2003 Death Penalty Hearing Testimony

8/8/2019 2003 Death Penalty Hearing Testimony

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JUD Committee Hearing Transcript for 04/07/2003

REP. LAWLOR: Next is the aforementioned, Chief State's

Attorney, Chris Morano.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Good afternoon.It's been a very informative afternoon for all of us.

Good afternoon, Senator McDonald, Representative Lawlor,

Senator Kissel, Representative Farr, and members of the

Judiciary Committee.

I appear before the committee today to speak on four bills

on today's agenda and joining me today are several State's

Attorneys, State's Attorney Kane, State's Attorney Galvin,

as well as Senior Assistant State's Attorney Harry Weller

and Executive Assistant State's Attorney Judith Rossi.

We're here to talk about four bills………..

The Division of Criminal Justice opposes, as currently

drafted, both H.B. 6612, AN ACT ADOPTING THE

RECOMMENDATIONS OF THE CONNECTICUT COMMISSION ON THE DEATH

PENALTY and H.B. 6700, AN ACT CONCERNING INVESTIGATORY

PROCEDURES IN CRIMINAL CASES.

First of all, I want to commend the work that was done by

the Death Penalty Commission. I think Mr. Flynn's

statements today and his presentation clearly show that a

lot of thought was put into this.

However, there still are some concerns and the State's

Attorneys who have joined me today will outline their

specific objections and our concerns on these bills.

However, I think our opposition can best be summed up inone sentence. And this, I would apply to the remarks we

heard from Mr. Scheck, very interesting remarks we heard

from Mr. Scheck. Look at the Connecticut experience.

All that we heard from Mr. Scheck did not apply to one

Connecticut case. Of the over 127 exonerations of post-

conviction DNA, innocent, not one from Connecticut.



As I read both bills, I have to wonder whether those who

study this issue and those who have presented these

proposals are, in fact, talking about Connecticut or

problems that have occurred elsewhere. We do not have

defense lawyers sleeping through capital trials. The

Connecticut Defense Bar is arguably one of the best in the

country and that includes our State Public -- Division of

Public Defender Services. Our capital felony statute is the

product of many years of thought and yes, anguish and soul-

searching on the part of the General Assembly and our

criminal justice system.

I would assert that our system is not broke and does not

necessarily need any fix, as envisioned in H.B. 6612. In

fact, some of the remedies sought in these bills are

already available under current law.

Also, police investigative techniques should not be

addressed through -- should be addressed, excuse me,

through proper training and not written into statutes which

would only provide yet another loophole to allow a

defendant to avoid his or her factual guilt and also an

unfunded mandate burden on our local police departments.

We, as prosecutors, take our constitutional

responsibilities very seriously. We take an oath to defend

the Constitution and to faithfully execute the laws that

you and the General Assembly enact and that oath includes

the enforcement of the capital felony statute that's beenput into place by this very General Assembly.

Let me state for the record my disappointment that the

Division of Criminal Justice was not included in membership

on this commission. We fail to see how this group could

possibly do a fair and thorough study without formal

participation by the agency that has the constitutional

responsibility to enforce the capital felony statute. We

also believe that our not being a part of this commission

is reflected in its recommendations, many of which we

believe ignore the experience in Connecticut.

Citing the fact that a retired police chief, with the best

intentions, who is now involved in budgetary issues, as

being a member of the committee, does not replace the

experience and the expertise that a prosecutor would have

put if he had been on this commission.



What is the Connecticut experience? Ours is the death

penalty law that is very limited in application. The law is

difficult to invoke, difficult to prosecute, and most of

all, difficult to carry out. And that is the way it should

be. There is no question of the guilt of the individuals

now on death row. In fact, none of those individuals are

making a claim of actual innocence. The only issue is the

appropriate penalty and that too, having been decided

through a very thorough painstakingly and soul-searching

process.

In one case, State vs. Michael Ross, a total of twenty-four

jurors have heard months of testimony and sentenced the

defendant to death, not once, but twice.

Before any individual can be put to death, they must go

through a very long and detailed process. Probable cause

must be shown for an arrest warrant to be issued. A judge

must issue a finding of probable cause for the matter to

proceed to trial. A verdict of guilty must be returned and

then there must be a second trial dealing with the penalty

or the sentence.

If sentence of death is returned, the case is automatically

appealed to our State Supreme Court. Other appeals in the

federal courts are possible, as are a variety of state and

federal habeas proceedings. It is a long and complicated

process and I believe a process that respects and carries

out the law of the State as enacted by the General Assembly.

Yet, Section 10 of H.B. 6612, would allow three members,

just three members of the Board of Pardons to overturn a

death sentence. Yes, just three individuals would have the

authority to reverse the years of deliberations and

decisions on the part of jury or juries and the highest

courts of our State and nation.

Allow me to highlight some of the other specific concerns

and objections to this bill.

Section 1 deals with cost analysis. It would be difficult,

if not impossible for the Division of Criminal Justice to

compile the information requested. From our perspective, a

criminal case is a criminal case. We do not track cases on

a per client basis. Also, not every capital case begins as

a capital case. I would stress, however, that unlike the

Division of Public Defender Services, the Division of



Criminal Justice prosecutes all cases. Further, we believe

that basic fairness and the interest of justice dictate

that equal resources be provided to both the prosecution

and the defense.

Sections 6 and 7 are another example of this. Capital

litigation training. The Division of Criminal Justice

strongly supports all efforts to improve and expand

training for our professional staff. To do so, however,

will require adequate resources and, again, we must stress

that we handle all criminal cases and allocating the

appropriate funds, both defense and prosecution must be

treated equally.

Section 8 deals with capital defense support unit. The

Division of Public Defender Services already has a well

funded and very effective capital defense unit. At this

time, this unit consists -- and correct me if I'm wrong, of

at least five attorneys who are assigned exclusively to the

defense of capital cases. At the present time, the Division

of Criminal Justice does not have a capital prosecution

unit. Staff from the Office of the Chief State's Attorney,

who have other duties, including a very, very pressing and

time sensitive appellate docket, must be assigned to assist

State's Attorneys who are also handling other cases, to do

these matters.

Funding should be provided for a capital prosecution unit.

We, too, must hire expert witnesses, as suggested inSection 8 of this bill, and provide for the many other

expenditures required for any criminal prosecution,

particularly for those matters that go through a trial.

Section 14 deals with the use of incarcerated and former

testimony. This section needlessly places an array of new

obstacles and restrictions on the prosecution. I must point

out, at this time, that those provisions were not part of

the Commission's original recommendations. This section

ignores the practices that are currently in place, such as

the rules of discovery and the rules of evidence. Again,look at the Connecticut experience. None of the defendants

currently under a sentence of death in this state is there

because of an informant's testimony, as defined in Section

14 of this bill.

Section 15, retention of evidence. The proposals regarding

the retention of evidence are overly broad and would place



a tremendous burden on the Division of Criminal Justice

with no funding to meet that burden.

At the present time, we're barely able to keep up with the

storage of documents that we need to just to operate under

current situations. Long before a case reaches the point

where a defendant is sentenced to death, all of the

evidence has been subjected to tremendous and detailed

scrutiny by his attorney, judges, and in most cases, a

jury. We believe that the very stringent rules for the most

extreme cases are already in place, govern the retention of

evidence in an adequate manner.

Section 16, a post-conviction DNA testing in capital cases.

This section is unnecessary as it's already covered by

Section 52-582 of the General Statutes. This existing

statute already allows any person convicted of any crime to

petition for a new trial based on DNA evidence not

available at the time of the original trial.

With regard to H.B. 6700, I would like to make the

following specific observations.

Section 3, dealing with post-conviction DNA review. This

mirrors, somewhat, the prior bill. However, this section

essentially allows a defendant to deliberately ignore

certain evidence throughout the case and then use it as "an

ace in the hole" down the road when all other remedies have

failed.

The Division of Criminal Justice strongly supports the

concept of quality control and reasonable post-conviction

review. This section, however, seeks to ignore or bypass

existing remedies such as petition for a new trial or a

habeas petition. It is inconsistent with the case law and

the repeated rulings of our courts that state that such

challenges must be made in the context of a constitutional

violation.

This section gives the impression that prosecutors inConnecticut have unreasonably blocked attempts by

defendants to show their innocence based on untested DNA

evidence. Again, I ask you to look at the Connecticut

experience.

Specifically, I would suggest that you ask Barry Scheck and

I was hoping he would come after me, about the case of



Guillermo Aillon, and the way the Connecticut prosecutors

handled that matter. I know because I was there. Mr. Scheck

came into town, he had a theory, he wanted things tested,

we met. Mr. Deerington is the State's Attorney in charge of

that case, was cooperative. The evidence was tested. It did

not pan out. Mr. Scheck went home. All parties involved

acting in a professional and responsible manner.

Let me state for the record, without reservation, that I

strongly believe in the use of DNA to review and correct

the conviction of a person who is actually innocent. And

that is obligation applies to the State during the entire

course of a prosecution, not just post-conviction. In many

other jurisdictions, prosecutors are creating special post-

conviction review units for this very purpose. And I would

not hesitate to explore that possibility if we had the

funding to do so.

Section 6 deals with wrongful conviction review panel.

While this section seems to suggest -- what this section

seems to suggest is the creation of a new process to do

what our courts, most notably our Supreme Court, through

its supervisory authority, already has the power to do. And

if there's going to be yet another blue ribbon commission,

should it not include those who are involved in these

matters, not necessarily obviously the same ones that are

involved in the matter being investigated or looked at, but

those who have been trained and those who do this every day

and have the expertise and experience? I speak ofprosecutors, defense attorneys, and judges.

We hear a lot of talk about the need to bring about

finality in criminal cases, particularly for the victims of

crime and the families of murder victims. Yet both of these

bills would seek to unnecessarily prolong these proceedings

and add new obstacles and new reasons to avoid finality. As

the old adage goes, "Justice delayed is indeed justice

denied." In these case, for the victims of crime.

For those reasons, we would ask you to clearly look veryclosely at the recommendations.

Now, Mr. Scheck spoke of some things and other people who

testified here did, as well and there are going to be

people who will speak next that will talk about the

particulars of sequential identification, of recorded

confessions, of a review panel.



Mr. Cohen, the State's Attorney from the Stamford Judicial

District was going to attend today and speak on open file

policy. Due to the weather, he could not, however, I have

filed, with the committee, his written statement.

In addition, Mr. Connolly was going to speak on the impact

statement issue of the bill. He could not come because of

the weather, as well, but he has filed, through us, some

written testimony.

REP. LAWLOR: Can I ask you, what was Mr. Connolly's

argument on the victim impact portion?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Mr. Connolly

believes that the victim's impact statement should come

before -- it should come at a time when it's relevant to

deciding the issue.

REP. LAWLOR: So --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Not after.

REP. LAWLOR: -- he recommends a change in the statute in

that respect?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I would

refer you to his statement. I don't want to speak for Mr.

Connolly.

REP. LAWLOR: But my -- correct me if I'm wrong. My

understanding is under the current law victims are not

allowed to address the jury or the three judge panel during

the penalty phase, is that correct?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: To be honest

with you, I don't know the answer to that. I will know in a

second. I know the answer now.

REP. LAWLOR: Okay.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: There is no

clear cut answer because two different trial courts have

ruled two different ways.

REP. LAWLOR: So at a minimum, we could at least clarify the

right of the victim to address the jury or the three judge

panel in the sentencing -- in the penalty phase.



CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct, but the

thrust of Mr. Connolly's belief and the Division's belief

is that the victim should have a right to be heard at the

appropriate time, not after it's already been decided and

it's just icing on the cake.

