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Olof The Dangerous Meets The Conformists

Welcome to Pleasantville, aka Anytown, Connecticut.

This time, Anytown is Stafford, in north central Connecticut by the Massachusetts border. The place has been violated by a huge and dynamic painter. The big guy tried to come back home from a West Coast adventure and share his vision with street kids and anyone else who might take a look.

For his efforts, Olof Aspelin has been charged with felony criminal mischief. The full weight of the law has landed on Big Olof.

I'm hoping Olof will overcome the pressure and the system. He will need some serious help. Some old friends already have deserted him.

Olof's biggest crime is being different. The gentle-sounding hulk with shaved head and various tattoos stands about 6-feet, three inches tall and weighs well over 200 pounds. Some of his art and perhaps some of his crowd bother the local powers that be.

The town and the state need to tame Olof, put him in his place. The spirit killers are primed with a vengeance.

Some of Olof's work is conventional. His portraits would do very well in mainstream galleries with what passes for art in the suburban chic towns.

Other pieces have overtly political streaks that could be called anti-authoritarian. Those in the latter category cause discomfort. There are faceless and perhaps oppressive cops, demonic soldiers in tanks and odd-looking creatures Olof calls "everyday man getting punished at work."

It is striking that those same subjects might not trouble people in everyday life, whereas their treatment by Olof the artist is indeed troublesome for certain officials and their cliques.

The trouble in Stafford started after Olof began attracting a crowd at a studio donated by a local businessman. The collaborative spirit generated lots of energy, art and noise. Soon, graffiti began appearing all around town. Olof admits he could not control his followers.

Instead of working to channel the creative spirit, however, authorities decided to drop the hammer on Olof.

They squeezed his former roommate. To make the charges go away, the roommate probably admitted to acts he did not commit. He also fingered Olof.

Cops raided the studio. They seized a big load of art supplies.

Was this a proper and effective allocation of police resources? Could it have anything to do with the reported painting of the local police headquarters? It certainly did not have much to do with protecting and serving the general populace.

Olof and his remaining friends stand strong. They are trying to create new studios and a gallery in an old mill. A coffee shop might be added to the mix.

Officials and some others are trying to shed the town of the Olof influence.

In one instance, it cost volunteers $50 to paint over graffiti on a railroad overpass. Authorities filed the repair estimate at up to $20,000. That estimate put the felony in criminal mischief. State prosecutor Cynthia Baer presented a case against Olof The Dangerous that could lock him up for 40 years.

A more enlightened community might have hired Olof and his crew to brighten up selected public spaces. Details could have been negotiated. It's happened in many other municipalities.

The actual workings of the so-called justice system are rigged to work against people like Olof and for people like the Stafford first selectman. The government class - including judges, prosecutors, town officials and, unfortunately, some purported defense lawyers - tends to serve itself at the expense of other citizens who either lack political connections or are in political disfavor. Chalk up at least two strikes for Olof.

Olof refused a plea deal much like the one taken by his former roommate: five year suspended sentence, four years probation and payments totaling more than $13,000 for restitution and to charity. Olof told me his lawyer wasn't happy about his rejection of the plea deal. Olof's lawyer will need to work for a living or Olof will need to get a real lawyer. He needs some serious juice for even a longshot hope at justice.

Clearly, the repair estimates and the arrest warrants are cooked to pile on Olof.

Stafford First Selectman Allen Bacchiochi has vowed to protect the community from graffiti artists. The police will be watching. It is Bacchiochi who should have been charged in this case - for impersonating a leader. His tombstone might read, "I made Stafford safe from art."

Olof's case is pending in Rockville Superior Court.

Predator Hunting

Hunting sexual predators is a big game, and a big money, sport in the entertainment industry. But is it perverting the ends of justice? And is it ethical for journalists to play at law enforcement?

These are questions raised in Douglas McCollam's excellent piece in the current issue of the Columbia Journalism Review. The Shame Game

NBC has discovered gold in the form of Dateline's "To Catch A Predator" series. The network collaborates with a group called, appropriately enough, "Perverted Justice," to set up child sex stings in communities around the country.  The network is reported to have paid the group at least $100,000 for its assistance in helping to set up the stings.

The format for the show is simple. Have someone pose as a minor on the Internet. When an adult shops for sex with the minor, the two agree to meet. NBC and the camera crew await the mark. When he arrives -- there have been no woman to have fallen into this particular online trap -- the cameras role and correspondent Chris Hansen confronts the lust-ridden sod. Police officers wait outside to perfect an arrest. Those arrested include doctors, lawyers and teachers.

