Posted on January 26, 2012 by Walter Reaves

More problems with child abuse cases

In recent years most experts have recognized that the assumptions relied on to establish a child was forcibly shaken are faulty. Unfortunately it is too late for all those defendants who have already been convicted. Shaken baby cases are now an example of how forensics can go awry. A recent article in the Brigham Young Law Review suggests shaken baby cases are not the only ones we need to be concerned about.

The article is titled Unexplained Fractures in Infants and Child Abuse: The Case for Requiring Bone-Density Testing Before Convicting Caretakers. While I don't pretend  to understand all the medical terms and conditions the gist of the article is that there may be a lot of things can cause fractures in children besides physical abuse.

Any lawyer that has handled child abuse cases knows the problems. Everyone wants to protect children, and that means punishing those who hurt them. Another problem exists with infants and small children, which is that they cannot communicate. That means that prosecutors and jurors have to rely on physical evidence. The problem with shaken baby case was that faulty assumptions were made about the evidence; if a triad of symptoms existed someone shook the child. That meant whoever had recent care of the children was the guilty party. The same assumptions are made in cases involving unexplained fractures, where there are fractures at different stages of healing. The assumption is that those injuries would not be there  unless the child had been physically abused. It turns out that might not be accurate.

The author of the article calls for mandatory bone density testing, which I can't see happening. However, it certainly should be a requirement for any lawyer defending such case where the client is denying guilt.

This is one more example why lawyers can no longer rely on the so called experts. They don't always know what they are talking about. More importantly, what is important to the experts is not always the same as what it important in a criminal prosecution. Sometimes the interests mesh, but they often do not. As I have said before, no criminal case should be decided by experts. While they may have there place, its up to us to make sure their opinions are accurate, and placed in the proper context.

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Posted on January 16, 2012 by Walter Reaves

Has the Court buried its head in the sand on eyewitness ID's

Last week the Supreme Court decided a case that some thought might produce additional protection against bad eyewitness ID's. I wasn't so hopeful, and unfortunately I was right. As it turned out the only positive thing that came out of the decision in Perry v. New Hampshire is the dissent from Justice Sotomayor.

The facts were pretty straightforward. Police responded to a call about someone bringing into cars in a parking lot. They detaineda young man in the parking lot, and while some of the officers talked to him others went to talk with the witness. When asked to describe the suspect she looked out the window and pointed to the young man standing between two police officers, and said "that's him." The issue was whether that process was unduly suggestive and the decision came down to whether the police were responsible for the suggestive procedure. Since the court found they were not, they concluded there could be no due process violation.

Over the last few years the reliability of eyewitness identifications has been identified as the single biggest factor in wrongful convictions. Research shows they are terribly unreliable, and sometimes no more accurate than a guess. The court's have started to recognize this - which was the reason for optimism in the case. While the they recognize the problem though, they refuse to address it.

The Court in Perry continues to rely on the traditional concepts of cross examination and zealous advocacy. The idea that a skilled lawyer can poke holes in a bad ID is appealing. However, it is not accurate. Many of the cases involving wrongful convictions involved skilled lawyers who did everything they could. Despite everything we know, courts, jurors and prosecutors still hold on to the belief that if a witness identifies a defendant then it must be them.

The courts are supposed to be gatekeepers of evidence. I've commented before about what a poor job they do of that in cases involving scientific evidence. They do an even worse job here. Evidence that is not reliable should not come in - but that is exactly what the court sanctions in Perry. Unless the police had some hand in securing the identification, a court has no authority to keep it out. After all, its up to the jury to make those decisions.

The end result is that its business as usual. Defendants will keep being convicted on identifications that are unreliable, and judges will turn the other way. There has to be a better solution, and we need to find it fast.

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Posted on January 12, 2012 by Walter Reaves

Is Supreme Court sending signal on Brady violations?

The Supreme Court reversed a conviction this week on a Brady violation. The case Smith v. Cain is another one of Louisiana - and presents a claim that probably would have been dismissed a few years ago.

