Transcript
CHIEF JUSTICE RICHARD A ROBINSON (CJ-RR):
Good afternoon. The last Brady matter we have is, and Counselor, you’re going to have to help me with this. Mekoshvili?
ATTORNEY NORM PATTIS (NP):
Yes, sir, Mekoshvili.
CJ-RR:
Thank you very much. The State versus Mekoshvili. Each side will have 30 minutes to argue. The Appellant may reserve any portion of that time for rebuttal. We are going to use the same masking rules we’ve been using for the last year, which is, if you are speaking, you can lower your mask or take your mask off. If you’re not speaking, please keep the mask on. If anyone has an objection to that, then we’ll keep the mask for the entire time. Are there any objections?
MULTIPLE VOICES:
No, there aren’t.
Thank you. I see none in the Court. That’s the procedure we will use. Attorney Pattis, are you ready to proceed?
NP:
My name is Norm Pattis. I represent Shota Mekoshvili. I’d like to reserve seven minutes for rebuttal. And I should apologize for sitting down as you came up. It’s been a bad morning in another case, and I was preoccupied. So, I apologize. I certainly didn’t mean to convey anything less than my full respect.
CJ-RR:
Counsel, believe me, we understand. Thank you very much.
NP:
Thank you. I see today is specific unanimity day. This is not as to the elements of an offense but as to the self-defense charge. And we are urging the Court to apply Diggs in a way that has not been applied thus far. We are hopeful that this Court will revisit Diggs in the context of specific unanimity. I focus on the language, I believe, on page 302 of Diggs, where it says that specific unanimity is not required except in cases where the complexity of the evidence – and this is the language I want to stress – “or other factors create a genuine danger of jury confusion.” I believe that’s found at 219 Connecticut 302.
This was not a complex, factual case. It wasn’t, as in the previous case, diverse dates, prosecution with multiple defendants who may or may not have come to majority in the course of the prosecution. It was but a single death. And the defendant’s claim and the State’s proof were at variance with one other, but we requested a specific unanimity charge because we think there were other factors creating a genuine danger of jury confusion. That factor is the notoriously difficult character and nature of the State’s self-defense charge.
Perhaps I date myself, and my colleague and I have been doing this against one another for decades. He said, “What are your plans?” I said, “I think I’ll stick with it for a while,” but you never know, that’s as to the law.
I don’t know how many murder cases I’ve done, but it’s only been recently that I think I could pass the exam on the four-part dance of Connecticut’s self-defense instruction. I call it “a state of mind ping-pong.” First we ask juries to consider a subjective state of mind, that is, whether the defendant actually believed that he was about to face deadly force or force that was likely to inflict great bodily danger – a subjective standard.
If the jury concludes that’s the case, then it goes on to ask whether they believe that his subjective belief was objectively reasonable. And then, once that hurdle is crossed, we get to the third lap. And that is, as to the degree of force used, did the defendant subjectively believe it was necessary?
And once that lap is done, we get to the final quarter of this mile – “sprint,” I’ll call it, exhausting sprint – does the jury endorse or believe it was objectively reasonable for the defendant to subjectively believe that that force was reasonable?
JUSTICE MARIA ARAUJO KAHN (J-MAK):
Attorney Pattis, I have a couple of questions. First is, do you agree – it seems both sides have conceded that the real question is whether there needs to be unanimity on which particular element of the elements of self-defense have been disproven.
In other words, both sides agree that the jury needs to only find one of the four, whether there was an actual belief that the victim was about to engage in force, whether that belief was reasonable, and then whether the defendant believed the degree of force used was necessary to repel that attack, and whether that belief was reasonable.
So, as to the four, both sides agree only one needs to be disproven in order for the self-defense claim to not have been met. Correct?
NP:
I think that’s right, Justice Kahn. That was all I intended to raise. As I was preparing the brief and reading the certified questions, I saw that it was susceptible to a different reading. But that wasn’t our intent, to raise the claim that each of the four had to be disproven, only that one.
J-MAK:
And so, it gets to my next question. When it comes to an offense and the elements of the offense, the jury is instructed that they must find each and every element of an offense met beyond a reasonable doubt. In this case, the State argues that, in essence, your client received that unanimity instruction that it was seeking because the jury was told repeatedly that they had to be unanimous as to the disproving of the elements of the offense and then the disproving of the statutory exclusions.
Let’s leave aside the statutory exclusions for the moment. How is it not…I tried to think how you would frame a unanimity instruction beyond what they were actually given in this case. Do we even need to reach that question? Because they wouldn’t be given an instruction that they had to be unanimous as to each and every element of the offense of the justification defense of self-defense.
NP:
The charge that we requested, we think, illustrates to a fare-thee-well the confusion in this case. The fact that the State can say that the charge addressed this, while the trial Court held that it wasn’t necessary to give it, should tell you all you need to know about jury confusion in this case.
J-MAK:
I think we can all agree the self-defense instructions are confusing in general and long.
NP:
They are. Here’s the language, though, which we requested: “Unless you unanimously agree that the State has disproven the same element, the State has failed to disprove self-defense.” The danger in any general verdict context is a danger of compromise. And so, we don’t do specific jury interrogatories in criminal cases. Maybe we should. Listening to one of the arguments earlier today, I could imagine a universe in which that might be preferable because at least then we’d know what the jury did and why.