REP. LAWLOR: I certainly agree with that, no question.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: At this point I

am pleased to have State's Attorney Mary Galvin who can

come forward and talk about the review panel we heard so

much of earlier.

REP. LAWLOR: Can we just ask you a question?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Of course.

REP. LAWLOR: I just would be curious how you would respond

to the -- this issue has come up a few times that obviously

people have philosophical differences of opinion about the

death penalty, right and put those aside for a moment.

There's this practical argument that's emerged that if, in

reality, we haven't executed anybody in forty years and I

remember three years ago there was -- the last time we went

down this road, that issue came up and people from your

office said well, within two years we'll have the first one

executed. Well, that was three years ago and apparently the

person they were referring to is really no closer to

execution now than they were then.

This practical argument about all this angst that we go

through at the Legislature for the philosophical debate, is

this just pointless? I mean, is anyone ever actually going

to be executed in this state?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I can't

answer that question, but I can tell you if we keep taking

bills with some of the things that are in the bill here,

and start to make it more drawn out, more cumbersome, and

believe me, I don't want to streamline it to make it easy,it is not easy in the State of Connecticut, but every time

we start to go down the road and figure out how we're going

to approach this, then a bill will come out from various

people and I think if you look at the feelings of the

people who propose these bills and I say with all due

respect, they don't like the death penalty and they want it

repealed. So the strategy seems to be let's just keep



coming up with more ways to delay it, more cumbersome, more

hoops to jump through, and then someone, such as yourself,

can say to me, well, Mr. Morano, its' been "x" number of

years and it still hasn't happened.

REP. LAWLOR: Well the irony is I remember eight years ago

when I was chair of this committee, it was my first year as

chair of this committee, that we had the same discussion

except at that time, the bill before us was to "make the

death penalty more workable" and that had been before us

for eight years and there was a lot of effort to get that

thing passed for a long time and I remember many people,

including some folks in your office said you know, why

don't you leave well enough alone? I see Mr. Weller nodding

his head.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: He won't be

speaking, don't worry.

REP. LAWLOR: But the point is, it's working both ways.

There are people who are upset that no one has actually

been executed and there are some people who have avoided

execution and want to change it and, in fact, just a couple

of years ago I think we had to change it again because of

the so-called -- the murder of Trooper Bagshaw. People

wanted to make a change there. And one of the arguments

that comes through all the time, no matter what, we're

definitely muddying up the waters every time these new

death penalties have to go back, all the way through theSupreme Court process and have we reached the point? Here

it is eight years since we made the death penalty more

workable and no one's even close to being executed and the

batting record of your office in obtaining death sentences

is the same now as it was before, which is like about two

out of three, I guess.

Why are we doing all this stuff? It definitely costs us a

lot of money and no one actually is going to be executed,

apparently any time soon, so what is the point of all this

aggravation?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think the

people who can best answer that question are the victims.

And maybe you'd better address them.



REP. LAWLOR: Do you think they're happier that this -- I

mean, is it a service to them to have this never imposed

penalty out there or would it be better to just --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, let me

give you an example. Yesterday, as you were present, we

went to a ceremony for the Survivors of Homicide. And one

woman took me aside and she -- she's the mother of Mr.

Williams, a police officer in Waterbury who was murdered in

the line of duty. And she has been patient and waited and

been through hearing after hearing and trials and she sat

and went patiently to the Supreme Court in 2001 to hear

that case argued before the Supreme Court, 2001 and that

decision hasn't come out.

Now, I, by no means, am trying to speak poorly of the

people who have to write that decision because I'm sure

it's a very difficult one to write. But it's very difficult

for Ms. Williams to have to wait and wait and wait. And

it's very difficult for them to have to sit and see every

year bill after bill come up whose true intent, with all

due respect, might very well be just to see that the death

penalty goes down the tubes. So we can all throw our hands

up and be frustrated.

It's never going to be passed, with due respect, Mr.

Lawlor, if we keep tinkering with it.

REP. LAWLOR: But --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: It's never going

to happen.

REP. LAWLOR: That was the argument eight years ago, as I

recall, and I remember the way I felt then as I do now, is

that look, whatever we've got to do to make this thing

workable, let's just do it and then it can sink or swim on

its own merits, but even with all those changes, it doesn't

appear -- these are changes made by the pro-death penalty

folks of which there's a large majority in the Legislatureand the Governor and on the Supreme Court, as well, as I

understand it.

So, the point is, given all this anxiety we have to go

through and given -- I mean, it's my argument that this is

cruel and unusual punishment for the victims because they

have to see all this stuff going on. There's a majority



here in favor of this thing, right, and all these changes

that have actually been enacted have been to make it more

workable, not to make it less workable.

That was the stated purpose of all the -- I mean, this

thing (inaudible) report. The actual changes in the law

were all made by supporters of the death penalty and even

with all these changes, over 40 years, still no one has

been executed. What is the point of all this stuff?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I don't

think we should be in a road race to get there. We should

take our time and we should get -- but if you start

enacting many of the sections that are in this bill,

there's just going to be incredibly more hurdles and

probably make it impossible.

REP. LAWLOR: That's an argument against the bill. I'm just

saying, given all this, why do we even have this death

penalty?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, with all

due respect, I think that the bill is an attempt, in some

cases, to be an argument against the death penalty, period.

REP. LAWLOR: And I'm against it as much as anybody is

against it, but my point is, there's a majority of people

who support this thing here and there's a governor who

supports it and there's a Supreme Court and even with abunch of changes to make it more workable, even with all

that, it still appears to be not a reality in our state.

And I'm just wondering, at what point do we pull the plug

on this policy if we're never going to actually execute

anybody and devote our resources to something where we can

actually do what we say we're going to do?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I don't know the

answer at what point, but I do know that we're not at that

point now.

REP. LAWLOR: Okay. That's all I'm asking. Representative

Dillon.

REP. DILLON: Thank you. Hi. I'm not going to impute motives

to anybody today. It's nice to see you.



But I did want to ask a couple of questions. One sort of

just a broad one, not to ask for an answer right now. And

that was one that I posed to earlier speakers which was I

wasn't sure that we had a common definition on what a

workable death penalty is and that is, do we assume in the

back of our minds when some folks say that we don't have a

workable one that because we don't execute enough people.

So that's something I just want to leave as a background

question, not something that I think is really necessarily

up to this committee, but something we might think about

because we make claims from time to time about what that

might be and what that might not be.

And I agree with you that I think we should take our time.

I don't know if that's an argument for or against any bill.

It would seem to me that a lot of the people who are the

accused, even if they're innocent, and wrongly convicted,

very often would prefer to be executed and very often you

find that they don't like things to be drawn out either. I

don't say that because I necessarily want to take their

side, but I think very often you might see that we can make

arguments in support of the victim, but it's not unusual at

all to have someone whose had an extension over and over

and over again and just wants to get it over with. So that

we're not necessarily representing the victim here or the

accused. We're trying to say the system should work in a

particular way because I would guess if you were going to

take a poll of some folks who are on death row, they'd

rather get executed quickly rather than have to sit aroundover and over and over again and hear that they had another

extension.

And I don't know that I want to listen to them either. I'd

like to see it done right, if I know what that means and

I'm not sure if I know what that means.

It would seem to me and I know I've asked you this before

and I'm in no position to make judgments, that some of this

should have something to do with the fairness of the

application and that's one of the reasons I asked yourdepartment and I asked the public defenders all the time

about whether or not people can speak Spanish, let's say,

just to take one example. It would seem to me that I don't

know at what point anywhere along the system, someone who

is not an English speaker, knows exactly what's happening

to them and I don't know what situation I would be in if I

were arrested in another country and I had no idea what



people were talking about and that's a growing population

here. That's certainly behind a lot of the questions that I

ask you, understanding that you need the money from the

Legislature, but we need to know how we work.

I do have one question based on your comment about

Connecticut experience. It seems to me statistically our

numbers are simply too small to make judgments and for that

reason, I don't personally necessarily have an objection to

learning from other states. I don't expect to find

Connecticut in a position that we've seen in some other

states where we had the defense counsel sleeping through

the trial. I don't believe that that's our culture here in

Connecticut and we certainly -- we have a very vigorous

defense bar. But did you mean to argue throughout your

testimony that we can't learn from other states?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: No, absolutely

not. I think we can learn from other states. The import of

my testimony was that we should not necessarily just jump

and try to legislate police technique and make it a

statutory requirement that we do it a certain way.

In New Jersey, it's not a statutory requirement. It's being

done by prosecutors themselves and that's what I would

suggest if we're going to look at some of these new

techniques, let us and the law enforcement community start

to work on it through training and phasing it in.

If we were to phase in sequential identifications, and Mr.

Kane will speak about this in more detail after me, right

away we could not keep up with it, immediately across this

state. It's a very interesting concept, but that, along

with recorded confessions. What I am suggesting to you is

let us, as prosecutors dealing with police officers, look

at it, start to do some training on it, and then see if we

could work at it amongst ourselves.

As a gang prosecutor, I loved to video tape my witnesses

even if they weren't confessions. I wanted them that waybecause I never knew when they were going to change their

story. But there are concerns on how we would do it and

this bill is extremely expansive. And while Mr. Scheck

talks a lot about how everyone loves it, I want to try it a

little bit first amongst ourselves before we make it a

statute which a violation of, could end up being another



loophole for a person to avoid their factual guilt. That's

what I'm trying to say. There's always room for improvement.

REP. DILLON: Okay. And it seemed to me and that goes to

what's a workable death penalty and I can remember just

working on domestic cases, there are many times that we

didn't look for a very serious penalty because we were

concerned about the resources of the Department, whether or

not we could get so and so to show up and testify, the

reliability of witnesses, and we would go for lower

charges. We would be working with the prosecutor's office

and we wouldn't go. And maybe by extension -- maybe I'm

over extrapolating here, but I just assume there are many

times we just wanted to get a conviction. But we didn't

necessarily go for what a lot of people would have thought

because we wanted to get something and we knew the jury

pool, we knew the fragility of the witnesses, we knew about

the testimony. Couldn't that also be true in capital cases,

as well, that you might make it more less likely to get a

conviction if you bring the death penalty? Could it happen?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I really don't

know and I don't really follow the thrust of your question.

REP. DILLON: That if you ask for the death penalty, could

it sometimes make it harder to get a conviction for

something because it raises the bar?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: As far asgetting a conviction for the death penalty?

REP. DILLON: Right.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, certainly

any time you do that, the stakes are high, the resources

are going to be great. That's a decision that has to be

made by each of the thirteen State's Attorneys that make

that decision. And that goes back to your question that you

asked earlier about, since we don't have an Attorney

General with colonel jurisdiction, can I tell them what todo?

REP. DILLON: Right.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Connecticut has

thirteen judicial districts. Each has their own State's

Attorney. Each one of them has a constitutional freedom and



authority to handle the cases in their district as they see

fit and but for malfeasance or a conflict or some very,

very extreme reason, I will not or cannot get involved. And

charging decisions is certainly area that's within their

discretion and actually that leads right into State's

Attorney Galvin who can talk about that. And when you're

done with me, I will have her come in.

SEN. MCDONALD: But I'm not done with you.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I knew you

weren't.

SEN. MCDONALD: Representative Farr.

REP. FARR: Yeah, I just have one question about between the

sequential id issue and, I guess, standards -- well, I

guess -- let's stick to the sequential id issue.

Right now your office doesn't set out any guidelines or

standards for law enforcement. Is that correct?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, we do

routine training with law enforcement. We are -- many of

our prosecutors are certified to teach, host classes and we

also run seminars occasionally on training with police

departments and many of the local State's Attorneys have

their own procedures that they want followed and they have

issued memos to the police departments with thoseprocedures.

