ACT CONCERNING DNA COLLECTION FROM CERTAIN ARRESTEES, House Bill 5034, this is a bill supported by the Department of Public Safety.
We have found that there has been a substantial increase in hits on the basis of DNA evidence in recent years, as recently as the Year 2006, where we would have two to three databank matches every week.
In 2007, we would have nearly one hit per day. We expect that to continue to increase. What we are particularly interested in in Section 1 of the proposed bill is that it changes the existing procedure for DNA samples to be collected from felons in the custody of the Commissioner of Corrections.
Right now, I know the Committee has heard today, the sample is taken prior to release. This bill would require that the sample be taken once the person is in the custody of the Commissioner of Corrections.
This will allow for the identification matches at a much earlier date and for the commencement of criminal proceedings while the person is in custody.
Similarly, Section 1(b) provides an important change, in that those individuals who are not sentenced to a term of confinement would have to give their sample at the time of sentencing, rather than at some future date.
Equally important would be the proposed increase in penalty for an individual who refuses to submit to a sample. That would increase from an A misdemeanor to a D felony.
We currently have a 3,000-individual backlog of those who were not sentenced to imprisonment, presumably ordered at the time of sentencing to give a sample, said, yes, Judge, I'll do that, and received a sentence of time served or did not receive a sentence of probation, left the courthouse, and never provided the sample.
Those individuals may be dead, may be out of state. We don't know where they are. And it is, with the work that is before law enforcement now, we don't have available personnel to track down these 3,000 individuals.
This change in the legislation will eliminate any increase of that backlog, and then we will be able to address it as best we can going forward.
Those are the reasons that the Department supports this legislation. I don't know if you'd like me to proceed to the other bills or if you'd like to address this one right now.
REP. LAWLOR: Why don't you go through all of them, and then we'll take questions.
COMM. JOHN DANAHER: Okay. The bill involving the registration of sexual offenders, Senate Bill 35, provides a number of important changes. It brings us into compliance of the Adam Walsh Act, which is a federal act, and it's necessary for us to comply with that act by July of 2009 in order to ensure that there is no loss of federal funding as a result.
But it's also, in addition to the need to maintain necessary funding, it performs a variety of important functions.
There are holes in our system right now that particularly plague us involving registrants who move from state to state.
Individuals are required to register when they come into Connecticut, but the don't do that, in numbers that are troubling.
What this would require is that people who are on a sex offender registry from another state notify us 48 hours before they enter our state.
This will permit us to capture those individuals and bring them into the system. The bill also changes the term for which an individual is registered, and it's based upon the nature of the offense that caused the individual to be registered in the first place.
They would be registered for graded periods of 15 years, 25 years, and life, depending upon the nature of the offense that caused them to be in the registry.
Our system also does not currently give us the ability to maintain control over those individuals who are transient, or who claim to be transient, or homeless.
A sexual offender who does not claim to have a permanent residence, or claims that he doesn't, is not someone whose movements we can monitor effectively right now. This is a growing population within the group of registrants.
Right now, we're trying to track over 100 registrants who say they are homeless. There is no place, obviously, to mail the 90-day address verification letter we would normally sent out.
Nor does a registrant have any obligation to maintain any form of ongoing communication with us.
The proposed legislation would require transients to advise the Department of Public Safety that they are transient within three days of assuming that status.
They would then be required to report to a location designated by our department at a period of no less than 10 or more than 15 days that they report that they are transient.
And they would have to continue to report until they are no longer transient. We also, through this legislation, would capture those individuals, as I said, who do come into the state, who should register but don't.
Sometimes, individuals come into the state. They won't sign a lease. They collect wages under the table. They take steps to avoid coming into the system.
And its those individuals we're particular concerned about bringing into the system. We also, through this bill, would be able to assemble a sex offender registry policy advisory committee.
This is Section 15 of the bill. This would bring together all the agencies that play roles in the management and registration and supervision of sexual offenders.
I think this is a particularly desirable provision of the bill. It creates an entity that will be able to pick up any other holes that might exist in our system.
It would make recommendations of how to address them, how to fix them. It would be an available resource that would permit the state guidance on public policy issues relating to the registration of sex offenders.
This bill also criminalizes, in Section 8, aiding a registered sex offender in violating the registry requirements.
We know of one instance in which a family member would receive the verification letters from the sex offender registry unit and would FedEx them to the person who was supposed to report, who was living many states away, would FedEx the documentation back, and it would come back to Public Safety.
And so we thought we knew where the individual was. But in fact, he was somewhere else. So there would have to be some teeth to prevent family members from helping people to go under the radar.
Another provision of the bill that we believe is important and would address a deficiency in the current system is one that would permit local police departments to establish policies and procedures to verify the accuracy of information provided by registrants.
Our department would support the local agencies with a software application that would give the local agencies direct access to the registry database, and that would allow them to view the current list of registrants in their jurisdiction, identify who's in violation of the registry requirements, and allow the departments to receive the investigative reports that we have, track the progress of arrest warrant applications, and aid in tracking transients.
In summary, and I have submitted written testimony that goes on in more detail than I have provided, but I do want to emphasize the summary portion of that written testimony, which makes clear that our Department of Public Safety Sex Offender Registry is made up of individuals who work very hard and take this job very seriously.
They look for shortcomings in the system, and they propose ways to address them, and they do this constantly.
In 2007, this unit completed 356 investigative reports that were made available to local law enforcement.
That saved local officers hundreds and hundreds of hours that they would have spent determining whether violations had taken place and documenting them.
The result of this effort, and this is an effort that began in 2003, is reflected in the growth of the number of arrests and convictions since the program was started.
And this is not in my testimony, but I would just give you this, if I may, briefly. In 2003, we generated 55 reports to help local law enforcement find violators.
The next year was 110 reports, the year after that 196 reports, and in 2006, 258 reports. And we're still compiling the data for 2007, but we expect that the number will be higher still.
So this, we think, is a major step forward in helping us monitor effectively sex offenders who are in our registry.
Finally, House Bill 5033 is a bill that would prohibit a sex offender from obtaining a name change. Right now, we're not aware of anything in the law that would prevent a sex offender from doing so.
I can think of no good purpose for a sex offender to be permitted to make a name change, except that the individual has a wish to remain anonymous or to avoid being associated with the Sex Offender Registry, and that is not a positive purpose.
And so we stand in support of House Bill 5033. If you have any questions, I'd be happy to answer them. And I have individuals with me who will answer those questions that I can't answer.
REP. LAWLOR: Thanks, Commissioner. And my understanding is the Governor's proposal to require a marking on driver's licenses, which I think is part of this bill, has been withdrawn, right? Is that correct?
COMM. JOHN DANAHER: I believe that's correct, that is.
REP. LAWLOR: So the Governor is no longer asking us to do that?
COMM. JOHN DANAHER: Not at this time.
REP. LAWLOR: Do you have any idea why that is?
COMM. JOHN DANAHER: I do not.
REP. LAWLOR: Okay. In the bill itself, people point out a couple of technical things to me, so I just thought I'd bounce them off of you.
The provision that requires people who are convicted sex offenders coming into the state, it requires them to give us notice 48 hours prior to their entry into the state. This is a legal question, by the way.
Someone has raised the question of can a Connecticut law punish somebody for something they did in another state? And I don't think that's the case.
And I'm wondering, since the crime is committed 48 hours prior to the entry, technically, can we have a criminal statute that punishes you for doing that if it didn't happen in Connecticut?
I mean, you could say, if you enter, things they do or fail to do after they enter, obviously, is within the State of Connecticut.
I suppose there could be a federal law that governs this. But I just wonder, if we had such a law, how would we enforce it?
COMM. JOHN DANAHER: I would argue that it's a continuing offense and that the offense is consummated when the individual steps over the Connecticut line without having completed the necessary act prior to doing so.
And individual knowing that they have to provide advance registration and not doing so and enters the state anyway, as I said, I would argue that it's a continuing offense.
And that individual should be on notice, shouldn't be coming into Connecticut. But once they've crossed the state line, they have completed the offense.
They only began it. In other words, the offense is not completed when they don't notify us before they come here. They haven't done anything.
They've living in Rhode Island, and they're planning, and it's Wednesday, and they're planning to come to Connecticut on Saturday, they haven't committed an offense by not notifying us.
The offense is committed when they cross the state line without having given a notification. That's the last piece of the crime. The crime is not committed elsewhere.
It's committed when all the elements are concluded. And the last one is concluded when they cross that state line without having given prior notification.
REP. LAWLOR: Right. And I think it would be a safe bet if it weren't the reference to the 48 hours.
I think if you said that if anyone enters the state without having notified, if you didn't mention the 48 hours, I think you could totally avoid that particular problem.
I think it's, because it sounds like the actual crime is committed the minute you, you know, it's that 48-hour period, I think.
It's an interesting argument. By the way, do any other states have such a provision, as far as you know?
SAM IZZARELLI: Mississippi has a requirement that prior to entering a county, that you make notification to them prior to coming into the county.
And it is a piece of model legislation that we talk with with registry heads across the country.
Currently, the requirements for all the 49 states, with exception of Mississippi, talk about allowing kind of a grace period for registrants.
And where that becomes a problem is when we find an individual that we've been trying to track for over a year, he's an absconder from Massachusetts that's living in the State of Connecticut, and when we catch up with him, he says, I've only been here for a couple of days.
As the Commissioner mentioned, these are very difficult cases to be able to prove because these are not individuals that are paying taxes, collecting wages, signing leases. They're living under the radar.
And as a result of that, what we want to send out is a clear message that if you come into our state, and you don't let us know ahead of time that you're coming into the state as a registered sex offender, that we have an issue with that.
And it's not a part of public policy that we haven't gone down the road with before. We do it already. We say to operators of tractor trailers that drive hazardous loads, you'd better have a permit before you enter the State of Connecticut to drive along.
And I think that if you look at the number of people that are victimized by sexual offenders, they're far greater than the number of people that are offended by hazardous loads on trucks in the State of Connecticut.
So I think it's something that we should come out as a lead in the country to say that this is an important issue to us.
If you don't do it, if you don't fulfill that requirement, if you're a carnival worker and want to come into this state, let us know that you're coming in ahead of time.
We will then, the 48 hours comes down to notifying local police agencies because they actually bear the burden of that responsibility of being able to try to track that individual and make decisions what they need to do.
REP. LAWLOR: And I don't think it's a policy argument. It's a technical legal thing. It's the 48 hours.
And I gather from what you said, you're talking about entering different counties in Mississippi or whatever, which we could certainly do that, that you can't enter a municipality, because theoretically, that would be committed within the State of Connecticut.
I think you could have a proposal that said you may not enter the State of Connecticut without having first notified. I think it's the 48 hours that gets you the problem because it seems to me that--
SAM IZZARELLI: And the crime is not actually that 48 hours before. It's the fact that if we locate you here in the State of Connecticut and you haven't given us prior notification--
REP. LAWLOR: I know, but you don't understand my, the problem is a constitutional problem. Whether the state law can punish somebody for something that arguably was done in another state, which is the failure to notify 48 hours ahead of time.
COMM. JOHN DANAHER: Well, I guess I would revert back to the, the offense [inaudible] has multiple elements.
One is that there be notification prior to 48 hours and, two, that there be an entry into the State of Connecticut.
If I could, I don't know if it's a good analogy, but if a person is planning to engage in mail fraud and they write up a fraudulent document, it's not a crime--
REP. LAWLOR: But there's no state crime for mail fraud.
COMM. JOHN DANAHER: It's not a crime until they actually mail the document. They have to do part two of the offense. In this case, there are two parts to the offense.
One is to plan to come into the State of Connecticut, to not give the notification 48 hours before.
But under my prior example, if the person is going to come here from Rhode Island and changes their mind and doesn't come here, they haven't committed any offense.
The offense only happens when, A, they don't give the notification two days in advance, and then B has to happen. They actually have to come here.
So once they step over the line, they're within our jurisdiction, and they have only then completed the offense.
That's when they've committed the crime. There's no crime until then. They actually have to come here. And so I don't, I guess I don't, it would appear to me that they have not committed a crime in another state.
They have taken a step toward a crime in another state, but the prosecutable offense occurs the minute they step over the line.
REP. LAWLOR: Okay. And how would it deal with someone who's like living in New York, and they want to see the Yankees play in Boston.
They're driving through Connecticut. Would that be a crime to drive through Connecticut without the notification?
COMM. JOHN DANAHER: I think under the statute, it would not. It contemplates people who work here, who are students here, or who reside here, as I recall.
SAM IZZARELLI: Actually, throughout the statute, we've used that as a consistent mark. We believe that if you start to provide exceptions for the individuals, that they're going to take advantage with those situations.
If we said, for instance, that under an emergency situation, if you had to come into Connecticut, we'd make an exception carved out for that, we'd like to think that the courts are the conscious of the state, and they would understand situations that would be applicable to an emergency, that they would choose not to prosecute--
REP. LAWLOR: But, you know, there's this constitutional principle called void for vagueness.
And if it's not clear what you're supposed to do to conform your conduct with the law, then the whole statute is going to get tossed out. And that's my concern now.
So just so I can understand it, if in fact you're driving through the state, transiting the state, and you're stopped at the McDonald's wherever, in Stamford, and you're apprehended, would you be guilty under this language or not?
SAM IZZARELLI: I believe so, yeah.
REP. LAWLOR: Okay. So even people just driving through the state would have to notify us that they're coming 48 hours ahead of time.
SAM IZZARELLI: I would say not just people. These are sex offenders. And there's significant risk that they potentially place on people of the State of Connecticut. And that's what this law is about.
It's letting us know ahead of time that they're here so that we can then let police departments and citizens know that they're here.
REP. LAWLOR: Is there any state that has a law like that so far, that sex offenders driving through the state have to notify everybody for transiting, just out of curiosity?
COMM. JOHN DANAHER: One second, please. Not that we're aware of.
REP. LAWLOR: Now on the homeless thing, that's what we're talking about [inaudible] I guess maybe not so surprisingly, to find out in the last six months or so, an awful lot of people who are registered sex offenders are actually living in homeless shelters, especially after their being released from prison.
And so I'm trying to understand in the definition section here, the definition of transient.
And so would someone who is living in a homeless shelter be a transient under this definition?
SAM IZZARELLI: No, not necessarily. Where we can identify them by a fixed address, that would not constitute necessarily that they are in fact transient.
We supervise, currently, about 100 individuals that either have no fixed address or that live at a homeless shelter.
And the problem with many of those shelters is that they don't know from day to day whether or not they're going to be there.
We have one trooper that works with the transient or homeless registrants to be able to keep them in compliance.
Currently, there's no provision within the statute that allows them to stay in compliance. And this would give them an opportunity to do that.
REP. LAWLOR: So the definition of transient here means person who has no residence.
SAM IZZARELLI: Correct.
REP. LAWLOR: So would a homeless shelter qualify as a residence, knowing that all homeless shelters I'm aware of, it's a day-to-day decision of, whether or not you're going to get in depends on standing in a line and stuff like that.
So if that's the case, like six days out of seven, you end up being able to get in, but on the seventh day, you don't get in, are you a transient or not a transient?
COMM. JOHN DANAHER: Section 15 defines a residence and includes individuals who live or stay at a temporary residence or at a homeless or emergency or other shelters.
So those individuals would be considered to be at a resident. That's the location where the notification could be made.
And that's to separate them out from the individual who simply is living under a bridge or in the woods and has no identifiable residence.
REP. LAWLOR: Well, I don't claim to be an expert on the homeless population, but I think it's fair to assume that quite a few of them most of the time are, or at least a fair amount of the time, are staying in what we would call a homeless shelter but other times don't get in or don't choose to get in.
I'm just thinking of the, because if you qualify as a transient, you're going to have an enhanced responsibility for reporting somewhere once every 15 days.
And so, as you point out, people find ways to get around the rules. So does that mean if you stayed in a homeless shelter once every 14 days, you don't have to report? How would that work? I don't understand.
COMM. JOHN DANAHER: Well, the definition, I think, that makes a homeless shelter a residence is if the person habitually lives at one.
So that would be a word that's going to have to be developed, the interpretation would have to be developed by the courts. That doesn't mean as you--
REP. LAWLOR: I think, as you're aware, in criminal statutes, it's not like, we'll figure it out later. It's got to be clear on its face.
And I just think if this were a general rule, it would be fine. But it would be a crime to violate this. And it would have to be clear.
And I think the last thing we want to do is pass a law that we find out four or five, ten years from now is unconstitutional.
COMM. JOHN DANAHER: Agreed. However, there is a fair amount of clarity when it says habitually lives at a homeless shelter, which means on a regular, ongoing basis.
It doesn't say permanently, so it would contemplate the individual who comes and goes from time to time.
REP. LAWLOR: Well, does that mean more often than not?
COMM. JOHN DANAHER: That's how I would interpret that, habitually.
REP. LAWLOR: So if 45% of the time, you're living anywhere you want [Gap in testimony. Changing from Tape 3A to Tape 3B.]
COMM. JOHN DANAHER: --and it is a homeless shelter. That's a location where we can find them. If a person is at a homeless shelter for 14 days and on the 15th doesn't return home, that doesn't make them a transient.
That's not a problem for us because they're going to come back to it again. The whole goal here is simply to get a better handle on where sex offenders are who are on the registry.
So with that in mind, I don't think anybody is going to suggest it's criminal conduct when a person is in the shelter for three weeks, out for three days, and then comes back, you know, with us then claiming they would become a transient.
Our problem now is that we have [inaudible] people we simply, you know, that there's just no location where we can peg them, and they have no obligation to tell us.
REP. LAWLOR: Do you know, does any state have this kind of a rule? Because I know every state is dealing with this problem.
SAM IZZARELLI: You know, I don't believe there are any common transient laws, and that was one of the issues that we had with the Walsh requirements, is that they don't come forward on probably what is one of the most significant issues, dealing with sex offender registration.
One of the issues, talking about having, moving from one homeless shelter to another, is that would technically be a change of address.
So they would need to notify us each time that they change their address, within three days of that change.
So from that standpoint, we would not consider them to be transient. They're at a location. They're at a reportable location that they need to let us know, regardless of where that is.
REP. LAWLOR: On Tuesday, I was at a meeting with my counterpart in the Texas House of Representatives, the Chairman of the Corrections Committee in the Texas House, and we were talking about this topic and others.
And he indicated that Texas has decided to just forego the money from the Adam Walsh, the federal grant that's connected with Adam Walsh because it would cost them more money to do it than not do it, and it would completely undermine their current system of sex offender registration in Texas to do this.
And I believe that's the case in quite a few states of taking that position. What, if any, thought has been given to just forego the money?
Because I'm sure, if we JF this bill, there would be a significant fiscal note attached to it. I'm just wondering how we're going to work our way through this.
COMM. JOHN DANAHER: Well, first, I would say that from our perspective, you know, we always have to be careful about where we're expending our funds.
But our primary motivation here, and our support for our bill, lies behind the fact that it plugs holes in the system right now.
We're concerned about having 100 sex offenders on the registry that we can't locate because they're transient. So that's our primary concern, and we think that's a hole that should be plugged.
And our motivation is not preserving that percentage of [inaudible] but in terms of the fiscal impact?
SAM IZZARELLI: You know, we are lucky in the State of Connecticut in that our current statutory scheme for registration is in line with the Walsh requirements.
Walsh is based on offenses, merely. You're convicted of a crime. You're required to register. And that's in fact what we do.
So for the conversion for Connecticut, it's an issue of taking classifications like nonviolent sex offender or sexually violent offender and transitioning it into one of the tiers.
So I don't think that it's a large stretch for us to be able to do that, as most of those states that do risk assessment, like Massachusetts and New York, that have a far more difficult time in wrestling with this legislatively.
From the standpoint of fiscal impact, I think that, yes, there is, for some states, there is going to be an issue of the amount of money that's lost in that 10% reduction in burn grant funding.
I think more importantly with this piece of legislation is that requirement to fulfill some of those gaps that we currently see.
I think it's good public police for us to fulfill. I don't think there are many parts of this that we would not have supported if they had not been part of Adam Walsh.