But it is our contention that given the difficulty….One of the things you learn in first year of law school, I hope, is to distinguish between a subjective and an objective mental state. And you can count on an exam question somewhere along the line in that first year to test your knowledge.
J-MAK:
And I may see the distinction between an element of self-defense versus a statutory exclusion, right? Because they kind of rely on sort of separate, perhaps, and that’s a better question for your opponent.
My other question is this. The State notes that there is no other jurisdiction in the country that has required unanimity as to the elements of self-defense, and they drop a footnote – I think it’s footnote 14, citing a Colorado intermediate Court where it was required, the only one they cite. After Shepardizing that case, that case was granted, and the Colorado Supreme Court reversed that requirement and said, “We conclude that the jury need not unanimously agree on the means by which self-defense is disproved.” In other words, so long as the jury unanimously agrees that self-defense was disproven beyond a reasonable doubt, it need not be unanimous as to the specific reason.
So, that case, now, has been reversed. Can you cite to any authority where there’s been a requirement of unanimity as to the specific reason or element of self-defense?
NP:
No, but let me begin by saying the following. I believe my adversary did a letter to the Court notifying the Court of the recent Colorado decision, so I don’t want…If I were him listening to this, I’d think, “Wait a minute. Did I hide the ball?” I don’t think the ball was hidden. The letter arrived Friday. I’ve checked the case. It says what you say it says.
But Justice Kahn, the fact that no other…I’ve appeared before you many times. I’ve tried cases against you. I may be a fool, but I’m an old and honest fool. I simply will never see the logic in that statement from the Colorado Supreme Court, and I’m as blind to the logic there as I am to the logic of this Court’s decision in State v. Richards.
J-MAK:
But isn’t the logic that the self-defense is kind of a continuum? In other words, you could have two jurors that say, “Look, I don’t think he actually believed that the alleged victim was about to use force.” And then, some of the jurors say, “Well, maybe, even if he believed it, that belief was not reasonable.” How is that so illogical? In other words…
NP:
That’s classic compromise talk. If I’m standing before a jury, I’m entitled to know what target I’m shooting at, and I’m entitled to say to the jury, “You must each decide, and we are counting on your unanimous verdict in this case.” And to suggest that they can split their votes, and…“I don’t think it was subjective.” “He believed it.” “I think he did, but I wouldn’t….”
J-MAK:
But isn’t the argument the same? Isn’t the Defense’s argument, “Look, he felt threatened, and he…”
NP:
No.
J-MAK:
Hear my question. “He felt he was being threatened, and that belief was reasonable.” You have to argue each one.
NP:
You do.
J-MAK:
And that belief was reasonable. And he responded with deadly force because he felt he needed to respond with deadly force because that’s what was being used against him. And that belief was reasonable. You kind of have to argue all of them.
NP:
You always have to argue all of them, and you hope to win, obviously, by avoiding a defeat as to any one of them. But this is where I think Bailey got it wrong. As a defense lawyer at trial, I tell my clients, and I think the law is, you’re presumed innocent. The State has the complete burden of proof. You needn’t prove a thing. There is a standard charge that says the presumption of innocence alone is sufficient to acquit.
And then, when it comes to self-defense, Bailey comes out with this whopper that it’s the Defense’s burden to produce evidence to get a self-defense charge. You know that’s not the law. We all know that’s not the law. There just has to be evidence sufficient.
J-MAK;
But the jury was instructed, and they’re repeatedly instructed, that the Defense has no burden. The Defense does have to raise enough, either by the defendant’s testimony…
NP:
No. The evidence has to show it. The Defense doesn’t have to raise it.
J-MAK:
Attorney Pattis, do you disagree that the law is that there is no burden on the Defense, but the Defense has to raise, either through a witness or the defendant himself, if he or she chooses to testify, has to raise the defense? There has to be some evidence raising the defense in order for then the State to have the burden to disprove it, correct?
NP:
I disagree with the second part of that compound question. There has to be some evidence, but the Defense needn’t produce it. The Defense typically does. And so, when Bailey decides against specific unanimity, it’s basically saying that places the State at a tactical disadvantage because that’s a defense that’s within the defendant’s control. So, in a way, their burden is relaxed. But it is, nonetheless, the State’s burden to disprove self-defense. And by diluting the burden, we think you’re depriving the defendant of a defense he’s entitled to.
The trial Court’s responsibility is to assess at trial, at the time of the charge conference, whether there is evidence in the record that raises an inference sufficient to support a self-defense charge. Once that happens, whether it comes through a prosecution witness or not, then there’s a burden that attaches to the State, and that is to disprove it beyond a reasonable doubt.
Why should the State get the benefit of splitting that vote among these four elements? Get three from each column, and you’ve not unanimously proven self-defense within the meaning of the charges now given.
JUSTICE GREGORY D’AURIA (J-GDA):
Does it make a difference to you that it is a defense, albeit one that the State still has the burden of disproving, but it’s a defense nonetheless? The jury didn’t buy self-defense. Collectively, they didn’t buy it.
NP:
I don’t know what they didn’t buy.
