Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The National Association of Sciences (NAS) issued their long awaited recently. Others have talked about what the report what says, and there's no need to add to that discussion. To sum it up, there are serious problems with everything except DNA. That was a conclusion that came as no surprise to those of us who have dealt with these issues, particularly the so called “junk sciences”, such as blood spatter, arson, bite marks.... The report validated what many have been saying for several years. The question I now have is what effect, if any, this is going to have on criminal cases.

The report points out that judges have done a terrible job of keeping out unreliable evidence, which includes scientific evidence. Unfortunately, almost no judge ever refuses to admit evidence, especially when it is offered by the State. They are charged with being the gatekeeper, but seldom do they exercise that role. In some respects, you can't blame judges. They aren't scientists, and you cannot expect them to be up the current science. If a so called scientist comes in and talks about reliable evidence is, they don't have the ability to make an independent interpretation of what they are being told. The end result is that the admissiblity of evidence is often left to scientists, who have an interest in establishing its reliability. Bite mark evidence is one example. No matter how much it has been discredited, there are still experts who will claim its valid. To do otherwise would be to put them out of business.

so what do we do. I think the first thing we need to address is the role science has taken in the criminal process. Trials are often based on nothing more than scientific evidence. I've seen cases that came down to whether the blood spatter establishes suicide or murder. In my opinion, that is placing too much power in the hands of scientists. They should not be the ones determining who is guilty and who is innocent. Unfortunately, judges and jurors love scientific evidence. Scott Greenfield suggests it is because introduces some certainty in an area where nothing is clear cut. The problem with that as we now know is that such evidence is not as “certain” as they claim.

This is not an issue that will be solved easily. To start though, judges need to be more critical. Evidence should not be introduced without a significant showing of reliability. That showing needs to be based on scientific findings, that have been verified. A prime example is fingerprints. No one has ever verified that no two people have the same fingerprints, yet that statement continues to be made in courtrooms every day. More importantly, there is little evidence on comparing the types of prints that are located at crime scenes, which are not the same quality as those taken at the jail.

I don't think the problem is a lack of education. Judges receive enough training, and they are aware of the problems. What the need to do is apply what they know. They have a tremendous responsibility, and in those wrongful convictions based on junk science I would suggest they have the ultimate responsibility for the result. They could have prevented it, and you can't get off the hook by saying the decision is up to the jury; they are going to accept the evidence if the judge does. I realize the decision to keep out evidence is not popular, but if you are concerned about winning re-election you don't need to be on the bench.

It would be nice if there was a presumption that scientific evidence was not reliable, that had to be overcome by sufficient evidence. It would also be nice if there was a special corroboration requirement for scientific, similar to what exists for accomplice witnesses in some places. I'm sure there are ideas you could come up with if you are really interested in addressing the problem.

One other issue that needs to be addressed is how to deal with those defendants who have been convicted on faulty evidence. The post-conviction process does not  provide an effective remedy for those people. Perhaps there should be a special process to review those cases, and grant relief in appropriate cases. If something is not done, there are a lot of people that are going to remain in jail that shouldn't be there.

The NAS report is an important first step. It points out the problems with the use of science in criminal cases. Lets hope we now do something about it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Another judge has been in the news this week. Judge Samuel Kent, a federal district judge in Houston pled guilty earlier this week to obstruction of justice. He pled right before his trial was scheduled to start. in addition to the obstruction charge, he also faced charges for sexually assaulting his female staff (which he admitted as part of his plea).

While it's news any time a judge gets indicted (especially a federal judge), there are several things about this case that are interesting. One is the plea agreement itself. To say it's favorable is an understatement. I wonder whether the offer would have been made to anyone other than a federal judge? If it  had been one of the judge's law clerks, or members of his staff, would the same offer  have been made to them?  If you've ever handled a federal case, you know that federal prosecutors rarely allow a defendant to plead on a lesser offense. In fact, most will tell you that department policy requires them to obtain a conviction on the greatest offense established by the evidence. Was there a problem in proof in this case? If so, why did he admit to the conduct as part of the plea?

The perception among the powerful is that the privileged receive special treatment. This certainly does nothing to dispel that perception.

Beyond those considerations is something that surfaces in these situations. I've never appeared before Judge Kent, and don't know anything about him. However, my guess is that he has heard most of the excuses he is now making for his conduct; he was depressed, and his medication wasn't properly adjusted, or some variant of that. I doubt seriously he has ever bought that argument. Yet, he is going to make the same claim, and expect it be accepted. Unfortunately, that state of mind is far too often among the judiciary.