REP. FARR: I mean, would it be workable to come up with

some kind of process where the local State's Attorneys in

your office got together and came up with some guidelines,

for example, on sequential id's or recording their

confessions and stuff, that we work through a process here

that might lead to some guidance for local law enforcement?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You know, we

meet every month and we have sort of an issue that wediscuss every month. And briefly we discussed this issue,

but more in the context of this bill at our last meeting.

That's something that we would have to discuss. Again, that

discussion has to take into consideration the independent

autonomy of each of the thirteen State's Attorneys.



The general discussion when we had it, and Mr. Kane will go

into this more, I think, was that it's not necessarily

something that we're totally against. What we are against

is making it a statutory obligation as opposed --

REP. FARR: No, I understand that and I --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: But there is

validity to it. The question is, it's relatively new and we

want to sort of get to know it. One of the things that Mr.

Scheck said to me before he left was he gave me his number

and said, "I have a person whose very good about training

in this and we're having a training session in June with

prosecutors" and we were considering now bringing that

individual in to talk to us to educate us a little bit more

about it.

REP. FARR: Okay, thank you very much.

SEN. MCDONALD: Thank you. Any other questions for the Chief

State's Attorney? Representative Hamm.

REP. HAMM: I'm a firm believer in equal time and so I want

to give you the opportunity to give me your very best

argument as to why you don't support video taped

confessions.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I didn't

say I didn't support video taped confessions. What I saidwas I don't support it being statutorily mandated upon law

enforcement.

REP. HAMM: Well, then let me ask you the question directly.

Do you support video taped confessions?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think it can

be a very effective law enforcement tool. But I have

concern as it's stated in this bill. As I stated earlier, I

utilized video taped -- recording of video taped statements

of witnesses and sometimes the witnesses turned out to bedefendants when I was a gang prosecutor. I thought it was

very effective.

My concern is, the bill, as it's stated here and as we

heard testimony today on, would require it to start very

early in the process and would require so much to be video



taped that I think two things would occur, a variety of

things would occur.

Number one, any time a camera goes on, witnesses or

individuals tend to clam up. I can remember the first time

I tried doing it, when I saw the tape, I was ready to use

in trial, luckily I didn't have to, it looked like the guy

that could have been shot down in Beirut just sitting there

very stiff and he's looking into the camera and he was very

uptight and very concerned because the camera was on him.

As you've heard from the professional officers here and

they're both not just good cops, they're great cops, they

have a problem with building repore and the way you get a

confession, you get a statement, is through honey, not

vinegar. And it's not a lot of honey when they have a

camera on them right from the beginning.

In addition, I have the concern -- two concerns about what

will be done with these tapes. Number one, they will get

out, there's no doubt about the fact that they will get out

and they will provide a roadmap to dealing with

interrogation techniques. Just as officers are training

themselves on how to interrogate, there's no doubt in my

mind these tapes will be used for counter-training.

And finally, while the law recognizes the fact that

officers can use deception to obtain a statement, perfectly

legal, while they recognize that, there's no doubt in mymind you're going to see a private attorney or a public

defender or some defense attorney some day stand up and say

to a jury in final argument, ladies and gentlemen, look at

this tape, he lied to my client. How do you know he's not

lying to you?

Now, we can file all the motions and (inaudible) we want on

that, but it's going to happen.

Those are some of my concerns.

REP. HAMM: I don't think that's quite where I was headed.

So let me try to narrow this more focused.

You don't support the bill. You have concerns. It's not

drafted the way you want. It's too soon. And you want to

have the flexibility, from what I'm hearing, to kind of



develop your own approach to when it works and when it

doesn't work.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Are you

referring to recorded confessions?

REP. HAMM: Yes. So I guess I am trying to get an

understanding of what kind of timeline we're talking about,

whether you want it to be regulatory, whether you want it

to be uniform. I want some kind of commitment that if the

Chief State's Attorney of the State of Connecticut believes

that philosophically in video taped confessions, that we

can work out the kinks. And so, where are you? Do you want

to have the ability to do it? And if you do support it, how

are you going to bring along the folks who are underneath

you and have those concerns?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: This covers a

variety of concerns and I'm not trying to be squirrelly

with you, but I don't want to sit here -- one thing I will

never do to this committee is make a promise I can't keep.

REP. HAMM: No, I just -- tell me what the approach is. It

sounds like you're almost on the team of thinking that it's

in the interest of justice, but not yet. And quite frankly,

this is my fourth year up here and this is the third year

we've had video taped confessions and the third time that

I've had Chief State's Attorneys tell me that they have

concerns and it's not time yet.

And so I want to know if your approach is different or not

different. If you just don't support it and you're never

going to support it and it's not about anything else, then

let's just say that and then I'll know.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: That's not the

case here.

REP. HAMM: Okay. So how do we solve the issue of your

concerns so that this organization, as a matter of publicpolicy, doesn't have to feel we need to legislate it in

order to have people trust that the confessions are, in

fact, going to be able and open for all to see so we know

what's going on in there?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: What I think we

need to do is first of all, as State's Attorneys we need to



go back amongst ourselves. Because of the separate

jurisdictions it's not so easy where I can just snap my

finger and say okay, this is what we're doing now. That's

the way our Constitution works.

So the first step would be to go back and discuss this with

the thirteen State's Attorneys. Some may vigorously oppose

it. I don't know the answer to that, but that's the first

thing we would have to do. If we came to a consensus, then

it would probably be along the lines of developing -- of

dealing also with the State Police and the municipal Police

Chiefs Association.

REP. HAMM: How long would the process take for you to get

to the initial decision of whether or not you can reach

consensus?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: With the State's

Attorneys?

REP. HAMM: Yes, just step one.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We meet monthly.

Let me talk to one right now.

And part of the issue will deal with what the definition of

a taped interrogation is. And I guess I need to ask you

this question. If you --

REP. HAMM: However you want to define it. I mean, if you

can reach consensus on what State's Attorneys believe is a

taped confession, then I would love to see your definition

and then we can compare it to the definition that's in the

bill.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Okay. My concern

is that no matter what definition we come up to, as Mr.

Farr has stated earlier, as Representative Farr stated

earlier, there's always going to be someone who says that's

not enough. So, we can probably come up with our owndefinition, but I guarantee you it's not going to satisfy

everyone. And the time period on how long that would take,

we meet monthly. It's going to take -- it's not going to be

done in one meeting. So it's going to be six months, nine

months.

REP. HAMM: Okay.



CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I'm just

grabbing out of the air here.

REP. HAMM: That's fine. And so now we're at six and we're

at nine months. Do you have any authority to take it to the

step to go to the police officers?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, each of

the State's Attorneys in their county is the chief law

enforcement officer in their county. But I think that many

of the police officers are interested in having a better

work product, but their concern is, as was stated here,

budgetary and also the degree that would be involved in

doing an interrogation. So we would probably not want to go

and dictate to them. We would come to a consensus among

ourselves, but part of our consensus would probably involve

dealing with them and talking to them, as well.

REP. HAMM: Okay. And so what's that process like?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I've never

done it before.

REP. HAMM: Let's say you've reached your own definition of

what a taped confession is, and all of you agree that in

these circumstances, however limited they are, that you

think it's good best practice and you want now to have

police officers implement your best practice. How do you

make that happen?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, that's

going to involve, again, talking with them and once they --

if we can come to a consensus with them, then it becomes a

training issue. And then it's a matter of developing a

training program and getting that through POST.

REP. HAMM: Okay and how long with that take?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I can't give you

a --

REP. HAMM: Will it take another six to nine months?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I cannot tell

you and I'm not trying to be squirrelly. I don't want to

give you an answer that I don't know the answer to that

because POST has their own certification procedures.



REP. HAMM: I think you know where I'm going.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I do.

REP. HAMM: It's clear you don't support a statute --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct.

REP. HAMM: -- because you want to have the opportunity to

develop procedures and regulations and all of the things

internally and that makes sense. But we have no assurance

that they'll be uniform. We have no assurance that you'll

be able to reach consensus, even among State's Attorneys.

And let's assume you even get there, we have absolutely no

assurance that the time will ever come when the police

officers in this state are in support of your definition,

much less the statutory definition. And so I don't know how

to get out of the box except that you just don't support it.

I don't know how else to reach another conclusion. And so

that's why it appears that a statute makes a little bit of

sense as far as it would establish uniformity, it would

clearly set the public policy for the State of Connecticut,

which everyone in the State would recognize as what we as

Connecticut legislators believe is the benefit of it, and

then as it plays out on the ground, we can fix it.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, I don't

think a statute is the answer and I've explained my reasonswhy.

REP. HAMM: Okay.

SEN. MCDONALD: Okay. Thank you. Let me cut this off. Thank

you. And you thought the weather outside was dangerous.

Are there any other questions for the Chief State's

Attorney? Senator Roraback.

SEN. RORABACK: Thank you, Mr. Chairman. I apologize, I'vehad another committee meeting all day long. It's JF

deadline today, but I'm glad to have a brief opportunity to

ask a couple of questions. And for the benefit of

Representative Hamm, we did, in 1998, pass a law which

compelled a study group to look at the issue of video tape

interrogation. We did have a number of meetings that really



didn't, at the end of the day, amount to much. It kind of

fizzled out.

And so I guess one of the lessons I draw from that is that

absent the Legislature's intention, the Legislature's

attention, it's hard to move this issue forward.

But I guess a general question I had is, do you know when

you do illicit a confession, how many of those confessions

are contested? Most? Some? Few?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think on the

seriousness of the charge.

SEN. RORABACK: Well, in serious case, how often is a

confession contested?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I think you're

going to see it contested in the majority of the cases

because if it is not contested, and the person is

convicted, then the defendant is going to file a habeas for

ineffective assistance of counsel.

SEN. RORABACK: Okay. And so if, in most serious cases,

confessions are contested, how often do you sit there

during the time it's being contested and say, boy, am I

glad we don't have a tape of that confession versus how

often do you sit there and say, jeepers, I wish we had a

tape of that confession because if we had a tape, whoeverthe trier of fact would easily see that there was no

coercion taking place?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I've actually

had a motion to suppress where I had the tape. So I'm not

quibbling over whether or not this is a good idea. My

concern is that it shouldn't be a statutory idea. That's my

concern.

SEN. RORABACK: Okay, I understand. It's hard to square that

with your -- the concerns that you enumerate with respectto people learning the techniques by way of copies of the

tape, notwithstanding your concerns you still, on balance,

think it's a good idea?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I do, but I

think there are ways to preserve a statement and I'll give

you an example.



When you have -- and really this is Mr. Kane's area and I

don't want to steal all his time on this, but when you have

a -- they certainly didn't do written statements forever in

law enforcement. And then somewhere along the way, they

came up with a written statement.

Now, what they do is they talk and they talk and they talk

and they reduce it to a written statement. And, of course,

then there's always motions to suppress on that, well, what

happened, or not.

What is being proposed in this bill would be equivalent to

taking not only that written statement, but all the raw

notes and everything, anything that happened before that

and having to document -- actually make a law that

everything that was done in writing, right up to the point

of where that statement's signed.

I think that would be difficult to do. I think it would be

a burden on law enforcement and I equate that also to the

same problems that we would see in video taping.

SEN. RORABACK: Thank you. I appreciate your recognition of

the complexity of the issue and thank you, Mr. Chairman.

SEN. MCDONALD: Thank you. Any other questions for the Chief

State's Attorney? Okay, now you can hand it off.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You're only asgood as who you're surrounded with and I am pleased to be

surrounded with some excellent State's Attorneys and staff

members and the first one is State's Attorney Galvin.

