Opinion
HHDCR180695470
07-08-2019
STATE of Connecticut v. John BUTLER
UNPUBLISHED OPINION
OPINION
James T. Graham, Superior Court Judge
This criminal case against the defendant, John Butler, involves eight felony charges related to drugs and guns, one of which carries a mandatory minimum sentence of five years incarceration. The motion before the court, as supplemented with specifics at the court’s direction, seeks to disqualify supervisory assistant state’s attorney, Vicki Melchiorre (Melchiorre), on the basis of an alleged violation of the equal protection clause of the fourteenth amendment to the United States constitution and Article first, § 20 of the Connecticut Constitution. A preliminary status conference was held on the present motion on December 20, 2018. An evidentiary hearing was held on January 31, 2019, after an intervening hearing upon a motion to seal records and close the courtroom. Following the evidentiary hearing, a scheduling order for briefs was issued. The last brief was filed on March 29, 2019.
See General Statutes § 21a-278(b)(1)(A).
The defendant has made no separate argument as to the state constitution.
The courtroom was not closed.
This motion is based upon comments made in chambers at a pretrial for this case on October 29, 2018. As is customary, the pretrial was not on the record. Present at the pretrial were the presiding judge, the Honorable Laura Flynn Baldini (Judge Baldini), the prosecutor handling this case, Melchiorre, and the defendant’s counsel, attorney Hubert J. Santos (Santos) and his associate, attorney Trent A. LaLima (LaLima).
There had been previous pretrial discussions before Judge Baldini in this case where LaLima had argued for a favorable disposition, seeking as little prison time as possible. This was the first pretrial where Santos was present.
Santos argued for a disposition without prison time for the defendant, specifically referencing that the defendant was from a good family, grew up in West Hartford, had good work history, and had tried to cooperate with law enforcement. The controversy arises as to exactly what Melchiorre then said at that pretrial.
Neither party chose to call Judge Baldini at the evidentiary hearing. The three attorneys present at the conference all testified. Each of the three attorneys has a subtly different version of what was said by Melchiorre. Each of the three attorneys has an interest in the outcome of the motion. The court believes that each testified according to his or her best recollection. LaLima was sitting behind Santos during the conference, which probably explains why his version is the most at variance with the others.
All agree that Melchiorre mentioned the defendant’s economic status and his race, referring to him as "white." Santos and Melchiorre agree that Melchiorre mentioned the defendant’s suburban residence. Santos and Melchiorre agree that Melchiorre compared the plea deals for middle-class white defendants to the deals others received.
The court finds that Melchiorre was incensed and responded to Santos’ argument for a disposition without prison time for the defendant by stating "I am not going to treat a white, middle-class suburban drug dealer any differently from an inner city drug dealer." Melchiorre was incensed because she perceived that the defendant was seeking to be treated differently from other alleged drug dealers prosecuted in Hartford. Melchiorre sought to treat the defendant the same as other alleged drug dealers. Melchiorre then indicated to the judge that she wanted the defendant to plead guilty to the pending charges. The defendant was, of course, free to reject that offer by the state. The pretrial ended shortly thereafter, without a judicial offer.
It is unclear whether that offer specifically included pleading guilty to the mandatory minimum charge or to an alternative charge, which has no mandatory prison time.
Immediately after the pretrial, the case was called on the record to obtain a new court date. On the record, Santos made no objection to the comment made by Melchiorre at the pretrial. At a subsequent date, Santos met with the state’s attorney, Gail P. Hardy (Hardy), and attempted to obtain a better offer. At that time, Santos did not complain to Hardy about her subordinate’s comment at the pretrial. Eventually, the defendant obtained an offer to plead to the charges with a right to argue the sentence to the court or to go to trial.
Only later, at the next court date, did Santos disclose that a motion to disqualify Melchiorre would be filed. The defendant has yet to officially decline the state’s offer.
The defendant relies heavily on the fact that Melchiorre mentioned the defendant’s race in her comment, alleging a bias by Melchiorre against him. Melchiorre has handled thousands of drug cases in Hartford. Most drug case prosecutions in Hartford involve people of color.
All the participants at the pretrial, including Melchiorre, Santos and LaLima, are white.
Melchiorre has previously prosecuted white defendants on drug charges, including a few other white, suburban, middle-class drug dealers. Melchiorre denies that race has ever played a part in the disposition of those cases. Santos, who has represented white, black, and Hispanic defendants against Melchiorre since 1991, has never before perceived that an offer or decision made by Melchiorre was based upon race. Melchiorre has never made a previous comment about race to him and he believed her to be a fair prosecutor.
The defendant argues that Melchiorre should be disqualified on the ground that she discriminated against him in plea negotiations. The defendant claims that he is protected during plea negotiations by the equal protection clause and argues that the law on selective prosecution should be applied to the plea bargaining process.
The state argues against applying constitutional protections to the plea bargaining stage, pointing out that "Where is no constitutional right to a plea bargain, and the decision whether to offer a plea bargain is a matter of prosecutorial discretion." United States v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993).