REP. LAWLOR: So my last question, I was intrigued, I'm sure you will recall, it was like a month or so ago.
There was this guy who won the lottery in Massachusetts that turned out he had been a sex offender here in Connecticut, registered here in Connecticut for a while. Are you familiar with that situation?
SAM IZZARELLI: Yes, I am.
REP. LAWLOR: And I recall after it was being, it was reported in the press. Basically, what happened, as I understand it, some guy who had a bunch of convictions in Massachusetts, apparently, at some point had moved to Connecticut and was properly registered here for a while while he lived in Connecticut.
And then, apparently, he couldn't be located. And then a year or two after the fact, it turns out he wins the Massachusetts Lottery, right? And I recall, is it Sergeant Vance?
SAM IZZARELLI: Lieutenant Vance.
REP. LAWLOR: Lieutenant Vance was on television saying that understandably, the State Police and the Department of Public Safety was upset that this guy had not registered and failed to comply, and they had been looking for him, etc. Is that basically the case?
SAM IZZARELLI: Yeah. There's a little more to the story. The individual, the registrant, had registered with us in 2002. And if you recall 06-187, we changed the statutory scheme of 54253.
Previously, it had said that we needed to look at a crime to determine if there were essential elements that were substantially the same as crimes in Connecticut.
When it was changed, 06-187, it then only required that if you're required to register in another state and you come to Connecticut, that you are in fact required to register, or you could go back to the essential elements.
In the case of Mr. Snay, he was with us in 2002, registered. He was registered for a Massachusetts crime, for which we had a very difficult time trying to find any type of elements for.
It's indecent assault and battery on an individual. And Massachusetts' definition for that crime is in fact the statute of the title of the crime, indecent, commits an indecent assault and battery on an individual over 14.
At that time, we made a determination that it appeared to be a registerable offense and registered him.
In 2004, we reviewed his case again, after getting some more information from the prosecutor's office in the State of Massachusetts.
And at that time, we determined that it appeared that his conviction actually did not constitute registration under 54253.
He would not have been required to register as of fact that he left the State of Connecticut on 8-22 of 2007, predating the requirement of 06-187 by about a month and a half.
REP. LAWLOR: So now I'm confused. When I saw the TV coverage, Lieutenant Vance was saying that you guys were looking for him and didn't know he was in Massachusetts. Was that accurate?
SAM IZZARELLI: Actually, I think his point was that we were investigating the issue to determine whether or not there was a violation.
REP. LAWLOR: Did you know he was in Massachusetts?
SAM IZZARELLI: We found out when he won the $10 million.
REP. LAWLOR: Right, because the reason I ask this question is that when that all happened, I was kind of curious.
I looked him up on the National Sex Offender Registry, and there was an instant hit that he was properly registered in Massachusetts once he moved back there.
And what intrigued me is why is it, it seemed clearly that Lieutenant Vance was saying, we were looking for this guy. We were surprised, and now we're glad we found him.
But I was just wondering when someone disappears from the radar screen, what do you actually do to try and find him? Because all I had to do was type his name into the National Sex Offender Registry.
SAM IZZARELLI: Right. The requirement in the State of Connecticut is that that violation is reported to a local police department and that the local police department has to apply for a warrant.
We were in discussions, I believe, with Plainfield, where he had reported to register at the time, and we had discussions with him that we did not believe that the original registration was in fact valid, based on this new information that we had, and they did not seek a warrant for him for that.
In fact, we've been in touch with his legal counsel and advised him that we don't believe that there's a violation in the State of Connecticut, based on the fact that he predated the requirement by leaving the state and registering. Is it the right way to do it? No. He should have reported to us.
REP. LAWLOR: Is there a requirement that if he's going to move to another state, he has to tell you he's going?
SAM IZZARELLI: Yes, there is, yes. And that would have been a violation if it weren't for the fact that he wasn't qualified for registration because he predated the requirements.
REP. LAWLOR: Okay. Senator Kissel?
SEN. KISSEL: Thank you very much, Chairman Lawlor. Regarding the question that Chairman Lawlor made regarding the person in transit, going from Boston to New York, and they stop, you know, along the Merritt Parkway to eat lunch, and then you pull them over.
And I think the response was, in that instance, because the individual had not registered, they'd be in violation.
But I'm reading the language in Lines 368 through 379, and it says that an individual needs to register, with the 48-hour rule, who is employed in the state, carries on a vocation in the state, or is a student in the state.
So I'm confused because I don't see why an individual that's passing through the state, that just happens to stop and get lunch, would have to register.
And part of my concern is that, similar to Chairman Lawlor, that if these things are going to have serious criminal repercussions, that's a concern.
And also, if an individual us going to, you know, we want to have our laws clear, such that an individual who wants to obey the law, it should be pretty clear as to what their rights and responsibilities are.
SAM IZZARELLI: And in Subsection C, I believe it is, any person not a resident of the state, who is registered as a sexual offender under laws of any other state and who, removed was travels, that was a section in--
SEN. KISSEL: Can you tell me the line number so I can follow along?
SAM IZZARELLI: I don't have it by line number, I'm sorry. It's Section 6, Subsection C.
SEN. KISSEL: Okay, hold on, almost there, B is pretty long.
SAM IZZARELLI: I believe that's Section 5C, sorry.
SEN. KISSEL: Okay, hold on. All right, okay. Thank you, okay. Tell me.
SAM IZZARELLI: The substituted language goes on to say that will be entering or remaining in the state for a period of less than five days shall notify the Commissioner of Public Safety in writing not less than 48 hours prior to entering the state of such person's name, date of birth, and temporary residence address in the state, the state or foreign country where the person is required to register as a sexual offender, the nature of such person stays in the state, the location where such person will be while in the state, telephone number at which the such individual may be contacted, and the date such individual will be in the state. The language goes on.
SEN. KISSEL: Well, my concern with that part of the provision, I mean, I know you want to have your hands on these folks 24/7, and I understand that concern.
But as a practical matter, let's say somebody is up in Boston. They want to go see a Yankee's game, and they get a ride with a friend.
They don't know whether they're coming down through 84, 91, or they're going to scoot across the Mass Pike, hit the Taconic, and come down through New York.
And that's a fairly short trip within the sort of northeast United States, where the states are pretty close.
You know, I just don't know how practical it is, given people's driving all over the place. I mean, I can understand, if someone is here for some sort of permanent reason, I guess I would agree that we need to know exactly what's going on.
But to try to penalize people just because they're driving through the state, you know, I don't know if people are going to know three days in advance what they're doing.
COMM. JOHN DANAHER: Well, the position that--
SEN. KISSEL: I mean, what does a truck driver do? Let's say someone is a convicted sex offender. They've turned their life around, and they're an interstate trucker, and this is what they do all the time. Every time they're driving a truck through Connecticut, they got to send in paperwork?
COMM. JOHN DANAHER: It's a choice we have to make as to how we're going to treat sex offenders. There are some jobs and some things that sex offenders can't do that people who are not sex offenders can do.
A case that I prosecuted involved an individual who lived in New Jersey. He met a boy on the Internet, sexually assaulted him in New Jersey, was released on bond, went back on the Internet, connected with a juvenile in Connecticut, came to Connecticut, took him to a motel, sexually assaulted that boy, went back to New Jersey.
He was in the state for 48 hours. Now it's an example of the kind of problem that this would address. I mean, what this would do would undoubtedly limit the travel of sex offenders.
SEN. KISSEL: I understand. You know, so many of these folks are really bad, and they prey upon the most vulnerable folks, children, in our society. I understand that.
And if they commit a crime in our state, we have every right to go out there and throw them into prison.
But my concern is that if we make it almost impossible for someone to turn their life around, then that's almost going to push a group of individuals towards a path of crime.
I don't know if it will continue to be sexual offenses, but, you know, there has to be a method such that someone does their time. They're registered. They're doing everything that they're supposed to do.
We can set up reasonable expectations for them, but I don't know if any time someone just drives through Connecticut, that they have to register two days in advance. It's a practical matter.
I just don't know how reasonable that is. I'm not saying, and again, my concern is that, yeah, we have these bad people. And I don't think it should be a race to see which state can be like the most onerous regarding them.
I think we have to be thoughtful regarding this group of criminals, just like any other group of criminals, because if we set up things that people cannot possibly comply with, then there's either going to be mass lack of compliance, and then you're going to have your hands full trying to struggle, running around trying to catch all these folks.
Or, you know, I just don't see that. It just sort of seems like a real shotgun approach to the issue, and I'm not so sure that the time and the effort and the expenditure to do that part of this is worth rather than putting our resources and our law enforcement officials, and everybody else involved, trying to, you know, break crimes that we haven't solved yet and trying to really go after the bad apples out there. I guess that's just a general, philosophical concern that I have.
COMM. JOHN DANAHER: If I could take one stab at trying to look at it from a different perspective, what this provision would call for is for the individual to advise the Department of Public Safety in writing, and then it provides for a variety of information, you know, such as the resident's address and so on.
If the person is traveling through to go to a baseball game, then that would be notification. There is no, I'm not going to stay in Connecticut. I'm driving through.
If the person stops off at McDonald's and gets a hamburger on the way, they've compiled with the statute. They've notified us what their purpose was. They're still on the highway. They're going through.
And although this sounds onerous to those of us who travel freely, there is a very large class of individuals that exist, subject to very similar limitations.
And those are many individuals that are on probation. It is not unusual at all for an individual on probation, or in the federal system on supervisory lease, to have travel limitations.
You must notify your probation officer before you go to another state, very common. It does seem very burdensome to us, who don't have to make such notifications. We can pick up and go when we want.
But that's a system that's been in place for many years, and I know, from prior experience, that people on supervisory release routinely contact probation officers and say, I'm going to travel.
And I know that because a probation officer contacted me. Do you have any objection to such-and-such defendant going to wherever for some purpose. This takes that group and makes them subject to a similar restriction.
SEN. KISSEL: I mean, you know, I think there's good arguments, and there's going to be people watching, saying, Senator Kissel, why are you bending over backwards for a group of individuals that are so, you know, commit really bad, bad crimes.
But setting that aside, if I'm sort of in the system, I have one point of contact. That's my probation officer. I know who to contact if I'm going to do something.
When we start talking about Connecticut is going to be on the cutting edge, and we're up here in the Northeast.
If New York has like a 72-hour law, and all of a sudden, Vermont wants to do something different, you know, somebody just trying to live their life, and they're not out to commit any crime, it may just be such a minefield that there's no possible way to actually comply.
And now we're arresting people just because they can't figure out, you know, what's going on out there. And I just express that as a concern. You're looking at it from the other perceptive.
But that's why we have public hearings, so I'm just trying to bounce around ideas because once we roll things forward, you know, we got to live with it. We got to fund it.
And we got to make sure that our limited, precious state tax dollars are directed so that we can get the most public safety possible.
COMM. JOHN DANAHER: Understood. Our goal is to capture what we believe are the worst of the worst.
And I say that in part because of studies with which I'm familiar, and I know there's testimony in the Governor's Commission on pardon, parole, and sentencing from individuals familiar with the nature of the criminal conduct in sex offenders.
Unlike other criminals that might commit some of the, who's addicted to drugs might commit a robbery on one occasion or two occasions to acquire money.
Sex offenders, particularly pedophiles, have an extraordinarily large number of victims. Studies have shown that when they are at sentencing, they might admit to having one or two victims.
After they enter a penal institution, they might admit to having more. In the course of treatment and discussion, ultimately, they admit, on average, to having hundreds of victims in the course of their, quote, careers.
And this is because a pedophile is interested in a child at a particular age. When the child outgrows that age, they move on to another one. And I personally have seen many cases like that.
When one sex offender is taken out, hundreds can be saved. These are individuals who require close attention and close focus.
And the individual I described previously is a genuine case. He was convicted of coming to Connecticut and sexually assaulting a child while on bail for doing the same thing in another state.
He's not captured. He's not caught. But if he has to let us know before he comes to Connecticut, you know, that he is a registered sex offender, I think it's to the benefit of the citizens of Connecticut.
The burden of tracking him, keeping track of those phone calls of the individuals coming through, is one we're willing to accept.
SEN. KISSEL: And one last thing, because I sit on all these taskforces, and occasionally, some things stick, in looking at sexual offenders, there seems to be a wide array of, I mean, to just say sexual offenders, you know, we register kids that, you know, had intercourse with a girlfriend and one of the parents found out, and it was statutory rape.
And so now they're registered. There's other individuals that are not pedophiles. They don't prey upon children, but there might have been something else.
And I'm not saying one is better than the other. Please, that's not what I'm saying. But is this requirement tailored to, for example, the pedophile class?
Or if you're on the registry, if you're a sex offender, this is going to follow you the rest of your life, forever, period?
COMM. JOHN DANAHER: Well, if it's a Tier III offense, then it is for the rest of your life. But again, this is a graded system. People can get off this list, depending on what the offense was, after a period of time.
SEN. KISSEL: Okay. So this is targeted at the worst of the worst. This isn't targeted at--
SAM IZZARELLI: Right. The tiers are specific to the crime that they committed. For instance, the shortest registration period under this act would be a 15-year registration.
And that's for a very small group of individuals that committee voyeurism, public indecency, where the victim was a child, and a sexual assault in the fourth degree, with exception of the subsection that deals with a child under 15 years of age. Those are 15-year registrations.
The Tier II offenses are individuals that have a 25-year registration period, and in Tier III, the requirements that go along with those tiers are in-person verification.
So for an individual that's a Tier I registrant, they would need to be seen once a year within the State of Connecticut, Tier II's, twice a year, and Tier III individuals, once every 90 days, to technically, to verify that they are in fact in the jurisdiction.
SEN. KISSEL: Okay. And by the way, appreciate it, you're winning me over, without a doubt. And how many--
SAM IZZARELLI: On the last point about the truck driver, you know, one of the things that I would just mention, that we look at these statutes, or potential statutes, all the time.
And, you know, in the same case, we'll find probably an exception that, you know, we gave somebody an opportunity to, under an exception in the law, and they took advantage of that.
We had an individual truck driver who raped a woman up in Tolland not too long ago. He's a registered sex offender, did not report to us that he was here.
I don't believe in that prosecution that they chose to go after him for that. But, you know, I think it's difficult for us to sit there and to start to craft out specific exemptions.
We're not asking for them to have to jump through big hoops. They just need to call and let us know that they're coming here before they come here.
And I don't think that's unreasonable, to the extent that eventually, they would have to register, with the exception of people who are coming here for periods of less than five days.
And that's just merely a phone call to us, sending some information. So I don't think we're really asking for that much, given the benefit of knowing that they're in our community.
And that is the problem. At one time, it was estimated that here are 100,000 registered sex offenders that were unaccounted for in the country.
Thirty three thousand of those were believed to be out of the State of California, largely because of states that don't take seriously their responsibility to enforce the laws that we have on the books.
At the Department of Public Safety, we have undertaken that goal. We've just added a new sergeant into the office to be able to increase our ability to work with local police agencies.
We're trying to complete this circle, if you will, because local police agencies are out there now every day.
I talked to Naugatuck Police Department yesterday, Norwich, Hartford, Bridgeport, New Haven. All of them are out making checks of their registered sex offenders. They're enforcing the law.
But they don't have a policy, or state statute that allows them to make policy, to work from that.
So we're looking to try to support that and complete that circle. Again, I don't think we're asking for something that's that unreasonable.
SEN. KISSEL: I very much appreciate your answers to my questions. It really helps fill out the picture, and the reference to that assault that took place in Tolland, where the trucker was coming down I-84, that was horrific.
That was just scary. And I just thank our lucky stars that that woman lived because when someone is willing to do something that horrible, and I believe she was like tied to a tree and left there and everything else, that's just really, really scary.
And as a dad, and I don't think you have to be a dad or a mom to be worried about the children of Connecticut, but, yeah, these are really, really bad predators.
But when you say carve out, I mean, I just, part of me is, you know, these people are going to be brought up on charges and are going to have defense counsel that are going to be looking for cracks in the armor and, you know, arguments to be made to the court.
And we have a limited amount of resources, but it sounds like this has been well thought out. And if you feel confident that we can roll this forward, then I'm happy to be supportive.
SAM IZZARELLI: And we do recognize the fact that, as you did mention, that there are variations for sex offenders. It is very difficult to put one label across all of them.
And we try to write statute, or you try to pass statute, that applies to all of them. I would say that from the standpoint of the registry, we understand that.
We know that there are provisions within the statute for the Romeo and Juliet cases to be removed from the registry.
And we advise our registrants, if they do call and say, how do I get off of the registry, that, you know, there's a process within the statute to be able to do that.
Many of those cases are ones where the families request the registration and, in many cases, imprisonment.
And then later on, down the road, they're looking now to have the person taken off because maybe now the mother and father now are married and have a child in common as a result of that crime.
So we do recognize that. Ours is not by any means a hard stance against registrants. We try to work with them because for us, compliance is far greater, to let you know where they are in your communities is a far greater thing than for us to go after them for a violation if we can get them back into compliance.
REP. LAWLOR: Further questions? If not, thanks very much to both of you. Next is Steve Saloom, followed by Kevin Hennessy. And then is Representative Williams here? There you are, okay.
STEPHEN SALOOM: Good afternoon, Chairman Lawlor, Members of the Committee. My name is Stephen Saloom. I'm the Policy Director at the Innocence Project.
We're based in New York City and affiliated with Cardozo Law School at Yeshiva University. We're a national organization. Nationally, there have been 214 wrongful convictions proven by DNA evidence.
And in the Policy Department of the Innocence Project, what we focus on is trying to identify, with the certainty of these DNA exonerations, how is it that the judge, jury, police, prosecutor, the system identified this person, who was actually innocent, to be guilty of a very serious crime?
And we look at those cases, and what we found was, oh, let me say I'm here to testify on the bill regarding eyewitness identification because that is the most prevalent cause of wrongful convictions found in these DNA exonerations.
In a full 75% of these cases, there was at least one mistaken eyewitness identification. I've submitted written testimony that goes into detail about these issues.
So having heard those who preceded me talk about this, I'll try to kind of cut to the chase here. First, DNA is only available in a small fraction of all criminal cases.
Yet, eyewitness identification is a very common police practice to try to get to the bottom of what happened in a crime scene.
So this 75% of the cases where it was a factor is not limited to that small number of cases where DNA was present. It relates to crimes across the criminal justice system. So it's a really important investigative tool.
The good news is that it's obviously from the Ledbetter Decision, from the Law Enforcement Council of the Chief State's Attorney, from the comments here today, and from the work in the Legislature and comments in the past, that there is broad recognition in Connecticut in the value of improving the accuracy of eyewitness identification procedures.
And that is certainly all to the good. I think one of the questions before this body is whether or not it should be legislated.
Someone said earlier today, you know, don't micro manage the police. I don't think it would be at all inappropriate.
I think it would be appropriate, in fact, for the Legislature to require that the agreed-upon best practices to increase the accuracy of eyewitness identifications is appropriate for legislating because everyone needs this in Connecticut.
It's not just about the innocent person who might be misidentified. It's also about making sure that police are using procedures that help them, as accurately as possible, figure out who the actual perpetrator was in a crime, because if an eyewitness inadvertently misidentifies somebody, they have a significant affect on the police investigation.
They potentially have significant affect on the criminal prosecution because if the witness, for whatever reasons, and these are all documented in the studies, and I will submit a copy of the resource guide that we've documented as well, that goes into great detail on these issues, if, for whatever reason, the eyewitness has picked an innocent person as the real perpetrator, if the police are able to get back on track and identify the real perpetrator, that witness is essentially burned, not as useful, in the criminal trial of that person as he might later be.
I'll try to wrap up quickly. Many entities, law enforcement groups in this state, have been advised to use these procedures. And they'd be smart to do so because of the court rules.
I want to say, about legislating this though, that is not enough because in Boston, for example, Suffolk County, not only did the Boston Police Department recommend and adopt this policy, eyewitness id reforms, and the Suffolk County DA's office also advised those eyewitness id reforms be implemented.
