State court strikes down no-bail law Ruling
could affect Skakel case, attorneys say
By Kevin McCallum - Stamford Advocate

The state Supreme Court yesterday struck down as unconstitutional a law denying bail to people convicted of violent crimes, a ruling that could prompt numerous convicts, including Michael Skakel, to request release while awaiting the outcome of their appeals.

The law, which took effect Oct. 1, 2000, violates the separation of powers doctrine of the state constitution because it interferes with the orderly running of the courts and prevents Superior Court judges from using their discretion over a wide range of cases, the court found.

"The demarcation line for the separation of powers is somewhat flexible, but in this case, the Legislature really went far over the line," said Richard Emanuel, a Branford attorney who filed a "friend of the court" brief on behalf of the Connecticut Criminal Defense Lawyers Association. "This is a fabulous decision that will benefit an incalculable number of present and future defendants."

The case of Connecticut v. James McCahill came to a head last year when a jury in New Britain found McCahill guilty of burglary and sexual assault. After the verdict, state Superior Court Judge Bernard Gaffney set a $250,000 bail. McCahill posted a bond and was released pending his sentencing.

At his sentencing in August, the judge imposed a 12-year sentence, suspended after six years. McCahill asked to be released on bail pending the outcome of his appeal.

Prosecutors and the victim objected, arguing that state statues, as amended in 2000, prohibited his release because his crime involved the use of physical force against another person. Gaffney disagreed, and declared the law an unconstitutional violation of the separation of the legislative and judicial branches of state government. He allowed McCahill to remain free on bond.

The office of the Chief State's Attorney appealed the decision.

In its ruling, the court focused on the portion of the 2000 law which prohibited the granting of bail for people convicted of "any offense involving the use, attempted use, or threatened use of physical force against another person."

A number of such offenses are misdemeanors, which routinely result fines or probation, but not jail time. It made no sense for the Legislature to be instructing judges in such cases to send people to jail while they await the imposition of a fine, the court found.

"A more significant interference with the trial court's orderly functioning can hardly be imagined than to force it to subject a defendant to a period of incarceration when, later, it properly determines that the appropriate punishment under the circumstances is the imposition of a fine or probation," the court found. ". . . (The law) instructs a trial court that, in a very wide class of cases, its discretion to grant post conviction bail have been eviscerated."

The appellate process would be similarly undermined for people convicted of minor offenses, the court found.

"In the absence of (the court's power to grant bail), a defendant who has been convicted of a minor offense and who will receive only a short term of imprisonment, will likely serve most, and probably all, of his sentence before his appeal would be decided," the court found.

In the Stamford/Norwalk judicial district, the change in the law likely will result in a number of bail hearings for people who were denied bail under the law and have appeals pending, said Jim Bernardi, supervisory assistant states attorney.

"It's going to require a score or so of additional bond hearings," Bernardi said. "We can handle it."

The ruling may very well affect one of the most high-profile cases in state history -- the June 7 murder conviction of Skakel.

The 42-year-old Kennedy cousin is set to be sentenced Aug. 28, and the defense team has vowed to appeal. Skakel's attorney, Michael Sherman, said he was pleased with the ruling.

"It's certainly in the win column," Sherman said, declining to discuss how the ruling might affect his client.

Deputy Chief State's Attorney Christopher Morano, who helped prosecute Skakel, declined to discuss strategy before the sentencing, but agreed the ruling could apply to Skakel.

"It certainly gives them something to consider," he said.

In another portion of the ruling, however, the court indicated it is less concerned about the law's effect on serious crimes, "because the term of incarceration normally levied for such crimes would likely exceed the period of time that it would take for resolution of the defendant's appeal."

State Rep. Michael Lawlor, D-East Haven, chairman of the judiciary committee that approved the law, said a group advocating victims' rights proposed the original amendment.

Despite warnings about its constitutionality from the likes of state Rep. Robert Farr, R-West Hartford, the proposal made it through Lawlor's committee.

"The bill passed in its original form. Normally, people would attempt to rewrite it slightly. But for one reason or another, that did not happen," Lawlor said yesterday.

Lawlor, a former prosecutor, said he does not agree with the court's reasoning, but said the Legislature got its message across.

"I think judges will hopefully keep in mind the very clear public policy statement made by the Legislature that they should be careful about releasing people convicted of violent crimes," he said.



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