Probation Officers Rule, Or So They Think

Hugh Keefe has a gift for superlatives. As one of the deans of Connecticut’s defense bar, he has earned the right to make pronouncements as he tap dances through his twilight years. He may not yet have made the cover of Super Lawyers magazine, but he grabs as many front pages of the daily press as any lawyer in the state.

So when he announced in the New Haven Register that the case of State v. Dulin was "the signature case dealing with who has the power: judges or probation" my eyes rolled. I wondered what princely fee this client had paid for the privilege of an almost inevitable guilty plea.

The Dulin case is sadly typical. Mr. Dulin plead guilty to second degree sexual assault. The middle age man had apparently been playing Romeo to a teenage Juliet. Consent, as we know, is no defense to fiddling on too young a set of strings.

Mr. Dulin was sentenced to 18 months in prison. He did his time. And then he was released to begin a period of probation. At a hearing just before he was released, a Superior Court judge ordered that Mr. Dulin register as a sex offender for a period of 10 years, have no contact with his former paramour or her family, and attend outpatient sex offender treatment. The judge ruled that these were the only specific conditions he ordered.

I’ve not seen the transcript of the sentencing hearing, so I am relying on press accounts of the case. I suspect, however, that the judge did not rule that these were the only conditions Mr. Dulin faced. The standard conditions require a probationer to avoid breaking the law, to keep probation informed of his residence and a host of other ho hum things.

It is unclear whether the judge also ordered what I refer to as the "Trojan horse" condition: compliance with "such other conditions as adult probation deems necessary."
Keefe is too good a lawyer to let that slip from a judge’s lips unchallenged. The words are the kiss of death for probationer. If the court orders that probation can do what it thinks necessary, it is difficult to then challenge the discretion of probation officers. Since most pleas contain this ridiculous language, most probation officers have grown accustomed to treating probationers as plantation slaves.

In Mr. Dulin’s case, a probation officer ordered that he take a polygraph examination and required that he move out of the home he shared with his wife and children. These are not specific conditions ordered by the judge. But they are conditions that are routinely imposed on folks designated as sex offenders by the Office of Adult Probation. Keefe apparently advised his client not to comply with these requirements.

Every defense lawyer in the state knows that the Office of Adult Probation is out of control when it comes to sex offenders. And too many judges roll over and play dead when asked to reign in a probation officer. Who wants to face reappointment years down the line and be asked questions about the lusty recidivist who was released only to offend again?

I do not know whether Mr. Dulin violated the conditions of his probation. But I do know that the state’s treatment of sex offenders is a farce. I’ve had clients who were faced with the choice of admitting things they did not do or face jail; men whose only crime was lust have been told to desert their families. Blurring the line between fantasy and reality in areas such as Internet solicitation and child pornography has placed probationers in a netherworld of so-called "treatment" where a new class of Puritans demands compliance with standardless norms. Probation is out of control.

Mr. Dulin is right to litigate this issue. But it will take more than occasional litigation to resolve this problem. What’s needed is systemic review. But who has the courage to peer into the nares of the state’s libidinal blue noses and then declare the obvious? There’s an awful lot of garbage clogging the airways of justice.

Sadly, these issues may never be reached in this case. Mr. Dulin’s best defense is advice of counsel. That works here. But how can Keefe wage it is an advocate? Isn’t he a witness?

Reprinted courtesy of the Connecticut Law Tribune.


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