STATE'S ATTORNEY MARY GALVIN: Thank you very much, Co-chair

McDonald, Representatives. Senator McDonald.

I'm honored to be here today on behalf of --

(INAUDIBLE-TAPE SWITCHED FROM SIDE 2B TO SIDE 3A-SOME

TESTIMONY NOT RECORDED)

STATE'S ATTORNEY MARY GALVIN: --- and that is Section 4 to

do with the authorization of committee wherein the bill

would require that a committee comprised on Connecticut's

thirteen State's Attorneys and Chief State's Attorney be

required to review any case before it can be charged as a

capital case for the death penalty.



And I'm here today on behalf of my fellow State's Attorneys

to testify that we believe that such a statute would be a

clearly unconstitutional infringement upon our powers,

duties, and responsibilities as State's Attorneys under the

Connecticut Constitution.

The history of Connecticut's prosecution and I should note

that I don't believe I was chosen to speak on this because

I'm the oldest in the group or present --

SEN. MCDONALD: Just the wisest, perhaps.

STATE'S ATTORNEY MARY GALVIN: Well, thank you very much.

REP. DILLON: Because your father was the president of

(inaudible-microphone not on)

STATE'S ATTORNEY MARY GALVIN: Perhaps. But I am interested

in the history not just of Connecticut prosecution, but

prosecution in general. And probably the core function of

state and local prosecutors across this country, the job

that we guard zealously, independently and hopefully with

great integrity is our charging function. It is recognized

in Connecticut as common law. It's recognized in case law.

Justice Borden did a great decision in State vs. Dills on

the history of our powers.

Connecticut was the first system of independent public

prosecution in this country, as I'm sure you all know,dating back to 1704. Our system was revised with the

Constitutional Amendment in 1984. Throughout this time, the

common law powers of the State's Attorneys to charge crimes

is never been touched. And it remains untouched to this day

in case law, in common law, in statute, in constitution.

This bill would be a totally novel -- it would, in fact, be

revolutionary. We believe it would be unconstitutional in

that it would clearly infringe on our individual,

independent, charging authority and responsibility under

the Constitution.

You might say well, who are you? Who reviews your decisions

if you're an independent constitutional officer? And that

answer is also found in history and it comes from a number

of sources. The courts review our decisions and require us

to proceed only when we have probable cause and sufficient

evidence.



Appellate Courts routinely review our decisions, sometimes

rather harshly and pretty directly. In addition, the

Legislature, at time, directs what we can do by defining

what a crime is and that's the job of the legislation and

that leads to probably what is the center of my argument

and that is, that our government here in Connecticut is

based on a series, systems of checks and balances. Checks

and balances that have now worked with only minor issues

and problems for almost 300 years.

And that system of checks and balances requires that the

Legislature define the crime. The prosecutor charge the

crime. And the court make sure that we have probable cause

and sufficient evidence to bring that.

In the course of this system that we have developed

throughout history, the function to charge is with the

prosecutor. This authorization committee and I should do an

aside here. I think it's interesting that Mr. Flynn

indicated that the one reason for such a committee would be

if we had geographic disparity. And on the other hand he

said we have no proof of geographic disparity.

That -- if that is so, the only reason for such a committee

would be because we State's Attorneys are not doing our job

the way we're supposed to. And I would submit that that

just is not the case here in the State of Connecticut.

So not just constitutionally, but practically there is noreason for this committee. If there is a problem that we've

heard from the commission, it is that the cases that

haven't been charged capital, not the cases that have been

charged. Mr. Flynn indicated there is no one on death row

where there is a claim of factual innocence. So, what an

authorization committee would really need to look at if

there is a problem is not those cases being charged, but

those cases which haven't been charged.

And this bill does not allow the committee to look at cases

that aren't being charged by the State's Attorneys. So thisbill doesn't address what, at least in a kind of cloudy

sense, is being put out there, is the problem.

The testimony today indicates that this bill is modeled on

the federal government and I have to disagree with that.

That may have been the intent, but this bill is not modeled

on the federal government.



First of all, the system of federal prosecution is totally

different than that of state and local prosecution. With

all due respect, state and local prosecutors across this

country prosecute 98% of all crime or better.

The federal system of prosecution is a centralized system

of prosecution with all power emanating from the United

States Attorney General. The system of prosecution in

Connecticut and in most other states, Delaware, New Jersey,

and Rhode Island aside, other than those, the system is

decentralized. We have a decentralized system of

prosecution that leaves the charge and function in the

state and local prosecution.

If we are to model ourselves on the federal system, I think

what the committee would see would happen is we would have

all cases that qualify on the basic elements of the crime

before a committee and I think what you would see is a lot

more cases being prosecuted as a death penalty case than

what we currently have.

So, to conclude my argument, one, this section of the bill

is unconstitutional in that it infringes on a prosecutor's

charging authority.

But even if one were to put that argument aside, this bill

does not do what I think purports do to and if, in fact, it

were to be modeled on the federal government, it might do

exactly what its proponents don't want and that is tocreate not fewer, but more cases for capital felony

prosecution.

Let me just end by saying that in speaking for my fellow

State's Attorneys on this section of the bill, I want to

assure this committee that we all take our responsibility

to charge fairly and truly and with integrity very

seriously. And that no case is ever charged or not charged

without acknowledging and without reflecting on our

constitutional responsibility.

If this were to be done by committee, the individual

accountability that we have before Connecticut's Criminal

Justice Commission would not lie. There would not be the

same type of accountability that is the bedrock of the

checks and balances that have kept Connecticut's system

clean and without major problem, for we're coming up on our

300th anniversary.



SEN. MCDONALD: Thank you. I have just a couple of questions

first.

You said you are speaking today on behalf of all of the

State's Attorneys. Are the comments that you've shared with

us today the uniform position of all of the thirteen

State's Attorneys?

STATE'S ATTORNEY MARY GALVIN: The meeting at which was

designated to speak for the State's Attorneys, I believe

that there were a couple of State's Attorneys not present.

They've not expressed dissent from this, but I am confident

that every State's Attorney believes this bill would be an

unconstitutional infringement on our charging authority and

if I can just confer with Mr. Kane.

(Pause)

That's fair to say.

SEN. MCDONALD: Okay. Thank you. Are you suggesting -- well,

I guess I got confused by your argument. You suggested that

this is an unconstitutional infringement on the charging

authority of the individual State's Attorneys, you're not

suggesting that the federal model is an unconstitutional

construct, are you?

STATE'S ATTORNEY MARY GALVIN: Not at all. What I'm saying

is the federal system is totally different than ours.

SEN. MCDONALD: Decentralized.

STATE'S ATTORNEY MARY GALVIN: The U.S. Attorneys are not

independent constitutional --

SEN. MCDONALD: More centralized than we --

STATE'S ATTORNEY MARY GALVIN: -- officers. It is totally

centralized. We are not totally centralized and with the

type of crime that the federal prosecutors and the U.S.Attorney prosecutes, a centralized system is and has been

appropriate for the history of our country, but state and

local prosecutors who prosecute 98% of the state and local

crime, we have to be decentralized. We have to have

independence in our charging function or our whole system

falls apart because we're not longer accountable.



SEN. MCDONALD: Well, you would think if any system should

be decentralized, it would probably be the federal

government, but --

STATE'S ATTORNEY MARY GALVIN: Well, I'll defer to your

opinion on that, Senator.

SEN. MCDONALD: That's just my opinion. You also suggested

that there were sufficient checks and balances in the

system to deal with divergent viewpoints on whether or not

a death penalty should be charged or not charged and that

through the judicial process, those things are more

appropriately addressed and resolved. Is that a fair

characterization of your testimony?

STATE'S ATTORNEY MARY GALVIN: I think what I'm saying is

that the charging function in each individual case is

vested in the local State's Attorney where and to kind of

pick up on what Representative Dillon said before, a number

of factors go into the charging decision and those may

include factors such as the nature of the crime, the nature

of the criminal, and we could go through and I could

probably give a half an hour seminar on different factors

that appropriately go into charging and that

constitutionally go into charging.

We are checked, yes, by a judicial finding as to whether we

have probable cause, whether there is a sufficiency of the

evidence. That is the check that the judicial system putson our decision to charge.

SEN. MCDONALD: Okay. But an internal peer review analysis,

you wouldn't find to be helpful in making these charging

decisions?

STATE'S ATTORNEY MARY GALVIN: I think that many of us do

employ an internal peer review process to make these very

serious decisions. The problem with this bill is that it

mandates a committee of prosecutors that are not the

independent State's Attorney for that district to be partof this decision.

And that just -- I mean, that is revolutionary that exists

nowhere that has a system of state and local prosecution in

this country has this kind of system. As I say, the states

that are under an Attorney General aside, our history is

the independence of the local State's Attorney. This would



totally turn that on its head and be the first time in our

history that the charging function was taken from the

State's Attorney. I think that's a dangerous precedent to

start for reasons that we could philosophize about over the

course of our 298 year history.

SEN. MCDONALD: I've heard your point. It just seems to me

that when a criminal prosecution is undertaken, it's not

Morano vs. Doe or Cohen vs. Doe or Connolly vs. Doe. It's

the State vs. Doe. And if all of those State's Attorneys

represent the State, I don't understand how that infringes

on the constitutional authority of the State to be making

those charging functions in the furtherance of the State's

interest, not in the furtherance of individual State's

Attorney who happen to occupy those positions.

My concern and my question to you then is, let's assume

that our experience in Connecticut was different than it

has been and we had a State's Attorney who systematically

went about doing -- went about charging specific targeted

groups in a disproportionate and potentially discriminatory

fashion. Wouldn't it be better to have the internal control

functions, if you will, of the State's Attorney available

to remedy that situation before it was unleashed into the

court system and would take years and years and years to

resolve through a court system?

STATE'S ATTORNEY MARY GALVIN: Well, I think that the

judicial system is set up to handle a prosecution thatviolates due process of equal protection. It can be

addressed by a motion to dismiss before years and years in

the appellate process. So, I think that there is a check in

process for that.

And just to answer your earlier question, if I may, as far

as where do I get this -- each independent State's Attorney

from, it's actually Article 23 or based on the new

codification Article 4, Section 27 of the State

Constitution talks about the State's Attorneys for each

judicial district. And so we are independent constitutionalofficers.

If we weren't, if we were like the federal government, then

we -- I'd be here with a very different argument, but based

on current activities from the federal government on the

death penalty, we would probably be having a very different

discussion today here.





not necessarily about anything that's already happened.

Partly by looking at the experience of other states and I

don't know -- I don't see a relationship, but it doesn't

hurt sometimes to be preventive, you know.

It does have to do with the fair application of the law and

I think that was some of the business with the

geographical. And I'm thinking, if we were going to set

forth a series of principles that say what's a workable

death penalty statute and it wasn't necessarily one that

where a lot of people get executed or one where nobody gets

executed, it would be something in between. Not because the

truth is always there, but because, you know, I just don't

think that what's would happen.

It seems to me that if part of what we're going to try to

do is to reduce the amount of variation, that is to make

sure that something's uniformly applied, that if you're

correct about the constitutional anchor of the structure,

that that will be very difficult in Connecticut. Is that

true?

STATE'S ATTORNEY MARY GALVIN: No, because it's done through

the court's application of our constitutional principles of

equal protection and due process. If what you're saying is

that the application and just this would be in theory, if

in theory the application of the death penalty law by a

group of local State's Attorneys was not being applied with

equal protection to all similar situated people, not beingapplied with due process, that is a function of the court

to enforce. Those are constitutional requirements. That

would be a violation of the Constitution.