A law review article that will be coming out soon will show that, in fact, even though they're on the books, these procedures are not being used.
In North Carolina as well, there were statewide recommendations for everyone to be employing the eyewitness identification procedures.
We all here now know that in the Duke Lacrosse case, there were not the proper eyewitness identification procedures used.
There are a number of other problems in that case. But again, they were supposed to be using them. They were not using them.
North Carolina's response was to pass legislation, signed by the Governor last year, to require the implementation of eyewitness id reforms.
A couple small points before I wrap up, the Innocence Project recommends, because it's aware of the lack of agreement on the sequential issue, that you probably should not seek to legislate that.
Do not let that weigh down your interest in bringing together the consensus and more importantly requiring that these other reforms, which are all very valuable, be adopted.
The Innocence Project fully supports sequential lineups, but we recommend you take one step first, let people get used to it, and continue to consider that question.
You would also be well advised in the future, just as a matter of reference, to think about show-up procedures. Show-ups are inherently suggestive.
To the extent that the Commission on Wrongful Convictions in Connecticut, or whatever other entity, is going to continue to look at eyewitness identification, please look at show-up procedures because they're very important.
And one last thing, blind procedures are practicable. I have in the attachments to my testimony the protocol from North Hampton, Massachusetts, a small town.
They regularly use a blind administrator when conducting their eyewitness identifications. There are also ways to make a detective or administrator who does know who the suspect is, to blind that person, so that he or she can't know which person the eyewitness is looking at at any given time.
So this prevents any ability, you know, any inadvertent cues from being given to influence the procedure. So this is very doable.
More importantly, I think, in this situation, it's entirely appropriate for the protection of the public safety in Connecticut, and in the interest of justice in Connecticut, for the Legislature to legislate eyewitness id reforms. I'd be happy to take any questions that you have.
REP. LAWLOR: Well, thank you, Steve. I know you've been up here many times, helping us think through these problems, for the last few years.
And I think from the testimony earlier on by both the prosecutors and the public defenders that it seems like there's at least some consensus around some of these ideas.
And I think one thought we had is to task the current Commission on Wrongful Convictions to sort of monitor and evaluate the changes in procedures by the police, both as it relates to eyewitness identification and the videotaping of confessions.
So I think maybe we can take some small steps this year, monitor how that's going, and then maybe take some additional steps next year, as we develop a growing level of comfort among the practitioners with these best practices. So thanks. Are there any other questions? If not, thanks again. Kevin Hennessy?
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
REP. LAWLOR: All right. Then we'll go to the next person in the, oh, Sean, I'm sorry. Representative Williams and Maureen Fonti, and he'll be followed by our group of descendants, who will be coming next, so they can get ready.
REP. WILLIAMS: Good afternoon, Chairman Lawlor and Members of the Committee. I thank you very much for your patience.
As somebody who serves on a Committee that has very lengthy public hearing as well, the Energy Committee, I know how intense this can be. So I appreciate the fact that you're still here and attentive to these issues.
My name is Sean Williams, for the record. I represent Watertown and Woodbury, which is the 68th Assembly District in the State House.
I have with me the Galvin sisters. Maureen Galvin Fonti is a Watertown resident and has a very personal story to share, with respect to House Bill 5927, and with your indulgence, I would just turn it over to her. Thank you.
MAUREEN FONTI: Good afternoon, and thank you. I'd like to speak on this bill. I had a sister who was a victim of a hit and run, and the driver was unknown for years. My sister was 25 years old when she was hit by a car.
Basically, she was just ready to begin her adult life, and we had all gotten together for one night. And just for a split second, she left the crowd and said she would be back.
Unfortunately, she never came back. She was hit by a car. Again, we never knew who hit her, and her life was gone in a split second.
My father used to ride the streets of Waterbury, looking for the driver of this vehicle, the coward. Unfortunately, he died shortly after, never knowing who it was.
It was maybe 21 years later, someone came forth and said that they admitted to the crime. He was the driver. He was drunk. He was high. He hit my sister, and he left her there.
Well, that summer, we got another call that George Gaylord was the person, and he, again, signed paperwork, I did do it.
But my mother was going through a tough time, all due to this tragedy. Her health was deteriorating, but she felt good about this.
Well, at least now, we know the man. We know the man, and I feel at peace justice will be served.
Well, shortly thereafter, we received another call, or she did, that George Gaylord wouldn't be held accountable for this crime. He got away with murder is what she would say.
And that's the truth. He walked into the police station and walked out a free man. He had a clear conscience. I don't understand how this could be, how a man could do this.
Knowingly, he killed my sister and walked out free and clear. I hope that you'll agree with all of us that something has to be changed here, that there should be no limitation.
The reason that he got away with it is because it happened too long ago. And I hope that you can do something about this and really see our opinion on this.
REP. LAWLOR: Well, thank you very much. It's unfortunate that we have, in this Committee, to hear from people who have experienced the most extraordinary tragedies in their life, usually with family members.
And the good news is that sometimes good can come of these personal tragedies. And by telling your story and by advocating for changes in the law, oftentimes, those laws do change.
And in the future, other families don't have to endure what your family has had to endure. So I just want to express our appreciation that you have come forward with your story.
You have a great advocate there in Representative Williams. He's been nagging us for quite some time to make sure that this got to be a bill and got to be a public hearing, so we appreciate that. Thank you for doing that.
Just out of curiosity, did this guy, did he ever issue an apology to your family or anything like that?
MAUREEN FONTI: He did. We went to court. We took him to court civilly, and he apologized. But, you know, at that point, there was no remorse.
He was just told to do it. I mean, he knew all these years that he did it. He could have come forth.
REP. LAWLOR: Do you know why did he decide to share that information?
MAUREEN FONTI: Well, we think it was a divorce situation. You know, if you don't tell, I will, but I won't get the house, you will.
REP. LAWLOR: I understand.
MAUREEN FONTI: Again, that's hearsay, but, you know, from a pretty good source.
REP. LAWLOR: How old is this man now?
MAUREEN FONTI: He's 54, I believe, 55, in that area. And he's well known. He knows my husband well. It's just very sad. If you can do anything with this, like you said, it will help another family from going through what we went through.
REP. LAWLOR: Thank you. Are there other questions? If not, thanks again for sharing your story. I'm sure it wasn't the easiest thing in the world to do, but we appreciate it. Thank you.
Next is Adelaide Avery, Debra Avery, and Laurie Cayer, and I think perhaps one or two other people. You can all come up together. I don't know how many seats there are in the front there, but please feel free to take them.
ADELAIDE AVERY: Hi, my name is Addie Avery. Thank you, Chairman Lawlor, Representatives. I am here representing Senate Joint Resolution 26, concerning the Witchcraft Trials of the 17th Century.
This isn't something that just happened 350 years ago in some far-off place that doesn't relate to us whatsoever.
The Witchcraft Trials happened right in Hartford and the surrounding areas, which are the founding cornerstones of the State of Connecticut.
Whether or not the society at the time believed that this was right or wrong, or whether it was legal or illegal, we know now it was so wrong.
I think this would be a great acknowledgement towards our past if we let it be known that present and future people of Connecticut realize that these people who were hanged were wrongly convicted.
DEBRA AVERY: My name is Debra Avery. I'm Addie's mother, and I'm an eighth-generation descendant of Mary Sanford and Addie is a ninth-generation descendant of Mary Sanford.
Records of the Particular Court of Connecticut, June 13, 1662, Mary Sanford, thou art here indicted by the name of Mary Sanford, the wife of Andrew Sanford, for not having the fear of God before thine eyes.
Thou hast entertained familiarity with Satan, the great enemy of God and mankind and by his help hast acted and also hast come to the knowledge of secrets in a preternatural way, beyond the ordinary course of nature to ye great disturbance of several members of this commonwealth for which, according to ye law of God and ye established law of this colony, thou deservest to die.
Verdict, respecting Mary Sanford, the prisoner at ye Barr, ye jury find here guilty of the indictment.
These were the words that Mary Sanford, my family's great grandmother, many generations ago, heard while she stood at the bar, accused of practicing witchcraft.
Such a conviction in Colonial Connecticut resulted in death by hanging. It is the hope of my family, and the families of others convicted, that this legislative body will support Senate Joint Resolution 26, recognizing the contributions these women and men made to the establishment of the colony that became the State of Connecticut. And this is Laurie Cayer.
LAURIE CAYER: Hi, I'm Laurie Cayer, from Mansfield, and I'm in support of Senate Bill [Joint Resolution] 26. And I am the ancestor of Lydia Gilbert. She is my aunt, my eight great aunt.
And I'm going to tell you her story because her story is very relevant to the fact that people were accused of things that they absolutely did not do.
Henry Stiles was accidentally killed by Thomas Allyn during Trainband exercises in 1651. Trainband was the military at the time, or the militia.
Lydia was not even present when the accident happened, and Thomas Allyn confessed and was convicted of the crime in 1651.
But three years later, in 1654, when Thomas Allyn was finally asked to pay his fine, then suddenly, my ancestor, Lydia was accused. There's no records of who accused her.
And she was convicted of causing Thomas Allyn's gun to fire by means of witchcraft. The only connection she has with Henry Stiles is that they were neighbors.
And it seems that after she was convicted and probably executed, that Thomas Allyn no longer had to pay the fine.
REP. LAWLOR: Well, thank you, and this is really a fascinating story and a piece of Connecticut's history, a shameful piece, but nonetheless an important part of our, so do you have someone else who wants to speak?
And I, you know, Senator Roraback brought this to our attention last year, and he couldn't be here for your testimony. But, as you know, we had a little event earlier on today where we were able to talk about this at great length.
And I know how much he supports this effort, as do I. But I think it teaches many lessons about ways to understand justice and the proper role of government and how sometimes people get a little carried away, the mob mentality, all these lessons that other countries are still enduring.
Fortunately, it doesn't happen here in Connecticut anymore, but elsewhere in the world, we see this type of behavior even today. And I guess, in a way, it's important to make a symbolic statement how this is really unacceptable, this type of thing.
And I think, I was surprised to learn, and I think, Members of the Committee, you have a memorandum on your desk, which was prepared last year by our Office of Legislative Research, which, folks, if you're watching online, you can also find that online.
And it tells you a lot about this story, and you get the names and the outcomes of all the different prosecutions.
The Governor was the judge back then. And the Governor's assistant was the prosecutor. And interestingly, although the country was founded in 1776, the State of Connecticut predates this considerably, as does the General Assembly.
Back when all these things were happening, the General Assembly was called the General Court, and we had the authority back then to consider convictions after they had entered.
In fact, some of these cases, the General Court actually did reverse some of the convictions. And two other states where the witch trials were conducted, Massachusetts and Virginia, in recent years have done similar resolutions, clearing the names of the people who were convicted and executed in those states.
So this is not unprecedented. It's a symbolic gesture, but I know it's very important to your families to have their names cleared.
And I think it sends a message to all of us about how much things have changed in 350 years, at least here in Connecticut. So we appreciate your coming through.
Can I just ask you a question? Are there other descendants that you're aware of, that live in the state, of some of the other people who were executed? Or as far as you know, are you the only ones?
DEBRA AVERY: During this process that Addie has been researching this, on our own ancestor, there actually was an article on the front page of the Wall Street Journal, which really kind of got things going.
And we've heard from people from several different states. One, there's a letter in the packet of the written testimony from Pat Borris in Colorado, who is a tenth-generation descendant of the Carrington's, which is one of the rarer cases because both the husband and wife were executed.
In our case, Andrew Sanford actually was indicted as well, but he got off. There's no record as to why he got off, but he did take their five children and moved to Milford, remarried, and joined the church.
We also heard from, another interesting case we heard, and there's a letter in the packet as well from Lou Roscoe.
There was a woman named Mary Johnson, who was arrested [Gap in testimony. Changing from Tape 3B to Tape 4A.]
--and then they hanged her. And his ancestors adopted the baby. So he was able to trace them. They moved to Long Island. He found his family's records in Long Island after that, but there's no trace of what happened to that baby.
And he's researching that and actually, I think, writing a book. And then we heard from some other descendants of Mary Sanford.
Actually, Mary Sanford was their ninth and tenth great aunt because Thomas Sanford came from England before Andrew and Mary, and he's known in the historical records as Thomas the Elder.
And so he kind of was the first to come over, and then Andrew and Mary followed. And so John Sanford of Tiburon, California and, the other gentleman's name escapes me, but he's another Sanford and lives in New York State, near West Point.
They contacted us, and they knew that they had a great aunt who had been convicted. And they were very surprised to read it on the front page of the Wall Street Journal.
So outside of that, there was a descendant of Mary Barnes, which was a case in Farmington, who, when we appeared in the Witching Hour, she came up to us and introduced herself.
So there's people in the area that are definitely other descendants. And, you know, they didn't necessarily get involved with this process, but they, you know, we've gotten e-mails of support, that they agree that the names should be cleared. And we certainly would appreciate our grandmother's name being cleared.
REP. LAWLOR: Now I'm told that some of the hangings actually occurred at the crest of the hill, which is now part of the Trinity College Campus. Is that correct?
DEBRA AVERY: That's debated. There's a wonderful gentleman that lives here in Hartford that we met. His name is Byron Benton. And he has been studying this for years.
And the interesting thing is that what happened with Mary Sanford was after she was indicted and convicted and hanged, six months later, they indicted the Greensmiths, and that's the other case where it was husband and wife both executed.
And the Greensmiths, what happened was if you were executed, your property went back to the colony.
So Byron Benton's ancestor actually bought the Greensmith's house and then went on to marry the woman who accused the Greensmiths. And so she lived out her life in the house of the people she sent to the gallows.
As far as, I'm sorry, I got off the track. Your question about where, according to Byron Benton, he said that, from his research, Gallows Hill was later than these convictions.
You're talking about Trinity College. But that was a hanging area later on. He claims that this early time, the actual hanging place was at the intersection of, is it Garner or Garden and Albany Avenue. Is it Garden or Gardner?
Yes, that intersection is where he says the early hangings took place. I haven't seen that actual documentation. But he's really done his research.
And one of the things that he and some other people we met would like to see happen is a walking tour through Hartford with signs kind of commemorating different spots.
And the other thing we'd like to do is we're looking at a group, raising funds to get a monument, maybe at the old State House, with the actual names, because this resolution doesn't actually name the names, which actually, we agree is probably a good thing because we're not leaving someone out erroneously, and we're also not putting somebody in.
Because as the records get researched, you know, we kind of went around back and forth on what were the numbers, and we're pretty confident there's 11 convictions.
But then there was three more that were convicted and reprieved. And their sentences weren't carried out.
But we also feel, some historians believe that, you know, the records have been purged over the years, maybe not too far after these, because that happened in Salem.
They were kind of erasing their tracks after they realized what was happening. So some historians believe there were a lot more convictions and hangings than what we know, as evidenced in the written record.
REP. LAWLOR: And apparently, Connecticut was the first state to do this.
DEBRA AVERY: This preceded Salem by about 30 years. Salem was the 1690s.
REP. LAWLOR: But they really got carried away a bit in Salem, once they got started, right?
DEBRA AVERY: Yes. And the interesting thing too, you know, the big question is why, why? Why was this happening? And it was multiple reasons.
Some of it was actual land grabs. You know, I want that piece of land, because in that time, you pointed the finger, and the ball got rolling, and that was it.
And in Salem, there was definitely, there was the land thing going on. The other thing was if there was a large land holding and it was a husband and wife that owned it and the husband died, the wife would get accused, and that would free up her land, because what better way to eliminate the competition?
It was also political motivation. There's some reference to Andrew Sanford having been the chimney viewer. We're not sure if that is exactly true.
But perhaps if somebody was mad at him for saying your chimney was not up to snuff, which was a big deal in Colonial Times. The chimneys had to be safe because a fire was a big problem.
REP. LAWLOR: Well, you know, in the Legislature over the years, there's been various accusations that people are conducting witch hunts.
So it's interesting to actually learn a little bit about a real one, that actually did take place here in our state.
DEBRA AVERY: Well, you should study Europe then because the witch hunts in Europe were huge.
REP. LAWLOR: Yeah. I read in some of the history about it that I guess the Germans really went to town, and they maybe executed 50,000 people or something over time?
DEBRA AVERY: Well, the numbers vary, but Germany was definitely led, and interestingly enough, Marion Andrew emigrated here from Essex County, England.
Essex County, England had the most convictions of witchcraft in England. So, you know, this came with them. They brought this with them. But thankfully, it's died out.
REP. LAWLOR: So to speak. And finally, the last thing, it was very interesting reading this that some of the people involved were actually on Long Island when this happened.
And I didn't realize that at the time, Long Island was a part of Connecticut. I have no idea how we lost out on that one. Senator Kissel?
SEN. KISSEL: Well, let me tell you, we may have lost out on Long Island, but we picked up on Massachusetts. I'm so strongly in support of what you're doing.
It really touches me in a lot of ways. I grew up, I consider my hometown Windsor. And Windsor is not only the first English settlement in Connecticut, which we all take great pride in, Colonel Oliver Ellsworth, one of the first Chief Justices of the United States Supreme Court, appointed by George Washington, so a lot of really good firsts in Windsor, and, as we note, historically, the first witch.
And as you go through the walkway here in the Legislative Office Building, between here and the Capitol, you'll see on one of the walls, it talks about Connecticut's history.
There's a little sketch there of a woman being hung, and it talks about the witch trials here in Connecticut as part of our ancient lore.
I can't think of a better time to go forward with this. I think the testimony and the documentation that you presented to us was incredible.
Let me take a little bit of time, with the Chair's indulgence. One of the things that myself, my wife, and my children do on an annual basis is a pilgrimage in October to Salem, Massachusetts.
And you are exactly correct. First of all, there's some incredible history that goes on up there, and they've really gotten their arms around the issue of their witch trials, which, you're exactly correct, occurred in 1692, with the first one regarding Bridget Bishop.
Salem State University, how we can turn this history into something really good, and maybe the City of Hartford and surrounding towns could think about this, Salem State College, in the fall, they get a troop of actors together.
And they go up and down, amazingly, Essex Street, the major thoroughfare that is banned to car traffic, but it's all walking traffic. They round up crowds, and they bring them into this nice, old, colonial building.
And they have trials there, where the crowd, and for a small fee, you can go in there, and you see it all acted out in front of you.
And at the end of the presentation, which is about an hour, you all take a vote. Is she a witch or isn't she?
And you're exactly correct, as Chairman Lawlor pointed out, that sometimes, you know, the feelings of the public change.
After having done this with my family for a number of years, I will tell you, there were a couple of years, after the Trade Tower bombings in 2001, where the crowds actually found her to be a witch.
They weren't in a really good mood, I guess, around that time, and so they were not cutting anybody any slack, even reenactments of ancient history.
When you talked about the McCarthy era, Arthur Miller wrote the play The Crucible, and it's all about McCarthyism. But he used as his paradigm the Salem Witch Trials.
Your statement, that it was a land grab, absolutely correct. In many instances, in Salem, it was between [inaudible] and Salem.
We tend to forget historically that in the 1600s, we were, I wouldn't necessarily call it a little Ice Age, but there was documented reduction in temperature.
That's why a lot of those buildings have lower ceilings. It's not because they were all so short. It's because they had to really economize on heat.
And because of that, there was a shortage of food, and there were other problems that occurred.
You have possibilities in some of these instances of ergot poisoning, which is a fungus that invades the crops, can be baked into the bread.
And so one wonders whether some of these accusers, the young women, could have been having these hallucinogenic activities.
And someone is nodding their head, and if you want to jump in on any of this, please feel free.
But I just wanted to touch upon the things that I'm aware of. So it would be great if Connecticut could do something about our history, while we exonerate these misgivings.
And by the way, you could get hanged for an awful lot of things back in Colonial Times, adultery and any number of things.
Now Michael was talking about losing Long Island. Well, in about 1683, there was a huge group of people, probably seeing the handwriting on the wall and getting concerned about the land grabs, that actually moved from the Salem area and settled an area probably about a block from where I live right now.