What fascinates about this?

Lawyers are social oncologists. We deal with human imperfection in the form of the seven deadly sins: rage, avarice, lust, these are our stock in trade. We even entertain ourselves with fictional accounts of murder, greed and wayward desire. But reality TV is setting new boundaries. What next, cameras in the emergency room?

With these new boundaries should come new responsibilities. When television dictates the pace and character of the arrest, producers should be liable at law. Consider the case of Louis Conradt Jr. His family contends that his blood is on the hands of NBC. They may be right.

Conradt was a prosecutor in Terrell, Texas. He was caught up in an Internet sting operation operated by Perverted Justice and NBC. Police gathered outside his home to make an arrest. Cameramen stood by to film the fall of the mighty lawman. Rather than face public scorn, Conradt killed himself. He understood that the presumption of innocence was no defense to fanfare that would follow his arrest.

NBC is quick to point out that there is no evidence that Conradt knew the cameras were hovering outside his home. Perhaps he would have killed himself in any event. The Texas Rangers are investigating whether the arrest was arranged to accommodate the needs of the film crew's schedule.

Police officers are generally immune from suit for their routine conduct in perfecting an arrest. But that immunity does not extend to television producers. No traditional tort covers the filming of an arrest in a public place. But why not experiment with the various privacy torts? Why not a claim for something like false lights?

I understand the claim might be novel. A man who confesses can't well contend that his arrest portrays him in a false light. But there is something tawdry about using arrests to feed television ratings.

Is anyone aware of cases that have sought to stretch the boundaries of common law in this area? Should the Dateline crews and Perverted Justice creeps come calling in Connecticut, I'd like to be prepared with a sample writ or two.

Federalism? Not When Child Porn Is Issue

I've been watching the U.S. Attorney's office in recent months with a growing sense of misgivings. The office has started a new project, one designed to coordinate the prosecution of sex offenders with state officials. It is modeled on the state-federal program designed to remove guns from the streets.

Today, the federal government serves as scolding tutor to the states. If it does not like the way a state judge handled a case traditionally involving limited state powers, it may sweep in and prosecute the same offense under the federal penal code. Why? Because it can, and because no one will care, if the crime is child abuse.

Not long ago, Hartford Superior Court Judge Thomas Miano sentenced a man to probation. The man possessed hideous and grotesque images of children being molested. The defendant somehow found these images sexually stimulating.

The man's lawyer sent the man to a psychiatrist. After the guilty plea, the psychiatrist testified the man was a low risk of recidivism and was genuinely remorseful. Judge Miano sentenced him to probation, sex offender treatment and required registration as a sex offender. That was justice according to the State of Connecticut.

U.S. Attorney Kevin O'Connor didn't like it. Federal prosecutors now plan to charge the man with a federal felony. Plea negotiations are underway. The feds intend either to try the case or accept a plea bargain that requires prison time. This existential double jeopardy has sparked no public outrage. Why? Because the defendant's crime is dark and despicable.

The message? Be careful when you resolve a state case involving child sexual abuse. If you strike too good a bargain, the feds may sweep in. Why aren't state prosecutors up in arms?

And what of the prosecution of Greenwich attorney Phil Russell? He faces felony charges for violation of a new penal code making it a crime to alter or destroy evidence in contemplation of a federal investigation. This provision of Sarbanes-Oxley makes it easier to prosecute destruction of evidence by eliminating the prior requirement that the evidence destroyed be closely related to a federal investigation actually taking place.

Russell represented a Greenwich church. An employee of the church was found to be viewing child pornography on a church computer. Apparently, Russell counseled firing the employee. That was done. Then Russell destroyed the computer so that images on it could not be retrieved. The newspaper headlines screamed that Russell had destroyed evidence in a child porn case.

This may be the first test of the new statute, 18 U.S.C. 1519, against a lawyer counseling a client. Whether the statute survives a vagueness challenge is an open question.

Sure, no one is above the law. But the law's guarantees seem relaxed when the crime is hideous.

What's going on in the Justice Department? Why a holy war against what even we sinners regard as evil? Are the states impotent? Or is it simply too hard to resist the temptation to encroach on state powers?

Reprinted with permission of The Connecticut Law Tribune.

Judge Jackass Gets His Wish

WTIC radio in Connecticut is reporting this morning that blubbering Judge Larry Seidlin of Fort Lauderdale has been offered a spot of some sort on the Early Show. This represents an all-time low for the judiiary in the United States.