As just an aside, I haven't mentioned this, but I think it

may just be of interest for some of the committee to know

that many of us State's Attorneys have set up committees

within our offices to review death penalty decisions. In my

office, I, whenever a case comes in, that based on the

facts might conceivably qualify, I designate a committee

and we review multiple aspects of this case before we makea decision one way or the other.

REP. DILLON: Well, I'm just remembering and this doesn't

relate to the death penalty, per se, that there was a

prosecutor in the eastern part of the State who did a

number of things that I thought were improper and it had to

do with all kinds of things involving politics and



personnel and so forth and I thought this person was way

out and I kept calling Jack Bailey, who just said, "I can't

do anything." And that person, over time then, was not

reappointed. I think the appointment period is eight years.

Is that it?

STATE'S ATTORNEY MARY GALVIN: That's correct. And as I said

in my comments, accountability does come at least in part --

REP. DILLON: Well, I had nothing to do with that decision.

I think that there was just an accumulation of things and I

believe it was done on other grounds, but there were a

number of -- there weren't just red flags, they were

whistles, there were a lot of things going on that lots of

folks were reporting to us and so that a tremendous amount

depends on the character and comportment and behavior and

judgment of that one person, if everything you're telling

us is true about the decentralization. And I don't know if

that's an argument for or against this particular section.

If we're in a political climate where folks are pushing an

easier application of the death penalty, it seems to me

that we're going to have to look a lot more carefully at

how State's Attorneys are appointed --those people who are

appointed simply because some much more will be at stake.

And because there could be eight years and so forth.

I don't know, I'm just making that argument. It may be a

good idea anyway, but it seems to me that in a case like

that, even though it's a tiny number of cases, you know,since death is if not swift, certain, maybe not that

either, but more certain than in other cases that we should

be really looking carefully, very, very carefully at the

individuals that are appointed in the thirteen localities.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: If I could

interject. Justice Zarella chairs the Criminal Justice

Commission and has started a procedure and he started it

with the reappointment of a majority of the State's

Attorneys just recently, that those interviews are open to

the public. And that, I think, addresses a lot of whatyou're saying. And I know -- I think you were reappointed

recently?

STATE'S ATTORNEY MARY GALVIN: Uh-hum.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: And yours was, I

think, open as was Mr. Kane's. I know I just went through



that and as did the new State's Attorney for Litchfield

County and that goes a long way to really examining these

individuals in the public forum.

STATE'S ATTORNEY MARY GALVIN: Most importantly, I know you

said cases. It is case. And I believe in our now 298 year

history, that is the case. We're not perfect. In my

remarks, I said "with historically over the course of

time", you know, which is minor glitches, one case. That's

it.

REP. DILLON: I wouldn't know and I'd love -- I hope you're

not inviting me. I'm not lonely. Trust me, I don't need to

go, but I'm glad to hear that they are open. It just seems

to me there would be a lot more scrutiny on the folks that

get those positions than there maybe once was as the stakes

rise. I could be wrong.

STATE'S ATTORNEY MARY GALVIN: Believe me, the scrutiny is

pretty intense.

REP. DILLON: I know that the scrutiny is intense, but the

other issue, especially given the tremendous authority, is

one of the tests of the system is the ability -- its

ability to cleanse itself of actors who can bring the --

call the functioning of the system itself into question and

that's true across, whether it's a church or a state or

whatever. If you have an individual whose an actor who has

poor judgment, who can bring down the institution, you wantto know how the system can correct itself and so I'm glad

to hear that those are open.

STATE'S ATTORNEY MARY GALVIN: And that's why checks and

balances are so important.

REP. LAWLOR: I want to ask a question. Gail wanted to ask a

question. But good afternoon, Attorney Galvin.

STATE'S ATTORNEY MARY GALVIN: Representative Lawlor.

REP. LAWLOR: I, believe it or not, was actually listening.

There are members of the committee watching in their

offices right now, just so you don't think this is --

STATE'S ATTORNEY MARY GALVIN: Thou does protest too much,

Representative Lawlor.



REP. LAWLOR: Yes, that's right. But in any event, I just

want to follow-up on a couple of things.

First of all, this notion of the independence of State's

Attorneys and its constitutional dimension, right. Just

some historical facts because I'm not 100% sure, but

originally was there not one State's Attorney for each

county? Is that what it was in the good ole' days?

STATE'S ATTORNEY MARY GALVIN: That's correct. And as you

know, within the Constitution, the districts will be

established by law, is what the Constitutional Amendment

says.

REP. LAWLOR: So there are eight counties. How many

districts are there now?

STATE'S ATTORNEY MARY GALVIN: There are now thirteen,

arising from what was originally eight counties.

REP. LAWLOR: Okay. And we've been struggling, beyond the

death penalty. Some of us here have had some concerns about

not so much uniformity, but sort of a disparity of

sentencing throughout the State. So, some prosecutors have

one approach to a particular kind of situation, others have

a different approach and I think almost everybody would

acknowledge that depending on where you go in the State,

there are very different types of treatment and

prosecution, depending on the culture that's sort of grownup in that judicial district, under the tutelage of

whomever the State's Attorney is.

So, if, in fact, this proposal has a constitutional flaw,

as you've identified. In other words, it takes away from

the State's Attorney the constitutional charging decision,

would another potential solution to the problem be a

procedure that you folks adopt on your own to convene and

discuss, at least, without a vote, let's say, on what to

do, but to have a collaboration on these charging decisions

in light of the fact this is the most serious decisionthat's made in the State and in light of the fact there is

this sort of concern that's out there in the public, which

we're both accountable to, about -- however it might be

explained, I'm not sure, but it does seem as though there's

a disproportionate number of death penalty prosecutions in

one specific judicial district and would it not allay that

concern in part by simply having a discussion about



charging decisions in an attempt to come to an agreement

among the State's Attorneys about some standards which

should be adopted by individual State's Attorneys as they

make these decisions?

Would that be -- not that we would mandate it, it's just

that I assume you guys could do it yourselves.

STATE'S ATTORNEY MARY GALVIN: What I said is that -- and I

just speak for myself on this issue, I've already

instituted a committee within my office to review when

we're deciding whether or not to charge a capital felony in

a case so that I know I'm already doing that and I believe

that a number of the other State's Attorneys are also doing

it. I have not taken a --

REP. LAWLOR: I don't mean to interrupt, but my question

was, not just within your own district, but with your

counterparts throughout the State because obviously there

one time was proportionality review built into the death

penalty statute. It's not there now, but it's certainly a

legitimate issue to raise on appeal. And in order to avoid

that, wouldn't it be a good preventative measure to at

least have a discussion on that issue with colleagues to

avoid the potentially successful argument down the road

that on the proportionality review issue that nowhere else

in the State of Connecticut would a death penalty be sought

under these conditions and would not conferring with

colleagues help avoid that problem?

STATE'S ATTORNEY MARY GALVIN: Well, Mr. Weller, I think, is

going to address the specific issue of proportionality and

I would defer to his expertise on that, but I just want to

say that I don't agree with the premise, if there is one

here, that we have geographical disparity is an inherent

function of one State's Attorney charging more cases.

There's a lot of reasons that I believe that that's

happened, which don't have to do with geographical

disparity. And I don't think the numbers are statistically

significant and I thought it was interesting that if Iheard Mr. Flynn right, I think he basically agrees that the

numbers are not there to make that statement.

REP. LAWLOR: Okay. Well, I guess beyond the issue of the

death penalty itself, this issue of some sort of statewide

standards in terms of prosecutorial decisions is an issue

and you know, with Mr. Bailey and now with Mr. Morano,



we've tried to talk about at least some type of statewide

training or ongoing -- because in the Legislature we're

trying to establish, as best we can, a statewide policy and

we do this in all the other divisions of state government

and I'm wondering how we might do that for prosecutors.

Again, beyond the death penalty, I mean obviously,

different cases are treated very differently, different

procedures are interpreted very differently throughout the

State and I assume at some point it's got to reach -- I

mean, you could get to the point where you've got a serious

problem and I wonder how we might approach that, given the

constitutional neatness of the process.

STATE'S ATTORNEY MARY GALVIN: I think you're familiar with

the fact that the National District Attorneys Association

has promulgated national standards on prosecution and what

a factor should go into a charging decision.

I think that one of the things, if you're asking what the

Legislature could do to help, is to appropriate more money

to send prosecutors to training where they can be

nationally trained on prosecution standards for the

charging decision.

You know, in the interim, this type of training is done, as

you know, within local offices and Judith Rossi, Jack

Cronin, from the Chief State's Attorney's Office do

training, but I think this is the kind of training that we

really need help from the National District AttorneysAssociation and courses are available and we need the

funds. I think that some people are of the opinion that

there's this great disparity on jack-lighting deer or

stealing from lobster pots from part of the State to part

of the State. I'm not sure that there is and I also want to

say that I think sometimes local geography should play a

factor in your charging decision. Stealing from lobster

pots is not the same problem in Torrington that it is in

Milford. And it is a huge problem when lobstering is good

in my district. And I'd better aggressively prosecute that.

Is that wrong? Well, if it is, I guess the public will letme know in tomorrow's editorial.

REP. LAWLOR: It's not wrong, but I think it seems -- I

think most people that learn of it think it's unusual that

you could become a prosecutor tomorrow right out of law

school and not do what you have to do if you want to be a

public defender of it you want to be a police officer or in



the Attorney General's office. There's no formal beginning

or a real one, aside from this is what the insurance

consists of and stuff like that.

I know -- Chris, maybe I'm wrong. Is there a formal

orientation program beyond just the administrative details

for prosecutors like a two or three week --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You and I have

discussed this. Since I've been here -- I've been in this

position since the 23rd of December. The first thing that we

looked at was the issue of training and I asked for an

analysis and you know I brought all of that paperwork the

first time I came up before this committee because you said

you were going to ask it and you didn't ask it. Today, I

don't have it, but I will forward it to you.

I was amazed at the amount of training that members of the

Division have already had in a variety of issues. What I

would like to do and what I am already planning to do is to

increase the training of our prosecutors and the new

prosecutors.

Now, Mr. Deerington, in his judicial district, already had

an internal training program that he set up. In addition,

he has a mentoring program that he set up. It's something

that I would encourage all the State's Attorneys to do.

We are scheduling in June, a two-day seminar whereprosecutors will come together and we will have some large

presentations, some large seminars on large scale issues

and then it will be broken down into other issues that are

really related to the amount of experience.

There will be a section for newer prosecutors.

Unfortunately, our newer prosecutors, most of them have

been laid off. So that's kind of --

REP. LAWLOR: By the way, how many actually -- we're asking

how --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: How many did we

--

REP. LAWLOR: How many prosecutors got laid off in this most

recent --



CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We lost eleven

full-time prosecutors and a total of about 37 prosecutors

including per diems.

REP. LAWLOR: Out of?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Out of our total

enrollment. Our total enrollment was 525, 530, maybe a

little bit more. That's personnel, but for prosecutors,

it's I think 260-something.

REP. LAWLOR: So like twelve, thirteen, fourteen percent?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: It was about

thirteen, fourteen percent, I believe.

REP. LAWLOR: And in the early retirements, how many do you

think you're going to lose?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Again, we aren't

going to know because we get these -- they don't have to

decide until June 1st, but I anticipate -- we have twelve

people I know of that are going to go June 1st, three that

have gone as of the first of this month, and I anticipate

another twenty have called to inquire. So we're going to be

hurting.

But as far as training, one of the things that I'd like to

do with training and I've talked to Mr. Smyth about this,is he has a week long program. I don't know if he still

does this, but at one point had a week long program for new

prosecutors where they dissected and --

REP. LAWLOR: The Public Defenders.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: -- be nice. The

public defenders. Where they started to look at a trial

from the beginning and they learned about it all the way

and at the end they either did a trial or did a final

argument. I would like to mirror that separately, but maybeon the same campus and at the end of that time, have his

people take on my people and let's have a little mini

trial. What would that do? I think it would be excellent in

training. It would also build civility amongst the two

divisions, which is something that I really strongly

believe in and it would really increase the ability of both



sides to present cases effectively and serve their

respective clients in a courtroom.

