When The Separation Of Powers Fails

Worse case scenario? I lose the trial and my client is sentenced to three consecutive life terms, plus sixty years. The stakes could only be higher were the state seeking the twisted pleasure of killing the defendant. With stakes these high, one would think no effort to give the man a spare trial. Think again.

My client is housed in a correctional institution about a ninety minute drive from the courthouse. Trial begins each day at 10:00 a.m. So to arrive at the courthouse in time, the man is awoken at 3 a.m., transported from one location to another in the state's penal system, and then deposited, exhausted, at the courthouse around 9:30 or so. He is exhausted because the ride back from court each night is just as circuitous as the ride to court. He routinely arrives back at his institution each night at 11 p.m. or so. The other day, he did not get back until 1:00 a.m.

And it's worse. My client is accused of the kidnap, rape and murder of a fifteen-year-old child some 15 years ago. The case is widely reported in the Eastern portion of the state. So when my client arrived at one transhipment point the other night, guards annouced to all that he was a "ripper." His legal papers were confiscated, including papers I want to review with him during breaks in the court day.

My client arrives each day at court exhausted, terrified and without the tools I asked him to prepare for trial. It's wrong to treat him so, and so I brought it to the court's attention to demand relief.

My trial judge is a fair-minded man. We've been at jury selection for four days now; I suspect it will take about seven or eight days to pick the jury. Thus far, I have seen nothing to believe he harbors any animus toward my client. The judge also treats the lawyers well. It is a pleasure to try the case in his courtroom.

But when I brought the conditions of my client's confinement to the court's attention, the judge became strangely impotent. He is unwilling to order the Department of Corrections to provide timely transportation of my client to the courthouse so that he can arrive well rested and able to participate in the proceedings as something other than a zombie. The judge is also unwilling to order that the Department of Corrections give my client his papers so that he has them with him in court.

Why is that? Call it a failure of the separation of powers doctrine.

Connecticut models the federal government. We have judicial, executive and legislative branches of government. My client is being tried in a court. The prosecutors is a member of the executive branch seeking a conviction under laws passed by the Legislature. The Department of Corrections is also part of the executive branch of government.

So what would be wrong with the court's ordering that my client be assured transportation that made a good night's sleep possible? He is being prosecuted by the state. He is in state custody. My adversary is the state.

Somehow, the judge seems unwilling to use a power he has: to order another branch of government to assure conditions such that my client's right to a fair trial is honored not just in the courtroom, but while my client remains in state custody. Placing a human being in an environment in which he is sleep-deprived and threatened amounts to a not so subtle form of torture. The court can and should order that my client's conditions of confinement comport with minimal standards of decency. Yet, somehow, out of deference to a coordinate branch of government, the criminal trial judge is unwilling to act.

This is a failure of the separation of powers in my mind. On Monday, I will file papers in a civil court seeking an injunction against the Department of Corrections. We will claim that my client is subject to cruel and unusual punishment, is being deprived of his right to a fair trial and is subject to a violation of his right to due process of law. This seems wholly stranger and surreal. Why am I turning to a civil court for relief from abusive state treatment in the middle of a criminal proceeding?

New story: http://www.theday.com/article/20100109/NWS02/301099913/1044


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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