ROGERS, C. J., concurring. I agree with the majority’s conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court’s decision in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.
And in his finely-honed way, Gideon explains the significance of the concurrence:
Those 6 lines make me want to throw up.
While defendants are often accused of trying to avoid responsibility by use of that dreaded technicality, the Constitution, few people point out that the real technicality is embodied by this concurrence: that a defendant can be imprisoned, even executed, because a court was able to avoid doing its duty of determining whether he was convicted in accordance with law based upon lack of preservation. Lack of preservation is the ultimate technicality, that a lawyer failed to raise, object or sufficiently explain an argument, so that the reviewing court can simply ignore a constitutional deprivation.
You want technicalities? You got ‘em. While some might argue that one of the roles, perhaps the most critical role, of the neutral magistrate is to assure every defendant that his constitutional rights are protected, despite any failing, incompetence, tactical error of a lawyer, courts see it completely differently. Miss an objection to a horribly erroneous jury charge the omits a necessary element of a crime? You are screwed. The judges chuckle over the easy decision, saving their energies for those cases that require them to think long and hard about how to affirm the conviction.
The point has been made here before, but is worth making again. Preservation is the cheapest excuse for a court to fail to do its duty.
Preservation is intended to provide fairness to the judge below, to protect her from the stigma of reversal for an error that was never claimed or presented, and hence she had no opportunity to avoid. But nowhere in the Constitution do we find anything about the rights of judges to fairness or protection. And certainly, no notion of fairness to judges can be said to trump the rest of those express rights that are provided defendants. How did preservation come to trump all else?
There is an ugly, cynical side to preservation that is hidden behind this fairness notion. This is particularly true when you remember that the first level appellate courts maintain the power to review anything they want to review, making preservation an announcement that they have affirmatively chosen to ignore injustice and error.
Most of the time, judges will make at least the minimal effort to couch their reliance on lack of preservation in rhetoric that makes it appear less than wholly unprincipled and slightly legitimate. But in the example Gideon offers, it is flagrantly held out as a “gotcha” to escape the hard work of adjudicating.
The lawyer screwed up. The lawyer waived it at trial, then left it out of his appellate brief. Hah! Now, per Rogers’ concurrence, we can affirm without even pretending to care that a defendant has been denied his constitutional rights. Gotcha!!!
It’s not that there aren’t rational arguments in favor of preservation. There’s the rather insignificant concern of judicial economy, not making judges work too hard unnecessarily. There’s the “two bites of the apple” argument, that a defendant can’t take a tactical position before one court and then take the opposite position later, though this argument is far stronger when the defendant has chosen his lawyer rather than get saddled with one because of indigence.
But for the most part, the issue arises out of mistake, a simple screw-up in failing to notice and raise an issue that needed raising. The lawyer screwed up. The lawyer just plain failed to do a good enough job, though he stayed awake through most of the trial which is sufficient to overcome ineffective assistance of counsel. Shocking, I know, but it happens.
So that might be a place where the court decides to step in, to see its role as the gatekeeper of the law and Constitution. To assure that no defendant is ever convicted because the lawyer failed to provide what the Constitution demands. The irony of holding a defendant accountable to the most intricate demands of the law, upon penalty of imprisonment or perhaps even death, while everybody else in the courtroom gets a free pass, remains the perpetual paradox.
As Gideon notes, the Rogers concurrence embodies the lowest, the worst, the most disgraceful view of how little rigor the law demands before imprisoning a human being. And like Gideon, it makes me want to throw up. Clearly, it doesn’t bother C.J. Chase T. Rogers in the slightest, and she felt the need to write a concurrence to make that emphatically clear.