It's the Enfield area. And so if you go and look at Enfield's records, for a long period of time, in several of the towns that I represent in north central Connecticut, until the mid-1700s, were part of the Commonwealth of Massachusetts.
And eventually, when they tried to figure out how to change that around, that's why we have that little notch up there, because apparently, that was the last thing they couldn't really agree on in the Granby area. And I think it had to do with--
DEBRA AVERY: The notch, yeah.
SEN. KISSEL: The notch, it had to do with congregational parishes. Other strange connections between Salem and Connecticut, as someone who grew up in Windsor, I used to like to take a walk in the graveyard that's along the First Congregational Church, along Palisado Avenue.
And if you go to the back of that graveyard, you will find many, many tombstones of folks in the Mather Family. So the Mathers had a large Colonial presence in the Greater Hartford area in that era.
And you wonder if, you know, something about that family because in the Salem Witch Trials, there was actually, one of the final tests, they said, was if you could say the Lord's Prayer while you had the rope around your neck.
And if you could pull that off, you were supposed to be able to, that was God saying, this person is innocent.
And Cotton Mather, you know, let's get it straight. He went out there. He really didn't like one of the individuals for whatever reason.
This individual, while on the gallows, perfectly recited the Lord's Prayer, and Cotton Mather, being sort of the head honcho up there at the time, said, well, I still think this person is guilty, and that was it. He was hung.
So there was really, I mean, they had all these things concocted. So power grabs, mass hallucination, just craziness, people fearful, all the things in your testimony, exactly true.
When you said a monument, that also rings true too. All the witches, or purported witches, their names in Salem.
They actually created, in the last decade, it's almost an area where you can go sit. For a number of years, people were encouraged to sit.
Now the last year, I went last year, and they said, well, maybe we should treat it with a little more respect.
But it's set up as an area where you can go and see all the names. Not everyone was found. There was one individual, when they were trying to get a confession out of him, and that was the other crazy catch 22.
If you confessed to being a witch, you weren't hung, but if you denied it, you were hung. There's one individual, a gentleman, where they piled rocks on him.
And every time they put a huge boulder on him, he said, add more weight, add more weight. And by the way, the lore is that if you go into the graveyard where that individual is buried and you do something at his grave, it brings a curse down upon the people of Salem.
So they still have this thing embedded in their souls. So an awful lot of incredible history that I'm very much familiar with. I can't believe it's 2008, and we're finally getting around to doing this.
But this is part of our culture. This is part of our history. And I think the people of Greater Hartford and Windsor and Wethersfield and all these communities where this took place, not only can you do your good thing for your ancestors, but I think that this is a chance that we could do something nice for the area.
We can honor their name, and we can use it as a learning touchstone for our children so that they know not to fall into this trap that happens every once in a while. So that was much more of a preachy type of statement, I apologize.
DEBRA AVERY: Can I ask you a question?
SEN. KISSEL: Yes.
DEBRA AVERY: Prior to this coming forward, and being someone who traveled to Salem as much as you have, were you aware of what had happened in Hartford as far as the witchcraft convictions?
SEN. KISSEL: Yeah. Actually, I feel bad that I didn't introduce this many years ago. It probably should have occurred to me.
And as someone who grew up in Windsor, I was wondering if that first hanging took place on the Town Green or anywhere there close to it. And by the way, at that time, Windsor was much bigger, went across to river, to what's now--
DEBRA AVERY: There's only two references to Alice Young. Are you aware of that, in journals? Because she--
SEN. KISSEL: I read it from your testimony.
DEBRA AVERY: Yeah. I mean, it was just referenced in someone's diary that, you know, May 26 and the year, Alice Young was hanged.
SEN. KISSEL: Hate to tell you though, as a Windsor kid, we know all about this stuff. For some reason, they teach it to you when you're a little kid. It's all part of our proud English heritage as Windsor Colonial.
DEBRA AVERY: Well, we certainly appreciate your support, and we hope this comes out of Committee, and we're just, you know, we're really glad that Representative Lawlor and Senator Roraback were so responsive when Addie first contacted them.
SEN. KISSEL: You know, they say those are two good guys. I tend to agree. Thank you so much for coming forward.
REP. LAWLOR: Well, now you've got Senator Kissel's enthusiastic support, so I think we're well on our way. And, you know, he mentioned that I guess we picked up a part of Enfield from Massachusetts.
But, no offense, Enfield is a great town, but they have some wonderful oceanside beaches on the south shore of Long Island that I think it would have been great if we could have hung on to those.
UNIDENTIFIED SPEAKER: You saying it wasn't a good trade?
REP. LAWLOR: No. I just think if we could have gotten both, it would have been even better. Representative Fox and then Representative Adinolfi.
REP. FOX: Thank you, Mr. Chairman, and thank you very much for coming here this afternoon and for your testimony.
I have to admit that this is not an issue that I know much about, or knew much about at all before it was brought to this Committee's attention.
And it's never been asked of a constituent of mine or anything for me to look into this past history.
But I do notice that the majority of those referenced back in the 1600s came from the Hartford area.
And I'm from Stamford, and I did notice that there is one name from Stamford, an Elizabeth Clauson, I'm looking at the OLR Report, and it's on page four, and this was in 1692.
And it says that she was subject to the water test and acquitted. And I'm not sure if that's good for her or bad. I don't know what that means.
LAURIE CAYER: The water test was if the water rejected you, you floated. And water was considered, you know, the religious part of baptism. And if you sunk, and the water accepted you, then you weren't a witch.
But you were tied to a chair, or tied. And so there's no records of how long they left you down there. So they feel that some of them drowned. So whether you stayed down or you floated, either way, it wasn't good.
REP. FOX: So the good news is she was vindicated, but the bad news is that she may not have survived this.
DEBRA AVERY: Yeah. And there's a very good book that Richard Godbeer, which I put in the list of my notes, he wrote a book about that Stamford witch and the whole trial.
REP. FOX: Really, on this specific one?
DEBRA AVERY: Yeah, because there are ones in Fairfield County too, which my other ancestor, ironically, was the judge and oversaw those trials, on a different branch.
REP. FOX: All right. Well, thank you, and I'd be interested to learn more about the Fairfield County and, especially, the Stamford trial because it does sound, it's an interesting part of our history. And I do thank you for bringing this to our attention.
DEBRA AVERY: You're welcome.
REP. LAWLOR: You know, Senator Kissel and I were just talking, and this morning, I remembered this great scene from Monty Python, where they grabbed the witch. And if you Google it, if you Google Monty Python witch trial, you get to see that scene. There's--
DEBRA AVERY: Yes, about the wood and how wood floats, and, yeah, I'm very familiar with that.
REP. LAWLOR: But as funny as it is, it gives you a sense of, you know, looking back, how outrageous it really was because it's something.
And Senator Kissel made a point earlier, which I think is important to restate, and that is as much as this is clearing the names of your families, it's really clearing the names of our state.
And it's history, that we acknowledged what happened was such a tragedy and an outrage, and so it's important to look at it both ways. But anyway, Representative Adinolfi had a question.
REP. ADINOLFI: Just a quick question, about 30 years ago, I lived in Redding, Connecticut for 10 years, and I knew a Sanford family.
Jesse Sanford was the First Selectman there, I think forever, whose family went back to day one in Connecticut. I was just wondering if there was any connection there.
I just looked it up there, and the furthest I can get back was in 1692. I just wondered if there was any relationship there with that Sanford family.
DEBRA AVERY: I will consult our first cousin, William Wornok, who is our family genealogist. All I have to do is say the name, and back will come a lineage chart if we are related. What was his first name?
REP. ADINOLFI: His first name was Jesse.
DEBRA AVERY: Jesse Stanford?
REP. ADINOLFI: I think he's passed on, but he was First Selectman there forever. But I know his family was the first settlers in Redding, Connecticut, or whatever it was called at that time.
DEBRA AVERY: Yeah. Like I said, Andrew's older brother came over first, and there's a substantial amount of Stanfords, I believe, that descend from him. And then there's our line.
And I think our line has less descendants than Thomas seems to have. But I know my cousin will find him if I ask him the question.
REP. ADINOLFI: I just found about 20 of them that died in the early 1700s. But I couldn't go back past then, so I just was curious. Thank you.
DEBRA AVERY: I'll inquire.
REP. MCMAHON: Thank you very much for coming and for all your work and your advocacy. I believe that the woman who approached you as a descendant of Mary Barnes was my cousin Laurie.
And she was researching. She's our family genealogist and was researching the family on my grandmother's side, and I believe we are related to Mary Barnes. So I'll be really looking into this very seriously.
I am sorry that I haven't done this long before this. It was several years ago when she did call.
DEBRA AVERY: Lisa Fern Johnson, Executive Director of the Stanley-Whitman House in Farmington, couldn't be here today. She did submit a statement.
And that organization has done a reenactment of Mary Barnes' trial that we went to last year. And they have a lot of information about Mary Barnes there. So that is a place that you should definitely go and meet Lisa Johnson.
And she's a great advocate for this resolution as well. And you'll find out a lot about Farmington. It's the Stanley-Whitman House.
REP. MCMAHON: Thank you. I definitely will, thank you.
REP. LAWLOR: I noticed one of the persons executed here was Mary Staples from New Haven. We'll have to consult with Representative Cam Staples to see if that's one of his, I don't think his family is originally from the Hew Haven area. Is there any further questions? Representative Green?
REP. GREEN: Thank you, Mr. Chair. Thank you for coming. I've actually, in the last 15 minutes, learned a lot from your presentation and Senator Kissel's comments.
I thought it's been a great, important learning process for me in these few minutes. I do want to thank you for bringing this to our attention, and I do not want to diminish your goal, and I support what you're trying to do because I think that you really make us more aware of Connecticut's history and some decisions we made long ago, not only around the witch hunt but, in my concern, around enslavement of Africans and African Americans.
And I think in the statement that you made, you made a couple of statements that I think I do just want to repeat because I think that you encourage us to think about this.
And one of the things you say is that mob rule has left its ugly mark many times during social unrest in America, from the Colonial Witch Hunts to the lynchings in the segregated South.
And I thought that was a very powerful statement. You also state, formally righting these wrongs reminds us of who we are as a people and the knowledge of who we are now.
So I think that I do want to encourage my colleagues to maybe think about those other areas in Connecticut history, that maybe there needs to be some formal recognition that our laws and our statutes and our actual behavior were, as we know today, we wrong, and that there are descendants, as you are descendants, and there are descendants of people in Connecticut that families have really been given a lot of injustice to.
And I think that we need to begin to, I think, cleanse ourselves in a way, as a state, to acknowledge that these things were wrong. So I appreciate your testimony and thank you for the information.
REP. LAWLOR: Thank you. Any further questions? Well, thank you all very much for all your efforts in this regard, and I think Representative Green makes a very valid point.
There's a great deal we can learn from our history to help us shape our decisions in the future.
You know, the newest Members of our Committee is Representative Taborsak, and I promised him when he agreed to join just a few months ago, that we have, by far, the most interesting public hearings. And I hope he'll agree.
But thank you once again. Next is Donald Connery. Is Mr. Connery still here? And Mr. Connery will be followed by John Souza. Is Mr. Souza here? Okay. You'll be next, Sir.
And let me just, if you don't mind, Sir, let me just see who's still here. Is David Cameron still here? Okay, great. Rahisha Bivens? Okay. Linda Blozie? I don't think she's here. Nancy Kushins? I saw Nancy here, right?
Andrew Schneider? Sally Joughin? Is Sally still here? Okay. Lola Hugh? Susan Giacalone? Okay. Tom Ullmann? I see Tom in the back. Jennifer Zito? Okay, great. Please go ahead, Sir.
DONALD CONNERY: Chairman, Members, I'm here in favor of Raised Senate Bill 608, on interrogations. Let me take off from Senator Kissel's quote, I can't believe in 2008, that we're finally getting around to this.
Well, I can't believe that in 2008, we're still talking about whether we should fully record interrogations in Connecticut.
It's a nice coincidence that we did have, thanks to Representative Lawlor and my Senator, Mr. Roraback, the event about the witchcraft trials.
Note, as a historical moment, that probably almost, surely the very first false confession in Connecticut was given by Mary Johnson in 1648, who was pressured into a confession and probably executed.
Well, there wasn't even a crime, but she confessed anyway. And we don't know how they got her to confess.
And what's horrible then, and back to why we're in 2008, which is now 360 years later, that we still don't know what goes on in the interrogation rooms of most of the police agencies in the state, not to mention the whole country.
This kind of legislation, to require the police to record interrogations in full, has come before this Committee and the Assembly for at least ten years, perhaps a dozen. This is my tenth year testifying.
I hope you'll make it my last because it's well past time. And it's not good enough that the Chief State's Attorney, and I have great respect for Kevin Kane, and I consider him a friend, that last night, he even gave me a phone call to tell me what he was going to talk about.
It's not good enough for the state officials to be able to say, or the law enforcement people, that, yeah, we have pilot programs going.
This idea of pilot programs came up two years ago, only after, about 10 or 12 years, let's say 10 years, of all the police chiefs and the Public Safety Commissioner, Chief State's Attorney year after year giving any number of reasons, most of them invalid, some of them stupid, about why recording interrogations was not feasible, not practical, too expensive, etc.
Despite the avalanche of information from across the country by those police organizations which have experienced, for decades recording interrogations.
Even Truman Capote's In Cold Blood had the place in Kansas recording those criminals. And the Peter Reilly case, about which I wrote a book, the Connecticut State Police recorded in full the eight hours' audio recording.
And of course, that was a great embarrassment because the transcript and the tape could establish that this was a false confession, which led to Peter's exoneration.
It's been the policy of the State Police, unofficial, for the third of a century since then, not to record interrogations. They do not do it as a matter of policy. But they are being forced into it.
It's not, a wind-up is not good enough to say, well, we're going to make these baby steps toward doing what ten other states are now doing in the District of Columbia, because ten years from now, we still don't have any guarantee that all of the police organizations in Connecticut will be recording.
This bill simply says you must record, or else the confession is no good. And the bill puts the flame to the fire of the officials that can speed up the programs and then get this done because you say so. Thank you.
REP. LAWLOR: Thank you very much, Mr. Connery, and I, for one, remember all the many times you've been here advocating for this. And as you point out, it's long overdue, but at least there's some movement in the right direction now.
DONALD CONNERY: But no guarantee that we're going to have recording everywhere in 5 years or 10 years or 20 years.
REP. LAWLOR: Yeah, no guarantee, but my sense is, based on the conversations that have taken place here in public, and also in private, that we're not very far away from this becoming a mandate, or at least a standard practice, or both. Are there further questions? Representative Green?
REP. GREEN: Thank you, Mr. Chair. Just a couple of quick questions. Do you find that there's any negative or downside to video interrogations?
I mean, you mentioned, I think, a lot of policy and good reasons why. Is there anything we should be cautious about?
DONALD CONNERY: Well, I'm glad you asked, and it gives me a chance to say, since I was introducing myself, and I really didn't, I'm a long-term writer on wrongful convictions.
I've done several books and many articles, and I'm an Advisor to the Center on Wrongful Convictions in Northwestern Law School. And the Sullivan Report was referred to by an earlier speaker.
The amazing thing to me about recording interrogations is that unlike so many public issues, whether it's abortions or gun control or whether children in school buses should have seat belts, almost every issue has got valid, strong arguments that I could give on either side.
In this matter, the bottom line is that every police agency, and many of them have said, police chiefs, that we were dragged, kicking and screaming, to do this, but once we did it, we realized it was so good for convicting the guilty, as well as protecting the innocent, that we wish we had done it long ago.
The fact is, that there were very nasty things going on in the interrogation rooms across the country, where the interrogators push the envelope about what they are allowed to do in questioning suspects, beyond threats and lies and all sorts of other psychological pressures.
Recording gives everyone a window into what's actually happening. And the end result is that even though it may be expensive at first to set up the equipment, the long run is fewer jury trials because the guilty know they are guilty because they're confessing on tape.
And the professionalism of the police is enhanced. I'm trying to think through, is there a downside to recording interrogations?
Well, only if you accept what many police officers and prosecutors say, that juries will be upset by seeing what actually happens in the questioning of suspects.
Well, by God, I think they should be upset. In any event, these juries should know what's happening.
And it doesn't seem like any difference anyway because if the tapes or, in this case, electronic recording makes it very clear that this is a valid confession from a guilty person, that's wonderful.
If it's very dubious, that helps protect the innocent. I don't know any downside to recording interrogations. And it does save money, and it improves police. Everything else is recorded, crime scenes, drunks.
REP. GREEN: Let me ask you one more question. In some of the testimony, there's been some concern that attorneys might try to use this method of interrogation, whether it was done properly or not done properly, and focus on that area in court, versus the guilt or the innocent, and that you then shift to not proving the case as much as proving whether or not the recording was done properly. What would you have to say around that?
DONALD CONNERY: Well, defense attorneys do do that, and they should do that because if a confession is improperly acquired by the use of methods and techniques which are improper, unconstitutional.
If they fail to follow the guidelines, they should be exposed. And of course, there was always the possibility that because of the faulty behavior of the police, a guilty person will escape conviction.
Well, that's the price we're going to pay and have paid in order to get the police to behave properly, in order for police agencies to be fully professional.
The beautiful thing about recording interrogations in full is not only does it compel the police to act properly, but it's marvelous training tools, showing younger officers, new detectives, new interrogators how to do it correctly and how to be more effective.
I mean, we all want to be able to have the suspects who are usually guilt because they've been arrested and it's time for them to confess, it's great if we can persuade them to tell how they did the crime.
So we need professional interrogators. But we want the end result to be the guilty person confesses, and the innocent person is detected by the very interrogators that realized that he doesn't know what he's talking about, that he has no idea of what the crime is.
In most of these horrific cases of false confessions, and I'm working with the Center on Wrongful Convictions at this moment, editing an anthology of false confessions in this country.
The major cases that have been written about, including the Peter Reilly case of our sorry history, including Richard LaPointe, who is presently in prison in Connecticut for the last 19 years, a brain-damaged man who confessed to the Manchester Police to a murder he didn't commit, that false confession case is in the upcoming book. I've lost my train of thought here, but--
REP. GREEN: But you've answered the question, and that's fine. Thank you, Sir.
REP. LAWLOR: Thank you. Are there any other questions? Mr. Connery, I have one. I've heard this discussion now for a few years, regarding the videotaped confessions.
And one of the things that I've heard is that while law enforcement may fight it initially, in the areas where this practice has been adopted, many of the prosecutors and law enforcement officials actually then turn around and encourage this practice. Has that been your experience as well?
DONALD CONNERY: Well, it's not so much my experience, although it is, because I've been witnessing across the country, and I've been involved in a number of wrongful conviction cases based on false confessions.
What's so frustrating about these hearings and trying to get a legislation to compel the police to record is that we have a record of the experience of police organizations, the so-called Geller Report by the National Institute of Justice goes back to the mid-1990s, which asked, and subsequent reports, like the Sullivan Report out of Chicago, they've asked the police, the states that require interrogations to be recorded, on way or the other, there are now ten, plus the District of Columbia.
And police organization which do it on their own hook, when you ask their experience, according to all of the reports and all of the experts, they love it. They're for it.
They wish they did it before, because, in a sense, they had to become converts to doing something they didn't want to do.
But now that they're doing it, they know that they have a more effective tool to convict the guilty.
And then they don't get hung up with a false confession case, which could often lead to million-dollar lawsuits or settlements or something or other. I mean, the answer is almost 100% yes, that the experience is positive.
REP. LAWLOR: Now you reference a Chicago study, and I think it was a U.S. attorney in Chicago or assistant U.S. attorney--
DONALD CONNERY: Well, I--
REP. LAWLOR: --specifically saying that this is something that I think he fought initially, and now that he has it, he would never go back.
DONALD CONNERY: Well, that's one of the attorneys, but I was referring to the so-called Sullivan Report by a very distinguished Chicago lawyer who, essentially, that made a study of the experience with this across the country.
And it is now the latest word on the subject. And that's the bottom line, that when police finally do it, and are usually compelled to do it by legislation, even Supreme Court decisions.
