Attorney Max Simmons.
In a unique proceeding, the Connecticut Supreme Court has agreed to decide whether to hear a series of questions that will determine if the murder case against Dr. Lishan Wang will in fact go to trial, and if so, who will pay for the indigent Dr. Wang’s expert witnesses.
It could turn out to be a precedent-setting decision affecting the rights of indigent defendants in Connecticut.
Dr. Wang, 47, is charged with the murder of Dr. Vanjinder Toor, a former colleague at the Kingsbrook Jewish Medical Center in New York. At the time he was shot to death outside his Branford condo on April 26, 2010, Dr. Toor was 34, a father and a post-doctoral fellow at Yale. His then-pregnant wife witnessed the shooting. She was shot at too, but Dr. Wang missed. Dr. Wang has alleged Dr. Toor and other Kingsbrook doctors and officials caused his firing in 2008 and ended his medical career.
Typically the state’s highest court does not entertain questions of law before a case is completed. This case may well be the exception because it raises a series of extraordinary questions that, left unanswered, will only cause the case to be appealed twice. The high court granted Dr. Wang and the state’s attorney motions to hear the case earlier this month.
The first brief in the case was filed yesterday by Dr. Wang’s appointed attorney, Max Simmons of the law offices of New Haven Attorney Diane Polan. Simmons was appointed to represent Dr. Wang in this aspect of the case only by Superior Court Judge Patrick Clifford.. (Click here to read the story.) In his brief to the high court, Simmons argued that Dr. Wang is constitutionally entitled to represent himself and as an indigent defendant is entitled to public funds.
The case has now drawn the major players in the state’s court system into the courtroom. What happens in this case will have a far-reaching effect on the rights of indigent defendants across the state. The public defender’s office, which does not represent Dr. Wang except in a minor way, refuses to pay his expert witness costs. The judiciary, which previously paid for indigent defendants, now finds itself with limited funds. On Aug. 16, the office of the chief court administrator filed a motion to appear as an amicus, or friend of the court, and both Dr. Wang and the state prosecutor’s office agreed. The public defender’s office was denied the right to intervene in the case but is expected to be heard in some fashion.
If the case does go to trial without experts for Dr. Wang, which will affect his defense, he will undoubtedly appeal that he was denied the right to expert witnesses at his trial. To avoid this argument, prosecutor Eugene R. Calistro, Jr., Dr. Wang and Judge Clifford have asked the high court for guidance.
“The issue before this court implicates not the right to counsel but the right to represent oneself. If his [Dr. Wang’s] right of an indigent criminal defendant to the attorney of his choice is subject to reasonable limitation,” Simmons wrote in his brief, “the right to self-representation is not.”
Dr. Wang was granted the right to represent himself by Superior Court Judge Roland D. Fasano on December 14, 2011 more than a year after he was declared indigent. Up to that point, he had been represented by the public defender’s office in what was at best an uneasy relationship.
In his brief Simmons outlined how other states handled similar issues, issues that were resolved but not without “an enormous amount of conflict and litigation.” These were states that had rules. “In Connecticut, where no such clear statutory mandate exists, the imperative for this court to answer the questions presented in this reservation emerges a fortiori,” (for a still stronger reason) he wrote.
In deciding how to resolve this issue, Simmons said Dr. Wang was entitled to represent himself and that the state had to pay his court costs.
Connecticut, Simmons told the court, has to decide which of two sets of jurisdictional approaches the state wants to take. That may well mean revising current statutes.
“There are those states that restrict access to investigators and expert witness to indigent defendants represented in some fashion by the public defender’s system only and then there are those states that see the rights of indigents to expect assistance as independent from public defenders.
“Nearly three decades of nationwide jurisprudence on this matter has already yielded formulations that underlie the positions taken by these two camps across almost two dozen states,” the brief states.
He said the “sheer enormity of the body of court decisions concur with the right of indigent defendants to publicly funded experts assistance.”
In his 34-page brief, Simmons argued Dr. Wang as an indigent pro se defendant is constitutionally entitled to expert witnesses and that the state must pay for them. The case has been paralyzed by the inability to find a way to fund expert witnesses to testify at trial.
Dr. Wang announced he was rejecting the services of the public defender’s office in May 2011. That office’s position is that since it no longer fully represents him, the office should not be required to pay for his experts. (The public defender’s office has given him a stand-by attorney who is now playing a limited role).
Calistro drew up the questions to present by way of motion to the State Supreme Court. He did so at the judge’s request. The state’s appellate brief is due Sept. 19; Simmons’s reply brief is due Sept. 30.
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