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Thursday, October 7, 2010

Brad Friedman Misstates the Law (What Else is New?)

Update: Brad revises his post slightly to acknowledge my dispute.  I think the fair way to put it is he is not sure I am right but considers my argument credible.  You can look and judge for yourself on that interpretation, of course.  He also feels it is necessary to label me a right-winger.  Actually I am a moderate, but whatever.  And for some reason he thinks my name is Andrew.

And a commenter raises a reasonable point and I respond.  My full response is at the end of the post.


The beginning of wisdom, Socrates once said, was “I don’t know.”  It meant that the moment you were willing to admit you need to learn something, you had the chance to eventually become wise on the subject.

Brad Friedman could learn that lesson, by admitting he doesn’t know anything about the law.  Apparently he has been on a multi-year jihad to prove that Ann Coulter committed voter fraud in Florida and Connecticut.  The one in Florida he says is barred by the statute of limitations, but he is still holding out hope that they will get her for offenses in Connecticut as late as 2004, because

in Connecticut, where officials [sic] complaints were filed in 2009 --- by aconservative activist --- that she also committed absentee voter fraud in the years prior to moving to Florida, when she allegedly voted illegally from her residence in New York, there is no such statute of limitations for voter fraud.

That immediately raised a red flag with me.  Really, no statute of limitations at all?  Lawyers know that typically the statute of limitations is rarely absent entirely.  The idea is twofold.  First, the older the case, the crappier the evidence.  If the case is 20 years old exonerating physical evidence is lost, memories go bad, and witnesses die—and so the quality of the trial drops off for every years that prosecution is delayed.  Second, it is generally felt that people deserved to know that they cannot even be accused of crimes arising out of an incident after some time.  The point is most crimes have a statute of limitations, except for really really serious crimes.  Like probably no state has a statute of limitations for murder.

So I did about fifteen minutes of research and discovered he was wrong.  And indeed, most of what I found was easily discoverable on the web.  First General Statutes § 54-193 deals with statutes of limitation.  You can read the text for yourself here.  Basically the only crimes that have no statute of limitations are capital felonies (that is stuff you can be executed for), Class A felonies, or a violation of section 53a-54d (Arson murder) or 53a-169 (escape).  So pretty much the only category you think it might fit into is the Class A felonies.  Were any of the crimes he accused Coulter of committing Class A felonies?  Nope.  Today, none of these offenses in the election code rise above being a Class D felony.  And back when the offenses were committed, they were generally unclassified felonies, with one or two of them rising to Class C.  So you have five years as the statute of limitations.

Now without getting into the actual facts, let’s just take Brad’s allegations as true.  I am not saying Coutler did anything he accused her of, I am just asking if you could even charge a person with a crime based on what Brad alleges to be true.  So when did the offenses occur?

In Coulter's Connecticut case, the fraud in question occurred in 2002 and again in 2004 when she lived in New York City but apparently voted as still registered at her parents address in the Nutmeg State.

So presumably that is November, 2004.  So the statute of limitations would have passed in...  November 2009.  Now there is some flexibility in that.  It is important to note that § 54-193 says that the case must be “prosecuted” in that time.  In Connecticut v. Ali, the Supreme Court of Connecticut interpreted that term to allow for a person to have been considered “prosecuted” once an arrest warrant has been issued.  This was because at that point in time the prosecutor

has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled.

So then as long as the warrant is executed in a reasonable time, the statute of limitations is satisfied.  Given that they have not issued an arrest warrant against her to my knowledge, the statute of limitations has clearly passed.

And that is only the beginning of the problems here.  First, was Coulter’s initial registration fraudulent?  According to Brad, she claimed was living with her parents at the time she voted in 2002 and 2004.  The problem is that surely she registered to vote before then and Brad doesn’t even seem to wonder if it was true on the day of registration.  Meanwhile the statutes dealing with voting challenges for residency don’t seem to directly punish you if you were once validly a resident of Connecticut for instance, in § 9-172 it says

At any regular or special state election any person may vote who was registered on the last-completed revised registry list of the town in which he offers to vote, and he shall vote in the district in which he was so registered; provided those persons may vote whose names are restored to the list under the provisions of section 9-42 or whose names are added on the last weekday before a regular election under the provisions of section 9-17. Each person so registered shall be permitted to vote if he is a bona fide resident of the town and political subdivision holding the election and has not lost his right by conviction of a disfranchising crime. Any person offering so to vote and being challenged as to his identity or residence shall, before he votes, prove his identity with the person on whose name he offers to vote or his bona fide residence in the town and political subdivision holding the election, as the case may be, by the testimony, under oath, of at least one other elector or by such other evidence as is acceptable to the moderator.

