-Submitted by David Drumm (Nal), Guest Blogger
In the case of Fourtin v. Connecticut, the Supreme Court of Connecticut overturned the conviction of Richard Fourtin. Fourtin was convicted of sexually assailing a twenty-five year old woman with significant mental and physical handicaps including cerebral palsy, mental retardation and hydrocephalus. The Court, in affirming the Appellate Court’s judgement, found that the woman could have used “gestures, biting, kicking and screaming” to indicate “her lack of consent to sexual intercourse at the time of the alleged sexual assault.”
Many were initially outraged at the opinion of the Court, here, here, and here. However, Ken at Popehat schooled the outraged in the meaning of due process. Ken pointed out that the prosecutors:
made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.”
The Court found that the woman did not exhibit the “physically helplessness” required by the statute. The Court cited precedence and similar laws and court rulings from other jurisdictions to support their finding that physically helplessness “has a particular statutory meaning that requires more than a showing that a victim is totally physically incapacitated.”
The relevant statute defines physically helpless as:
(6) “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
The woman was not unconscious so the prosecutors would have to prove that the woman was “physically unable to communicate unwillingness.” The Court ruled that the prosecutors did not meet that obligation, fundamental to due process.
The question that is left unanswered by those criticizing the prosecutors is why did the prosecutors choose an infrequently used statute? An obvious answer is that the prosecutors didn’t think they could get a conviction using another statute.
Applying “physically helplessness” to a severely disabled woman would have the effect of using the power of the state to prevent her from engaging in sexual intercourse.
H/T: Gideon, Connecticut Post, Scott Greenfield.
Do you know how to say kiss my as*. Lawyer’s and police lie all the time. Everybody knows you’re scum. Get your head out of your as$
Pa Superior court called doctor’s testimony perjurious: “We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony at trial.” Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995
He said in 2 separate depositions facial paralysis (what happened to me) a” major and common complication of the surgery (named after him)” and on stand said “unknown complication”
My understanding is that officers of the court are supposed to take action when they have information a crime has occurred. It was incumbent upon my attorney, or the Judges, or even opposing counsel to bring it to the attention of the authorities.
Local statutes vary, but they all sounds something like this:
18 USC § 1621 – Perjury generally
Whoever—
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
Also, perjury is generally illegal in Britain under the Perjury Act of 1911 as modified by the Criminal Justice Act 1967 (c. 80), s. 89(2)C2, the Criminal Justice Act 1948 (c. 58), s. 1(1)C3 and by Magistrates’ Courts Act 1980 (c. 43), s. 106(2).
Matt here it is supposed to be criiminal and prosecutable.
leejcaroll 1, October 14, 2012 at 8:07 pm
Matt Johnson1, wrote:
Does that mean fair adjudication is impossible? Doesn’t speak well for the legal profession.
Malisha and others have told their stories as have I (Doctor Peter Jannetta perjures himself, lawyer literally forces me to take bupkis after 14 years in court and within month Gov Ridge appoijnts doc as sec’t of health state of Pa (P.J.Jannetta 1995-1996, as reminder of my sit.). Seems harder to find fair, non politicized, non biased adjudication then one would think, or at least hope.
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Perjury is legal in England. American law is supposedly based on British common law.
Guess the woman’s rape must not have been one of those “legitimate” ones.
Matt Johnson1, wrote:
Does that mean fair adjudication is impossible? Doesn’t speak well for the legal profession.
Malisha and others have told their stories as have I (Doctor Peter Jannetta perjures himself, lawyer literally forces me to take bupkis after 14 years in court and within month Gov Ridge appoijnts doc as sec’t of health state of Pa (P.J.Jannetta 1995-1996, as reminder of my sit.). Seems harder to find fair, non politicized, non biased adjudication then one would think, or at least hope.
nal,
Apparently I was too terse and was misunderstood. I wasn’t clear.
I was initially working with my memory of the original article which said the woman is functionally equivalent to a 3 year old, Your reference declares that to be a lie. I think that’s an overstatement.
You’re correct that the article states that there is no where in the opinions that it was claimed that the woman had the functional capability of a 3 year old. However, the quote I pulled is from the very same reference. The quote is a footnote of the documentation that says she has the functional equivalence of a child of 2-5 years. Some liberty was taken in the article I remember in declaring her functional capabilities to be that of a 3 year old, but that is within the range of 2-5 years.