J-GDA:
Maybe you’re not entitled to know why, but any of four ways…You just want all of them to agree on one way of disproving it.
NP:
I want the State to be held in every instance at every juncture in this trial to its burden of proof, and if it has the burden of disproving a defense, I don’t think it gets to hedge and say, “Well, 25, we’ll split it three ways or four ways.” I don’t understand the logic in that. And I think it’s fundamentally unfair.
I think that it’s not an affirmative defense. It’s a general defense. And the law is quite clear. So, if you’re going to release the State from the responsibility of disproving each element by unanimity, you’re almost flying in the face of Ramos v. Louisiana that said from a 6th Amendment perspective, the history and the reason we have unanimity is to vindicate the core constitutional values at stake.
So, I think it’s a distinction that I find infuriating, that we can say the State has to prove the elements of the crime charged by unanimity, but as to its burden of proof as to a defense that is exonerating, they get a pass. Why? What entitles the State to the delusion of that burden of proof?
J-GDA:
Well, I mean, it depends on where you start. You’re calling it a dilution. It depends on what, like in the other cases, the affirmative cases, depends on whether you have a right to a unanimous verdict as to whether it’s being diluted or not, as to every element. I need to hear that 12 people agreed on one of those elements of self-defense. You don’t have a case that says that that’s a 6th Amendment right.
NP:
Not yet. Ramos, I remind you, was decided in 2020, and we’re always looking for interesting issues in our shop. But the logic I simply don’t understand.
J-MAK:
Does it make a difference that it’s not an affirmative defense? It’s a justification defense. In other words, the jury is instructed. They don’t even reach self-defense until they’ve found the State has proven each and every element of the offense proven. So, they have to find him guilty of whatever the offense is before they can then go to…They have to find the State has proven each and every element of the offense before they can entertain the self-defense. I mean, that’s how jurors are instructed.
NP:
Understood.
J-MAK:
So, doesn’t it make a difference, one, that it is a defense of justification? Meaning the person’s guilty of the underlying crime. They’re just justified in doing so and, therefore, cannot be found guilty. And that the elements to disprove are in the disjunctive. If we agree that the jury needs only find one that the State has disproven, one of the four elements, rather than each and every one, doesn’t that make a difference, again?
NP:
Why? Why would it? It’s the same burden on the same party and the same liberty interest that’s at issue. Justification exonerates. The State is responsible for disproving exoneration once they have proven that the murder has, in fact, taken place. I see nothing in our cases that addresses why the State should get that discount at a critical stage of the proceedings. Nothing.
JUSTICE STEVEN D. ECKER (J-SDE):
I’m sorry I interrupted you, but are you done?
NP:
Yeah, when you tell me I am, I am.
J-SDE:
With that question, it’s a follow-up. The State, and I don’t mean to cite specific out-of-state cases to you without…I don’t want to see if you haven’t memorized this one, but it’s an interesting case, the Herrod case in Texas, where the Court actually gives a reason. It’s one of the four cases that the State cites as having rejected your argument.
They make a distinction there in that blockquote. It’s on page 23, 24 of the State’s brief. They say, well, the reason that it’s different is because it’s not about the act itself. It’s about the why of the act. So, it’s more like means. We were discussing the last two cases. You don’t have to prove the specific means. You just have to prove that it happened. Does that make sense to you?
NP:
It really doesn’t.
J-SDE:
Can you explain why?
NP:
Yes. That’s like saying that we’re going to relieve specific…I mean, we say in murder cases that motive is optional, that “why” question. But specific intent goes to a state of mind, and that is, in effect, a why question. You acted in a certain way. You weren’t an automaton. You acted with a specific intent or the conscious objective to cause a person’s death. That’s murder.
The why question as to self-defense is integrally related to the specific intent. You killed because you “subjectively” perceived a risk of threat and acted appropriately. And those are objectively reasonable within the eyes of the jury.
I think Herrod split hairs in ways that, frankly, excuse my passion, is disgraceful. That distinction makes no sense and bears no weight whatsoever. A murder case is composed effectively of two things: a mens rea and actus reus. You killed somebody and you had the specific intent, the conscious objective, to do so.
If you want to walk out the door and the State has proven that, then one way you can do so is by holding the State to its burden of proof by saying, “I wasn’t justified in doing so because he was coming at me, and I had to shoot to kill because it was kill or be killed.” That, the State has to disprove.
It seems to me, as a defense lawyer, that I’m every bit as entitled to have the jury instructed that they’ve got to disprove each and every one of those elements of self-defense as I am that they have to prove each and every one of the elements of the crime. Standard voir dire in any criminal case. Juries understand that in order to obtain a conviction, the State has to prove each and every element. In this three-element offense, two out of three might be good enough for a rock-and-roll song, but it’s never good enough for an acquittal.
Can you promise to hold the State to its burden of proof? And am I supposed to do that voir dire with my fingers crossed behind my back? I could say, “Except when it comes to self-defense, then three out of four is good enough.” I think that if we’re going to say, and it may be that this Court wants to revisit the allocation of burdens. Maybe you want to consider self-defense to be an affirmative defense that imposes obligations on the defendant, but that’s not the status of the law now.
