USA v. Rowland: A Potemkin Prosecution

Somehow, the prospect of John Rowland's returning to a federal prison does not make me all warm, fuzzy and grateful to be living in this, the best of all possible worlds. Yet, you would think I would be thrilled. After all, wasn't the former governor's latest conviction a victory for transparency in government, for assuring that "we the people" are informed of who is doing what in our names?

That's the line federal prosecutors were chirping, both in closing arguments during trial and after the verdict. Listening to their gibberish made me fear for the republic. Dark money —funds contributed by secret donors to organizations screaming hate and misinformation—is the coin of the realm in electoral politics. Both right and left have jammed the airwaves with swill. I suspect that's one reason why national politics resembles less reasoned debate about the issues than catcalls by jeering groupies at an athletic event.

Prosecuting John Rowland is sort of like popping a zit and then announcing a cure for skin cancer.

That Rowland was on the make is a given. That he took some $35,000 from Brian Foley to provide secret support for Lisa Wilson-Foley's failed congressional campaign was proved beyond a reasonable doubt to the satisfaction of 12 jurors. But let's not kid ourselves about the practical effect of this conviction—zero, zilch, sound and fury signifying nothing.

A tidal wave of dark money drowns out reasoned debate. The likes of Sheldon Adelson, a geriatric casino owner in Las Vegas, pump tens of millions of dollars into PACs, super PACs and nonprofits for the express purpose of manipulating the electoral process. All of this is legal, of course. We tolerate this form of electoral fraud in the name of freedom of speech.

To claim, as did the prosecution in its closing argument, that the Rowland case "goes to the very heart of the most basic right we have in America. The right to vote, the right to make informed decisions about who is going to represent us" is simply naïve, a juvenile form of flag waving.

To assert, as the government did in its closing argument, that "every American is entitled to certain information. Who's paying a candidate, who is the candidate beholden to?" is sort of like insisting that we each have the right to live to a ripe old age. It sounds nice enough, but reality mocks those with the courage to open their eyes and look at the world around them.

To intone, as the government did at trial, that "Mr. Rowland sought to deprive voters of … information. He was going to be paid to steer that candidate into the United States government and he didn't want anyone to know about it" is to chest-thump about how mom and dad have never soiled sheets in the name of passion, no not once.

It was no surprise that Rowland was convicted. Press accounts made the government's proof sound overwhelming. Rowland's out-of-state lawyer came rolling into town promising a brawl, and crawled home looking not so much lame, but clueless. This was all that a star of the white-collar bar could offer? The trial looked less like a contest for the soul of the republic than it did a concession stand outside Rome's Coliseum—inside the arena, blood was being spilled, while the hawkers sold flimsy trinkets to children.

U.S. District Judge Janet Bond Arterton will no doubt slap Rowland hard come sentencing day. It would not surprise me to see her depart upward from the sentencing guidelines to punish Rowland for his sins. It is all such a silly, silly farce. You can lock up John Rowland, you can throw away the key. It changes nothing about the mess that is electoral politics. And we the people know it.

What does a failing republic look like? It looks like USA v. John G. Rowland—a grand spectacle of yesteryear's rhetoric, willfully blind to the reality all around us, a malignant expression of patriotic form that mocked us by pretending to care about things fundamental. It was, in the end, but the latest form of bread and circuses, a distraction from what ails us.



Courts Succumb to Sexophrenia

A future historian might one day write the following of our time:

“Despite a generally permissive culture in which sexually suggestive photographs were used to advertise products ranging from toothpaste to cars, 21st century Americans nonetheless harbored draconian and puritanical laws involving sexual misconduct. It is almost as though they were afraid of the very desire they relied upon to entertain and to titillate themselves.”

We’re a little goofy about sex offenses, in my view, a sign of a state of mind I call “sexophrenia.” Here are several examples of how the law expresses this malady.

Our courts have created special rules of evidence and procedure for dealing with allegations of sexual misconduct.