When they do it, then they are glad they're doing it. It's good for law, good for law enforcement, good for justice.
REP. LAWLOR: Well, thank you again for your testimony and for coming back again. We appreciate it.
DONALD CONNERY: Thank you for hearing my ranting.
REP. LAWLOR: Next is John Souza.
JOHN SOUSA: Good afternoon, Members of the Committee. I'm John Souza. I'm a landlord in Hartford and surrounding towns. I'll be brief today. I know everybody is dying to get out of here.
Earlier in the day, we've heard testimony from Raphael Podolsky, I believe it's pronounced. He's the head of Legal A. He was for House Bill 5920, as well as Paul Rosow, who's the President of the Connecticut Coalition of Property Owners, that's a landlord group.
They were also for House Bill 5920. I think it's a great day when those two groups are both on the same page for a bill, so it has to be a great bill.
The bill proposed would bring the small claims process that is now separated from the landlord tenant court back into a centralized system, two years ago, back into the small claims process, where the tenant and landlord matter were originally taken care of.
Since that has happened, I've had a very hard time doing small claims in loss of instances. It's really, the point earlier is that it's slowed down.
In my judgment, a lot of it doesn't work at all anymore, the main reason being that when tenants are being evicted, at the end, they often, for some strange reason, don't leave a forwarding address when they owe you money.
So you can't walk into court and file the lawsuit and have it mailed to them, like it's traditionally done.
What happens is now, if I go in there, it takes 90 to 100 days before the paperwork is even handled and sent out to the person. And if you don't have a forwarding address, it's a moot point. They don't do it.
It comes back to them if you mail it to the wrong address, and you get a non-suit. You'd have to have them served by hand. If you know where they work, if you're lucky, that would be great. Most of the time, you don't.
So in effect, good tenants end up paying the price of these bad eggs that skip out without paying, in the sense that they end up paying with larger rent increases, or they end up having less maintenance done to the building in the proper fashion because the money is not there.
I would like to see, simply put, that they move it back the way it was originally. There's also a little bit more expertise in the Housing Courts because they deal with housing matters all day long, and they understand the intricacies of the law in this area.
I have examples on my written testimony, which I'll submit, of recent evictions where I didn't even bother doing the small claims because the timeframe is just too long.
And there's no way to get a hold of them if they don't leave a forwarding address. Previously, I could walk in, and within three or four days, the tenant that was under eviction would have notice of suit.
And even if they left, they could still proceed with the trial or a notice, or what's it called, where we'd just prove what the damages are, and you could receive a judgment.
Today, you can't even get to that point. It's moot. So I hit the bell right on time. So if there's any questions, I would be happy to answer them.
REP. LAWLOR: Great. Thank you very much. Are there questions? Well, thanks very much. It does sound like there's a little consensus developing on that one, so that's good. Next is Dave Cameron, and Rahisha Bivens is next.
DAVID CAMERON: Good afternoon, Representative Lawlor and other Members of the Committee. My name is David Cameron. I'm a Professor of Political Science at Yale.
I have an interest in the functioning performance of the criminal justice system in Connecticut.
I've written op-eds on various topics, including criminal justice from time to time, including one in The Courant last week about DNA.
I'm appearing here to speak about the two DNA sampling bills that are before you and to add my voice to those who call for DNA sampling to be extended to those that are arrested for a felony or convicted of certain misdemeanors.
I think there are three functions that extending the DNA, extending DNA sampling would achieve.
First, it would help investigators solve some long-unsolved cases for which there is biological evidence from an unidentified source.
It would also allow law enforcement personnel to prevent some individuals from committing offenses, or more serious offenses, in the future.
And it would lead, in all likelihood, to the exoneration of some individuals who have been convicted of crimes they didn't commit and perhaps prevent wrongful convictions of others in the future.
Now I realize that from the perspective of preventing wrongful convictions in the future, the most urgently needed reforms are not DNA sampling but have to do with videotaping confessions to prevent false confessions and improving the eyewitness identification procedures.
And having just witnessed a murder trial in New Haven in the past week, in which the entire prosecution case rested on three eyewitnesses who later recanted their testimony in the trial and claimed that their testimony was coached prior to the taped statements, I have to say I think House Bill 32 , and this is just in passing, House Bill 32 , actually needs to be strengthened.
In addition to making the lineup procedures, photo board procedures impartial, administered fairly, I think much more has to be done prior to that process, in what in New Haven is called the pre-interview phase, as well as in the actual identification process.
I believe you will hear more about that perhaps from Mr. Ullmann later. Legislation, nevertheless, coming back to DNA, I think it's important to point out that DNA sampling will achieve other functions that are not achieved by preventing wrongful convictions in the future, and I've outlined some of those.
Now in the written testimony that I submitted to you, I called attention to the fact that Connecticut has an unusually small DNA database, even though in the past year, according to the CODIS data, the Connecticut database has increased by some 30%.
So it certainly is the case that there has been a large backlog. They're building up the database, but it is still very small.
It represents, according to the latest CODIS data, 0.8% of the population. There are about 28,000 samples of convicted offenders in the database, as of last October, the latest FBI data.
Compare 0.8% with, for example, California, 2.4% of the population, Virginia, 3.4%, nearly 4 times as large as Connecticut's.
So one of the problems that exists in Connecticut is that it's got a very small DNA database relative to the population for a variety of reasons that I, and a variety of reasons that help to explain the differences across the states.
But part of it has to do with the fact that Connecticut didn't get to the point of including convicted felons until 2003. So it's a relatively new [Gap in testimony. Changing from Tape 4A to Tape 4B.]
--that is a match between an identified sample from a crime scene and one in the database. Now coming to the point of that legislation that's before you, over the past several years, in particular since 2002, a number of states have extended DNA sampling to include not only those convicted, virtually every state includes those convicted of felonies now, but also to include those arrested for some felonies.
Virginia was the first state in 2002, began in 2003, and since then, ten other states have passed legislation to authorize the taking of DNA from some arrestees.
Four states passed legislation last year. There are a large number of states considering legislation right now.
Just to highlight a few of them, as of 2009, California will collect DNA samples from anyone arrested for a felony, as of next January, and there are other states that have that same policy.
In 2006, the federal government, likewise, for any federal offense now collects a DNA sample. The states that have gone this route to collecting samples from those that are arrested for a felony have substantially larger DNA databases.
As I said, California is three times our size, controlling for population. Virginia's is four times our size.
It's perhaps not coincidental that Mr. Foster was located in a Virginia jail, in Emporia, Virginia, and that the cold hit occurred through the Virginia database, not Connecticut's database.
Now I'm not a lawyer, but I realize, as a political scientist, that there are a large number of constitutional issues pertaining to privacy, having to do with taking a sample from someone who is presumed to be innocent, who has not yet been convicted.
And these are concerns that exist because, obviously, the Fourth Amendment of the Constitution, as well as Article 1, Section 7 of the Connecticut Constitution, both of which prohibit unreasonable searches and seizures.
And the question, of course, has always been, what is unreasonable? And as was mentioned earlier by Mr. Carlow, there are two cases now of state courts that have ruled on this, and they've ruled in divergent ways.
In Minnesota, in a case in 2006, following an earlier U.S. Supreme Court decision from four decades ago, upheld a district court ruling that taking DNA from an arrestee is unconstitutional, without a probable cause and without a search warrant is unconstitutional.
And the Virginia Court, on the other hand, ruled that it was constitutional and that taking a sample is no different in character than the taking of fingerprints.
The federal courts haven't specifically ruled on this issue yet. They certainly will. But there's no doubt that the federal legislation is unambiguous, and virtually unanimous, that in finding that according to the special needs doctrine elaborated by the U.S. Supreme Court in New Jersey v. T.L.O., 1985, applied to suspicionless searches in Griffin v. Wisconsin in 1987, confirmed in Illinois v. Lidster in 2004, that DNA indexing statutes are constitutional.
And there are more than 30 federal cases, all of which support DNA indexing. And following that line of reason, the U.S. Court of Appeals for the second circuit, held in Nicholas v. Gourd in 2005, which pertained to the New York indexing system, that DNA indexing, to assist in solving crimes, constitutes a special need, a special need for law enforcement, meaning that a suspicionless search could be justified.
And that court, that same court, the second circuit, which obviously is the court that's relevant here, in a more recent case, a U.S. v. Amerson, 2007, applied this special needs doctrine to the taking of a DNA sample from someone on probation.
And following the logic in both Nicholas and Amerson, I think the argument and the rationale for why that is constitutional would extend very easily, and will be extended when it comes before the court, to sampling from some arrestees.
And in Amerson, and just a quote from the [inaudible] which was actually written by Judge Calabrese, a former dean of the Yale Law School, the court noted that, quote, there can be little doubt that the government has a compelling interest in rapidly and accurately solving crimes and that having DNA-based records of the identity of as many people as possible effectuates this interest.
Lastly, just as a parenthetical statement, I study in my day job, when I'm not following Connecticut politics and so forth, I study European politics.
And I might note that in Britain, legislation was passed in 1984 to authorize the taking of a DNA sample from anyone arrested for a punishable offense, so more than two decades ago.
And in Britain, which has, by far, the largest DNA database in the world, well over 7% of the population, the debate has moved much further than in this country. It has moved to the question of universal sampling.
And that, I think, is the way we will eventually, some time in this century or next, move.
But I just say that to indicate that in some sense, unfortunately, Connecticut is not in the vanguard in this legislation, but it's in the rearguard.
And I think there's an opportunity to get into the, to move ahead and to move forward in this area. So thank you very much for hearing me, and I'm happy to answer any questions.
REP. LAWLOR: Thank you, Professor. Are there any questions? You know, you brought up the British topic, and this has come up recently.
And I was just curious, as you can probably tell, there's a good deal of concern among many legislators about the privacy implications of this type of database existing, and other uses for the DNA information.
I, for one, agree with you, by the way. I think, to me, it's like a fingerprint, right, just a more accurate way to identify people and solve crimes and stuff.
But there are a lot of concerns, and inevitably, we'll be debating these. And I just wondered if you've given any thought to the concerns that legislators and others have about other uses for this information, which might not necessarily be what's contemplated here.
DAVID CAMERON: Well, the first thing I would say is as I understand it, the DNA that's used in identifying is what they call junk DNA.
It's DNA, now I'm not a scientist, and I'm not sure if it's really just junk, but it's claimed to be DNA, and I think you heard it earlier today, DNA from which one cannot extract any information about medical condition, genetic history, or anything else.
It's simply used to identify, and it's just like a fingerprint or a mug shot, but it's even more impersonal because those both have the name of the person attached to them, whereas, this is simply in the database as a set of number representing long strings of molecules, which are given numbers and letters.
So that's the first thing to say. The second thing to say, I think it's the case that in the courts, in the federal courts, the decisions have revolved around a balancing issue, of balancing privacy against the government's interest in obtaining a sample.
And both the Supreme Court, but also the second court, have developed this argument, and there is an argument that you'll find in reading both the Nicholas and Amerson cases that there's an argument that the right of privacy is to some extent diminished for some people in certain legal categories, that if someone has been convicted of a felony, his or her right to privacy is somewhat diminished relative to the government's interest in having a sample.
And specifically in the Amerson case, they began to try to calibrate that. Now presumably, in a case of arrestees, that would be calibrated still further, and there might be some diminution but not as much diminution as in the case of someone on probation or someone who's been convicted.
I think it's a serious issue. But on the other hand, it's minimally intrusive. And the courts have argued and concluded that it is minimally intrusive, in terms of an invasion of privacy. And you've had it explained here today.
So I don't see it as problematic. I realize that because we have the Fourth Amendment and the various forms the Fourth Amendment takes in the State Constitutions, we may never get to the point of having universal sampling.
Britain doesn't have to worry about that. It might be easier to get to that point. But obviously, universal sampling by the universality, to some extent, gets around and avoids the problems of taking samples from some persons and not from other persons.
I hear it's an issue, but, at the same time, I have to say that if you're, and I don't want to sound presumptuous about this, because I'm not personally in this situation, but I would say that if you are the mother or the father of a victim of a crime that has been committed for which there is biological evidence from an unknown source, or the sister or brother of someone who has been a victim of a crime for which there is DNA from an unknown source, or if, for that matter, you're James Tillman, or someone like James Tillman, who's sitting in jail for a crime you haven't committed, what you would want more than anything else is to have the largest possible DNA database.
So I think there is a balancing, and I'm very aware of the privacy concerns. But I think there are more real concerns, deeper concerns, among persons who are victims themselves or related to victims of crimes for which there is DNA from unknown sources.
I think another area where this can contribute is imagine someone is arrested for a crime but not convicted and then is arrested a second time and not convicted and then the third time commits a grievous offense, a rape, a murder, whatever.
And then imagine if you had had a DNA sampling for an arrestee. Well, you wouldn't get him the first time, but you might get him the second time if you had taken a DNA sample after the first crime, and you could link him to that as well as to the second crime.
So I think there are multiple reasons why the government should give serious [inaudible] legitimize extending DNA sampling to arrestees.
But I realize this is very unpopular with many of my friends in the ACLU. This is an unpopular issue for all kinds of reasons.
And the unpopularity hinges on the issue of privacy and the Fourth Amendment prohibition against unreasonable searches and seizures.
There is one issue in your legislation last year, if I could just refer to at the end. One of the concerns that comes up in legislation, that came up in the issue in the legislation considered last year, is, well, what is the state supposed to do with the DNA of someone who is arrested and then found not guilty?
Do you keep it in the database? Do you destroy it? And the sense was, well, perhaps if the person writes to us, we would release it.
But there are several states now, in particular, Virginia, Minnesota, Texas, that automatically delete a sample when an arrestee is cleared.
This is an issue now in Britain, where, since 2001, Britain has ruled that samples will remain in the database regardless of whether a person is cleared, and that is now a court case. And they may follow the steps of Minnesota, Virginia, and other states.
REP. LAWLOR: Well, thank you. If there's no other questions, thank you for your testimony. Next is Rahisha Bivens. And Linda Blozie is not here, right? So Nancy Kushins will be next.
RAHISHA BIVENS: Good afternoon, Members of the Committee. My name is Rahisha Bivens, and I currently reside in New Britain, Connecticut.
I'm also a student at UConn School of Social Work. And I'm currently late for class, so I'll try to make this quick.
Many of the people here today talked about a lot of bills that are on the floor that are going to implement procedures that can hopefully reduce the likelihood that people will be wrongfully convicted.
I commend many of these bills and many of these policies. However, I do think that there still are people in the State of Connecticut who are innocent and who are in prison.
Because of this, I believe that there will be future exonerates in the State of Connecticut. So I'm in support of House Bill 5933, AN ACT CONCERNING THE COMPENSATION OF WRONGFULLY CONVICTED AND INCARCERATED PERSONS.
Currently, 22 states have passed laws that allow wrongfully convicted individuals to seek compensation.
It is imperative that Connecticut implement its own uniform procedure that will allow exonerated persons to receive retribution for the years of their lives that they have lost.
Since 1989, 214 inmates have been exonerated by DNA testing. Studies show that in 77% of these cases, inaccurate eyewitness testimony contributed to these individuals being wrongfully convicted.
Other contributing factors include deliberate government misconduct, withholding or destructing of evidence, and/or coercion of false testimonies.
Many of these individuals also were assigned public defenders who were ineffective and overburdened.
Studies also indicate that racial minorities, and those with low socio-economic status, are severely disadvantaged in this process.
Last year, Mr. Tillman was exonerated for a crime that he didn't commit after 18 years of confinement.
You, the Connecticut Legislature, voted to give Mr. Tillman the financial means to resume his life by granting him $5 million.
However, if Connecticut doesn't enact a procedure for wrongfully convicted individuals to pursue compensation, many exonerates may not be as fortunate.
Currently, only 45% of those exonerated, based on DNA testing, have received compensation. And states without compensation statutes, the likelihood of exonerated individuals receiving funds are slim.
In these states, exonerated individuals can pursue compensation by filing a civil lawsuit or persuading the Legislature to pass a private compensation bill.
In these cases, the burden of proof is on the exonerated individual. In essence, those exonerated are being punished indefinitely for crimes they didn't commit.
Passing House Bill 5933 will provide a safety net to wrongly convicted persons that would allow them to be productive members of the society.
In addition, research indicates that many exonerated individuals face more barriers to being reintegrated into society than convicted criminals.
Although they initially depart prison with the sense of optimism, many fall into depression because they don't have the comprehensive social, economic, and psychological support that can help them be productive citizens.
Many of them leave prison with little resources. They don't have any job skills. And oftentimes, they are estranged from family members.
In House Bill 5933, you allow for the claims commissioner to be able to grant money for things such as education, housing healthcare, or basically anything that will help aid this person into successful reintegration back into the community.
In closing, as technological advances continue to be made in the future, more people are likely to be exonerated.
The government has an obligation to provide a safety net that can give these exonerated individuals a second chance at life.
By adopting this law, you are sending a strong message that injustice will not be tolerated. The passage of this bill will most certainly contribute to a more equitable criminal justice system, where socio-economic status no longer determines the verdict. Thank you.
REP. LAWLOR: Thanks very much. Obviously, you are a very good student, and I hope you learned a few things watching our proceedings. Were you here the whole day? Did you get to see the whole thing?
RAHISHA BIVENS: Yes, I was, 8:30.
REP. LAWLOR: Really?
RAHISHA BIVENS: Yeah. I did learn a lot, so I have a lot to talk about in class.
REP. LAWLOR: What was the most surprising thing you saw?
RAHISHA BIVENS: I did not expect to hear about witches.
REP. LAWLOR: Really.
RAHISHA BIVENS: Yeah. And I love how, I'm not sure what his name is, how he made a reference to slavery.
REP. LAWLOR: Representative Green.
RAHISHA BIVENS: Yes, Representative Green. I thought that was great. And if we could do some work around that in the future, I would definitely support that as well.
REP. LAWLOR: There's been a great deal of discussion here about that same thing. And if you recall, what he pointed out was in the testimony of the descendants themselves, they referenced that as another shameful episode in Connecticut history and, more importantly, in the history of some of the other parts of the country.
But still, you're quite right. We can learn a lot from the mistakes made in the history of this country and our state.
RAHISHA BIVENS: Right.
REP. LAWLOR: And make sure they don't happen again, obviously. Thank you. Representative O'Brien?
REP. O'BRIEN: No questions, really, but as a New Britain Legislator, I just want to thank you for coming up and speaking. I appreciate it.
RAHISHA BIVENS: Okay. You're welcome.
REP. O'BRIEN: Not to hold you up for class.
REP. LAWLOR: Do you need a note or something?
RAHISHA BIVENS: No. I let my professor know in advance I would be late probably.
UNIDENTIFIED SPEAKER: He could be watching you right now.
REP. LAWLOR: Do you know all this is broadcast live on television throughout the state, and in a day or two, you can go back in the archives. You go to CTN.com, and in two or three days, they'll have this whole hearing, and you could fast forward to your part.
RAHISHA BIVENS: My part, yeah.
REP. LAWLOR: The best part, your part, yeah. But it' s a good--
RAHISHA BIVENS: Well, it was a great experience. We talk a lot about, you know, what influences policy a lot in our classes because this is why I had to do this assignment. But I'm glad I did it. I would have probably did it anyway, whether I was forced to or not, you know.
REP. LAWLOR: Well, that's great. I wish more people would participate. Actually, it's interesting to see how this whole process really works.
RAHISHA BIVENS: Right.
REP. LAWLOR: Thanks for coming. Representative Green?
REP. GREEN: Yes, this is Representative Green, and I see, Rahisha Bivens?
RAHISHA BIVENS: Rahisha.
REP. GREEN: Rahisha, that you're a student of social work at UConn. That's the school that I graduated from. I have my master's in social work. So I want you to remember my name, okay. Thank you for your testimony.
I'm always glad to see the students not only doing social work but I think time in community empowerment, political activism as part of an extension of what social work is. And that is part of why I'm here as a legislator.