Smith was convicted of killing five people during an armed robbery. There was only witness who was able to identify Smith, who he said was the first person through the door. After he was convicted and his appeal was denied Smith filed a writ of habeas corpus in State court, which was also denied. The writ was based in part of the failure to disclose notes from the investigating officer; those notes indicated that he talked with the witness on the night of the offense and he could not provide a description of the assailants, and also talked with him several days later and was told he could not identify anyone. The Supreme Court found those notes were material, and were significant enough to reverse the conviction.

The decision was 8-1, with Judge Thomas dissenting. In his dissent he set out the other evidence, which he claimed would have negated the impact of the investigator's notes. The other evidence is not that different from other cases where the court has denied relief. There was another investigator who testified that the witness gave a description although he could not remember exactly what it was. The investigator who made the notes also testified that the witness gave a description, which was brown skin person with short haircut, who had lots of gold of teeth. The witness had been shown several line-ups and did not identify anyone. When he was finally shown one with Smith he identified him immediately, stating he would never forget that face. At trial he also identified him, saying it was the same mouth and the same teeth.

The inquiry in any Brady case is whether the evidence was material - which requires the defendant to show a "reasonable probability" the result would have been different. In this case, the issue is whether the notes would be enough to discredit the identification. There's no doubt its a subjective decision, and I think this case shows the courts may be looking at such claims differently.

It wouldn't take long to find a number of cases with similar - if not more compelling facts - where relief has been denied.  So what's the difference? I would like to think that it is the result of a shift in attitude and perception. Several years ago courts refused to believe prosecutors withheld evidence. Now they have no problem accepting that it happens. - the question is how often. Perhaps it's also a recognition that the State shouldn't be rewarded for breaking the rules.

Whatever the reason, it's a welcome change. More still needs to be done - especially in the area of holding prosecutors accountable. But you have to start somewhere, and granting relief on Brady claims is a great place to start at.

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Posted on January 2, 2012 by Walter Reaves

Goodbye 2011 - and good riddance!

This post is only marginally related to the practice of law. I say marginally because lawyers are human, and anything that affects their persona life has some impact on their professional lives.

2011 was not bad professionally, but one I'm all too happy to close the book on personally. My wife lost her 8 year battle with cancer in January. While I can't say it was unexpected, I certainly wasn't prepared. Her death was separated by only a couple of months from the death of my mother, as well as my mother in law. So I had more than just her death to deal with.

I've always been a pretty stable emotionally and expected to be deal with my wife's death with few problems - especially since I've  had a long to think about it.  Boy was I wrong. There were issues I have never anticipated, along with a general lack of motivation.  I expected things to get better with time, which hasn't really happened.

I now have a far better insight into the feelings of loss, despair and depression that many of our clients experience. It's easy to think someone needs to "get over it", but it's not nearly as easy to do. Far too often I think we neglect the mental and emotional and issues our clients are going through - and as a result don't do the best we can for them. As lawyer we evaluate the legal and practical consequences of decisions, and sometimes that may not be the most important consideration for the client.

I'm thankful I have a job I love and still enjoy even after 30 years. It gave me a reason to keep on  going, and get out of bed every day. It also gave me an escape - a way to avoid thinking (or confronting) some of the more negative thoughts I had. I cannot imagine what my life would be like if I didn't have some place to go every day.

When a spouse passes away you can't help but think about your purpose in life. For the past several years my main focus was on taking care of her, and helping her deal with the thousands of issues that come with fighting cancer. I'm still struggling with that, but I don't have to struggle with one thing - my desire to help individuals who find themselves on the wrong side of  the power of the State. Nothing makes me angrier than to see someone taken advantage of by the system.. it happens far too often, and were it not for the thousands of good criminal defense lawyers it would happen more often still.

I'm not making any new year's resolutions, but I am re-committing myself to continue the fight. And I'm thankful that I still have the desire to do it.

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Posted on October 20, 2011 by Walter Reaves

Should judges look the other way in death penalty cases?

The Texas Court of Criminal Appeals decided an unusual writ case last week, which contains some disturbing admissions - at least they are disturbing to me. Hector Medina was appointed extremely competent lawyers to pursue an application for writ of habeas corpus in his death penalty case. His lawyer made a tactical decision to submit a cursory writ, which was only four page long. His reasoning - which I don't fully understand or agree with - was that he wanted to change the pleading rules in habeas cases.