In most cases, the prosecution is confined to proving only the offense charged. Evidence that a defendant had previously committed some other offense is generally not admissible. The theory is that a defendant is entitled to a fair trial. Putting on evidence of an accused’s bad character might make it easier to convict him. What, the courts say, has a prior bank robbery conviction to do with a charge of drug possession or rape? The answer is almost always nothing.

The bar on bad character evidence, also called propensity evidence, is relaxed in sex cases. The courts permit prior acts evidence to show a defendant’s involvement in a sex crime. That’s not to say that the evidentiary doors are flung wide open: I cannot imagine a judge permitting evidence of a bank robbery to prove a claim of child molestation — the offenses are simply too dissimilar.

But in areas showing a propensity, or tendency, to engage in sexual misconduct, the state Supreme Court has made it clear that trial judges should be more liberal in the admission of bad acts evidence than they might be in a case not involving sex. Why? Sex is different. The court holds that these offenses are typically furtive and compulsive in character, and this further element of proof is permitted.

Criminal defense lawyers generally detest this sort of reasoning by the court. Why do we need boutique rules of evidence targeted at specific crimes?

We’re crazy about sex, I say — even judges get seduced.

Another way in which the law treats sex offenses as different is with regard to the statute of limitations for making a claim of sexual misconduct.

Statutes of limitations require a party making a complaint, whether a civil plaintiff or the state, to bring their claims within a given period of time. A claim brought after the limitation has expired, or run, cannot be brought at all. Thus, as with most intentional torts in Connecticut, a person must file their civil suit within three years of the date of the bad act.

Except in sex offenses. Lawmakers permit a claim to be raised, in many cases, within 30 years of a complainant’s 18th birthday. Thus you can be accused of misconduct 30 or more years after the accuser alleges you have acted.

Why the special rule in sex cases? You know the mantra by now — sex cases are different. The acts are furtive, their secretive and shocking nature often means it takes years for a “victim” to come forward.

But try defending someone against a claim that 30 years ago on a given night they did something inappropriate. Alibi? Who can recall where they were two years ago on a given night, much less 30 years ago?

Not all offenses have a statute of limitations. Murder, for example, can be charged at any time. So can Class A felonies and certain especially serious sex crimes. We recognize that some offenses are so serious, so heinous, that the public interest demands that a crime be prosecuted regardless of how much time passes between the alleged commission of the crime and the time a defendant is arrested.

But some child sex cases proceed to trial with virtually no evidence other than the word of a complaining witness. A man or woman well into middle age can come forward and alleged that wicked Uncle Ernie fiddled about decades ago.

When cases emerge in which there is a delayed disclosure, the law then shows its sexophrenic tastes once again: The courts permit experts to testify that the lengthy delay in reporting is consistent with sexual abuse. Why? The theory is called incremental disclosure. Because of the trauma of the events the “victim” endured, delay in reporting is to be expected. The complainant must work through issues of shame and denial before coming forward, especially in the accused is a loved one or family member.

What’s more, even if the accuser’s testimony at trial is inconsistent with what they said earlier, the experts are permitted to explain the inconsistency away on a theory of incremental disclosure: Abuse victims often relay only part of their trauma when they first come forward, or so the theory goes.

Defense lawyers around the state often joke that these experts have an explanation for anything a complaining witness might say. No scientific evidence supports the reliability of this gibberish, yet the courts permit it. The evidence is necessary to punish sex offenders, by golly.

Finally, the law reflects its sexophrenia by its over-inclusiveness. Did you know in some states merely urinating in public is a sex offense? Get caught doing so, and you can be required to register as a sex offender. It’s small wonder that lawmen across the nation are beginning to push back. We’ve so many people on the nation’s various sex offender registries that it is hard to distinguish legitimate threats from the folks who are no threat at all.

The irony is all this is that our draconian efforts to criminalize sexual misconduct are largely unnecessary. According to data generated by the United States Justice Department, the recidivism rate for sex offenders is very low — fewer than 5 percent of offenders are re-arrested for similar offenses after release from prison.

There are violent sexual predators in the world who do present a danger. There always have been. But the law’s grand hysteria about sex has less to do with threats to public order than with our disordered views of desire. For some reason, we love to hate the very things we love. We’re sexophrenic to the core, I say.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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