And anytime you submit a case to a jury, as a trial lawyer at least, you’re worried about a compromised verdict. The more you put on the table, the less you know about what comes out of the jury room. And, thus, the importance of specific instructions to the jury so that when questions come out, you know what to shoot at. This makes trial, in part, opaque. It’s like arguing to a funhouse as to the self-defense instructions.
J-MAK:
But don’t you know you’re shooting...You know ahead of time. On a self-defense case, you know ahead of time how the jury is going to be instructed. You know they’re going to be instructed on the four elements that the State needs to disprove.
NP:
Justice Kahn, which I remind you, are extremely confusing under Diggs.
J-MAK:
But that’s the law.
NP:
That’s true. You even told me it was exceptionally confusing.
J-MAK:
Hear my question. Do you want to eliminate any one of them? Would you argue that they should be eliminated?
NP:
No, I want the benefit of each of them. If the State’s going to have the burden of proof, I want the State to be held to that.
J-MAK:
Of course. Attorney Pattis, if I can get to my question.
NP:
I’m sorry.
J-MAK:
You know ahead of time how the jury is going to be instructed. You know if they’re going to be instructed as to the statutory exclusions, whether it’s going to be provocation, whether it’s going to be the duty to retreat, or the initial aggressor. So, you know up front, and you know what to argue to the jury.
Look, they cannot disprove any one of these four elements. They cannot disprove the statutory exclusions because he was not the initial aggressor, he was not the person who provoked the attack, and he had no duty to retreat because he was in his home or his business or he was just outside his home, whatever the claim is. So, you know up front, and you can argue each and every one of those to the jury.
NP:
No, I can’t, because under the current state of the law, I have to cut my left arm off to serve that argument up with my right.
J-MAK:
How so?
NP:
You have to be unanimous as to the elements of defense but not so much as to the self-defense. Then you can compromise. And so, I’m going to be injecting the very confusion into my argument that I think Diggs warns against and talks about as a justification for a specific unanimity charge.
I’m intrigued by the State’s brief, as always excellent, and I learn a lot reading the State’s briefs. But they talk about the 25 times unanimity was referred to, and they suggested in one of the isolated instructions the Court gave the very charge we wanted to. Well, if that was the case, then what would have been the harm in giving us what we needed to argue effectively to the jury? The charge simply is confusing. It’s a mess, and to expect ordinary jurors one time to hear this subjective/objective thing and then send them back into the jury room to get it right, I think that’s asking for too much.
JUSTICE CHRISTINE E. KELLER (J-CEK):
Can I just ask a question, please, Attorney Pattis, before you sit down?
NP:
I thought I was saved by the bell.
J-CEK:
I’m confused because I thought we admitted that the certified questions should be whether the jury, not that the State defeat all four elements with a unanimous verdict of the jury, but just one of the four. Is that correct?
NP:
Yes.
J-CEK:
All right. So, the Court instructed, the State can defeat self-defense by disproving any one of the four elements of self-defense beyond a reasonable doubt to your unanimous satisfaction. Why wasn’t that good enough?
NP:
Because if it was good enough, he would have given the instruction we asked for, and it would have made it clear that they had to be unanimous as to each one. I will concede, Justice Keller, that that comes close to giving us what we want.
J-CEK:
They only need to be unanimous as to one of the four, though.
NP:
Correct.
J-CEK:
Okay. I like yours better, but doesn’t this….You like your request instruction better, but doesn’t this come close?
NP:
It does come close, but the fact that the trial Court wouldn’t give it but, nonetheless, gave what it gave proves the confusion in my view.
J-CEK:
All right. Thank you.
NP:
Thank you.
RONALD WELLER, SR. ASST. STATE’S ATTORNEY (RW):
Good afternoon, Your Honors. May it please the Court, my name is Ronald Weller. I represent the State in this matter.
I’ll start this way. It really comes down to where does the right to unanimity come from? I know Justice D’Auria was sort of talking about that in the last two cases. It’s the 6th Amendment right to a jury trial. Nowhere in the text does it say you have to have a unanimous jury, but we historically read that to require unanimity. Nobody questions that a defendant has a constitutional right to a unanimous verdict on the offense, which means unanimous verdict on the elements. Everybody agrees with that.
We have no case yet, in the U.S. Supreme Court anyway, that says you have a right to a unanimous verdict on a defense. I’m not even sure there’s a constitutional right to that. But even if that’s the better practice, which I personally think it is, that you should have a unanimous verdict on a defense, what you have a right to is the jury to be told you have to be unanimous that the State has disproven self-defense. That’s the unanimity. They were told that. The State has to disprove self-defense unanimously. You have to agree with that unanimously, and that was given to them.
J-SDE:
Why wouldn’t you have a symmetrical rule?
RW:
Symmetrical being?
J-SDE:
Symmetrical between the defense and the offense. If it’s required that they be unanimous with respect to each, if you want to say “elements,” then on the offense, why shouldn’t it be the same on the defense?
RW:
First of all, on an offense, we all agree that the State has to prove various elements, each of the various elements – murder, intent to cause death, and death.
