The Arbitrariness Of Inherent Supervisory Authority

As I noted in my immediately preceding post, several justices on the Connecticut Supreme Court are concerned that the court has been invoking its “inherent supervisory authority over the administration of justice” too frequently and, in so doing, may be undermining the integrity of the judicial system.  Justice Zarella expressed the need for the court to adopt a single, consistent standard governing the court’s use of that authority in order to avoid “the appearance of arbitrary decisionmaking.”

I share Justice Zarella’s concerns and offer the following comparison of two cases to illustrate why they are justified.

Case number one is State v. Elson, which I discussed at some length in a previous post.  In Elson the defendant argued that the trial court had punished him for exercising his Sixth Amendment right to a jury trial.  The defendant based his claim on the following comment the trial judge made during sentencing:

We’ve all heard the defendant’s apology. I don’t know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn’t have put the victim through the trial. To a large extent, it seems to me that the defendant’s apology represents thinking of himself rather than the victim.

The Supreme Court rejected the defendant’s Sixth Amendment claim.  However, the court was so troubled by the trial court’s comment that it invoked its inherent supervisory authority over the administration of justice and reversed the defendant’s sentence (not the entire conviction), even though no constitutional error had been committed.  Why?  The court stated that the trial judge’s comment

created the perception, if not the actuality, that the trial court, in crafting the sentence, improperly took into account the defendant’s exercise of his rights, which the court viewed as an unnecessary imposition on the system and the victim. Accordingly, given the adverse effects such commentary may have on the public’s perception of the inherent fairness of the criminal justice system, we conclude that a new sentencing proceeding is required. (Emphasis supplied.)

Now consider case number two, State v. Carrion, decided last week.  The issue in that case was the propriety of the trial court’s jury instruction that ‘‘[t]he state . . . does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.’’  The defendant argued that this instruction improperly bolstered the state’s credibility in the eyes of the jury by suggesting that the state would not have brought the charges unless it strongly believed that the defendant was guilty.

As in Elson, the Supreme Court rejected the defendant’s claim of constitutional error.  Also as in Elson, the court was sufficiently troubled by the trial court’s instruction that it invoked its inherent supervisory authority over the administration of justice and adopted a prophylactic rule barring trial judges from including such statements in their jury instructions.  But unlike Elson, the court in Carrion left the defendant’s conviction and sentence intact; the prophylactic rule it adopted only applied prospectively.  Apparently, the court was troubled enough by the trial court’s instruction that it felt the need to tell trial courts not to say such things again in the future, but not so troubled that it felt the need to reverse the defendant’s conviction or sentence, as it did in Elson.

Is it possible to reconcile the different outcomes in Elson and Carrion?  To be fair to the Supreme Court, the act of judging requires the exercise of judgment.  I have no doubt that the justices genuinely felt that the facts of each case warranted different outcomes.  But to avoid the appearance of arbitrary decisionmaking, a court needs to justify its decisions by more than its own ipse dixit.  Being “deeply” troubled by a judge’s comment or jury instruction, as opposed to just plain old troubled, does not seem like much of a distinction.