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Jacobs & Dow, LLC

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Say It Isn’t So

A while ago the Connecticut Constitution was amended to include a victim’s rights provision. Putting aside the philosophical and semantic issue of what transforms a “complainant” into a “victim,” the amendment and the legislation it spawned has had a major impact on the practice in our criminal courts. And most of it, frankly, not for the better.

The basic concept-that true victims of crime should be made aware of and have the right to be heard-is, of course, sound. Unfortunately when the pendulum swings too far, when there is an attempt to over-compensate for a past deficiency, the cure is often worse than the disease. For example, the Federal Sentencing Guidelines, designed to assure uniformity in federal sentencing, have instead resulted in assuring there is uniform injustice. All this despite contortions of logic and imaginative sophistry by creative defense lawyers and sympathetic judges. Now the Supreme Court’s
Blakely decision threatens to demolish the Criminal Justice System’s Edsel, with the ominous assurance that Congress will respond with something worse.

Connecticut’s efforts to establish victims’ rights generates a systemic pain in the neck, caused by everyone looking over their shoulders. It affects judges to a degree, of course. But those it most affects are prosecutors, especially prosecutors in the GA’s. A given portion of any day’s docket is meatball cases. They are as obvious as they are odiferous. They are so minor they should not take up anyone’s time, let alone the police, a judge, a prosecutor, a defense lawyer and a defendant. In many instances it is obvious that the complainant, the “victim” if you will, is as much at fault as the accused. But because of the era of victims’ rights, there is a required genuflection which, if omitted, can generate complaints and grievances and jeopardize employment. We must bow to the gods of CYA.

Enough said. I use that, however, as a background to a recent refreshing experience where a conscientious prosecutor took the bull by the horns, properly assessed a bad case of a serious accusation with insufficient evidence and did what all would regard as the “right thing.” After the accused, an adult with no record and a spotless reputation, suffered an arrest, loss of employment and unfortunate and unsavory publicity, this prosecutor entered a nolle.

But it wasn’t easy to accomplish. First, it took time. Emotions had to subside. Then, the relatives had to be stroked. Lastly and wisely, it had to happen late on a Friday afternoon with almost no one around. But, much to this prosecutor’s credit, it happened. The right result attained. But it was harder than it should have been.

So the wheels of justice do grind slowly. And when they do they sometimes grind the people as well.