With a defense, generally, we just have to disprove one factor. And sometimes, if the defendant has the burden, he or she has to prove the defense. So, it’s not like an offense because, as I think Attorney Pattis accurately pointed out, the certified question suggested that the State has to prove or disprove all of these elements, all four of the elements, like an offense. No, the State just has to disprove one of the elements.
J-SDE:
Do you claim that the jury does not have to agree...their agreement doesn’t have to converge on a single element?
RW:
I agree with that.
J-SDE:
That’s what you believe?
RW:
I believe that.
J-SDE:
So, it does not… It would be an error to give the charge.
RW:
I actually think the charge as given might be erroneous, but I think it told the jury you have to be unanimous as to the factual bases of self-defense that you find disproven. That’s certainly not constitutionally required. Now, whether as a matter of policy the legislature would want to require that, that’s another question. But I don’t think the jury has to...that’s accurate.
This is what I think the law accurately is: that the jury has to find that the State disproved one of the elements, and they don’t have to be unanimous on which one. But we do know, on that charge, that they all have to find that the State disproved at least one of the elements.
J-SDE:
And why do you believe that? I mean, what’s the reasoning?
RW:
There’s a couple of bases for that. Number one, stare decisis. I know this Court recently mentioned stare decisis in one of their issues. For over 30 years, since Bailey, the Courts have held that you don’t have to be unanimous on whichever element of self-defense the State disproves. So, that’s number one.
Number two, I’ve cited to the jurisdictions, Your Honor. I did an exhaustive search, and the one holdout was a Colorado appellate Court which has now been overturned. Not one case finds that there is a requirement of unanimity on whichever element the State disproves.
Number three, I’ve cited to commentators, Your Honor, in my brief on page 25 talking about how…I don’t know about this complicated jury instruction versus…Anybody who reads a self-defense charge, as best we try, knows it’s a complicated charge, probably the most complicated charge in our jurisprudence. Whether we add this extra unanimity to it, will that overcomplicate it? I don’t know. That’s what commentators have said. In my brief, I pointed to that.
But here’s the other thing, Your Honor, and I think this is important. We have to prove our elements beyond a reasonable doubt for an offense. We have to have a certain amount of evidence, sufficient evidence, before we can make that pitch, right? We come here all the time on sufficiency claims. When it comes to self-defense or a defense, the standard is any evidence, no matter how weak or incredible, the defendant gets a charge on that. So now, we as the State have to come up with unanimity on the belief of the defendant, when in most cases we don’t drive that defense. Yes, Sir?
Counsel, it seems that these four steps are sequential steps in a self-defense. Is that an unfair characterization?
RW:
When you say “sequential,” I would…
J-AJM:
I would first address whether the defendant actually believed the victim was about to use deadly force.
RW:
I don’t know if I agree with that, Your Honor. I don’t want to try to be an obstructionist. I just don’t know if the jury has to go through them in order. I just don’t know the answer to that, Your Honor.
J-AJM:
How could you determine whether something, a subjective belief, was objectively reasonable unless you found that there was a subjective belief?
RW:
I guess, Your Honors, and I will assume that for purposes of your question, but the jury, I think, in this case could have said that one of the things the State has to disprove is that the defendant was objectively reasonable to stab the victim 127 times in order to repel the attack. I think they could have started and stopped right there and said, “We don’t think that it’s objectively reasonable that you needed 127 stabs to stop this guy.”
J-AJM:
I guess I’m wondering, in the context of a self-defense claim, what couldn’t be achieved by doing jury interrogatories on whether or not the State sustained its burden with respect to each of the four and to see if the jury unanimously agreed? If it is sequential, does the jury find that the defendant subjectively believed and then the objective...What would prevent a defendant from going through each one of those four with jury interrogatories?
RW:
I don’t know if that’s necessary if you adopt my view that the jury doesn’t have to be unanimous on…In other words, I think what you’re saying is, if eight of the jurors find that the State disproved the first factor but four of them don’t, it sounds like you’re saying then the jury is kind of stuck and they can’t move on to the next factor?
J-AJM:
I’m just asking the question. It could play out in that fashion, couldn’t it?
RW:
Yes, but in the end, all the jury has to do is…I think how it plays out is, the jurors say, “We have to consider self-defense. Let’s look at the first one. Did the defendant subjectively believe that physical force was coming towards him?”
J-AJM:
It would be, has the State disproved that the defendant actually believed that the victim was about to use physical force against him?
RW:
Right.
J-AJM:
Yes or no? And then, if you find yes, go on to the next one. If you find yes, go on to the next one.
RW:
Actually, if you find yes, then that’s the end of it, right? Because the State only has to disprove one of those factors. So, if you find yes…We could do that. I mean, that would be fine.
But I want to make clear, Your Honor, that the State’s position is if four jurors think that the defendant did not subjectively believe that force was coming towards him, and three thought he did subjectively believe that, but it wasn’t reasonable, and two more thought that his subjective belief as to the degree of force he needed to use was disproven, if all 12 essentially say, “We find a factor disproven by the State,” then they all have to unanimously agree that a factor was disproven, and that means they’ve all unanimously found that the State disproved self-defense.
J-GDA:
I think where your argument was going was where you left off saying “We don’t drive the defense.”
RW:
Right.
J-GDA:
So, I think you’ve turned towards policy here.