The law says that you are entitled to vote if you are a resident, etc.  It says that if you are challenged and cannot prove you are a resident, you can be denied the vote.  But where does it say a person who is not a resident cannot vote and is committing a crime?   Maybe in the case law this oversight has been eliminated, but its not in the statute, that is for sure.  And let me be the first to say it should be fixed.

The problem Friedman has is that Coulter would have to have been required to certify or re-certify that she was a resident, at a point in time when she was not, in order for it to be voter fraud.

And like with lots of these kinds of conspiracy theories, you have to take a step back and ask, “why?”  Why on earth would Coulter put herself at this much risk just to cast a single ballot?  She knows there is a spotlight on her all the time.  And while we like to say every vote counts, let’s be honest, it won’t make much of a difference.  You should of course vote (honestly) in each election, but its hard to understand why anyone would be so motivated that they would fraudulently cast one vote.  You have to think that where voting fraud occurs, they go big and actually try to influence an election; otherwise, why bother?  Its like accusing her of stealing a penny.  Of course people do crazy things sometimes, but we are appropriately skeptical when the reward is so slight.

Anyway, Brad, just stop talking about law.  I have seen you and Patterico spar several times over these things, and I have even excused your lack of knowledge, but this is just incompetent.  Any idiot with a few minutes on google could at least find the statutes in question.  Finding that case was harder.  Although it is available on google scholar, I used fastcase to find it.  But still once you see the relevant statute, you should at least know 1) there is a statute of limitations and 2) there is a serious question as to whether it has run out.

So Brad is all excited because the board of elections in Connecticut is about to make a decision.  I can’t tell you if they are smart enough to know that the SOL (Statute Of Limitations) has run, but I can tell you whether they know it or not, if Brad is hoping to see Coulter tried for voter fraud, he is SOL (Shit Out of Luck).

Update: “CambridgeKnitter” over at Bradblog wonders whether the statute of limitations might be tolled by virtue of Coulter being out of state much of the relevant time period.

Being out of state alone does not toll the statute of limitations.  In civil cases, there are ways to serve a person out of state; and if they do not show up, they can lose by default (see, e.g. the famous Black Panther case as an example of that).  In criminal cases, you file the arrest warrant, and then the state has a duty to diligently attempt to enforce it.  If the person evades arrest by any means--including being out of the jurisdiction--then that evasion tolls the statute of limitations.  So its not being out of state, but the evasion that tolls it.

But the duty to diligently attempt to enforce the warrant of arrest includes the duty to diligently seek extradition.  Now when dealing with foreign countries extradition can be tricky.  Roman Polanski, whatever you think of the man, is a good example of that.  But extradition among the several states is frankly routinely done and with little trouble.  Indeed, it is constitutionally demanded by the full faith and credit clause.

There are two things you must understand about this kind of equitable tolling.  The first is that the courts do not like to extend the statute of limitations.  They will be leery of any doctrine, for instance, that will allow the state to extend the statute of limitations indefinitely, if only out of fear of abuse.  And even when there is no concern for abuse, the desire to see matters eventually end, combined with concerns about the degrading quality of evidence will make the courts reluctant to extend a statute of limitations.  Second, is that tolling doctrines are equitable doctrines.  In equity, actions are always limited by the doctrine of laches.  That is not a misspelling, that is one of those strange words we use in legal profession.  Simply put the courts may grant you additional time, but you do not have a right to “sleep on your rights.”  You have a duty to diligently try to enforce your rights.

And the state was hardly diligent here.  Ann Coulter hasn't exactly remained hidden.  If an arrest warrant was issued for her, it wouldn't have been hard at all for a local police department to find and arrest her, allowing for extradition, etc.  Indeed, for all we know, upon learning of the arrest warrant, Coulter might have voluntarily gone to CT and turned herself in.  She might have relished the publicity.  The fact is that since receiving the complaint the state has basically sat on its hands.  No matter how you slice it, but for their failings, they might have easily met their deadlines.  The courts will have little sympathy for that.

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