If you read the news reports of how the Connecticut Supreme Court upheld an Appellate Court decision to overturn former Hartford Mayor Eddie Perez’s corruption convictions, you’d almost think he got off on a technicality.
But, if you heard the oral arguments in the case and read the court’s 4-2 majority opinion, you’d know that Perez’s trial judge, Julia D. Dewey, and the office of Chief State’s Attorney Kevin Kane went so far out of their way to violate Perez’s constitutional right to a fair trial that any reasonable person would conclude that it was the only way they could have convicted him.
They did this, the justices wrote, by first combining two tenuous and completely unrelated cases against Perez into one trial, so as to make it impossible for him to testify in one case without incriminating himself in the other — and then twice denying his request to have the cases separated into two trials.
In the first case, Perez was convicted of bribery for allegedly accepting free home improvement services from a city contractor in exchange for Perez’s help in expediting payments that were being withheld by city officials due to poor workmanship and failure to meet construction deadlines. In the second case, Perez was convicted of allegedly trying to extort $100,000 from a developer who wanted to buy city-owned property, money that was supposed to be paid to Abraham Giles, the former Democratic state representative whose business sat on the property.
During oral arguments, Senior Assistant State’s Attorney Harry Weller maintained that the cases were joined strictly for the “convenience of the system.” Perez was a high profile defendant, Weller explained, and having a single jury hear both cases relieved the Chief State’s Attorney’s office of any concern that the jury pool for the second trial would be tainted by publicity from the first one. This, to him, was the only excuse needed. Weller went so far as to say that “The weight of judicial economy was all on the side of keeping the cases together” even after it was obvious that Perez had a legitimate reason to testify in one case and not the other. Weller said further that Perez’s first request to have the cases severed was rejected because it didn’t offer enough proof as to his need to split his testimony; and his second request was rejected because it was made in an “untimely” fashion even though it offered ample proof.
After laying out his argument, Weller came under sharp questioning from Chief Justice Chase Rogers, and justices Richard Palmer and Andrew McDonald over the fact that the Connecticut, like many other states, strongly discourages the practice of joining cases that are completely unrelated because it is inherently unfair to the defendant. In fact, Weller gagged when Justice McDonald challenged him to explain how the convenience of the system outweighed Perez’s right to have the cases severed and, awkwardly, fell back on the notion that the justices simply had to trust that Judge Dewey and the jury acted properly.
Justices Rogers, Palmer, McDonald and Richard Robinson didn’t buy any of Weller’s rhetoric. They ruled instead:
- That the Chief State’s Attorney’s Office had an obligation to establish a connection between the two cases before asking to join them.
- That the court had an obligation to show that Perez would not be substantially prejudiced by joining the cases.
- That the trial court “abused its discretion” in declining the first motion to split the cases because joining the two unrelated cases in one trial without a legal rationale, by definition, caused Perez substantial prejudice.
- That the trial court improperly rejected Perez’s second motion to sever the cases because the motion was clearly made in a timely manner and his proposed testimony in the bribery case could have resulted in an acquittal.
- And, finally, that the convenience of the system alone NEVER, EVER outweighs the constitutional right to a fair trial.
The majority backed up its emphatic opinion with mountains of pre-existing state and federal case law that Judge Dewey and Mr. Kane’s office would have been wise to consult before choosing to tie Perez up in legal knots.
One citation, in particular, stands out: “Although trial courts must be afforded reasonable latitude in exercising discretion in these matters, it bears emphasis that compromise of a defendant’s fundamental right to a fair trial, free of undue prejudice, as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated.” (People v. Lane, 56 N.Y.2d 1, 8, 436 N.E.2d 456, 451 N.Y.S.2d 6 (1982).
This was no ordinary Supreme Court decision, although the bland news accounts of it suggested otherwise. This was a major ass-whooping for playing dirty. The court took a very firm and principled stand. What makes the outcome so comically ironic is that Kane was the one who sought a Supreme Court review in the first place. He got what he wished for and the lambasting he got in return may have seriously undermined Judge Dewey’s chances of getting renominated to the bench when her current term expires.
Kane has told the press that he plans to retry the cases separately, perhaps on the hopes that Perez will plea to lesser charges to avoid the heavy expense of defending himself all over again. That’s how state prosecutors secure most of their convictions anyway and why you hardly ever see rich criminals in Connecticut prisons.
Kane would do better to drop the charges entirely.
On the merits, he faces a steep battle on both legal fronts. The cases are already nine years old. Preparing for two new trials could take a few more. Abe Giles, a primary witness in the extortion case, is dead and, in the bribery case, as the Supreme Court noted, Perez has a reasonable chance of winning an acquittal if he is tried fairly.
Moreover, Kane will have a very hard time finding another trial judge, who is as flagrantly accommodating as Julia Dewey. In light of the upbraiding she just received from the Supreme Court, the next judge is almost certain to be on his/her best behavior for fear of having the case overturned on appeal.
As stated earlier, the Supreme Court’s ruling was not unanimous. In a dissenting opinion, justices Christine Vertefeuille and Peter Zarella agreed with the general principle that separate trials are warranted when a defendant wants to testify in one case and not the other. But they disagreed with the majority’s contention that prosecuting two unrelated cases in one trial — minus a legal rationale — is fundamentally unfair and should not have occurred. In their view, the learned Judge Dewey’s behavior in the case should have been respected as sacred by both the Supreme and the Appellate courts from the start and Perez should have had to prove, after the fact, that her conduct at trial was unreasonable. As far as they were concerned, he did not. They lost. True justice triumphed.
Now leave Perez alone.