An Archaic Sentence

Matthew Boutilier was sentenced to 27 years in prison last week by a Hartford, Connecticut judge. He was sentenced for shooting a woman in the midst of a domestic dispute. She survived the shooting; he shot another woman in the course of the fracas. She died. A jury could not decide whether the dead woman was shot in self-defense. Hence, there was no verdict as to the murder charge.

That did not stop the judge from opining about the senseless character of the shooting death. Why should it, given the case law in Connecticut? Our courts permit judges to consider even acquitted offense-related conduct. Thus we mock the presumption of innocence, permitting a judge to base his sentencing decision on factors on which a jury could not decide.

The judge could have sentenced Mr. Boutilier to 30 years. He faced twenty years for a charge of assault in the first degree, an additional five years because he had a prior felony and should not, therefore, have been in possession of a firearm. And he was exposed to five more years as a sentencing enhancement because of his record. We were expecting something in the 25 to 30 year range, but it was still hard to listen to.

The sentencing arguments reopened old wounds. The prosecutor stood in the well of the court and called the shooting senseless and Mr. Boutilier "evil." She commented that he showed no remorse, even smirking at her during her cross examination.

Mr. Boutilier was not the only person smirking during the state's cross examination. The performance was, perhaps, the stupidest thing I had ever seen in a courtroom.

The shootings took place as Mr. Boutilier and one of the victims argued in a tiny kitchen. He testified that an enraged woman was advancing on him and forcing him into a corner adjacent to steep steps into a basement. He reached for a gun and shot to end the struggle, killing the woman. The woman, according to the medical examiner, had enough cocaine in her system to kill her. She'd also been drinking and smoking marijuana. His DNA was beneath her fingernails; she had no defensive wounds. (Query: Had the victim not been shot and had she succeeded in pushing my client down the stairs, what would the state have said at her sentencing for assault? Answer: The crime was senseless and evil. Must the state send mannequins to do the people's work?)

"You've played pick up basketball, haven't you?" the prosecutor asked my client.

"Yes." He was puzzled. This was a case about life and death, not a game.

"And you know about how to pick and roll, don't you?'


"And you know how to avoid contact in close quarters, don't you?"

On and on this silliness went for fifteen or so questions, with the prosecutor even trying to mime the moves as she asked. It was like watching a scarecrow trying to break dance. I saw a few jurors smirk, and I knew there was hope. We sat quietly and watched the state throw its case away.

Hope blossomed into something more when the prosecutor argued the shooting was inspired by jealousy. The man did not want his wife to go out with her girlfriends in the dead of night. He was jealous, the argument went. Never mind the testimony that the girls were going out to buy a cigar to stuff with marijuana. This had somehow to become a sex crime. "We girls stick together," the state said at some point. We were not surprised when we heard a lone male cry out during deliberations: "I am not the enemy here." This case was not about the battle of the sexes. Tranforming into one was a classic example of ignoring the evidence and losing a jury.

But never mind. The state can retry the murder case, and has announced it will.

What of the sentencing judge? He bemoaned the archaic sentencing options as his disposal, and wished for a more civilized response to crime than warehousing people. It was sensible rhetoric, but no more. After opining at length about the killing for which my client was not convicted, the judge threw the book at him: Twenty-seven years.

My client's family was devastated. "How could the judge base his decision on factors for which the jury did not find guilt?" "Is there anything we can do?" "Is the state really going to try Matt again?"

And I explained, to yet another group of strangers, the law of the jungle. The state is a surly beast, and once it grabs a man it rarely let's go, Matt's odds are grim. Although the fight continues, but once a man has lost the presumption of innocence hope is hard to find.

The sentence was archaic. The events on the night of the shooting were horrible. And now the aftermath. Darrow was right, of course. There is no justice in or out of court. There is just the drumbeat of the jungle. Sometimes the drummer is a judge.


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