First, the judge meandered for days through the Anna Nicole Smith hearings. "Oh, what to do with the decaying body of this aging pinup girl?" he all but wondered. Then he salted the hearings with anecdotes about himself. He swims. He had a tuna sandwich for lunch. He cried.

I don't know whether the position at CBS will require that he leave the bench. It should. His conduct on the bench last week was not reflective of what takes place in a court of law where a judge strives to see that justice is done. Seidlin is an embarassment.

Abuse of Discretion?

It's rare that a local newspaper goes to the lengths that the Norwich Bulletin has gone on behalf of a person accused of a crime. The Connecticut daily newspaper has gone so far as to publish the complete trial transcript in the case of State v. Julie Amero. Read About It Here Was an injustice done?

The 45-year-old substitute teacher was convicted by a jury of four counts of risk of injury to a minor. She faces sentencing this week; her exposure is 40 years.

What did she do? According to trial testimony, children in her middle school class saw pornography on a class computer, and Ms. Amero did not do enough to prevent the children from seeing it. Is that enough to violate the state's porous risk of injury to a minor statute?  The statute prohibits anything that undermines the health or morals of a child.

The defense contended that the pornography appeared on the screen not as a result of wilfull conduct on the part of Ms. Amero. Indeed, she was not a regular in that classroom. Another teacher, who has not been charged, had day-to-day use of the computer. Ms. Amero, the state contends, could at least have unplugged the computer if she lacked any other means to keep the images from appearing where children could see them.


W. Herbert Horner, a defense witness and computer expert, was prepared to testify that the images appeared on the screen as a result of the acts of others. However, the trial court judge, Hillary Strackbein, did not permit him to offer his opinion. Why? He was not disclosed as an expert in a timely fashion.

Judge Strackbein's ruling may well be an abuse of discretion. Ordinarily, the defense need not disclose witnesses prior to trial. Indeed, in one recent case regarding the late disclosure of an alibi, the Appellate Court ruled it was an abuse of discretion to refuse to permit the witness to testify.

Of course, Ms. Amero's ace in the hole in this case is a habeas corpus petition. If a reviewing court upholds the conviction, then her trial counsel will have to answer why he failed to disclose his expert in a timely way. No strategy supports that decision.

Judge Cassell: Activist On A Roll

Someone please tell me that U.S. District Judge Paul Cassell of Utah is not the menace he appears to be from afar? This jurist doesn't like Miranda, thinks capital punishment is just peachy and wants to amend the constitution to make victims all but parties in criminal proceedings.

Judge Cassell is now urging the Advisory Committee on the Federal Rules of Criminal Procedure to give crime victims an even greater role in federal criminal proceedings. They should be consulted, he says, about pleas, sentencing and whether a case is tried to a jury. Is This Guy For Real? Never mind that the right to a jury trial is the defendant's. Judge Cassell thinks we're missing an opportunity to treat victim's fairly.

The judge's suggestions, if implemented, would effectively transform a criminal case into a three party proceeding, pitting the defendant against the government, and the victim against whomsover he or she chose to oppose. We abandoned private prosecutions for crimes long ago out of the recognition that the anger, rage, and passions of victims are not the font of good public policy. Why the temptation to embrace these emotions anew?

In the state courts, victims already hold enormous sway. Elected prosecutors and judges are running scared of victims. Even in districts where these officials are not elected, timorous judges and prosecutors cower. In Connecticut, the right of crime victims to be heard often translates into a veto power.  Forget justice, give me rage, seems to be the new mantra.

A prosecution pits the government against an individual accused of breaking the law. The government's interests are not those of a victim. Intelligent decisions about the need to deter others and the ends of justice animate a decision to prosecute. What often animates a victim is a desire for vengeance. Consider Ron Goldman. Do the likes of Judge Cassell really want to create courtrooms that have the look and feel of Oprah Winfrey's television studio?

Cassell is a judicial activist. Earlier this month, he rejected a plea between the government and a defendant in a tax case. The judge decided the defendant should do time behind bars, although the prosecution did not insist on that. It was as though this referee could not bear merely to enforce the rules; he needed to grab the ball and try to score a touchdown all his own. The Zebra Scores!

The Utah judge is no stranger to controversy. I'm Now Free To Be Me He's so full of himself that he has his own website and he encourages counsel to visit it before appearing before him so that they can be better prepared for whatever it is he is dishing out on any given day. Court rules aren't enough for this judge. Lawyers now need what amounts to Cassell's Rules of Etiquette.

This judge scares me. He's at the vanguard of the new managerial revolution. I'm guessing he also thinks he is also entitled to a raise for his efforts.