Most judges develop the belief that defendants are different than them. While many judges start off with plans to treat every defendant as an individual, few are able to maintain that. They see cases and defendants, and not people. As a result, they too easily reject valid arguments for why people committed their offenses. For many it is a product of circumstances. I'm sure Judge Kent realizes that now. He has the benefit of a someone judging him who can relate to his situation. For most defendants, judges have no idea what it's like to live in their shoes.

Judge Kent's career is over, so he won't get to apply what he has learned. It would be nice if it served as a lesson to other judges. There is usually a reason why people do what they do; you have to look at them as individuals, and not defendants, to know what those reasons are. If you do that, you are acting as real judge.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's not surprising that the blawgosphere is buzzing over the ethics complaint filed against Sharon Keller of the Texas Court of Criminal Appeals. Both Scott Greenfield and Mark Bennett have weighed in on the issue. Grits collects some of the numerous editorials that have come out. As you would imagine, no one is coming to her defense.

The complaint contains additional details that were not well known. We knew that she instructed the clerk's office to close at 5:00, even though she knew MIchael Richard's lawyers were planning on filing a request for stay. Some of the other facts are truly outstanding, and show the mentality that is far to common among criminal court judges.

It appears a little thing someone's life wasn't going to get in the way of really important things; she had to go home to meet a repairman. After all, everyone would want to make sure everything in her house was working properly. Some of the justices were actually taking their job seriously; they stayed late to review the anticipated filing. They were never told that the clerk's office had been closed, and nothing could be filed. Apparrently they expressed their surprise the following day, and were never told what had happened. This included Justice Cheryl Johnson who actually had the responsibility of ruling on Richard's requests.

That conduct illustrates an extreme, that in lesser measure is far too common; judges don't see defendants as real people, with real families. They are viewed as defendants - convicted criminals. No matter what they have done, they are still people, and deserve some respect. That respect at a minimum should include actually reviewing their case before making a decision. It also includes putting your job ahead of your personal interests. I firmly believe that we will be judged by how we treat the least among us; that includes people like Michael Richard.

Justice Keller is now basically a defendant. Although criminal charges are not a possibiity, these proceedings will determine her future. I'm reasonably sure she wants to be treated with respect; she probably expects more because of her position as a Justice on the Court of Criminal Appeals. She will probably get a full and fair hearing. No one is going to close the office, or go home early. Everyone will bend over backward to ensure she is treated fairly. She will probably get the benefit of every right she is entitled, even those she thinks defendants shouldn't have. Fortunately for her, she will probably get to exercise the very rights that she has voted to extinquish - rights like due process, confrontation and even the presumption of innocence.

Fortunately for society its rare for a judge to become a defendant. When they do, I'm sure their perpective. All those rights they think should be limited suddenly become important. We will have to wait and see what happens - I have no idea. One thing I do know t hough; I doubt there are many people in the Texas Department of Criminal Justice that are upset about what is happening.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New York Times recently reported on a Pennsylvania judge who plead guilty to incarcerating juveniles for case. The judge admitted to taking kickbacks for sending juvenile offenders to two privately run detention centers. Over 5,000 juveniles have been sentenced since the scheme started, and the judge pocketed approximately 2.6 million. According to the report, the lawyers are expecting a sentence of 87 months. When you consider the impact on those kids who shouldn't have been sent to a detention center, that seems like an awfully short sentence. Most drug offenders get substantially more time than.

I'm sure there is some percentage of offenders that would have been sentenced to the detention center, but there is also some percentage that shouldn't. He was making a nice chunk of money; about $500,000 a year. No doubt that influence his decisions. The kids were money - not children in trouble, who needed help from the system.

No amount of money can compensate those children who shouldn't have been sent to detention. Society is probably going to have to bear the costs for some; no doubt there are some who will be lead down the wrong path because of what happened. Kids are especially prone to becoming what people think of them. If society thinks they are a failure, the tendency is to become one.

I don't know how you identify those who were improperly sentenced. I think you ought to accept that money influenced every single decision. Every case needs to be evaluated, and relief needs to be tailored to be each child. If they are still detained, release is only the beginning. They need to be provided the help and services they need to put their life back together.

Does this also say something about the privatization of detention facilities? Any time money is introduced into the equation, there are those who are going to take advantage of it. It's not surprising something like this happened when you recognize the large sums of involved. Maybe this will be a lesson; at a minimum, we need oversight to ensure something like this doesn't happen again.

There is no easy solution to this issue. Let's hope those in Pennsylvania recognize this, and ensure those kids are taken care of.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Simple justice commented on a decision out of the 9th Circuit, where the court questioned the wisdom of the appeal. The court noted that if the appellant was successful, he was probably going to get more time when he went back to court. You would think that rarely happens, but too often lawyers give little thought to the consequences of their actions. As Scott points out, lawyers should give at least some thought to what is going to happen if they win. Popehat also pointed out the same thing.

