Even if you are in mourning about the results of the presidential election, and I am not, you will agree that there is one occasion for rejoicing: With the elections safely behind us, both President Obama and the Senate can now turn their attention to fully staffing the federal judiciary. The judiciary was all but the forgotten branch in the run up to the general election, an odd occurrence, given its importance in our lives.
Nationwide, there 82 vacancies on the federal bench, according to Administrative Office of the U.S. Courts website. Only 34 candidates have been nominated to fill these positions. Some nominees, such as Michael Shea in Connecticut, were nominated early in 2012, only to be ignored. (Shea was nominated by the Senate Judiciary Committee on February 2, 2012.) Why Shea, the most vanilla of nominees, has been ignored speaks poorly of the Senate as an institution.
Connecticut has two vacancies on the District Court. Shea was nominated to fill the position vacated by Christopher Droney, who was kicked upstairs to the United States Court of Appeal for the Second Circuit almost one year ago. The death of Mark Kravitz last month creates a second vacancy. How long will the president and Senate dither in filling these seats?
One reason for the seeming gridlock is that Connecticut’s Senators have made a mess of the nomination process. Now-departing Senator Joseph Lieberman and Senator Richard Blumenthal have a blue-ribbon committee evaluating potential nominees. Candidates must sign a pledges of secrecy before being screened by the committee for a job as judge. This is utter foolishness. What secret handshakes, what unseemly genuflecting, takes place in these interviews that we cannot know? I don’t want my judges selected by a committee that operates like Skull and Bones.
So let me take a risk here and indulge the hope that the departure of Senator Lieberman, a man for all parties, an Independent without portfolio, a politico with a Red heart in Blue state, will change things. I’m looking to Senator-elect Chris Murphy to breathe some life into this now secret process. Murphy may be a junior Senator – he looks all of about nine-years-old – but he should still insist that the business of selecting nominees be open to public view.
I am hoping that a trial lawyer, preferably a criminal defense lawyer, is nominated. The federal bench, especially at the appellate court and Supreme Court level, is populated by largely by brilliant theoreticians who never tried a case. I wouldn’t send a friend to a surgeon who’d only read about the operating room. I want judges who know what it’s like to stand in the well of a court armed only with contested evidence and legal doctrine. I once heard a law professor dismiss a question claiming the issue presented "a mere matter of proof." We don’t need professors on the bench.
Hope Seeley of Hartford is my top choice. She is smart, honest, and works as hard as any lawyer I know. Despite her talents, she is also modest. There’s no danger she’d fall in love with the robe. Dangle a robe in front of her eyes.
Another favorite is John Walkley of Trumbull. John is rumored to be on the short list for appointment to the state bench. He’ll be a fine jurist at either the state or federal level. He has loads of experience with complex and high-stakes cases. He is an understated workhorse of enormous goodwill.
I’ve attempted to throw Superior Court Judge Dawne Westbrook’s name into the federal hopper before. I do so again. I’ve know her forever. She is smart, capable and good humored. (Yes, I represent her husband, Dr. Tory Westbrook, who is facing criminal charges; I nominated her for a federal judgeship long before her husband needed me.)
And then there is a perennial favorite, Bill Bloss, now practicing in Bridgeport with Koskoff, Koskoff & Bieder. Bloss is preternaturally smart, with a savant's quirky humor. Despite his brilliance, he tolerates we lesser mortals, and is always gracious with his time and talents. I've supported him in the past, and do so now without reservation.
Not one of these candidates knows I am nominating them. All are experienced representing ordinary people in both the state and federal courts. All have the respect of the bar. All are would obtain high marks on any review of ability.
So, Senators Murphy and Blumenthal, nominate or get off the pot. And then press your colleagues to actually vote on the nominations. There’s plenty of work to do in the courts. We need you to do your part with dispatch.
Reprinted courtesy of the Connecticut Law Tribune.
I did not get a chance to head out to Milford to watch any of the trial of Jason Anderson, the former Milford police officer involved in the high-speed collision that killed two teenagers. Frankly, I don’t like watching other lawyers try cases; it’s sort of like watching ice melt. When you try a case, all moves quickly, there are many decisions to make all at once: how to frame the next question, how to read the jury’s attitude, how to anticipate what a judge will do next — all this in the context of the high-stakes of trial where someone’s life is on the line. Watching trial is slow-motion torture; trying a case is dancing on hot coals.
But I did read about the Anderson case, and I am troubled by what I read.