Toot, Toot, Toot: Blowing My Own Horn

City man acquitted in 2006 shooting
-NEW HAVEN — A Superior Court jury late Thursday afternoon acquitted Gilbert Galan of first-degree assault and carrying a pistol without a permit in the 2006 shooting of Sean Patterson.
Shortly before the six jurors returned the verdict, Superior Court Judge Robert Holzberg declared Galan, a 25-year-old New Haven resident, innocent of criminal possession of a firearm. Holzberg had handled that charge on his own so the jury wouldn’t know Galan had a previous conviction on another weapons charge.
The prosecution’s case depended on jurors believing the testimony of Patterson, who said he was hit by seven bullets but was not seriously injured, and of Paul Shuford, who was sometimes angry and combative as he testified. Both men said they saw Galan do the shooting.
Patterson, an admitted crack cocaine dealer, testified he had an argument with Galan April 13, 2006, two days before the shooting. Patterson said they argued over narcotics, after which Galan chased him to Patterson’s Day Street home, where Patterson fired a gun in Galan’s direction.
In his closing argument, defense attorney Norman A. Pattis repeatedly showed jurors Galan’s Connecticut driver’s license, which included a photo of Galan with short hair. The photo was taken one month before the shooting, after which Patterson picked out Galan from a police photo board. But in that photo, the subject had braids or dreadlocks.
Pattis told jurors Galan would have needed "Miracle-Gro" to grow his hair that fast.
After court adjourned Thursday, Gilbert Galan Sr. said, "It took a while, but we’re happy with it. Mr. Pattis did a wonderful job."
He said of his son, "He’s happy he’s not convicted of something he didn’t do. Sometimes at trial you get the short end of the stick."
Galan Jr.’s 5-year-old daughter, Iyana, wrote a message on a pad and showed it to a reporter: "I love my daddy."
But he was not able to rejoin his family, as he still faces prison time for previous convictions. Pattis said he will not be released until sometime in 2008.
Assistant State’s Attorney Brian Sibley Sr. said, "The jury spoke. Some you win, some you lose. Obviously, I’m disappointed. A lot of work goes into it. Apparently there wasn’t enough to satisfy six people to convict beyond a reasonable doubt."
The jurors began deliberating Wednesday afternoon and reached their decision by 3:45 p.m. Thursday.
Pattis said later, "I’m grateful to this jury for following the law. It was a hard case."
From today's New Haven Register.

Crocodile Tears

One need look no further than the courtroom of Judge Larry Seidlin for an argument against cameras in the courtroom. The judge sniviled and emoted like a pro se in traffic court for the cameras today, when he gave the lifeless body of Anna Nicole Smith to the lawyer for her five-year-old daughter.

It might have been the most contrived and nongenuine audition ever performed.

The balding jurist wants his own television show. Lights, Camera, Chrome Dome So he transformed the proceedings in the Anna Nicole Smith case into the next biggest farce since the O. J. Simpson miniseries starring Lance Ito. I wonder what makeup he applied and whether he practiced his crocodile tears in front of the vanity mirror he must keep in his chambers?

Smith's various suitors have all emerged claiming to be the donor of the sperm that produced the former Playboy bunny's baby. All seem to think that having a piece of the run-down pin-up girl entitles them to manage the fortune she left to her child. And how did she come to this fame and furtune? The way many so many aging bombshells do -- she found a sugar daddy with vision dimmed enough to be blind to what Botox could not cure.  And then fought all the way to the United States Supreme Court to hold the fortune he left her when he died.

So Judge Larry had difficult decisions to make, and he had to make them in a hurry. Ms. Smith's body was decomposing as he preened.

Why televise this tawdry mess? Because we are titilated by a blonde with surgically enhanced breasts? Because we miss smarmy young gadabouts like Kato Kalen and want to see the suitors sing in this hyper-reality version of American Idol?

Televisions in the courtroom raise serious questions about public policy and a public educated in the means by which the law resolves disputes. But how do we prevent cameras from influencing the proceedings? Who to do about a man like Judge Seidlin?

The issues in the Smith case are not soul-wracking any more than the normal mayhem attendant to litigation. This judge took advantage of this case to advance his own collateral interests in a way that calls into question his fitness to serve as a jurist. I would not want this histrionic clown anywhere near a case of mine, no matter how low the stakes.

Does this judge belong on television? Perhaps. He certainly doesn't belong on the bench. Has anyone considered an ethics complaint against this nitwit? Isn't using a case as a prop for his television amibitions wrong?

Does anything go in the Sunshine State?