RW:
Yes. Bailey said that, Your Honor. That’s where I get that from.
J-GDA:
Okay. It sounds like your argument from your brief and where you’re pivoting to is that’s just too much. That’s too much to ask of the State. We’d have to put on a case, essentially, of all four elements to try to disprove them because it’s too risky to put all our eggs in one basket, and that’s too much. So, where does that come from? Does that come from unanimity-type policy, or does that come from self-defense policy?
RW:
I think it might come from different places. It definitely comes from constitutional unanimity analysis. If this Court were to adopt the defendant’s position, in essence, it would be new law on unanimity on a defense. In my opinion, there’s no constitutional principle that supports the defendant’s view. So, you don’t have to give it constitutionally.
Second, I think it’s a bad idea policy-wise to give such a defense, because if the State doesn’t have to disprove all…If they don’t have to be unanimous on whatever element the State has to disprove, then why make them do it? It’s like saying, “Well, we tell the jury they have to find the defendant guilty beyond a reasonable doubt.” Might it be nice if we said they should find the defendant guilty beyond all doubt? Sure. But it’s not constitutionally required, and if it’s not required, it will result in people who are convicted...
J-GDA:
You’re on the horns of that dilemma in many instances.
RW:
I’m sorry, Your Honor?
J-GDA:
You’re on the horns of that dilemma in many instances. I mean, there’s elements where...In one of the cases today where somebody got assaulted one way or another, and you’ve got to prove them both, but either way would match up with an element. I’m not sure what the problem is. Why is that so problematic for you? Because you might overprove your case? Or because it’s just too much to prove?
RW:
We should be required to meet the burden of proof that is constitutionally required. That doesn’t fit here. Or that the legislature has said you have to prove. If we give a charge that makes the State prove too much, the risk is that you’re going to lose valid convictions.
J-MAK:
As I understand it, in Connecticut, our legislature has made the policy decision that we are not a “stand your ground” state. You have a duty to retreat. There are some states where there is no duty to retreat and, therefore, that statutory exclusion to self-defense. But in this state, there’s been at least a policy argument that we value life over anything else and, therefore, there’s a duty to retreat unless you’re in your home or your business. And we also have made a policy value that we don’t want people to walk up to somebody, provoke a fight, and then that fight escalates and say, “I acted in self-defense.”
So, underlying these statutory exclusions and these elements to self-defense are policy reasons of how we value life. And so, if a jury were to say, “Hey, we think he was the initial aggressor and, therefore, he’s not entitled to self-defense,” or some of them were to say, “We think he had a duty to retreat. He was outside of his home but not within the porch area or inside the house,” isn’t the policy reason behind all of these things that we value life and our legislature has made decisions about what type of conduct will be justifiable and what will not be? Isn’t that the policy reason?
RW:
So, if I’m understanding, Your Honor, if a jury finds that the defendant was the initial aggressor or the provoker, and then some jurors found that the defendant had a duty to retreat but didn’t, they’ve all found that self-defense doesn’t apply.
J-MAK:
Right. They were not justified in taking that life.
RW:
Yes, they’ve all found that unanimously. And there’s just no requirement in the State’s view that they have to find the unanimous on whichever particular element they find disproven. It’s not like an offense in a lot of ways. One is, in an offense, we have to prove element one, two, and three. In a defense, generally, if one of the factual bases is undermined, that’s the end of it. So, it’s not like an offense. I’m not just making this up myself. Bailey says that because the defense often drives these things, it’s unfair to require the State to meet a unanimity on each particular factual basis disproven.
And this is a great case to see that because until the defendant testified, this was not in any way a self-defense case. All the blood was in the back seat, not in the front. The defendant said he was in the front seat and the victim made a pass at him. No evidence of that. All the blood evidence showed that it was in the back seat and that the victim was driving the cab. 127 stab wounds, bloody money in the defendant’s bathroom, which shows it was a robbery. The credit card dumped on the route. All this evidence was murder until the defendant gets up there and then says what he’s going to say. And it’s only then that self-defense is brought into it.
I think that is what Bailey was trying to get at was, we as a state, we don’t have any control over that. We have no control over that. So, the right rule is that as long as all the jurors, all 12, find that at least one of those factual bases for self-defense was disproven, then the jury has found unanimously that self-defense should be rejected.
And that’s what the defendant is entitled to: a rejection of finding of the State disproves self-defense beyond a reasonable doubt unanimously. And there’s no question that the jury was charged about that and is in all of our cases.
And one other thing, Your Honors, however Your Honors decide this case, this language is in other defenses. If you go to the Connecticut jury instructions, you’ll see it in duress because there are elements…I don’t really like to say “elements” when we’re talking about a defense. Some cases call them “components,” some say “factual bases.” Even Bailey didn’t say “elements.” But we use “elements” in our jury instructions, so that’s the word I use. I think it’s conceptually distinct from an offensive element.
But the point is, however Your Honors decide this case, there are other parts of the jury instructions where you’re going to find this language, like defense of property and duress. It will have an impact on those other cases.