The Supreme Court made the right call. The prosecution made the charge based on the woman not being able to “say” no, even physically, while at the same time presenting evidence that she could. This was heinous on the part of the prosecution, either through carelessness or insensitivity to woman’s condition, since there was a statute that addressed her functional capability of 2-5 year old child.
Anonymously Yours 1, October 13, 2012 at 8:12 pm
It pays to know a good attorney….. It pays better dividends to know an attorney that knows the judge….
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Does that mean fair adjudication is impossible? Doesn’t speak well for the legal profession.
My situation really wasn’t that serious, but it leaves me with a certain lack of respect for the judicial process.
I have no idea, but thanks anyway.
Does this only apply to the clean ones, corrupt one, etc????
How do the defense attorneys feel?
Answer if you will, but not a need here. Just posing questions as usual.
It’s hard to understand how tough it is for a prosecutor to lose a case where they know a criminal is going to walk like this case. It hits them right in the gut. Having a person you love scorn you is the best analogy that all people can understand.
“[A] clinical psychologist, described the victim’s total functioning as akin to that of a person between the ages of two and five years old, which he based on a ‘‘total composite’’ indicating ‘‘severe to profound deficit[s]’’ in the areas of living communication, daily living, socialization and adaptive behavior.”
OK then the prosecutor screwed up by charging and prosecuting under the wrong statute. Clearly, the appeals court could have considered that “harmless error” if they wanted to let the conviction stand. Or, since the guy was not prosecuted for the crime he was actually guilty of, probably double jeopardy would not have attached if he was re-prosecuted for the correct crime, if necessary, or something LIKE that. I don’t really know. But the bottom line is perhaps it came out wrong because the prosecutor made a mistake. I don’t like that but I can live with that. A prosecutor CAN make a mistake, even when he shouldn’t. Even a judge…but don’t go there.
If the guy got off because of prosecutorial error, I am glad, at least, that he had to go through the whole trial, conviction and appeal to get where he has gotten in being cleared in the end because of a technicality. It’s not like he got off scott free. That’s SOME consolation. Our system is filled with error and by necessity any system is, but unless it’s deliberate misconduct I am not as horrified by it when it does occur.
It pays to know a good attorney….. It pays better dividends to know an attorney that knows the judge….
http://www.thepetitionsite.com/takeaction/819/522/417/?z00m=20425956
“Close the Loophole That Freed Disabled Woman’s Rapist From Conviction” petition
I repeat, ““Ralph Welsh, a clinical psychologist, described the victim’s total functioning as akin to that of a person between the ages of two and five years old, which he based on a ‘‘total composite’’ indicating ‘‘severe to profound deficit[s]’’ in the areas of living communication, daily living, socialization and adaptive behavior.”
The prosecutors screwed up. There IS a statute that applies but they didn’t use it.
Whatever it is about, I think I can still say that the prosecutors screwed up. And that is almost worst than he went free. Because it was not the first time, nor the last time. (Alledgedly of course. A pure supposition. Not investigated—-and never will be.)
So NAL, was this a disguised case of “how do we put the right criminals in jail”?
bettykath 1, October 13, 2012 at 2:34 pm
Dredd,
“This is not about legal age of consent, real age or cognitive level age.”
Yes, this is exactly what this case is about.
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No it isn’t.
A case is about the charges brought against a defendant.
What her actual or even her cognitive age is not discussed because it is not relevant.
She could be 3 or 93 but if unconscious, and the defendant had sex with her while she was unconscious, there could be a conviction under that statute.
The unconsciousness is the key, not the actual age or the mental age.
When unconscious, whether you are 3 or 93 is not relevant, if someone has sex with you the relevant factor is the unconsciousness.
It is not mentioned in the court opinion because the charges had nothing to do with a crime based on age or mental age, nor did the prosecution’s case, as you pointed out.
bettykath:
As pointed out in one of my sources:
That’s a flat out lie. That sentence does not exist in either the majority or dissenting opinions. While it is true that she has severe cerebral palsy and cannot verbally communicate, nowhere is it mentioned that she has the “intellectual functional equivalent of a 3-year-old.”