While there may be no constitutional right to a plea offer, the reality is that in Connecticut, like many other jurisdictions, the plea bargaining process is an integral part of the criminal justice system. See Gonzalez v. Commissioner of Correction, 308 Conn. 463, 477, 68 A.3d 624 (2013) ("plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system" [internal quotation marks omitted]). The majority of prosecuted cases are disposed of by plea bargains. See Missouri v. Frye, 566 U.S. 134, 143, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ("ninety-four percent of state convictions are the result of guilty pleas"). Despite the state’s position, the court is unwilling to accept that the equal protection clause does not apply at such a crucial stage in the legal journey that most criminal defendants travel, in which the prosecution and defense routinely engage, and which carries high stakes for many defendants. For the foregoing reasons, the court will apply the equal protection clause to this plea negotiation.
There is authority in other jurisdictions for applying the equal protection clause at the plea negotiation stage. In United States v. Redondo-Lemos, 955 F.2d 1296, 1299 (9th Cir. 1992), overruled on other grounds by United States v. Armstrong, 49 F.3d 1509 (9th Cir. 1995) (en banc), rev’d, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (Redondo-Lemos I), the United States Court of Appeals for the Ninth Circuit recognized the application of the equal protection clause to plea negotiations. In United States v. Estrada-Plata, 57 F.3d 757, 761 (9th Cir. 1995), the Ninth Circuit established that a defendant must show not only a discriminatory impact but also a discriminatory motive to establish a prima facie showing of selective treatment in plea negotiations. If, however, the government’s rebuttal evidence proves no discriminatory purpose or impact, the equal protection claim fails. See United States v. Redondo-Lemos, supra, 1302.
Connecticut’s appellate courts have not yet extended the law of selective treatment to the plea negotiation process as set forth in Redondo-Lemos I . Connecticut’s appellate courts have, however, recognized the doctrine of selective prosecution, which the defendant urges the court to use as a template. See State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998).
A prosecutor’s discretion prior to trial is "subject to constitutional constraints." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). One of these constraints, imposed by the equal protection clause "is that the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification." (Internal quotation marks omitted.) Id. The test for selective prosecution is well settled and draws on "ordinary equal protection standards." Id., 465. But "[b]ecause such claims invade a special province of the Executive- its prosecutorial discretion- we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 489, 199 S.Ct. 936, 142 L.Ed.2d 940 (1999).
A defendant claiming selective prosecution must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. See United States v. Armstrong, supra, 466. Our Supreme Court has interpreted a showing of discriminatory effect and discriminatory purpose as requiring the defendant to prove "(1) that others similarly situated have generally not been prosecuted and that [the defendant] has been singled out, and (2) that [the defendant] is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right." State v. Delossantos, 211 Conn. 258, 287, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989).
The court need not determine whether to adopt the selective prosecution standard, requiring the defendant to prove by clear evidence that the state’s negotiating position had a discriminatory effect and was motivated by a discriminatory purpose or whether to utilize the Ninth Circuit’s prima facie test requiring that the defendant show a discriminatory impact and a discriminatory motive. The defendant has failed to meet the standards provided under either test.
To weigh the comment made by Melchiorre at the pretrial necessarily requires an assessment of the context in which it was made. Santos had just sought a completely suspended sentence for a defendant facing serious drug and gun charges, that carry a risk of substantial imprisonment. In doing so, Santos emphasized, inter alia, the defendant’s growing up in West Hartford, having a good work history, and coming from a good family. That the defendant was also white and lived in Farmington was already known to the pretrial participants.
Whatever Santos’ intent, Melchiorre was justified in believing that he was attempting to receive preferential treatment for his client compared to inner-city drug dealers of color. While Melchiorre need not have included the defendant’s race in describing him, the mere mention of race does not diminish that she clearly indicated that the defendant would be treated the same as other defendants of different races and not better or worse than them. Melchiorre also indicated in the same comment that the defendant would be treated the same as other drug dealers of different economic and social strata. Fairly read, Melchiorre’s comment was the opposite of a declaration of racial discrimination. Rather, Melchiorre’s statement was a commitment to treating defendants equally regardless of race. The evidence indicates that Melchiorre has done so previously and the court finds that she did so in this case.
The defendant has supplied the court with no credible evidence that Melchiorre’s offer had a discriminatory impact on him. The fact that the defendant provided a few summaries of other dispositions, drawn from newspaper articles, with limited or no context, and little connection to Melchiorre, does not furnish the court with any support for such a factual finding. In addition, the defendant did not seek discovery in this regard.
The court finds that the defendant has failed to show that Melchiorre’s comment and offer had a discriminatory impact. The court further finds that Melchiorre’s comment and offer had no discriminatory purpose or motive.
The defendant has also argued that Melchiorre’s conduct in mentioning his race and making her offer in plea negotiations violated rule 8.4(4) of the Rules of Professional Conduct. The commentary to the rule 8.4 states that" [a] lawyer who ... knowingly manifests by words or conduct, bias or prejudice based upon race ... or socioeconomic status, violates subsection (4) when such actions are prejudicial to the administration of justice." For the reasons set forth above, the court finds that Melchiorre’s words and conduct did not demonstrate racial bias or prejudice nor socioeconomic bias or prejudice. For all the above reasons, the Motion to Disqualify is denied.
Rule 8.4 of the Rules of Professional Conduct provides in relevant part: "It is professional misconduct for a lawyer to ... (4) [e]ngage in conduct that is prejudicial to the administration of justice"
For the reasons set forth above, the court finds that Melchiorre’s words and conduct did not demonstrate racial bias or prejudice nor socioeconomic bias or prejudice.
For all the above reasons, the Motion to Disqualify is denied.