The court recognized the writ was not complete, and there was probably a lot more there. However, they couldn't decide what to do. If they denied the writ then Mr. Medina had lost his chance at relief through post-conviction proceedings. They couldn't force the lawyer to re-file, nor could they find him ineffective because they have already held that there is no right to effective assistance in a writ proceeding. So they came up with a new approach - they found the writ was not a "cognizable writ application", held the lawyer in contempt and appointed new counsel.

All that's fine and good - at least Mr. Medina is not going to be executed without having presented a complete writ application, which the Court will probably deny. The disturbing part comes in the dissent of Justice Keasler, which points out that the application in this case is no different from others they have denied on the merits. He noted that during his time on the court he had seen a number of applications that were just as poorly prepared as this one, and they were all denied.

The disturbing part of that statement is that he acknowledges the Court knows they are denying relief when they know one someone has not been properly represented. Since you don't have the right to effective assistance, it's too bad. To me that is inexcusable.

If you are going to execute someone you should only do so after their case has been fully reviewed. Yet the court is affirming death sentences when they know the person's case is not being fully reviewed. While you would hope all lawyers would take their jobs seriously the said fact is we know they don't. The court shouldn't be able to pass the buck, and say "that's not my job."  I would like to think this is a step toward that, but I'm not convinced.

If nothing else, this should show just how screwed up our death penalty system is.

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Posted on October 20, 2011 by Walter Reaves

Taking the definition of deadly weapon to new extremes

It's no surprise that legal terms and phrases seldom mean what you would expect them to mean. Nowhere is that more apparent than in the definition of deadly weapon.The Texas Penal Code defines deadly weapon as anything that in it's manner of use or intended use is capable of causing death  or serious bodily injury. You don't have to to actually cause injury. Instead, the focus is on the intent, and the manner in which something is used. That all makes sense, until you see how the courts have applied it.

Over the years, the definition of deadly weapon has been expanded. Courts now hold that anything can be a deadly weapon. That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.

The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

When you think of deadly weapon, you envision something that is actually used to inflict injury. The dumpster in this case was not used to inflict injury. It was the act of abandoning the child that  caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

The reason why a deadly weapon finding is important is because it increases the time a person must serve before they're eligible for parole. In some cases it also increases the grade of the offense, so it is an important finding. If you want to punish some offenses more severely that's fine. But engaging in mental gymnastics and legal fiction is not the way to go. It's time to return some common sense to the legal system, and this would be a good place to start.

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Posted on October 14, 2011 by Walter Reaves

How do you apply the scientific method in criminal investigations

If you read this blog you know I'm not a big fan of the way forensics is used in criminal cases. Many of the problems are the result of using techniques and processes that were not designed for determining a person's guilt or innocence. Another problem is that the scientific method does not parallel a criminal trial.

Under the scientific method you develop a hypothesis, and then try to prove it wrong. In most criminal  cases it is the opposite. You try to prove someone is guilty, even if there is evidence to the contrary.

What made me think about this a decision out of New Hampshire (New Hampshire v. David McLeod) criticizing John Lentini, one of the leading arson experts in the country. Mr. Lentini's position is that you should start off with the presumption that the fire was an accident. He has a couple of reasons for that. One is that most fires are accidents. The more important one is that everyone is presumed innocent, so shouldn't you follow that in an investigation. The New Hampshire Court didn't like that approach, and prevented  him from testifying.

The decision tries to portray Mr. Lentini as having an agenda - which he doesn't have. He has a presumption. What is the alternative - that you go in with an open mind - that's contrary to the scientific method, which the court believes it is following.

The problem with Mr. Lentini is that he's honest. He's admitting how he approaches the investigation. Those on the other side are not going to admit they assume the defendant is guilty, because that wouldn't look fair. Instead, they claim they will start of neutral.

The court relies on NFPA 921, which is the National Fire Protection Agency's guide to fire investigation. There's nothing wrong with that, and in fact it should be accepted - as long as you except everything in it, and not merely that which supports your position.

The NFPA calls for a systematic approach, and the court equates that with the scientific method. While that's part of it, so is testing a hypothesis, which you can't have if you are neutral. The end result in an arson case is that it was either an accident or arson. If you cannot disprove it was an accident a defendant should not be found guilty.