I will say that this, Your Honor, in the Shad case, Shad cites to this case, McCoy v. North Carolina, 1970 case. That’s an interesting case because in that case, the holding of McCoy, U.S. Supreme Court said the jury doesn’t have to be unanimous on which mitigating factor they find proven before finding that the death penalty is inappropriate. They only have to find one mitigating factor. So, four jurors can find factor one, three jurors can find factor two. And they don’t have to be unanimous on that.
I feel like that’s kind of the closest analogy to this case. We wouldn’t say that the jury has to be unanimous on the exact mitigating factor to make sure that the death penalty doesn’t get imposed. It’s analogous here. They don’t have to be unanimous on the particular factual bases of self-defense disproven.
Whether this applies also, getting to Justice Kahn’s point, to statutory disqualifiers such as provocation, initial aggressor, duty to retreat, I don’t really see a distinction there. My argument would seem to apply to that as well. There is a case, State v. Rivera, which does deal, in fact, with the statutory disqualifiers.
But, anyway, that’s my view. You’ve got these three incredibly interesting cases before you this morning, and I don’t like to dodge things generally, but I do think, as I pointed out, we have a pretty good harmless error analysis, I think, that when you take the fact that the Court charged the jury 25 times as to the concept of unanimity. And when you take the language given on this particular charge, which is if they find any one of these elements disproven beyond a reasonable doubt unanimously, that’s the only time you can…
CJ-RR:
Have you seen harmless error applied in any of the other cases, or do most of them not give you unanimity instruction in self-defense?
RW:
Your Honor, my recollection is that I don’t think I’ve seen the harmless error applied in the unanimity situation. I don’t think I have. I think it would apply. I don’t think it’s structural. I think that if the Court could conclude that there’s beyond a reasonable doubt that the jurors would have agreed unanimously on at least one of the elements, I think this Court could find harmless.
CJ-RR:
How would we do that? It seems like a difficult harmless error.
RW:
Just like you do harmless error on all constitutional harmless error claims. You have to look at the evidence. And, to me, the easy one is factor four, could the defendant have reasonably concluded that he needed to use the amount of force that he did to repel the attack? And 127 stab wounds is unreasonably excessive.
J-GDA:
But it’s tricky with self-defense because there could be one holdout, and you’d hang the jury. And so, how do we speculate, “Oh, it’s 127 times. Who could reasonably have done that?” if we did hold it had to be unanimous? I take your harmless error argument to be, really, reading the charge as a whole. There is 25 times. But can we really do the weight of the evidence in a unanimous jury?
RW:
I think you can. I understand your concerns. Perhaps the best harmless error argument that I have is this: that this was not a case where the jury was hung up on which particular element of self-defense the State disproved. This was really a question of, did the jury believe the defendant, that he was in the front seat and the victim made a pass at him, and that’s how this all started, or did the jury not believe it? And given where all the blood evidence was, the defendant’s theory of how this happened was just incredible, almost as a matter of law. And so, I think it certainly meets the harmless error standard.
J-MAK:
Isn’t the distinction between, and I can’t speak to the second case as I’m not on that panel, but the distinction between this case and the first case? The key distinction is that that case involved elements of an offense. This involves disproving a defense of justification after the jury has already found all the elements of the underlying offense proven beyond a reasonable doubt.
RW:
I do make that argument, Your Honor, that that is a significant distinction. I’ve heard the arguments before me, and I agree that in those cases the charge was adequate, but in this case, we have the added factor to consider, which is this is a defense. And it’s not even clear, from the U.S. Supreme Court anyway, that there’s a constitutional right to unanimity as a defense. Now, I’m saying that I think that’s probably the better constitutional rule, but it hasn’t been decided. So, I do think the fact that it’s a defense is significant.
J-CEK:
Did the instruction that the Court gave, that you have to find any one of the four elements of self-defense beyond a reasonable doubt through unanimous satisfaction, did that come from our model instructions?
RW:
Yes.
J-CEK:
Do you know how that found its way in there? You say it’s probably erroneous. Is there anything in the commentary or anything that would indicate...?
RW:
No, my recollection is there’s nothing in the commentary. And as I just mentioned, it’s in other areas of defense in the model instructions.
J-CEK:
The same thing, that you have to find one of the elements…?
RW:
The same thing. To the extent that that instruction says that the jury has to be unanimous together on one element but not necessarily the same element, I think that’s a proper charge.
CJ-RR:
That’s a question. What makes it erroneous in your view? That it’s not constitutionally required?
RW:
Yeah. There’s no question that Attorney Pattis’ request to charge made it crystal clear because his request to charge is you have to be unanimous on whichever particular element you find disproven. That’s what he required.
I think the charge as given pretty much told that to the jury. But my response, Your Honor, would be that the request to charge by Attorney Pattis is absolutely wrong. The jury does not have to be unanimous on whichever element of self-defense is...
CJ-RR:
What about this charge?
RW:
I think this charge arguably told the jury it had to be unanimous on whichever element they found disproven. And at the very least, it told them, “You have to be unanimous on at least one of the elements, even if not which particular element you found disproven.” I think that’s accurate. I think that would be accurate. So, if Your Honors would say that that’s what that charge means, I think that’s accurate.