I don't know if you figured out the $100,000, I think it says, for each year that a person may be wrongly incarcerated, that a gentleman like Mr. Tillman would probably have been eligible for $1.8 million versus $5 million.
So even though I think it's in the right direction, I guess I might be concerned about the amount of compensation, and I don't know if you have any thoughts about that.
RAHISHA BIVENS: Yeah, I do. I mean, it varies from state to state, you know, the amount they'll compensate an individual.
But I think that the important piece with this legislation is that you allow the claims commissioner to basically allot money for things like education.
So as I was researching, you have people who were compensated but who still weren't able to live their lives to the best of their ability because they didn't feel productive because they didn't have a job, you know, and they didn't have education.
So I still think that amount is good to provide people with more than, you know, enough money to meet the basic necessities.
But as long as the claims commissioner is assessing what other types of services they need, I think that amount will be fine. I know it would be fine for me.
REP. GREEN: It would probably be fine for me. I don't know if I want to get it that way. And thank you for your comment.
As you said, you're very interested in some of the other testimony in the comment that I made, in that I have been, and I'm trying and currently working on a way for the state to recognize its involvement in slavery and see whether or not we could resolve that with some sort of public acknowledgement and apology. So if you're interested in that, feel free to contact my office. Thank you.
REP. LAWLOR: And before I recognize Senator Gomes, I just want to say now I can tell you read the bill because you've found out, you've figured out that what it actually says in there is $100,000 is the starting point, but the claims commissioner can consider other things.
See? You're reading the bill. Doing better than a lot of people, actually. I don't read a lot of them myself. But I'm just saying that she did.
I'm very impressed that not just the first few lines, but you understood the whole bill. So that's great. Senator Gomes?
SEN. GOMES: Maybe I'm missing something, but, and I appreciate your testimony, and thanks for coming.
But maybe I'm missing something. When you talk about the $100,000, I'm elaborating, not elaborating, but I'm following up on some of the things that Representative Green said.
When you arrest a person for a crime, as they arrested Tillman, his potential hadn't existed, or I wouldn't say it hadn't existed, but his potential hadn't existed by the time he got out, a potential of what he would have been or what he could have been.
He could have improved his education. He could have been, done anything, you know, that would have put him in a category where he deserved that $5 million.
$100,000 might be all right, but it doesn't allow for some of the things that a person could have been, and those are the things they're talking about when they talk about just awarding him for damages and so on and so forth. That's what that is.
And like you said, $100,000 is a good start, but when we talked about Tillman, and when we finally came to that point of $5 million, and actually, that's all he requested. And he had a lawyer that was doing pro bono work that didn't charge him nothing.
If he'd have requested more, if it would have been something different, if he had requested less, they'd settle on that because that's what he requested. They were a little bit hashing around somewhat before it was done.
But that's what, all of us that were talking about it, that's what we were taking into account. We were taking into account that this man spent 18 years in jail. He missed things from his family.
He could have had a family. He could have had children. His children could have, might have needed him, and he would have had to provide for them and all that.
So there are a lot of things that come into play when a person is in prison for something that they don't do. It's like you said. $100,000 is a start.
REP. LAWLOR: Thank you. Any other questions? If not, thanks again for watching all day.
RAHISHA BIVENS: Thank you.
REP. LAWLOR: Thanks. Next is Linda Blozie is not here, or she is here? I don't think she is. So Nancy Kushins, to be followed by Andrew Schneider. I see Andrew sitting here.
And then I think Sally Joughin is not here, right? And Lola Hugh is not here. Is that correct? So next, after Andrew Schneider, will be Susan Giacalone.
NANCY KUSHINS: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. My name is Nancy Kushins, and I'm the Executive Director of CONNSACS.
I'm here today to submit testimony in support of four bills, Senate Bill 35, AN ACT CONCERNING THE REGISTRATION OF SEXUAL OFFENDERS with the Governor's proposed language removing the driver's license identification provision, Senate Bill 699, AN ACT CONCERNING THE SEXUAL ASSAULT OF CHILDREN, House Bill 5033, AN ACT PROHIBITING SEXUAL OFFENDER NAME CHANGES, and House Bill 5924, AN ACT ESTABLISHING A SENTENCING COMMISSION.
I would like to focus my remarks on two of these bills today. With respect to Senate Bill 699, we support the prioritization of child sexual abuse cases and allowing witnesses to stay with the victim during testimony.
Sexual assault trials are particularly difficult for children, and having a close family member or friend present can help diminish the trauma of testifying.
This may also improve the number of victims who are able to stay involved in a case, which could also contribute to better outcomes in sex offender prosecution.
The Governor and Legislature are to be commended for their commitment to victim and community safety, as well as holding sex offenders accountable, as reflected in Senate Bill 35. CONNSACS shares this commitment.
Of particular note is the language in the bill that considers victim input and needs related to the sex offender registry.
One of the concerns when we provide more comprehensive information on the sex offender registry is whether this information could inadvertently identify a victim.
Again, the Governor and lawmakers included language to ensure that this does not occur. A critical success factor in Senate Bill 35 is the emphasis on multi-disciplinary input concerning the implementation of the provisions of this act.
CONNSACS has served as a member of the Risk Assessment Board since its inception, and we would like to continue our active involvement as a member of the newly established sex offender registry policy advisory committee.
The formation of these two committees as forums to utilize the expertise of subject matter experts is strongly supported by CONNSACS.
Here in Connecticut, we are fortunate that the Governor and lawmakers not only seek but also listen to the input of diverse entities to ensure that we have laws that actually work as originally intended.
As I talk to colleagues of mine around the country, this has not always been the case in other states, where they have enacted legislation in response to high-profile cases without considering the views of key stakeholders or potential unintended consequences, especially for victims. We urge your support of this bill. Thank you.
REP. LAWLOR: Thank you, Nancy. Are there any questions? Senator Kissel?
SEN. KISSEL: Well, we started at about 10:00 this morning, and it's almost 5:00 this afternoon, and you've been with us throughout the day. And I just want to commend you for your leadership on all of these issues.
And, you know, one thing about this Committee and working with us, Senator McDonald and Chairman Lawlor and everybody else, you know, the message is try to follow through on the policies that we set in motion because you're exactly correct.
There are often unintended consequences for the best-laid plans of mice and men. And to have your feedback on a lot of these things, we've met a number of times over the last several months, and to work with you on different taskforces, you know, you're really good at what you do.
And you know what's going on when the rubber hits the road. And we need to hear that because sometimes, I'm not going to say, even myself can get carried away fighting for a particular thing.
But we need to know how it's implemented, rather than just setting it in motion and then just walking away to the next hot issue, constantly touching bases with people, finding out, did we make any mistakes?
Do we need to reverse anything? Do we need better funding? And how is it working out there in the field?
And so you're a tremendous resource, and I want to thank you for your patience today and for your advocacy for victims and folks out there that aren't victims all the time. You do a great job.
NANCY KUSHINS: Thank you, Senator Kissel.
REP. LAWLOR: Thank you, Nancy. Are there any other questions? If not, thanks again. Andrew Schneider? Then it will be Susan Giacalone, Tom Ullmann. You'll be off the clock by the time you get called, Tom, right?
ANDREW SCHNEIDER: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. My name is Andrew Schneider. I'm Executive Director of the ACLU of Connecticut.
And I'm here before you today to express our view that Senate Bill 692, AN ACT REQUIRING DNA TESTING OF CERTAIN ARRESTED PERSONS, should be vigorously opposed on grounds of principle, constitutionality, and practicality.
The cornerstone of the American legal system that a person is innocent until proven guilty is turned on its head when innocent people are included in a criminal database or databank, both to catch the guilty and exonerate the wrongly accused, and storing the most intimate biological information of persons who have not been convicted of any crime, even if it is only stored for the duration of the legal proceedings that ends in an acquittal, which can sometimes take years.
DNA is much more than a fingerprint in that it contains some of the most private information about a person.
Our genetic code, which is contained in our DNA, determines a great deal about susceptibility to disease, as well as information about our family's history.
This is private information about you and should not be made available to the police or to the government. Concerns of misuse of this information are driven by current laboratory practice, where each biological sample is retained along with the generated DNA profile.
The risk that these samples might be accessed and used in controversial research, for example, on human behavior, such as aggression, substance addiction, or criminal tendency, or in other sinister ways, remains so long as those samples remain on file.
There is additional danger inherent in these databases as well, which is that they make sharing the data extremely easy.
Almost weekly, we hear of another government database being breached and the information being sold by identity thieves.
In the case of DNA, this would be an especially dangerous scenario, as employers and insurance companies would bid high to get a peek at your genetic profile.
The taking and permanent retention of DNA from innocent people is a serious violation of the Fourth Amendment. The courts have repeatedly determined the taking of DNA constitutes a search under the Fourth Amendment.
The courts have nonetheless upheld state DNA databases on the notion that convicted persons have a lesser expectation of privacy. Clearly, this does not apply to innocent people.
For example, the Minnesota Court of Appeals recently determined that Minnesota's law, authorizing DNA collection from persons charged but not convicted, violated both the U.S. Constitution as well as Minnesota's Constitution.
Massive expansion is also unlikely to make us safer. DNA is only found at a small fraction of crime scenes.
The ability of law enforcement to resolve crimes using DNA evidence is limited by its ability to glean DNA from crime scenes, not by the number of people in the database.
Unchecked expansion of DNA databanks will encourage law enforcement to spend a disproportionate amount of time and money [inaudible] crime scenes for DNA when resources could be better spent on other techniques, such as community policing.
And a recent study has shown that enactment of Britain's arrestee testing program has actually corresponded with a slight decrease in matches with crime scene evidence, probably because they're bloating their database with people who are highly unlikely to commit the tiny number of crimes where DNA plays a role.
And massive expansion may even undermine criminal justice. Arrestee testing will worsen existing backlogs in DNA testing. And backlogs in DNA testing have resulted in delays in priority cases.
In the example of the tragic case of Christina Worthington, who was raped and murdered on Cape Cod in 2002, although the crime lab had the DNA of her attacker, it took over a year to process the sample, thanks to a backlog caused by a DNA dragnet.
And DNA testing is not infallible. Mistakes can and have been made in the collection and analysis of DNA and the reporting of results, sometimes resulting in innocent people serving time for crimes they did not commit.
Backlogs increase the chances of these errors of lab analysis and database administrators, who are pressured to cut corners to meet their workload.
And also, the unchecked expansion reinforces racial disparities. A DNA databank that includes arrestees will unfairly represent minorities, who are wrongfully arrested at a disproportionately higher rate than whites.
If information from these databanks should fall into the wrong hands, minorities will face increased discrimination outside the criminal justice system, as well as within.
And if you look at Britain's databank that includes arrestees, one third of the black population in Britain is currently represented in the UK database as a result of Britain's decision in 2001 to expand their database to include arrestees.
And then we should also consider the fact that there's the notion of [inaudible] which means when the government initially intends something to be used for a very limited purpose all of a sudden expands and expands even further beyond that original purpose, that ends up infringing on our personal liberty and our privacy rights.
And we've seen that with social security numbers in the Social Security Act. We've seen that with the Census Bureau in using the census information during the period of World War II to round up Japanese Americans.
And we've already seen that with the DNA databank because if you remember, initially, these databanks were set up to only catalog those who were violent sexual predators, where DNA evidence was more likely to be left at their crime scene.
And so eventually, that was expanded to all violent felons and then all felons in general, and now we're looking at expanding it to arrestees.
So we at the ACLU feel that it's very important to not take this additional step because serious constitutional liberties would be at stake by doing so. Therefore, we oppose Senate Bill 692. Thank you.
REP. LAWLOR: Thank you very much. Are there questions? If not, thanks again. Next is Susan Giacalone, Tom Ullmann, and then Jennifer Zito. Is Jennifer still here? Is there anyone else who is planning on testifying?
SUSAN GIACALONE: Kevin Hennessy was in the building, but I don't know if he was coming back up or not. I'll see if I can track him down when I'm done.
For the record, my name is Susan Giacalone. I'm here on behalf of the Insurance Association of Connecticut. Good afternoon, Representative Lawlor and Members of the Judiciary Committee.
I have submitted written comments regarding Section 2. I'm only focusing on Section 2 of House Bill 5935 that deals with the tolling of statute of limitations and notices while the police report is pending.
I'm going to try to limit my comments to some of the issues that were raised with the first speaker that spoke on this issue.
One of the comments made by the first speaker is that they didn't feel it creates a detriment to those who would be impacted by it.
The whole purpose we have a statute of limitation is to protect people from limitless litigation. Those would be the very people who would be impacted in a detrimental way by this proposal.
This proposal says it's going to, the statute of limitations, which is there to protect them, is going to be blown up while we're waiting for a police report. A police report is nothing more than a piece of evidence.
So what's next? Should we toll it while they're waiting for a medical report to come out or their private investigator to file report?
You have two years to bring a case brought in negligence, three years for tort. There are things within case law and statutory schemes that provide ample time for a party, if they have problems, to go to a court.
There's no other state, that was another question that was put, are there any other states that do this?
As far as we can tell, no other state tolls the statute of limitations so a plaintiff can establish evidence and obtain information. It's not, it doesn't create a cause of action. It's just a piece of evidence that's used.
There's other things that come into play in synch with this. What police report are you talking about? Is it one that would have to be contemporarious with the event occurring?
What if that's opened and closed and opened again? What if it happens three months after the event? What if it happens two years after the event? How is that impacting the statute?
What if there's multiple investigations going on, one is closed but one is still opening? Again, what's the trigger? It's not done anywhere for very good reasons.
And then it also doesn't talk about how it's going to impact cases that are currently pending, how it's going to go going forward? Are you going to talk now of cases that are a year and nine months?
Well, now we have this new law, so now you get this more time to it. It makes no sense. It actually is depriving those very people of their rights. I mean, defendants have rights too.
And, you know, it's removing parity from the system. And as Representative Fox pointed out earlier through the previous speaker, you would actually result this proposal in different statute of limitations for each case.
It's not limited to certain causes of action, as alluded to by the previous speaker. Well, it's just going to be for your big accidents or your fatality accidents. It's not. It's any case, any cause of action.
So you could have a 24-hour toll. You could have an 18-month toll. You could have a 3-year toll.
It would vary from case to case to case, and that's not what the statute of limitations was intended to do. Thank you, and I'll take any questions.
REP. LAWLOR: Thanks very much. Are there questions? If not, thank you, Susan. Oh, I'm sorry, Representative O'Neill.
REP. O'NEILL: Is there some case that this arose out of that you might be aware of that caused this to be brought forward?
SUSAN GIACALONE: I'm not aware of any at all. I haven't heard of any. I don't know if there's one out there looming that they're trying to create a fix for. I haven't heard of any.
I haven't heard of any problems or any complaints that, hey, we're getting precluded from bringing cases to court because of this.
REP. O'NEILL: And the other thing is that the way this is phrased, and I'm not sure, but I'm thinking about the case where Governor Rowland, before he became Governor, was involved in some sort of an altercation with his ex-wife.
And there was a police investigation in Middlebury. And they concluded that they were not going to take any action in that case. And therefore, they never had to disclose the police report.
And I'm just wondering if the way this is set up, is it possible that you could have reports that never become public?
SUSAN GIACALONE: I would think so. And again, how would that impact, how would a defendant even know, he may not even be aware there's an investigation ongoing.
So they're thinking their statute of limitations is a certain amount of time. So I don't know on a civil case how that would be. I can find out for you, but I would think that is a probability.
REP. O'NEILL: Well, do you see anything in here that would deal with a situation where, because it says, it's tolled until, if there's an investigation, although it talks about in any civil action in which there is a State Police investigation, which, in and of itself, seems kind of unusual that you have a civil action, there's no civil action pending at the time of this investigation, because that's the whole point of tolling, that no action has to be filed until something is done.
So there's an investigation of an event, but there's actually no civil action pending, and that it's possible there could be a type of report.
Under certain circumstances, the police are not required, in fact maybe prohibited from, actually disclosing, since I think that case went all the way up through the court system, and the conclusion was reached that that report never had to be disclosed. So I guess I'm trying to figure out what's the problem this is trying to fix? We don't know.
SUSAN GIACALONE: I think you're raising good points. In that circumstance, that statute would never toll because the report is never filed.
Or if it's filed, but it's not a public report, a juvenile matter, you know, an assault case in a juvenile matter, that may not be a public report, so does that mean that assault action that would spawn from that would be limitless?
REP. O'NEILL: Right, thank you.
REP. LAWLOR: Well, I think I can answer the question. I'll just pick your mind about it. I believe that the initiative here is designed to solve a problem where, take, for example, some of the dram shop actions, where the question is which bar is liable in the aftermath, you know, when there's an accident?
And apparently, its' the police investigations in those cases, which, among other things, determine [Gap in testimony. Changing from Tape 4B to Tape 5A.]
--involved prior to getting in the accident. And, as you know, under the statute, there's strict liability there.
And so if, in many cases, apparently, it takes a long time for the police to complete their report, which is the only real investigation that takes place oftentimes, or least the best investigation in many cases.
And so I think a concern was given the fact that it may not be known really who might be responsible, according to the police investigation, wouldn't it be fair to ensure that if the statute of limitations expired prior to the completion of the police investigation, which is the case, I think there's a shorter time in the dram shop. Do you know what it is by chance?
SUSAN GIACALONE: There's a dram shop notice that has to be provided. I believe it's 120 days. It was 60, and at, I believe, the proponents of this bill's request, it was up to 120 days just a few years ago.
An answer to that is they're always able to bring the action against the individual himself and get his deposition and find out, where were you drinking?
I mean, there are tools out there available to them that they can use on their own. Again, you're talking about defendants having rights too.
REP. LAWLOR: So in any event, that's the answer to the question what the genesis of this was. I think I accurately stated what the concern was.
So maybe the proposal is a little bit broad, I'm not sure. But I think that's the problem that was identified that they're trying to solve.
SUSAN GIACALONE: Well, they did talk about dram shop. They also talked about the multiple car accidents and the investigations there.
As far as, unless you're [inaudible] a municipality, there are no notice requirements in a pure civil action against an individual. It's a simple suit. You can get information. There are tools available.
There are saving clauses within our statutes for fraudulent concealment. There are some other things available.
One thing that we had always proposed as an organization is requiring the police to provide, well, we labeled it an accident information sheet, that at the time of an accident, it was just a basic form that said, you know, some general, basic information that could be given to the person right at the scene.
It's never gone anywhere up here. It's met with some opposition from police departments because of the administration in doing it.
But, I mean, there are other avenues that can be looked at and examined without impacting someone's rights.
And again, as I alluded to earlier, as Representative Fox said, you can be having a different statute of limitations potentially for every case that's out there.
REP. LAWLOR: Representative Fox?
REP. FOX: Thank you, Mr. Chairman. That was, Susan, my concern earlier is that depending upon the police department and their ability to generate a report or perhaps even just depending upon when the report is requested, you might have different statutes of limitations for every potential case.
I also, I do know that there's a concern with meeting these deadlines when you have these statutorily imposed deadlines and limitations periods and you don't have the information.
And the reference that I gave earlier was a wrongful death case that I was familiar with. And it was 20 months, and the report was still not complete.
And granted, the state troopers, they want to be, take their time to make sure that they're accurate.
These are extremely sensitive cases in terms of accident reconstruction and trying to make sure your measurements and everything else is correct before you reach your conclusion.
But there can be times when you don't have all of the information, and you are pressed up against a statute of limitations. So I think, I don't think there should be a different statute of limitations for every case.
But maybe there's a way somehow to get that information so that a suit can be commenced. And this may be asking for too much in this bill, but maybe there's a way to continue to talk about it.
SUSAN GIACALONE: In that light, I mean, there's certainly things you could put on these more complicated police reports. Again, they don't need a measurement. They don't need all that specific information to file a suit.
They can, I've seen it in my [inaudible] they name everybody and their brother and then weed them out as they go forward and realize, okay, as information is developed, well, you know what, we really don't think you're in it, or whatever, and they can weed them out.
They could do a simple preliminary report, require the State Police and those types of things, preliminary information. What do you need to file an action? You need the name, the identity of the parties involved.