I don't know if the scientific method works or not in criminal cases. You are not dealing with absolute truths like you are in science. Instead, you are dealing many times with possibilities - what is more likely. Yet science still must play a role. If it is going to be the determining role - as it is in arson cases - I think fairness dictates Mr. Lentini's approach. Unfortunately, since that approach makes it more difficult to obtain a conviction, I doubt the court's will agree.

 

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Posted on October 14, 2011 by Walter Reaves

We are looking out for you - seriously

I recently commented on the release of Michael Morton after DNA evidence established another person's guilt. DNA evidence that John Bradley called a waste of time, and opposed. As I wrote that, the Court  of Criminal Appeals was issuing an order declaring Mr. Morton actually innocent. They did soextremely quickly, and there's a story behind that.

It turns out that Mr. Bradley filed a request for an expedited decision. He was clearly concerned about Mr. Morton being cleared so he could obtain compensation - at least that he said.  As you can probably guess, there's more to the story.

There was an agreement that Mr. Morton's lawyers could pursue discovery until the final order was delivered - discovery aimed at uncovering who did what, and who knew what. They believed they had at least 30 days to do that, and probably would have in most cases. By obtaining an expedited ruling they short circuited that process, before it even started. What will  happen with the investigation is now up in the air.

So did they take this action out of concern for Mr. Morton, or as a strategy to ensure that the truth remain the hidden? If I had to bet I know where I would place my money.

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Posted on October 13, 2011 by Walter Reaves

Do people really care if prosecutors hid evidence

The Court of Criminal Appeals apparently moved Michael Morton's case to the head of the line and granted relief yesterday. While Morton may be out and waiting on his compensation check, it does not look like  his case is going away anytime soon. The Innocence Project of New York appears to determined to find out who knew what, and a lawsuit may be in the near future.

What we know so far is that evidence pointing to someone else was not disclosed. Who did what is not clear, and as you would expect everyone is probably going to point the finger at someone else. We also know that Mr. Morton would have been out several years ago had John Bradley not fought DNA testing so aggressively.

This is not the first instance of a prosecutor being caught hiding evidence. I've commented before (here, and  here and here)about the lack of incentives for prosecutors to hand over exculpatory evidence. If they don't the worst that happens is that the conviction is reversed. Even if that is far from certain though. Sanctions from the bar are not  a real possibility, and they have immunity so you can't sue them. They are elected officials, but in the past voters  have not seemed to care. I wonder if that might be changing.

Thanks to Scott Henson I saw an editorial in the Williamson county paper - Mr. Bradley's home town. John Bradley has been there forever - first as an assistant, and then a District Attorney, so I imagine his support his fairly solid. That did not keep the paper from criticizing him though:

Mr. Bradley should feel ashamed. His efforts to stymie DNA testing, along with his refusal to hand over exculpatory documents to defense attorneys, may have had consequences far beyond the wrongful conviction of Michael Morton. 

An unnamed man's DNA is now connected to two remarkably similar murder scenes within miles of each other: Ms. Morton's in 1986 and Debra Baker's in 1988.

That mystery man, a violent criminal who may still be at large, may have had many more chances to kill again as Mr. Morton languished in jail. That is a terrifying thought.

Still, Mr. Bradley seems more interested in protecting his reputation than in bringing the real killer to justice.

I don't know when he comes up for re-election, and  he may not even have an opponent. It will be interesting to see if his handling of this case - as well as others - will be an issue. If so, maybe the public really does care about prosecutors acting ethically and fairly - and following the rules before they lock someone up.

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Posted on October 9, 2011 by Walter Reaves

Changes in Expunction Law

Given the general stance of the legislature on criminal justice issues it might surprise you that they enacted some changes that are actually beneficial to those who have been caught up in the criminal justice system. One of those areas is Expunction, which addressses those situations where someone was arrested but the charges were either dismissed or never filed.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation - such as murder - you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should  have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would  have to wait for significant periods. If you are a lawyer, get ready for the questions; or even better, let your clients who qualify know they can now get some relief from the arrest that has been following them around.

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