Training is a major concern. It's been addressed and I

don't think that point has gotten across to you and I would

like to sit with you and show you how much it has done in

the past, but I do think it can improve and we're already

scheduling that with the program that is scheduled in June

and we'll continue to do better.

REP. LAWLOR: Because it seems like aside from like union

meetings and softball games, the prosecutors from one

district don't tend to meet up with prosecutors from other

places very often.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, that's the

purpose of this June meeting. There has not been, in a long

time, a overnight thing where they all got together and

they not only have to meet and go to a seminar, but they're

also going to meet and they're going to break bread

together, they're going to talk about things together and

I'm hoping that that will sort of get more of a cross

county feeling about things. But make no mistake about it,

prosecutors call each other on the phone all the time to

get ideas and to talk about questions. We're not all

polarized in our own little offices.

REP. LAWLOR: Okay. Are there other questions?

Representative Hamm.

REP. HAMM: Attorney Galvin, I just want to make sure I

understand this constitutional underpinning.

STATE'S ATTORNEY MARY GALVIN: Okay.

REP. HAMM: Are you saying that if I look at Article 4,

Section 27, I am going to find that prosecutors

constitutionally have the right to charge or that I'm only

going to find constitutionally that prosecutors are

independent?

STATE'S ATTORNEY MARY GALVIN: You're going to find that

there is a constitutional officer State's Attorney in each

judicial district. The concept of the charging function is

found in common law, in the case law, and also in

prosecution standards.



REP. HAMM: Well, --

STATE'S ATTORNEY MARY GALVIN: This is a core prosecution

function --

REP. HAMM: That's why I'm asking you the question againbecause I heard very clearly your statement that the

strongest reason you're opposing the Section 4 of the

proposed bill is that it was constitutionally going to

offend your charging authority. Since all it's talking

about is review of charging. And so that's not quite true,

is it?

STATE'S ATTORNEY MARY GALVIN: Yes, it is because inherent

in the office of prosecution at common law and in the case

law is the charging function. It's inherent in the --

REP. HAMM: Is that interpreting Article 4, though?

STATE'S ATTORNEY MARY GALVIN: That's how courts and that's

how the common law has --

REP. HAMM: So it's case decisions?

STATE'S ATTORNEY MARY GALVIN: And common law.

REP. HAMM: Okay. So you are maintaining that the charging

authority is constitutionally supported in our State

Constitution?

STATE'S ATTORNEY MARY GALVIN: Yes, I am.

REP. HAMM: Okay. I think reasonable minds can differ on it.

REP. LAWLOR: Just out of curiosity on that topic. Does that

mean the Legislature couldn't impose, let's say, specific

standards on specific charging decisions as part of the

statute?

STATE'S ATTORNEY MARY GALVIN: That would be my position,yes.

REP. LAWLOR: That we can't?

STATE'S ATTORNEY MARY GALVIN: You can define the crime, but

you cannot dictate the prosecutor's decision whether to

charge and how to charge, other by how you define the crime.



REP. LAWLOR: Okay.

REP. HAMM: That's very strange.

REP. LAWLOR: That's an interesting question.

STATE'S ATTORNEY MARY GALVIN: Well, actually when some of

us started as prosecutors under Mr. Arnold Marckle, this

would have been one of his very early and often (inaudible)

in the mentoring process of training.

REP. LAWLOR: Are there other questions? Is anyone else

going to testify?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Yes, at this

point I would call Mr. Kevin Kane to speak on sequential

id's and recorded confessions.

STATE'S ATTORNEY KEVIN KANE: Thank you, members of the

committee for having both the interest to hear from us and

the patience to hear from us. I know it's --

REP. LAWLOR: Every Monday we do the same thing. Monday and

Friday of this week.

STATE'S ATTORNEY KEVIN KANE: I'm here to speak about two

concepts that are apparent in H.B. 6612 and H.B. 6700 that

deal with investigative practices with regard to the

recording of interrogations and photographic and impersonallineups or show-ups.

With regard to the video tape or video/audio recording of

interrogations, two state courts have required it, Alaska

and Minnesota. Alaska has decided that the Alaska State

Constitution requires interrogations to be recorded. The

Minnesota Supreme Court said their constitution doesn't

require it, but under their supervisory powers in the State

of Minnesota, they will do so.

Our Connecticut Supreme Court in 1996 in the case of Statevs. James, J-A-M-E-S, decided the issue was raised in that

court whether or not our State Constitution requires the

recording of statements or confessions or interrogations

and they said no, the Constitution doesn't and the court

declined to exercise its supervisory powers so as to

require it to be done for various policy reasons.



These are issues. The control of police practices during

the course of investigations, particularly with regard to

interrogations and lineup and photographic identifications

are issues that the courts are uniquely qualified to deal

with on a case-by-case basis and have done so.

That's why we've had the whole training of cases from

Escobito through Miranda and on, Innes and all of these

cases in which the court looked at cases individually and

set up rules with regard to interrogation and interviews

and putting requirements on the police departments.

And the same things happen in the area of photographic

lineups and identification with a whole line of cases that

began back in the 60's with a trilogy of cases called Wade,

Stovolt, and Denno, were the names of the defendants.

The problems of these bill is having the Legislature enact

requirements which, whether you call them best practices or

good practices and there are certain good things in these

proposals and there are certain good ideas, but having the

Legislature enact requirements that would apply these

practices to every case, could end up not quite so throwing

the baby out with the bath water, but curtailing

interviewing and interrogation in cases where they

shouldn't be curtailed, inviting cases -- inviting courts

to suppress statements or confessions or either/or or

verbal confessions made during them or suppress valid in-

court identifications which are, in no way, influenced by apossibly suggestive photograph show-up.

With regard to that, say you have a person who knows the

perpetrator of the crime, who has seen the perpetrator of

the crime many times before the crime, recognizes the

perpetrator as being somebody who lives down the street,

somebody that he or she had shown in the past. And a police

officer -- maybe the witness knows the person by sight, but

doesn't know their name.

The police officer tries to clarify who the person could beand makes -- shows one photograph to that witness.

Possibly, in all likelihood that might be suggestive show-

up of one photograph to that witness. The witness says,

that's the person. The police officer did it more to make

sure he had the right name. The witness has no doubt that

the witness knew who that person was. Under the terms of

H.B. 6700, that witness would be precluded in court saying



that's the person who robbed me or whatever. Even though

that witness knew the person and that wasn't a question.

Get back -- there's one -- Texas, with regard -- I want to

go back to video recordings and audio recordings of

confessions for a minute. One court in the State of Texas,

I mean one legislature enacted a statute and that statute

it provides that no oral statement made during a custodial

interrogation may be admitted unless the interrogation was

-- unless the statement was recorded, video recorded or

audio recorded. It did not require the entire investigation

to be -- the entire interrogation to be recorded and it

provided for exceptions.

One of the exceptions was -- and I don't have the exact

language before me, they're handy. One of the exceptions

was if the statement was found otherwise to be truthful. In

other words, if the statement lead the police to finding an

instrumentality of the crime or finding the body of the

victim or finding some other evidence, so it could be

independently proven to be true, that was an exception. So

even under the statute enacted in Texas, it was not as

broad and preclusive as this.

The problem we have and I think to answer a question that

was posed, I think if any one of us State's Attorneys in

the judicial district we're in, said to our police

departments, in our judicial district, you people better

record every single interrogation from beginning to end anddo it from now on, I think most of the police departments,

if not all of them, would comply with our request or order.

Well, why haven't we done it? Why haven't I done it in New

London? I thought about doing it more recently when I

looked at this and really got into this issue, as I did in

the past few months.

And it bears -- it does bear a lot of analysis and a lot of

work and a lot of thought on our part. What are some of the

problems you have with doing this with regard to requiring

video and audio recording of interrogations? We've hadseveral cases where we've had multiple defendants, all of

who have to be interviewed at the same time. Simultaneously

you can find somebody's lying, somebody's not and one of

the ways you do it is try to compare what they're telling

at the same time and maybe go back and forth. Most police

departments do not have the facilities to do that. They

might be able to get a camera and I don't think many police



departments video tape drunk drivers anymore. When I was in

Middletown in the 70's, the Middletown Police Department

did it all the time. I think they've gotten away from that

for various reasons and I don't think most of the police

departments -- they may have video cameras to carry around,

portable video cameras that they can carry around and video

tape various things, but they don't have the facilities,

certainly to be able to video/audio record multiple

defendants simultaneously -- who were simultaneously being

interviewed.

One of the bills before us would require it to be done if

it was in a courthouse, for instance. We've had cases in my

office where we've had one defendant in the library and

another defendant in another office and our office in New

London is none too big. But we can separate people into

different offices for sometimes. Sometimes -- not

sometimes, but their lawyer is present sitting in the room

with them with the police officer questioning them. Those

are not recorded. We don't have the facilities to record

them, number one. Number two, each person has his or her

own lawyer there. There are cases where we've gotten

cooperation and in a case we just finished recently, State

vs. Carpenter, where we had multiple defendants. The key to

that case was one night when we interviewed, one Friday

night we were there until midnight with the defense

attorney, his client, another attorney, his client and they

were each at separate portions of the office and we were

trying to iron out which was true. One was saying no, hewas the shooter. Somebody else was saying something

different. And we had to go back and forth to the tune.

Now, we didn't have the facility or the means to record

those conversations and if we had recorded -- the other

question about them, besides the logistics and equipment,

is there are many defendants who would be reluctant to talk

on camera. We have many cases where people are interviewed,

are interrogated, and they'll verbally, orally give it up,

orally give a statement, but say I'm not going to sign

anything, I'm not going to put anything in writing.

(INAUDIBLE-TAPE SWITCHED FROM SIDE 3A TO SIDE 3B, SOME

TESTIMONY NOT RECORDED)

STATE'S ATTORNEY KEVIN KANE: -- Attorney Scheck suggested

and said in Minnesota, I believe, the recording is done

surreptitiously. That might be one way to deal with it if



every department could have interview rooms where we could

have concealed cameras and concealed recording equipment

and that might get over the hurdle of reluctant -- people

who are reluctant to talk. And then the interviews could be

recorded in their entirety.

We would play that to the jury and then we're deceitful and

the defense attorneys are going to portray us as the police

as being deceitful and sneaky by surreptitiously recording

interviews like that and turn it against us.

There are reasons to hesitate and I have hesitated very

much in instructing police departments to do this.

The advantages of it are obvious. You get a document on the

record of a tape recorded confession of the defendant or a

tape recorded statement. Often times, many of these

statements are more valuable for untruths or what's not

said than what is said and it would be nice to have those

things on video tape and audio recorded. And it would be

nice if the Legislature would give us some money to local

police departments to be able to set up rooms and to be

able to have equipment and to encourage it more and make it

easier to do and to train people to interview and

interrogate both witnesses and suspects.

This would be an involved process to do it properly.

One of the reasons I don't think this has been done inConnecticut is fairly clear. There hasn't been a need to.

The Supreme Court has the authority and the exercise of its

supervisory power to order it. The Supreme Court has seen

many, many, many confessions and interrogation cases come

before it. Our Supreme Court has not hesitated to reverse

convictions or order new trials. Our Supreme Court has not

hesitated to adopt rules, very stringent rules with regard

to custodial interrogation, with regard to determining when

a person is in custody and when a person is not in custody,

when a person must be given Miranda rights, and when it's

not necessary.