I mean, the police aren't making the conclusions whether someone is negligent or not. They might draw some references or information from it, but that's not necessary to filing an action.
The basic information is who they are, who the owner of the car is, who's driving, that you can at least get the suit started.
REP. FOX: No, you're right. I think that's what I'm saying. I think there's a way to work through it. You don't necessarily need to know every detail of an accident reconstruction report to file a lawsuit.
If the person is killed, you may not have too much information, so you may need a little more than just the names. You might need some witness statements and things like that.
And so there's a balance. I think this might be too much because it might create too much litigation, but there might be a way to work something through, okay. Thank you.
REP. LAWLOR: Thank you. Further questions? If not, thanks again, Susan. Next is Tom Ullmann.
ATTY. THOMAS ULLMANN: I guess it's good evening now. Chairman Lawlor, Members of the Judiciary Committee, I'm Thomas Ullmann.
I am the President of the Connecticut Criminal Defense Lawyers Association, and I'm also the head of the Public Defender's office in New Haven for the New Haven Judicial District.
I'm here to speak on behalf of the CCDLA on three bills. I'll try and make them as short and quick as possible. The first is the eyewitness identification bill, which we support. We think it's long overdue.
I think it's pretty clear that while DNA has been a boon to the system, it's not a panacea. It is involved in maybe 20% of the cases. Therefore, another 80% don't have any DNA involved in the case.
If we are starting to see the kind of numbers that we have in cases of innocence around the country, and some in this state, then those are the cases where DNA can exculpate someone and exonerate someone down the road.
But there are many, many cases where DNA will never be involved. And therefore, we have to reform this system in terms of eyewitness identification procedures, which, in my opinion, are still stuck in the back rooms of police departments and in the homes of individuals where the police visit.
I just lived through such a case. The worst kind of a case for a criminal defense lawyer to have is to represent someone that you believe in your own mind is completely innocent.
That is the scariest situation. It eats away at you for the entire duration that you represent someone.
And until the jury comes back and says not guilty, which is what happened in my case on Tuesday afternoon, to an African-American man who was incarcerated since February 2nd of '07, until Tuesday afternoon, I could not ensure to him that this system would actually work.
So I just want to briefly detail for you what happened with the identification procedures. And I'll be candid, there can be two different views of this kind of activity, depending upon who you believe.
We had three different identification witnesses. One was a jailhouse snitch, and two people were involved in a bar, who happened to walk out at the time that this shooting occurred, where someone got killed, and another person was shot five times.
Each one made a photo identification from a photo board in which my client was selected. Each recanted their testimony at the trial and basically blamed the police and two detectives, although mainly one detective, for steering them in a particular direction and to a particular photograph and with a particular name.
Now the tapes were introduced into evidence as substantive evidence under a decision called the [inaudible] Decision in which a taped statement can come in for the truth of the matter contained therein, so that even though there wasn't any other evidence in the case, including scientific evidence, there was no gun found, no admissions by the defendant, this could have resulted in a conviction based on the taped statements that were played.
REP. LAWLOR: Tom, just to clarify, these are taped statements of the witnesses who made the photo id, is that right?
ATTY. THOMAS ULLMANN: Correct. Now part of the problem is that there couldn't, some of them testified that there were an hour and a half of interrogations or discussions that took place prior to the final 10 or 12 minutes that were recorded on tape.
So of course, the tape was the sanitized product at the end, whereas, the first hour and a half in which the discussions of what they saw and the selection of the photograph and the fact that they went through a witness instruction form, which is, I think, what was testified to earlier about what police are doing in New Haven, about advising people about identifications, none of that was captured on tape or on video at all, only the last eight minutes.
And so these people basically testified that the improper conduct had happened earlier. Now there's two ways to look at that.
One, they're scared, and they're afraid to testify in front of the defendant, and that's why they're changing their testimony. Or two, the police engaged in improper conduct. They're telling the truth at the trial.
So the only way to resolve that is who do you believe? It's either the detective's testimony, or it's the witness's testimony. And it's listening to the tapes themselves.
In my particular case, one of the detectives has now been arrested and charge with four counts of larceny in the second degree, four counts of forgery in the second degree, and filing a false report, two counts.
So when I subpoenaed, now of course the state tried to shield him from the jury, never listed him as a witness, and of course they brought in the detective who was not arrested.
So the jury never found out about this other detective, even though you can bet that I spent days attempting to bring this to the attention of the jury. I subpoenaed him. His lawyer came in.
They invoked his Fifth Amendment right. The judge wouldn't' allow me to present him in front of the jury. Case law pretty much says you can't do that. Wouldn't allow me to argue that he was missing in action. Where is he?
And the state was allowed to introduce and question the detective who still works for the New Haven Police Department. Did you ever indicate to these witnesses who the person was? Did you ever make any kinds of suggestions?
Did you, you know, point in any way to the photographs? And of course, the answers were no. So it was really a disturbing situation.
And it's all so simply corrected by videotaping or recording these kind of interviews and requiring that detectives who know who the suspect is not be involved in the identification procedure.
In a city like New Haven, I understand that there's some police departments where, you know, you have a limited number of law enforcement personnel, and therefore, kind of everybody in the department kind of knows who the suspects are.
But you take an inner-city police department like New Haven, Hartford-Bridgeport, where you have hundreds of detectives, 50, 60, 80, whatever it is, there's no reason why the detectives who were involved in the investigation of the case are the persons who should be demonstrating the photo boards and who know who the suspect is.
It's such a simple thing to avoid. So I was fortunate that this jury acquitted this man on Tuesday afternoon, and he walked out the door.
But it was a scary situation. And so while we have DNA that can solve some of the problems, I really think it's high time that we move forward on some of these other reforms.
And certainly, double blind sequential identifications is one such area where we could do that. So those are my comments with regard to the eyewitness bill.
And Professor Cameron, believe this or not, was a potential juror in that case. I'd never met him before. I'd read some of his columns, and he actually never went through the [inaudible] because he'd indicated that he was very interested in the criminal justice system, and he didn't think it was appropriate that he sit in on the case.
And then he ended up observing the case while it was going on. But I disagree with his comments on DNA. So that's my second area of concern.
I'm a big proponent of DNA and what it can do in cases both in terms of inculpating and exculpating people.
But I think by drawing it from arrested persons on A and B felonies, we're watering down the presumption of innocence. If those people are convicted, that DNA is going to be obtained anyway.
I'm concerned about the police department raising the charges in order to get DNA samples. I'm concerned about the security of DNA samples.
I mean, we're a state that just had laptop security issues. You know, my wife and I were one of those couples that were on that, as many of us were.
So if that kind of security, lapses can take place, I'm concerned about security lapses with DNA.
And, you know, when you get these highly emotional criminal cases, those are the kinds of cases where sometimes, people step over the line and do things that, you know, maybe they wouldn't do under normal circumstances.
So I'm concerned about DNA. I heard earlier someone, I think he was from law enforcement, describe, well, people leave their DNA everywhere.
Well, that doesn't affect Fourth Amendment considerations. I mean, you can leave your garbage out, and the police can get to that.
If you plead or you leave your hair or you lick a stamp, if law enforcement gets you to do that, that's a different story than doing something invasive that would require you to give a saliva sample or a blood sample for purposes of DNA profile.
About two months ago, I represented a 19-year-old man, front-page story in the New Haven Register on a face book sexual assault arrest. Within three weeks, the girl recanted her story. She was under pressure from her father.
All charges got dropped. That young man is a student, never been in trouble before. He was charged with a B felony. Why should his DNA profile be with the government? I don't see any reason why that should happen.
It's one thing if you get convicted, and we can all argue about when it should be taken at that point in time, but for people who are just accused, I think that goes against the American system of justice. So we oppose that.
Finally, something that's become very powerful to me is the Sentencing Commission. And I saw the bill here, and some of you may know that as a member of the Sentencing Taskforce, I am chairing a subgroup that is actually working on specifics about a Sentencing Commission.
I have become a wholehearted supporter of sentencing commissions. But I'm not in favor of the language that's in this bill.
And as I spoke with Chairman Farr earlier today, and as I know he spoke here, my request would be that you pass, or you report out a bill that supports the general idea of the Sentencing Commission and that you refer back to the Sentencing Taskforce, the notion for the next Legislative Session, and I think you have to extend the life of the Sentencing Taskforce in order to do that but to iron out the details of the actual Sentencing Commission.
And here's why I say that. I spoke with Barbara Tombs, and when she saw, she's been a consultant to the Sentencing Taskforce and a terrific person who has been a Chairperson in both Kansas and Minnesota on sentencing commissions in those states.
And she thinks that the recommendation here, which is in excess of 30 people, is much too great a number to be a workable number.
She also, you know, we all, in our discussions, and particularly in my Committee, which involves Judge Patrick Carroll, Kevin Kane, Fred Laveck, Randy Baron, Andrew Clark, and some others, we have all agreed that sentencing guidelines should not be within the language or the purposes of the goals of the Sentencing Commission.
And we've actually structured, and if I could just take one moment to read to you, you know, the kind of care that we've taken in coming to this position.
It's why I ask that you don't adopt the underlying language and just refer it back to us to come up with a final plan where this kind of give and take can take place.
We actually have started developing a list of duties of the Sentencing Commission, but we've done it in terms of priorities as well.
So we start out with develop and maintain a statewide sentencing database. Evaluate current sentencing options and practices, including collateral consequences.
Conduct annual sentencing trend analysis and offender profiles. Provide training regarding criminal justice issues, policies, and practice.
Act as a criminal justice research resource for the state. So it goes on and on like that, and we've kind of taken each one of them, and then we've developed a potential language for the Connecticut Sentencing Commission, taking into account what the Judiciary has reported back through Judge Carroll, giving the language that we structured originally, and the state's attorney's office and their constituency.
And let me just read you this because this would be the preface to the Sentencing Commission, at least potential. We haven't even agreed finally on this.
There is hereby created the Connecticut Sentencing Commission, the purpose of which is to review existing and proposed sentencing structure, including current statutes, proposed legislation, policies, and practices, to determine and make recommendations to the Legislature, Governor, and other appropriate criminal justice agencies.
In fulfilling its purpose, the Commission shall be mindful that the primary purpose of sentencing in Connecticut is to enhance public safety while holding the offender accountable to the community.
Sentencing is to reflect the seriousness of the offense and should be proportional to the harm to victims and the community utilizing the most appropriate sanctions available, including incarceration, community punishment, and supervision.
The sentencing decision should have as an overriding goal the reduction of criminal activity, the imposition of just punishment, and the provision of meaningful, effective rehabilitation and reintegration.
Connecticut's sentences should be fair, just, and equitable, while promoting respect for the law.
So what I'm asking you to do is send this back to us because I think this will be vetted with the entire Sentencing Taskforce, which is made up of so many members and, I think, a fair representation of the people who work in the criminal justice system and, frankly, people who I think are pretty reasonable, and we've all worked towards getting to this kind of language.
I think it's, and, as I said, I've become a tremendous supporter of this, based on what I've seen around the country, from some of the work that this Sentencing Taskforce has done. So I thank you for the time. I know I exceeded it, but I cut a considerable amount.
REP. LAWLOR: Well, thanks, and the main reason, Tom, is because, I mean, I certainly know, and I think many of us know, especially those of us who participate in the Sentencing Commission, the contribution you're making.
And I think many people in the Legislature probably don't realize your track record as one of the best advocates in the criminal justice system, as a defense attorney.
And, you know, I always hold you up as an example when people talk about, well, there's lawyers, and there's public defenders.
I say, well, you know, if it were me in trouble, I'd try and figure out a way to make sure I don't have any income because I'd want to make sure you're representing me. Let's be clear about that.
ATTY. THOMAS ULLMANN: I actually have enough clients.
REP. LAWLOR: Well, but having said that, as you point out, the Sentencing Taskforce has evolved into a very, very balanced and thoughtful enterprise.
And the credibility that comes along with its recommendations is something I've never seen before in my 22 years in the Legislature.
And the best evidence of that is, you know, we were able to unanimously approve a change in some of the probation rules, because it came to us, endorsed by everybody from every conceivable point of view, from victims to prosecutors to defense attorneys, etc.
So it's very, very important. And I think it's extremely reasonable what you've recommended here in terms of punting back to you guys the responsibility of figuring out how we can make this a permanent feature of our criminal justice policymaking system.
And hopefully, I'm pretty sure my colleagues here will agree with that idea because we can only benefit from that.
And I had one technical question about the DNA sampling or the collection. It seems as though there's a general consensus that maybe we shouldn't do the arrestee aspect of it.
But maybe it would be a better idea if we want to expand the databases to come up with a system where some time between the time one decides to plead guilty or they're actually convicted by a jury and the time they're actually sentenced, to have it collected at that time.
I would imagine the easiest way to do it is through the probation officer who's working in the courthouse already. Is that something that gets beyond all the concerns you raised here?
ATTY. THOMAS ULLMANN: I think it would. My own preference would be that it would be after the conviction.
We have many instances where people say they're going to enter pleas, and then the plea breaks down in the middle of the canvas by the court. And I think that taking a DNA sample prior to that could only inflame the situation.
And therefore, I don't really see any practical hang-up to doing it after a plea, either between the plea and the sentence or as an immediate, the first condition of probation, because if you're sentenced, then usually, you have to report to probation within two days, I mean, immediately.
In some places, you have to report to the probation officer right in the courthouse. Seems to me it could be made the first condition of probation, and if you don't cooperate, you're already in violation of your probation. It would seem to me that's a pretty good hammer in order to get that done.
REP. LAWLOR: But the Fourth Amendment issues disappear.
ATTY. THOMAS ULLMANN: Upon a plea of guilty to a felony? I would think it does, sure, yeah.
REP. LAWLOR: All right. Are there any other questions? Senator Kissel?
SEN. KISSEL: Well, you know, it's like going to college, law school, actually, listening to you, Attorney Ullmann.
You know, I think the first time I got to know you was when we went out to Colorado, Westminster, and my first impression was just a genuinely nice guy. And now I realize you're an attorney of legendary status.
ATTY. THOMAS ULLMANN: I wouldn't go that far.
SEN. KISSEL: I learned a lot just in the half hour that you testified. First of all, regarding the Sentencing Commission, and what's really great about this, as you'll recall, when we all went out to Colorado, I'm sort of like blank slate.
This is all new to me. Then we're all sitting there all day on Monday, and you got folks from Alabama and Illinois and our state.
And then when it comes to Tuesday, aside from having an early flight, so I got to scramble around, and running around in the morning, stuff like that, I really had concerns about the whole Sentencing Commission notion.
Because it really seemed like, okay, we've presented you with all this evidence from all around the country. Here's the pros. Here's the cons.
It's all different formula, and we want you to come out with something that you call can sort of agree on. This just was a lot to swallow real fast.
What's beautiful about what you're asking us to do, and I am so completely in support of it, and when we come in over the weekend and screen these bills, I'll do whatever I can with Chairman Lawlor to make sure it comes out.
And if we have to change it along the way and make sure it's perfect, we'll do that. The whole notion of a sentencing commission at that time was sort of given conception.
But the gestation and the birth and the creation has to be here in Connecticut. And when Bob came, Chairman Farr, came and talked about, there's different ways to do this.
What you're telling us, and thank God for your leadership on this and bringing all these other folks in on this. By making it something where everybody buys in, it will be a uniquely Connecticut Sentencing Commission.
It will be created to serve our needs as a state, not anybody else's. You can pick and choose to your heart's content from all around the country.
And with that, I think ultimately, whether the legislators are on or not on, however the experts want to put it together.
And I think there's pros and cons to all of those. But at the end of the day, I think we'll have a tremendous, tremendous work product.
And so I say, well, we will do whatever we can to untie your hands. I guess my question is if you're completely unfettered, do you think you'll have a set of recommendations ready to go for the beginning of the next long Legislative Session?
ATTY. THOMAS ULLMANN: I do.
SEN. KISSEL: Okay, great.
ATTY. THOMAS ULLMANN: Because that would give us about a year. I have a really good working group committee, who are really interested in this.
And we've already worked through some of the really, I mean, we took, I would say, four months to get to that paragraph that I just read you, which was the most important paragraph because that is kind of the mission statement of the Judiciary Committee.
Judicial was concerned, are you going to be, are you tying our hands in court? Is this something that a defense lawyer, I'm a defense layers, is this something a defense lawyer can raise at a sentencing that we're not following proportionality?
So we needed to address that within this to change that, which is why we came up with that first preparatory statement.
So we're trying to address what everybody within the system, their particular concerns, from both the prosecution to the defense to the courts to corrections. We have corrections representatives sitting on my subgroup.
Everyone is really excited about this and really thinks it's a great moment and that we can really achieve something for the criminal justice system in general.
SEN. KISSEL: And just my two cents, while you're up there doing this, and I guess many of us in the Legislature will be out of your hair this year because we're all running for reelection.
I think they overall, Sentencing Taskforce, and Chairman Lawlor had indicated our ability to move forward with great unanimity regarding probation reform proposals.
Whether there's, and I'm not looking to give myself another job as Ranking, and, you know, God willing, I get reelected, and my leadership puts me back on this Committee.
Hey, maybe I'll wake up and be Chairman. No, that won't happen. The world will have to be turned on its head maybe. You know, once upon a time, we were in the majority.
But whether Legislators, I guess my two cents is that I think there's a big plus to having legislators on there.
Whether they're voting or ex officio or something like that, only in that when things are brought back to us, a lot of the questions and the mystique is dispelled, and it allows us to speak with some authority in watching how that result was arrived at.
So any, and maybe it's just an open-door policy or something like that, but I think that there is some, and, you know, if you look at the report from the Sentencing Taskforce, the interim report, you know, there's about 16 legislators name on there.
There was probably about six that really went to a lot of the meetings. But at least everybody else knew that they could participate.
And I think it, so often, I see in this building that just for lack of understanding, or even having the door opened, things get shot down.
And that's not to say that everyone is going to go through the door and participate, but knowing that there's no barriers creates an element of trust that I think allows things to move through this building much quicker. And so I just throw that out there to--
ATTY. THOMAS ULLMANN: I think that as you've probably learned things from us, in terms of what, you know, our 25 to 30 years of working within the criminal justice system.
We feel that we've received tremendous input from the legislators that have worked with us. I mean, you and Representative Dyson were out in Colorado. For us to understand the process is very important for us.
And to think that we could actually get some legislation passed, or policy set, without legislators working with us would be foolish.
So I think there's a crossover there that's really important. But I think the most important aspect of the Sentencing Commission would be that it is an apolitical body.
I mean, to me, that's what's been missing in criminal justice legislation for a long time. And so I really think that that's what the important piece of this Sentencing Commission would represent in the end.
SEN. KISSEL: And I'm in complete agreement with you on that. And the other thing that I want to thank you was I was trying to think out mechanically the whole DNA, swab test upon a conviction.
And I think that, you know, I thought that perhaps we could do it, and I'm sure you were here all day listening.
ATTY. THOMAS ULLMANN: I was.
SEN. KISSEL: But you're right. There are times, I mean, when I was, the couple years that I was a special public defender, especially when you're in that role because your clients could be doing five years already.
And they're not interested in picking up another two or something. Where are they going? They aren't really going anywhere.
So if you start working through that canvas, and something isn't exactly as they thought it was when you went over the plea deal, yeah, it can blow up.
And, you know, and there's certain, I'm not going to say that folks that are already incarcerated on other charges, because I had, when I was a special public defender, I had some people that were charged in the prison riots that took place in the early '90s.
So they were doing a variety of sentences. And then they'd have other assault and battery charges thrown at them and all sorts of other things, so they weren't going anywhere.
So they didn't really feel compelled to have to move and accept a plea offer because it would mean that they were getting out at any time soon. It was more of how much extra time I get tacked on.
And so you're right. I didn't really think it through that having gone through and given the DNA sample, and then having it blow up, that that could actually be a problem.
ATTY. THOMAS ULLMANN: Yeah. I mean, I think in corrections, there are ways to handle, I think, people not giving DNA samples. I mean, you know, people want to work when they're in prison. They want to go to school.