According to press accounts, Milford State’s Attorney Kevin Lawlor stomped his foot and banged the lectern demanding that Anderson be held accountable for his conduct.
“Jason Anderson was supposed to protect and serve the public. Racing down Boston Post Road that night at 95 mph, he protected no one,” Lawlor said. “This kid pulled in front of a speeding bullet.”
Lawlor wanted to send Anderson to prison for a good long stretch, so he charged him with manslaughter with a motor vehicle, asserting that Anderson engaged in reckless conduct with his cruiser. Anderson faced up to 20 years if convicted of both counts by the jury, 10 years for each victim.
The jury rejected Lawlor’s histrionics, and voted not guilty on the manslaughter charges. I suspect that jurors did so because they took Lawlor’s appeal for accountability seriously.
No one doubts that Anderson was wrong for speeding down the Boston Post Road the night his cruiser slammed into a car driven by 19-year-old David Servin. Both Servin and his passenger, Ashlie Krakowski, also 19 years old, were killed in the crash. Anderson was clocked doing speeds in excess of 90 mph early in the morning on June 13, 2009. He should never have been traveling at that speed. He was on duty as a cop. He knew the law. There was no exigency requiring him to treat the Boston Post Road as a drag strip.
But neither was there an excuse for Servin to be driving while intoxicated. His blood alcohol was .14 at the time of impact, almost double the permissible limit. He did not come to a full stop at the intersection, he cruised through a traffic light, he made an illegal turn, and he failed to yield the right of way, according to Anderson’s lawyer Hugh Keefe. In the eyes of the law, Anderson played a role in causing the deaths, but Servin’s driving was, according to the jury, an intervening cause.
Causation is a commonsensical concept until turned over to lawyers. Lawyers distinguish cause-in-fact from proximate cause. And then things get even more complicated by the addition of superceding and intervening causes. In the Anderson case, the issue of causation torpedoed the state’s case.
A cause-in-fact is an event necessary for some later act to occur. Thus, should you at some point today trip and fall, you can blame the manufacturer of your alarm clock for the event. Had the alarm not rung, you might never have left the home in time to have an accident. But, typically, such causes are remote from the event at issue. It is unreasonable to say that the alarm clock’s ringing at 6 a.m. caused noon’s accident, no matter how necessary the alarm was to getting you up and on your way.
The doctrine of proximate cause places a limitation on the causal chain of events, assigning responsibility to the events near in time and place to the event. Don’t be put off by the vocabulary — proximate merely means near.
What if other events occur at the time of an accident, events so significant that they alter the chain of events? A superceding cause might dominate, or overcome, other potential near causes of an event. So, too, might an intervening cause. Thus, in the Anderson case, the officer’s speeding car was a cause-in-fact of the crash. It was also a proximate cause. But the jury concluded that the intoxication of the driver was an intervening cause. What does that mean?
In a civil action, a jury might assign percentages of fault to the various parties. It might have concluded that Anderson’s behavior was 70 percent of the cause of the accident, and that Servin’s conduct accounted for 30 percent of the blame. Such relative assignments aren’t made in criminal cases. The criminal courts are an all-or-nothing sort of forum.
Confusion reigned late in the Anderson deliberations. The jury found him not guilty of reckless manslaughter. In making that decision, jurors checked a box indicating that Servin’s intoxication and conduct was an intervening cause. Does that mean that Anderson cannot be found guilty even of the lesser charge of negligent homicide? The trial judge thought so, and vacated the jury’s verdict of guilty on the negligent homicide count. (The difference between these two forms of homicide comes down to the state of mind of the defendant: A person is reckless when they engage in risky conduct despite awareness of a serious and unjustifiable risk of harm to another. A person is negligent when they are careless. Negligence is less culpable than recklessness, and both are less culpable than intentionally taking a life.)
In the end, Anderson was found guilty of misconduct with a motor vehicle and reckless driving. He has plenty to work with on appeal.
I think the jury got it right on the homicide counts in the Anderson case. Yes, speed kills, as Lawlor told the jury. So does driving while intoxicated. Poor Ms. Krakowski was twice victimized, falling a victim to the drivers of both cars, who share in the responsibility for her death.
It’s far too easy to make a crime of every accident. These deaths were horrible and avoidable. But the prosecution of them was overplayed and bordered on the histrionic.
No one won this case, but the State of Connecticut lost. Who holds the state accountable for improvident prosecutions? Answer: No one. Some world.
Reprinted courtesy of the Journal Register Co.