And our Supreme Court has not hesitated to do so and

they're in the best position to, because they review cases

constantly, to see whether or not police officers or

prosecutors have either abused things or gone too far and

to set limits and this is an area which is more



appropriately dealt with by the courts rather than by the

Legislature.

Massachusetts is -- the Supreme Judicial Court of

Massachusetts has said, in opinions, two or three of them

in recent years, police officers should understand the

benefits that can be obtained from recording

interrogations. And they should be aware that some day they

maybe required to record them.

What that can do is start getting messages to police

officers and people who train police officers to start

considering this and using it.

The difficulty would be saying when are we going to require

them to be recorded and if they're not recorded, what are

the sanctions going to be? Do we want to throw out

confessions that might be otherwise truthful because the

recording requirement was not followed? When do we want the

recording to begin? Will recording really answer all of the

problems? Or are we always going to be left with what was

said before the recorder was turned on? What was said in

the police cruiser on the way to the station? What was said

before the person got into the police cruiser? What was

said down in the booking room or the processing room before

any interview started? How do you define standards and when

do you require it?

Those are the difficulties and those are why when theLegislature tries to enact blanket rules there, we may end

up with hindering obtaining -- barriers to obtaining the

truth rather than assistance in obtaining the truth, which

is what we really want and what we really need.

With regard to sequential id's and blind (inaudible). Those

maybe very good ideas. Mike Deerington did quite a bit of

work on that and has done quite a bit of work on that over

the winter.

New Jersey has -- the Attorney General in New Jerseyproposed what Mr. Deerington's conversation has indicated

where guidelines for police officers to follow, but they

were recommended, not mandated guidelines.

There are studies that have been done with regard to

sequential id's and blind identification, meaning the

officer whose conducting the show-up does not know who the



suspect is in the group of photographs. Those are,

obviously, beneficial. It would help us with the juries

saying, if we put on an out-of-court identification, that

the officer conducting it didn't know who the suspect was,

so he could not have conveyed that to the witness at all.

But one of the studies and one of the main proponents of

that study says sequential id's may not work for young

people or old people. I don't know why. They're doing

further studies on this. This is an area which it looks

good, it looks like there are beneficial things to be

gained by using sequential id's, but according to some of

the people who have -- according to this one particular

expert whose name escapes me. I can find it in a minute,

but I don't want to take more time than necessary. He said

the jury is still out on this issue and there maybe certain

groups where this is not beneficial and does not lead to

the truth. I think we need this as an issue that we do need

to study.

REP. LAWLOR: Can I just ask about that, Mr. Kane? I think

that in those categories, I think what they're saying is

that for old people, young people there may not be any

difference between a sequential and a traditional show-up.

It's not that they're less reliable for young people. It's

just that there maybe no benefit for doing it, but I don't

think they've argued that there's any downside with any

particular group to have a sequential blind photo id as

opposed to the more traditional way of doing it.

So, I don't think anyone would argue that it's worse for

young people, it's just that there may not be the benefit

of a blind sequential i.d.. I think that's the case.

STATE'S ATTORNEY KEVIN KANE: Well, I think the proponent

that Mr. Deerington was discussing was Gary Wills whose a

professor from the University of Iowa. And he says there

are two shortcomings with sequential identification. That

is, showing one photograph at a time. The first shortcoming

deals with a group of people who are either minors orsenior citizens. Since each category needs points of

references, and cannot accurately look at photographs

individually and make identifications. What that means, I'm

not too sure on. One way it sounds like it might cause more

of a problem because they may use the point of reference

just to pick out the person who looks most like the

perpetrator. What I'm saying is this is an area that we



need badly to explore through some training and studying.

We have done quite a bit working with police officers in

our jurisdictions.

New London has a computer system now where they're able to

show a witness -- they're able to pick a group of eight or

nine or ten or twelve, they use photographs of similar

people on a computer. And do a lineup on one page and I

look at this thing and I say, my God, we've got twelve twin

brothers here I this lineup. I couldn't pick out the person

and I just say him this morning in court, because these

people look so much alike.

It's remarkable how similar the identification is. Whether

or not it would be better or easier to do sequentially, it

just might be. I think it's an area where we really should

study and we should give it some serious looking at and

maybe we, first of all, should require that, but I would

hate to see it put in a statute.

One of the provision in H.B. 6700 provides that if a

witness is improperly -- if an out-of-court identification

procedure is conducted, that that witness may never testify

in court and they never make an identification in court.

Now, that problem would be disastrous because as I said in

the beginning, that flies in the face of the whole Supreme

Court juris prudence that says if the in-court

identification is independent of the out-of-state show-up,

it can be admitted. Now, the State has a burden of showingit's independent and can show it by showing such things as

the witness' opportunity to observe at the time the crime

was committed whether the witness knew the person before

the crime, many things like that.

So the risk that we have suppression of an identification

with this procedure is risky.

Now, the other thing is, I've been a prosecutor for thirty

years and I can't remember many, off the top of my head, I

can't remember one case that depended on an individualidentification of a person. And recently -- and those are

the cases that worry. Juries know how -- and I don't want

to use the word "we". Juries know -- it's common knowledge

with jurors, at least, without any education, the weight

that they should give to in-court identifications or the

personal identifications. That's the person who robbed me



there. Jurors are hesitant to accept that. Police officers

are hesitant to accept that and so are we.

I don't think there's one death penalty case here that

depended on an eyewitness identification. An eyewitness

identification is a circumstance where the witness

recognizes the person and says yes, that's who did it, but

it is a circumstance and that's it. There's a lot more

investigative work that is done with regard to a case.

There's a lot more corroboration with regard to a case.

But these are areas which we should explore and we are

exploring and we are going to work with police departments

to try to develop better identification procedures. Whether

this is the one that we should develop and be the be all

and the end all of identification, I would hate to see that

written into a statute right now.

As far as lineups go, I don't think that's -- you know,

lineups have been conducted for years and years in this

state, an in-person lineup as opposed to a photographic

show-up.

Right now, with regard to photographs in the Motor Vehicle

Department, we have terrific access to photographs even

with people who aren't arrested. We can get blow-backs from

the Motor Vehicle Department and get good photographs of

people, so we're not using mug shots.

Are there any --

REP. MCMAHON: (INAUDIBLE-MICROPHONE NOT ON)

STATE'S ATTORNEY KEVIN KANE: Pardon me.

REP. MCMAHON: (INAUDIBLE-MICROPHONE NOT ON)

STATE'S ATTORNEY KEVIN KANE: Well, not necessarily good and

that's a problem we always have with mug shots. You may

have a person whose been arrested fifteen years ago and haschanged an awful lot. That is one of the problems with

these photographs.

REP. LAWLOR: Representative Farr.

REP. FARR: On the sequential identification, I guess --

I've been reluctant to suggest that we should do this by



statute, as well, in terms of statutorily defining a system

of identification because things change, our knowledge

changes, etcetera.

But I wonder if we couldn't set up a process whereby there

are some guidelines in Connecticut that can be upgraded and

changed by whoever is establishing these guidelines.

Instead of what appears to be the system now where it's

kind of ad hoc and everybody does whatever they want in the

various jurisdictions and that isn't even the State's

Attorney's issues. I mean that's every police department

that's got their own system.

STATE'S ATTORNEY KEVIN KANE: It is. It's a lot of training

through POST and through the State Police Training Academy

and in-service training that it can be done. It's not just

the training, but it's the studying it too. Both are

involved.

There is a professor down at Yale, the Connecticut Mental

Health in New Haven whose doing a study on the impact of

stress and the ability of people undergoing -- who have

undergone various amounts of stress to make

identifications. How helpful that will be, I don't know.

That's involved with the people he's studying are in the

military. Whether that can be objectively analyzed and what

we can learn from that, I'm not too sure. But there are

studies that can be done and should be done and I think the

areas to work through, the best areas are POST and theState Police Training.

REP. FARR: But the problem with POST is it doesn't

establish -- does POST establish a best practice?

STATE'S ATTORNEY KEVIN KANE: No, they just establish

training and departments, to a pretty good degree, follow

recommendations from POST.

REP. FARR: And does your office get involved with POST at

all?

STATE'S ATTORNEY KEVIN KANE: Very little.

REP. FARR: I see --

STATE'S ATTORNEY KEVIN KANE: I used to teach there at one

time --



REP. FARR: -- maybe the Chief State's Attorney --

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: There are

prosecutors throughout the State that are certified to

teach at POST courses. Mr. Cronin, I believe, does it.

Where did he go? I think he left. Mr. Cronin does it. I

know Mr. Shugrue does it, various other prosecutors do. So

we are in --

REP. FARR: Right. But I think what you're saying is you

teach individual courses.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Correct.

REP. FARR: But who sets the criteria? Who sets the

curriculum at POST? Who establishes what it is that's going

to be caught? Does the State's Attorney's Office get

involved in that?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, the POST

Advisory Council is set by statute and the Chief State's

Attorney does sit on that. I have attended -- in my brief

tenure I've attended some of those meetings already and

they have dealt primarily with issues of whether the person

had the minimal requirements to be certified as a police

officer in the State, things of that nature.

REP. FARR: But you haven't had discussions about this type

of topic?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We have not, but

I will explore whether that is a relevant topic for

discussion at those meetings.

REP. FARR: Okay, thank you.

STATE'S ATTORNEY KEVIN KANE: Can I just say one thing?

There are many technical issues too. We have discussions,

for instance, with regard to the use of digital photography

and I, right now, have been telling the police departmentsin New London jurisdiction and we have talked about this

ourselves as State's Attorneys to a degree to which we

should not be allowing the police departments to rely at

least solely on digital photography and leaving that to

technical things. There are evidentiary issues that have to

apply.



If a statute were to require or if we, as a matter of

policy, we, I mean the Division, were to require police to

record interrogations and interviews, if we got over the

other questions about who, when, where, what suspect meant,

who the accused was, where, whether it should be in a

cruiser or in the station, then, what kind of equipment

should be used, many should be using digital recording

equipment, should we use tapes, what should be done with

all of these? There are a lot of issues that have to

hammered out.

Digital recording is excellent. Digital photography is

excellent, but they can be easily manipulated. And there

are evidentiary issues that are involved.

These are things which the future is coming at us fast and

the age of technology we have to deal with those issues,

but these issues are very realistic. I would like us to be,

us as a Division, and the police, law enforcement in

general, to deal with this, to take the bull by the horns

and start dealing with some of these issues before the

Legislature enacts binding requirements.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: You know, in

recognition of these issues, we meet monthly and that's a

meeting that's set by statute. All the State's Attorneys,

Chief State's Attorneys --

REP. LAWLOR: Do you mean the Legislature commanded theState's Attorneys to actually meet every month?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Yes, they did.

REP. LAWLOR: And you abide by it?

STATE'S ATTORNEY KEVIN KANE: They did.

REP. LAWLOR: There's not a constitutional problem there?

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Well, we find itvery constitutionally enriching.

REP. LAWLOR: Just out of curiosity.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: But at any rate,

probably a common law, but anyway, we have, in the last few

meetings, are addressing sort of the issue of the day and



one of those issues was digital photography. Another was

open file policies of discovery policies. So there is a

healthy dialogue now going on between the State's Attorneys

and I find -- I introduce the topic and I sit back and I

watch the best minds of prosecutors debate this thing and

it's, I think, been very beneficial to all of them and it's

something we're going to continue to do and probably will

take up some of the issues we've talked about today. I know

we will take them up.