They want certain access to certain things. And it seems to me it could be taken fairly early in the person's sentence because most people don't like to just sit in a cell, you know, their entire period of time.
Most like to work. They don't, you know, every one of our prisons has education centers, and they get a little bit of credit, not a lot, but they get a little bit of credit for working. So, I mean, I think there are ways to manage that.
SEN. KISSEL: And I really appreciate your insights regarding that. So whether the [inaudible] was going to be incarcerated or is already incarcerated, but I think if it's that hammer that's going to come, that's the first rule that's going to be handed down by the judge.
You're going to do X, Y, Z within 24 to 48 hours. The system is going to know really fast if this person is serious about cooperating or complying with the terms of the sentence or not.
And I think, you know what, if we just sort of set it in motion, I think the experts, you folks in the field, will make sure it evolves the right way. And if not, if you need us--
ATTY. THOMAS ULLMANN: I think it will get done.
SEN. KISSEL: And so that's good news too. And the other thing is I'm still struggling. We had all that testimony regarding the photo arrays and the lineups and all of that stuff.
And I have to confess I am not an expert, but it does seem to me, who missed, I don't know if it was in all the other papers, but I know in the Hartford Courant, when you saw Mr. Tillman and the person who was really charged, boy, take a couple steps back.
And again, in the heat of the moment, pleading moments, someone is under duress, and it's like, what did they see?
Huge similarities. And in fact, I guess if you even wanted to show someone in a cool, calm, comfort of their home and just flash it on a screen for five seconds.
Flashing on the screen, I bet you scientifically, you could prove that a fair amount of people are going to make great mistakes.
ATTY. THOMAS ULLMANN: I think studies on memory and perception have shown that.
SEN. KISSEL: So, you know, hopefully, whether we're going to get as far down the road on that particular proposal this year as you want us to go, that may be one for baby steps, but I'm certainly supportive of trying to move us a little more down the road.
And in fact, and I think Chairman Lawlor raised this point. I'll conclude with this. To the extent we incarcerate the wrong person, that means that there is a really bad person out there still at large.
And so not only have we worked an injustice on an individual, but we're exposing the public to great danger by not having the right person.
ATTY. THOMAS ULLMANN: There's no question about that.
SEN. KISSEL: Thank you, Counselor, for all your hard work.
ATTY. THOMAS ULLMANN: You're welcome.
REP. LAWLOR: Thank you. And, Senator Kissel, you expressed the aspiration to be Chairman one day.
I only point out that the former House Ranking Member ended up being Chairman, and he got the last laugh because the salary for that job was a lot higher than the salary for this job.
Are there further questions? If not, oh, sorry. Representative Green, then Representative O'Neill.
REP. GREEN: Thank you, Mr. Chair. Just a couple of questions, and, you know, sometimes, I'm trying to be more careful on whether or not I just feel compelled to make some statements. On this one, I guess I do.
A couple of things, the gentleman earlier talked about this universal DNA. Even though I think I might, I understand where the ACLU is coming from.
If there's some problems with collecting DNA for just [inaudible] versus others, which I agree with, what do you think of universal DNA testing?
All of us, every citizen in America file a DNA, that maybe at this point, it's junk DNA that only can identify certain things and only can be used in a limited purpose.
ATTY. THOMAS ULLMANN: When they take a sample, they take your sample. It's containing your entire genetic profile. The junk DNA may just refer to a small piece of it, but they have your entire genetic profile.
I don't think the government should have that for all citizens. I just, you know, that's a privacy thing, and I don't agree with it.
REP. GREEN: You had mentioned some things about the Sentencing Commission, and I like what I think I heard you say, and I wonder if we all may get a copy of that.
And it sounded like you have a committee that have reviewed some of the recommendations from the Sentencing Taskforce and that you have some responses to some of those. Is that true?
ATTY. THOMAS ULLMANN: There were recommendations that were filed in the interim report that came out of a different committee, the disparity committee, and there were recommendations for a sentencing commission that came out of the disparity committee component of the Sentencing Taskforce.
The bill that's before you, I think, parrots the language of the enabling legislation for the Sentencing Taskforce, and I don't agree that that should be the language for the actual Sentencing Commission.
REP. GREEN: Okay. And I think I'm agreeing with you. From what I heard, I like some of your suggestions and comments.
You had talked about, and I'm really concerned about the makeup and the number and the size. I was just disconnected from a lot of what I saw, the appointing of people authorities saw.
And you talked about a committee that could be comprised of prosecutors, public defenders. But it seems like we're lacking some ordinary citizens and/or people that reflect different types of communities that have different kinds of impacts with the criminal justice system.
And I think that a lot of times, we don't recognize that a number of communities, that they may be, quote, high-crime areas, I think people that live in those communities, the primary concern is safety, like any other community.
And there's a very difficult balance of wanting to make sure that our communities are safe at the same time that people in our communities are given justice, in fair and equitable justice.
And that's a tough balance sometimes, and that's what I grapple with all the time because my community wants to be safe, but it also wants to make sure that justice is upheld, and that's very difficult sometimes.
So I would just hope that we think about making sure that other representative communities and groups are on that committee.
And I'd love to, in the future, talk to you about that and just being expansive without being too big and stuff like that.
ATTY. THOMAS ULLMANN: Can I just, I just want to tell you one of the agenda items that we've not even dealt with in my subcommittee, structure.
And this is what's listed on the agenda, whenever we get to it. Number of members, membership, terms of members, Chair, Vice Chair, appointing authority, standing committees.
So we haven't even worked through this year, and it's an evolving process. And I think, at least from what I know of the members that are on my subgroup, we're very concerned about diversity.
We're very concerned about representation on the ultimate Sentencing Commission that would reflect the community.
REP. GREEN: And I agree with Representative Lawlor. I've been supportive of the public defender's office. I think the individuals that's involved in those units across the state are outstanding men and women.
But I got to tell you when I deal with a number of individuals and families that work with and is involved with the public defender's office, it's not a very, a positive assessment that they have of those departments.
And I think, and not now but in the future, I'd really like to talk to you about apparently some real creative, forward-meaning stuff that it appears that you are involved with and then why we have that sort of disconnect with what I know and then what I hear.
ATTY. THOMAS ULLMANN: And I can, I'll just not take up a lot of time for everybody on this. But many of us who are career public defenders, who have committed to doing this kind of work, and have done it, I've never done anything else since law school.
When I graduated in 1980, I was in the public defender's office as an investigator in law school.
So I'm pretty committed to this, and most of the people that I'm close with are committed to this.
We have a big difference between what goes on in the Part A section of our courts and the Part B section of the courts, which deal with a tremendously high volume and fast turnover.
And I'm not talking about qualify of the attorneys now. I'm talking about the kind of nature of the beast.
And you walk into the two courts. If you walk in New Haven, and you walk into the GA 23, and you walk into Part A, you would think you were in two different countries because of the way the professionalism of one court versus the other.
And it's the volume. Many of us have tried to get a handle on it, but it's not an easy problem.
So I'm always swilling to talk about that because as a public defender, when I go out into the community, and I go into the community.
I speak every year at the Host Association [inaudible] organization in New Haven. And I catch about an hour of anti-public defender comments, and it's hard, it's hard.
I try to explain how I handle things and how most of the attorneys that I work with handle things, but it's hard.
But I think there are many of us that are very, and I think our leadership is completely committed to, you know, the highest representation and professionalism, in terms of representation.
But it's a tough system, in terms of so many numbers and trying to get a handle on it. So I'd love to talk to you some time about that.
REP. GREEN: All right. Thank you.
REP. LAWLOR: Representative O'Neill?
REP. O'NEILL: Do we actually need to pass a bill, other than to extend the life of the commission?
ATTY. THOMAS ULLMANN: You certainly have to extend the life of the commission because I think we--
REP. O'NEILL: Taskforce.
ATTY. THOMAS ULLMANN: The taskforce, I'm sorry, yeah. I think we end in August. I think our life ends in August.
REP. O'NEILL: Okay. So but in terms of do we actually, other than that, do we really need to do anything to authorize or command or importune--
ATTY. THOMAS ULLMANN: I think it would be a good thing to pass at least something about just the sentencing, that the State of Connecticut is on the track of forming a Sentencing Commission.
REP. O'NEILL: Okay. And do you have, I mean, you said you don't have a number in mind, other than 30 is too many.
ATTY. THOMAS ULLMANN: Well, I spoke with Barbara Tombs, who's been the consultant. She told me that at least around the country, the most effective numbers have been 18 to 21, in terms of membership.
She thinks any larger than that becomes ineffective. To tell you the truth, I didn't speak with her about what's magic about those numbers, but I'm sure that's something we'll vet at one of our groups.
The way this is currently formed, it's at least 30. I may have counted incorrectly. It may actually be more. And I think one of the things that is really important is if we form this, we don't want it to fail.
I mean, we don't want it to be ineffective. We want it to be grounded correctly. We want it to be based in the right place.
We want it to be shared by someone who's committed to making it work. And so I think it's important to get it right.
REP. O'NEILL: Thank you.
REP. LAWLOR: Further questions? If not, thanks again, Tom. When did you first get here?
ATTY. THOMAS ULLMANN: I got here about 12:00, right after you all came in from the fire drill. And I might add that they had a, my wife works at Commissioner of Corrections, and they had a bomb scare today. I don't know if you know, but they evacuated their buildings for a couple hours today.
REP. LAWLOR: Several buildings, in fact.
ATTY. THOMAS ULLMANN: I didn't hear any of the news reports on it. She called me.
REP. LAWLOR: Yeah, the probation department and the Governor's office as well, yeah.
ATTY. THOMAS ULLMANN: That I didn't know. Well, thank you.
REP. LAWLOR: Thank, Tom. And last but not least, Jennifer Zito, representing the much [inaudible] defense attorneys, right?
JENNIFER ZITO: Along with Mr. Ullmann. Chairman Lawlor and Distinguished Members of the Judiciary Committee, for the record, I am Jennifer Zito, and I am also here [Gap in testimony. Changing from Tape 5A to Tape 5B.]
--in the State of Connecticut for 19 years now. I am here on behalf of CCDLA to support Senate Bill 608, AN ACT CONCERNING THE VIDEOTAPING OF INTERROGATIONS. I know you've heard a lot about this act today.
I think what you haven't heard is notable. I have not seen anyone, other than Kevin Kane, here from law enforcement to oppose this bill.
And I think that reflects the fact that this bill has been before this Committee for several years. I personally have been working on it for the past three. I know our organization has been working on it longer.
And I think this particular bill reflects some of the compromises that have come out of discussions over the years.
I've cautioned myself on occasion, saying, be careful what you wish for, in hoping for the passage of this bill, because I think clearly, this bill cuts both ways.
It certainly can make cases more difficult for criminal defense lawyers to have a videotaped recording. However, in the final analysis, I will echo the sentiments of Brian Carlow, we are all here for the same purpose, and that is for the truthfulness, the accuracy, the fairness, and the justness of this system.
And I believe that that outweighs, on any level, any concerns either law enforcement may have in the passage of this bill or any criminal defense attorneys may have by virtue of having a recording of interrogations.
I think it is our moral and our professional obligation to ensure that interrogations are conducted lawfully, constitutionally, and preserved for a jury or trier of fact to analyze within the system.
I am very troubled by Kevin Kane's remarks, first of all, that he indicated to this Committee that there was a need to train officers in the interrogation process.
I do not understand that for the life of me. I would expect that all officers are trained in the interrogation process in their initial training.
And if we need to retrain our officers in the interrogation process, it suggests to me that perhaps the interrogation methods being used are not constitutional or lawful.
And I would suggest to you that we need to send a message to law enforcement that all officers need to be trained from the get-go in the lawful interrogation of suspects.
And I think we should demand and expect nothing less. Additionally, I was concerned that he indicated that there needs to be training in the use of the equipment.
I have a ten-year-old son who is very proficient in the use of a video recorder, and I do not understand as well why that might be a problem for our law enforcement agencies to run a video machine.
This is not complicated technology. I would say briefly, not to take up too much of your time, $100,000 has been allocated for the purchase of this equipment.
We have worked on this bill for over 10 years, and yet, only 4 of well over 100 of our towns and cities are implementing the video recording process at this time.
How many more years do we need to come before this Commission before we say, enough is enough. You've been working on it, but guess what, folks, it's time that it actually take place.
We need to ensure that there are no false confessions taken. There have been several cases in Connecticut, three of which I can recall in the past few years, where acquittals have been entered by juries due to false confessions, where there have been experts that have come in and testified about the problems with false confession, coerced confession.
That, I would suggest to you, is a far greater cost to all of us and to the taxpayers of Connecticut than the simple technology of recording these conversations, where we could avoid the prosecution and trials and appeals of defendants who are victimized by the interrogation process and who are coerced into giving false confessions.
I would like to draw your attention to Subsection G of that bill, just to indicate that there are sufficient safeguards in this compromise bill to, number one, allow for the admissibility of statements that can be shown by a preponderance of evidence that they are voluntarily given and reliable based on the totality of the circumstances, even if they're not recorded.
So there is a caveat here, where a judge, an independent arbiter can assess whether or not this statement was reliable. And therefore, it might be admissible in that situation.
Additionally, the state still reserves the right to impeach any defendant at trial based upon their statement, even if it wasn't recorded.
This statute goes to the admissibility of unrecorded statements in cases involved A and B felonies only. These are our most serious offenses. They involve the steepest punishments, including death.
And in that situation, I think it is our obligation to send a message that, number one, we insist upon truthfulness and accuracy.
We insist upon a fair and just system. And we're not going to tolerate unlawful interrogation methods.
Lastly and finally, I wanted to tell you that I sit on the Commission for Public Service and Trust set up my the Chief Justice.
And I also, obviously, am aware of a lot of the headlines lately about law enforcement and problems with law enforcement.
Our Governor has certainly made her views known to State Police about not tolerating inappropriate conduct.
And I think what's come out of the focus groups that we've conducted in this commission and the surveys from the public is that their most and greatest concern is that the system is accountable, that we stand for truth, fairness, and justice.
And this act is a very simple way to ensure that confessions are accurate and that they are reliable. And I think we must pass this bill once and for all.
I am somewhat stunned that this bill has been before this Committee for so many years. It's such a simple measure, and I don't think there are any viable defenses left as to why it should not be passed. Thank you.
REP. LAWLOR: Thank you. Are there any questions? Representative Green?
REP. GREEN: Thank you. One question, you started off your statement saying, as a defense attorney, sometimes we have to be careful what we ask for. And I kind of missed what the point was.
JENNIFER ZITO: My point was that certainly, there will be cases where there will be a videotaped recording of a confession that will make the case much harder to try.
And in fact, they may get rid of some of the defenses you might otherwise have if the confession hadn't been recorded.
But my point was I don't think that this, the recording of confession necessarily [inaudible] to the benefit of the defense or all to the benefit of law enforcement.
It's one of those things where it will have pros and cons for both sides, but it truly represents the truth. And I think that's what we all need to look for.
REP. GREEN: I'm not sure if I understand all of the process that has to happen with interrogation. But let's imagine that we do require the videotaping of the interrogation.
And someone says on the videotape, I did it. I don't want to answer any more questions. Is that a good thing maybe or not a good thing?
Can a person say, I did it, and you have that. I made the statement, and I don't want any further interrogation?
JENNIFER ZITO: Well, certainly, I think they can invoke their right to counsel. They can invoke their right to remain silent.
But in this instance, what this bill requires is the custodial interrogations, when a person is not free to leave, does not feel they're free to leave, and in a place of detention, which means, generally, in the police department, but it is defined a little more broadly in the bill.
If they're being interrogated on an A or B felony, that that interrogation and statement given by that suspect must be recorded. So certainly, they can stop talking at any time.
But that recording will be preserved and will be admissible, provided it meets the requirement of this bill.
REP. GREEN: All right. So once they get it all said, and they read the person's rights, and they're being detained, and they say, yup, you got me, I admit it, that's it. I'm not talking any further. You're okay with that?
JENNIFER ZITO: Well, I'm okay with the fact that it's recorded, and then it is subject to being admitted.
REP. GREEN: And the person says, I no longer want to be interrogated, then the assumption is the police then stop, and that's it on the tape.
JENNIFER ZITO: That's it on the tape.
REP. GREEN: Okay. Thank you.
REP. LAWLOR: Other questions? Representative O'Neill?
REP. O'NEILL: You indicated that this was a compromise bill?
JENNIFER ZITO: Well, it seems to me based on bills that we've been here on before, similar bills, regarding electronic recordings, it might have been a little broader.
Last year's involved juveniles, involved more felonies, all felonies instead of just A and B felonies.
There have not been the caveats outlined in this particular bill, which would render the statement admissible, notwithstanding the fact that it's not been recorded.
So I would suggest to you that this particular bill seems to have taken into consideration some of the concerns that have previously been voiced relative to the videotaping of recordings.
REP. O'NEILL: Okay. But it's not like there was an agreement made between your organization and the Chief State's Attorney or the police chiefs or anybody like that.
JENNIFER ZITO: No.
REP. O'NEILL: Okay. Thank you.
JENNIFER ZITO: I mean, certainly, I'm sorry, certainly, if we had it our way, perhaps the caveat in Subsection G wouldn't be as broad as it is. However, I think this is a step in the right direction, and CCDLA does support it.
REP. LAWLOR: Further questions? If not, thank you once again. And I understand Kevin Hennessy is back and wants to participate.
KEVIN HENNESSY: Sorry, I apologize. When I drew my number this morning, I knew I had an appointment from 2:00 to 4:00 at the courthouse across the street.
And Murphy's Law applied. I drew right in the middle there, as opposed to before or after, so thank you for letting me testify now.
Very briefly, I'm testifying on two bills, one I'm supporting, one I'm opposing, both based on public policy reasons.
The first is House Bill 5920, AN ACT CONCERNING SMALL CLAIMS HOUSING MATTERS. This is an issue I've heard a lot from my members on.
They have complaints about the small claims court and the backlog and the time things have taken to come to fruition over there.
So we've scheduled a meeting with the administration over there, talked with them. They've been amendable, and they're trying to alleviate some of those problems.
I think this bill will help supplement that because it will take the housing matters out of Small Claims Court and put it in the Housing Court. And I think it's beneficial for two reasons.
One, it reduces the backlog at small claims. And the second is it puts the housing matters in the courts where they have the expertise to adjudicate them fairly.
So for me, it's a good bill with good public policy reasons behind it, and I would hope that the Committee would support that as well.
The other bill is House Bill 5935, AN ACT CONCERNING THE DISCLOSURE OF POLICE AND OTHER PUBLIC RECORDS AND THE TOLLING OF TIME PERIODS FOR BRINGING A CIVIL ACTION WHILE POLICE INVESTIGATIONS ARE PENDING.
And I don't think this is as good public policy. I would prefer that this bill is rejected by the Committee, specifically Section 2, which would toll the statute of limitations for a civil claim if there's a police investigation occurring.
I believe the statute of limitations is one of the equities that's put in place to help defendants because, like plaintiffs, defendants have rights when you're dealing with litigation.
And some of the my conversations with some of the Members of the Committee, I didn't realize that there were incidences where police reports were taking up to two years to come up.
And that's the current statute of limitations for negligence action. And one of the things we talked about was rather than tolling the statute of limitations, perhaps a preliminary police report with the facts that are necessary could come out.
And that could go to the plaintiffs and defendants. For me, that's a much better solution that tolling the statute. I think if you toll it, it sets a bad precedent. I'm not really sure what group would be next.
And we think that it's a crucial element of equitable measures for defendants. So I would like to see it remain in place. So I promised I would be quick, and that's it. Thank you for allowing me to testify.
REP. LAWLOR: Okay. Thank you. Are there any questions? If not, I think we're good.
KEVIN HENNESSY: Long day.
REP. LAWLOR: It could have been worse. If there's no other persons who would like to testify, we'll call the public hearing to a close. This concludes our public hearing business for 2008.
[Whereupon, the hearing was adjourned.]