If Your Honors would say, “No, Attorney Pattis’ request to charge is required,” I think there’s no basis in that for the Constitution, and I think it’s a poor policy decision. And, in fact, the case cited in the request to charge, Herrod v. Texas, didn’t support that request to charge. Texas is one of the four states that say you don’t have to be unanimous on the particular element that the State has disproven.
I know Your Honors have been at this for a long time, so I don’t really have anything else to say unless Your Honors have any questions for me. Thank you, Your Honors.
NP:
Justice Keller, I think the language that you’re referring to is in the State’s charges on Page 17 of its brief. I puzzled long and hard over that, and I don’t know that it means what I want it to mean. It says, “The Court further explained ‘The State need not disprove all four elements of the self-defense. Instead, the State can defeat the defense of self-defense by disproving any one of the four elements of self-defense beyond a reasonable doubt to your unanimous satisfaction.’” That doesn’t say what I want it to say.
J-CEK:
It’s somewhat ambiguous.
NP:
And that’s my claim.
J-CEK:
It could be telling them what the State wants them to be told, and it could be telling them what you want them to be told.
NP:
And that’s my point, so I’ll move on. I don’t know that reliance on McCoy should cause this Court to linger long. That’s a death penalty case. Death is different, and I think the policy rationale supporting it and the fact that...At least when we had death penalty in Connecticut, you could even argue mercy. It was error to limit mitigation arguments then of any form. I just don’t think that sheds light on this.
Justice Kahn, the question about the policy supporting the lack of specific unanimity, I’m not sure I agree that can be teased out of this for the reasons I think the State recited. Those states with stand your ground and those without it all behave the same way. So, there is no public policy that I can discern in the different responses of the states.
Justice McDonald, I think it bears noting...I heard my colleague say any number of times, “127 stab wounds. It was preposterous.” And I alerted him that I was going to do this, so I don’t want anybody to think that I’m taking advantage of him, but the evidence at trial was as follows: there were 127 wounds that were discernible, knife wounds, four or five of them were stab wounds. And as a forensic matter, a stab wound is one where the length exceeds its width. Most of them were knicks or abrasions that were probably caused by a sharp surface. So, I don’t want you to leave thinking that this was a case where a person was stabbed psycho style.
J-MAK:
Did your client, though, testify that he only stabbed him or injured him 126 times?
NP:
He didn’t say that. No. They already talked about…
J-MAK:
Not 127?
NP:
No, he didn’t say that either. He talked about a prolonged struggle. The State’s Medical Examiner estimated the number of wounds, and that’s where that number came from. So, no, my client didn’t say that.
J-MAK:
I may be wrong. I thought it was a claim…
NP:
There’s a line in the State’s brief that suggests that, but I was trial counsel and it didn’t happen. And I think that that might have been an ambiguity in the brief. I’m not calling my adversary’s brief misleading in any way, but it just didn’t happen.
Justice McDonald, I think interrogatories would be a preferable way to go. It would give defense counsel something to do with the jury here that would direct them in a principled fashion, as opposed to having the danger that they’ll hear talk about burden, and it will be diluted when it benefits the State and not when it benefits the defense.
So, if this Court gets to the point of reformulating how self-defense charges should be given, I’m generally not a fan of jury interrogatories on the grounds that I like confusion in criminal trials. It has a way of benefiting. Candor is everything.
J-AJM:
…when it comes to a defense.
NP:
Yeah, absolutely.
J-AJM:
Let me ask you. It might not be a perfect analogy, but it’s somewhat akin to a general verdict rule. In the absence of interrogatories, we would presume that the jury found all of them not met.
NP:
I hadn’t thought of it that way, but maybe. But we don’t know that, and I think we should know that.
J-AJM:
Because of the absence of interrogatories?
NP:
Yes.
J-CEK:
Attorney Pattis, do you know of any self-defense instruction that you think is preferable to ours in another state?
NP:
None come to mind, but I think that requiring the four-step dance to go subjective/objective, subjective/objective, is an invitation to a problem. I didn’t make an effort to construct a new one, but it would seem to me that there must be a way to eliminate at least two of those moves and that we’re asking an awful lot of jurors to shift that lens repeatedly.
J-CEK:
I know that Judge Sheldon had one that he preferred and he would give.
NP:
I missed that.
J-CEK:
Hopelessly complicated.
NP:
In preparing for argument, I thought, “Should we just say to the jury, ‘Was he justified?’” and not give them any guidance? As a defense lawyer, I like that because it gives me permission to argue whatever I want, but I can’t imagine it would be very satisfactory to the general assembly or this Court.
J-MAK:
Wouldn’t combining the four elements – I know the State doesn’t like to say “elements” – but wouldn’t combining them actually hurt defendants because the whole point of separating them is so that the jurors don’t miss one, right? The objective/subjective, the actual belief versus whether that belief was reasonable? They are long and lengthy. Having given them on many occasions, I agree, and I think everyone agrees they’re long, but that’s part of the reason, is that…
NP:
In the absence of specific unanimity, I’d prefer a briefer charge rather than a longer charge because I have better opportunities to argue what I think the evidence means. If there were specific unanimity, I would prefer that they be laid out because then we’d know what the jury did.
I don’t think I will ever get used to appearing in a criminal Court being told that I don’t have a burden to prove anything and t