REP. LAWLOR: And by the way, I think it needs to be pointed

out that one function of the Legislature is to enact

statutes, but another function is to surface issues which

are legitimate to be discussed and whether or not it has to

take statutory form as a separate issue, but many of our

forums help sort of galvanize public opinion or allow

people to weigh in pros and cons and many of the things

that are talked about here are ultimately adopted by

regulation of just by practices and that's part of, I

think, the legitimate role of the Legislature. I think that

ought to be pointed out that I would agree that maybe some

of these proposals don't need to actually appear in the

statute books, but nonetheless, are, in fact, best

practices.

And I just want to -- Mr. Kane, you mentioned the

psychiatrist from Yale. Was that Andrew Morgan?

STATE'S ATTORNEY KEVIN KANE: Yes.

REP. LAWLOR: And I believe he's actually doing training for

-- he's doing research on the military applications of

stress and identifications, etcetera, but I think he's

doing training on sequential lineup as he goes to these

different local police departments and I believe he's

leaving in his wake, so to speak, these practices.

STATE'S ATTORNEY KEVIN KANE: I think he is and I think

that's why Mike Deerington has been speaking to him. Mike

couldn't be here. He was going to be here just to addressthis issue, which he's more familiar with than I am, with

regard to this.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Mr. Scheck also,

when we spoke before, he testified and after he testified,

said that he would help facilitate an introduction to an

individual who is very knowledgeable in training in this



area and we intend to reach out to that person and bring

him to our June training session.

REP. LAWLOR: He might end up being Andy Morgan, so we'll

see.

Representative Dillon.

REP. DILLON: Thank you. Just a couple of things. I was

interested in your testimony about -- on the question of

the taping. Some cities are doing the taping already, is my

understanding.

STATE'S ATTORNEY KEVIN KANE: Yeah.

REP. DILLON: And my concern about taping, I've always been

very sympathetic to it, very often had to do with younger

defendants and probably a younger defendant in a small town

just because a younger defendant might be more easily

intimidated simply by being there, not because of any

conduct on the part of the police, although I am also

sympathetic because my uncles were all New York City Police

Department people and their experiences made me think that

the police needed something to protect them because very

often they couldn't win on some cases, given the pressure

from all kinds of places.

And it was easier to protect the officers with the

document.

I'm particularly intrigued though by a couple of things and

I just want to notice them, not necessarily dwell on them.

And one of them was in Barry Scheck's testimony. He did say

that 81% of the exonerations that he had gotten came from

false i.d.

Now, I have no context for that. I know the denominator is

127, but I don't know to what extent he picked cases

because it might be easier. I know that's interested in DNA

and so obviously that might lead him to some cases wherefirst of all he could focus on the case, the 20% of the

cases where there were some biological evidence and then

zero in on the issue of the i.d.

So I'm not saying that I'm totally swooning over that

number, but because I understand that there was a selection



process that lead him to choose certain cases and I think

that's fine because that's what he was trying to do.

But 81% is a number of such magnitude that I think it

should give us pause to put something in place and so I'll

be very, very interested in what competitive proposal you

would come forward with because whether or not they

selected the cases, that's a big number and that tells us

something.

And it's still no matter how many inflammatory cases come

out about the behavior of younger defendants, it still

seems to me intuitively true that a younger defendant is

going to be more easily intimidated simply because they're

there no matter what.

And there's one other little thing that was mentioned by

Mr. Scheck that has always troubled me and that is the

perhaps inadvertent mention of one of the officers in an

interrogation of something that only the perpetrator could

have known because that is the kind of a thing that's

introduced very often at trial, that not because they're a

malefactor in any way, but simply because they're into the

interrogation might not even think about that category if

evidence or might not have direction about what they should

or shouldn't say and simply because they're doing the good

cop/bad cop thing which is absolutely proper, and with some

defendants you'll never get anything any other way, but

that category of information of things that only could havebeen known by the perpetrator, troubles me simply because a

good police officer whose simply trying to do an

interrogation who might not be reading the papers every day

because it drives him crazy and maybe wouldn't want to read

the press, wouldn't necessarily always reflect in the heat

of the interrogation on exactly only would be known to the

perpetrator and I would really like to -- that's one of the

reasons I'm sympathetic to the taping and I'd like you to

think about ways of addressing that if you're going to be

opposing the imposition of a statewide standard.

STATE'S ATTORNEY KEVIN KANE: We have and that's one of the

benefits of recording.

With regard to Mr. Scheck's observations, he has great

experience in New York and nationally. My experience in

Connecticut has been over the years and I've seen it become

more increasingly so, that police officers, prosecutors,



and juries are much -- are very aware of the need to go

beyond an identification by a witness to prove a case. It

could be initially and it could be in other states if a

witness says that's the person who robbed me, there's very

little more investigation done. The person is indicted and

charged and a jury has to decide.

Here, over the years, I've seen and certainly with regard

to prosecutors in my office and around the State, we've

very concerned with evidence that goes beyond eyewitness

identification of a witness and certainly don't want to

rely on that.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: I know I had a

rule when I was prosecuting, it was just a rule that had

been taught to me by an older prosecutor. When you have an

i.d., a photo i.d., you never go to trial on a one photo or

one person or one person identification. You're not

comfortable with two, you're going to have three and there

had better be some corroboration. So that was just sort of

a rule that was taught to me when I was learning how to do

this.

REP. DILLON: Don't forget the younger defendants and don't

forget the characterization, the certain evidence that you

would only know if you're a perpetrator.

SEN. MCDONALD: Thank you. Are there any other questions?

Senator Roraback.

SEN. RORABACK: Thank you, Mr. Chairman, just briefly.

Attorney Kane, did you submit written testimony?

STATE'S ATTORNEY KEVIN KANE: No, I didn't.

SEN. RORABACK: Oh, okay.

STATE'S ATTORNEY KEVIN KANE: I'm sorry, I didn't. I was

planning to and over the weekend we got carried away onanother case and I didn't --

SEN. RORABACK: You don't need to make any excuses, that's

okay.

The reason I asked the question is that when I look at the

Division's testimony, conspicuous by its absent, is any



written testimony on the question of video taping

interrogations. I think it would be helpful for me and many

other members to have a --

STATE'S ATTORNEY KEVIN KANE: I'd be happy to prepare

something and write something up.

SEN. RORABACK: -- formal position statement.

SEN. MCDONALD: Do you want it on video tape? Any other

questions?

SEN. RORABACK: Thank you, Mr. Chairman.

SEN. MCDONALD: Thank you very much.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: Thank you. I

have one other person and due to the lateness of the hour,

we could do it on written testimony.

SEN. MCDONALD: I appreciate that because there are a lot of

people who have been very, very patient here and we need to

keep moving. Thank you very much.

CHIEF STATE'S ATTORNEY CHRISTOPHER MORANO: We appreciate

the opportunity. And the easy and the hard questions, as

well. That's what it's all about.

SEN. MCDONALD: Okay. And forgive me, I'm trying to figure

out, maybe you guys can help me. I believe the next speaker

-- Chief Salvatore has spoken. Mr. Scheck has spoken. From

the public -- is Ron Gold here. Actually, there was Bob

Perski. Is Bob Perski here? Please come forward.

And not that I could have changed anything, but I do want

to apologize to everybody who has been so patient and

waiting their turn to speak. Clearly, it's an issue of

great importance and I just hope you will be tolerant as we

listen to everybody.

Good afternoon.

ROBERT PERSKI: Good afternoon. I want to thank you for your

patience in still being here to hear my three minutes. I

was told to have three minutes, so that's what I have.



The people I represent were probably not argumentative or

not legal, but we do care and work with these people.

My name is Robert Perski. I'm an active member and the past

president of the ARC of Connecticut, which advocates for

people with developmental disabilities. We, in the ARC

membership, have 24 chapters throughout the State. We're

very interested in the electronic recording of the H.B.

6612 and H.B. 6700.

Personally, I work with and write about persons with

developmental disabilities who were coerced into confessing

to murders and rapes they did not commit across the United

States and I'm an author of a couple of books and I have

files on over 100 persons with developmental disabilities

that the ARC believes were coerced in giving false

confessions.

Nationally, we can name Jerome Bowden in Georgia. He was

executed. Johnny Lee Wilson in Missouri, pardoned. Earl

Washington, Jr. in Virginia, pardoned. Dave Vasquez in

Virginia, pardoned. Delbert Ward in New York, acquitted.

Barry Fairchild in Arkansas, executed. Gerry Frank Townsend

in Florida, was mentioned, pardoned. Robert Wayne Sawyer in

Louisiana, executed. Howard Neil in Mississippi on death

row, and Richard LaPointe in Connecticut, life without

parole plus sixty years.

In the recent famous Illinois death penalty box score inwhich twelve persons were executed and thirteen were set

free, Anthony Porter and Alex Hernandez both were persons

with mental retardation in that group.

We, in our narrow, powerful focus, believe that when our

people are placed in a pressured interrogation room for

long hours, they will confess to assassinating President

Lincoln. We believe that that can happen. We believe it's

so because there's a widely little rascal in all of us

that's called the will to believe. You let in run in your

noodle long enough and pretty soon somebody's guilty orsomebody's innocent and you can pull it off without even

having any evidence.

I understand the power of the will to believe because I had

five kids at the same time, all teenagers and they would

take tools out of my toolbox and not put them back and

every time I found that out, I would just (inaudible). I



would call cold court and I'd act like a judge and I would

be stern and I would be mean. And when I was at my

crescendo, quite often my wife came along, took me my the

hand and took me to the place where I left the tool.

And I understand the power of the will to believe in that

I've sat in many courtrooms in this land where a defendant

with a developmental disability was accused of a rape or a

murder and the whole case was based on an awkwardly signed

confession that was printed out by an interrogator. No

stenographic record. No electronic recording. And at trial,

the detectives were well practiced in articulation because

this is what they do all the time and they described what

went on in the interrogation room and once in a while the

defendant takes the stand and he stumbles over his words

trying the best to describe what went on and the two don't

match.

Even so, most juries are prone to believe the articulate

detectives and not the defendant, the person we care about

and want to have justice.

We have a great believing in the court of our land because

we feel that this is where people with the wills to believe

innocence or guilt can come together and the court will use

every tool they possibly can use to whittle down these

wills to believe until they can come to a verdict that's

fair and a verdict that's true.

So, I have a great feeling for the police. I have a great

feeling for the prosecutors and the defense and I have a

great feeling for the court of our land where this can

happen and I guess I'm a guy who would say thank goodness

for a new truth telling tool called DNA. I noticed that

this year you're not blocking it as much as maybe four or

five years ago and I thank goodness for another truth

telling tool which is electronic recording because I

believe if you vote electronic recording, the judges and

juries will have the first chance that they've ever had to

hear what went on in the interrogation room firsthand andnot secondhand.

And we in the ARC believe with all of our hearts, we're not

legal people, we just have hearts and we know our people

and when they hurt.



As a matter of fact, this morning one of the people we

really care about and we understand his idiosyncrasies and

the front page shows how he was beaten to death with video

cameras there, I guess, and that shook us to our socks when

our people somehow don't have the justice that they need

and in the case of Richard LaPointe in Manchester, we the

members of the ARC, believe that if his nine hour

interrogation had been electronically recorded, he would

have never been arrested or convicted.

SEN. MCDONALD: Thank you very much. Are there any

questions? Thank you very much, Mr. Perski.

Next is Deborah DelPrete-Sullivan, followed by Ron Gold.

ATTY. DEBORAH DELPRETE-SULLIVAN: Senator McDonald, with

your permission, could Patrick Culligan, whose also signed

up on that same list, but later on, be able to come up with

me? He's signed on the State official list.

SEN. MCDONALD: There are a lot of people who have been

waiting an awful long time. We're going to stick to the

list.

Documents

2003 Death Penalty Hearing Testimony