One of the first things I look at before pursuing an appeal is whether that is what should be done. I've advised people to leave well enough alone; although they might not be happy with what happened, it could be worse.The same advice goes for decisions during trial.. I've often wondered why courts don't grant relief more often so they can get another chance to really hammer a defendant. Personally, I've never seen a judge do that.

Since others have already the decisions defense lawyers make, I want to point out the same considerations ought to apply to prosecutors. Of course there is a difference; they generally can't make their situation worse. After all, they are the State. Nevertheless, they too often oppose something, or object to something, merely because a defense lawyer wants it.

I guess I should be happy about this. I wouldn't have been successful in nearly as many appeals if the prosecutor had thought about what they are doing. Most of the time, they give little thought to the effect a decision is going to have on an appeal. I've always been amazed at how  many times they are willing to create an issue, when there is no need to do so. Every now and then something is really important to the State's case. More often than not though, the case isn't going to be hurt. Most lawyers have seen prosecutors object to evidence when its not going to effect the verdict one way or the other. Good lawyers know this, and sometimes use it to build error into a case.

Why do they do it? Because that's what you are taught as a lawyer. You are an advocate for your side. As an advocate, you take the opposite position your opponent takes. Sometimes that's warranted, but many times its not - especially in criminal cases.

No matter which side your on. its not a bad thing to think before you act.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The baseball steroid scandal has reared its again. Yesterday, A-Rod admitted he used steroids when he was with the Texas Rangers. Houston Astros shortstop Miguel Tejeda was also charged with lying to Congress. You can debate the wisdom of pursuing this investigation all you want. Personally, I think we have more important issues to focus on.  However, it does point out something that is not well known about the criminal justice system; when they can't get you for anything else, they can also get you perjury.

Perjury is a favorite tool of prosecutors. Those who remember the S & L mess in the 1980's know this well. There were hundreds of bankers and executives who probably committed all sorts of fraud, and other illegal acts. They weren't convicted of those things though; instead, they were convicted of perjury. Investigators would either get them in front of a grand jury or interview them. When they thought they were lying they would charge them with perjury.

Perjury is also a common threat, especially in criminal prosecutions. When a prosecutor finds out someone is going to testify for a defendant, they gently remind them they can be prosecuted for perjury. The proof is that the witness isn't saying what the State's witnesses are saying. Of course everyone knows that the state's witnesses are also truthful, so if you say something different you are lying.

There is some discretion in the application of any law. Nowhere is that more apparent that in perjury prosecutions. How many times have you seen a prosecution discredited; many times there is no doubt they lied. You seldom see them prosecuted though. With Tejeda, who hasn't lied to Congress? How about the auto executives, and bankers who have been testifying. No one seriously expects those people to ever be charged with an offense. Is that fair? Probably not, but that's the system.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Several people have already discussed the case of Timothy Cole. Cole was a Texas Tech student when he was convicted in 1985 of rape and sentenced to 25 years in prison. Cole died in 1999 from asthma complications. He maintained his innocence, even it meant he wouldn't be paroled. His family never doubted, and never gave up.Their results paid fruit in 2003 when DNA evidence cleared him, and pointed to the guilt of another man. As with over 75% of wrongful convictions, this one involved a bad identification.

The identity of the actual rapist was not a mystery. He had been trying to admit his guilt for several years. Although its rare that someone would admit to committing such a serious offense, investigators didn't believe him. They probably didn't care - after all, they had a conviction in the case. When the DNA evidence came back his confession could no longer be ignored.

Cole's family initiated a court of inquiry in Travis County, and presented evidence seeking Cole's exoneration. They were successful, and former Court of Criminal Appeals justice Charlie Baird granted the request. The family will not seek a pardon from Governor Perry, and also seek to have the conviction expunged from his record. Even though he's no longer with us, it is a formal recognition that he is in fact innocent, and should have never been convicted.

In connection with the hearing, Cole's family appeared at the legislature, and received what has been described as a truly warm reception. Several bills have already been introduced dealing with innocence issues, and maybe this year they have a chance of passage. It helps to put a face on an issue. Several other exoneree's also were in Austin to support the bills. While I'm all for anything that possibly prevent the conviction of an innocent person, I have doubts about how effective these bills will be without a fundamental shift in the system.

Mistaken identifications have been targeted as a major cause of wrongful convictions.  Some states and local police departments have changed the way line-ups are conducted. With traditional line-ups, the danger is that the individual who most closely resembles the assailant will be picked. An identification can almost be assured by the other pictures included in the line-up. That appears to be what happened with Cole; it was either going to be him or no one. Research has shown that showing pictures one at time will improve accuracy. Other changes include having an investigator not associated with the case do the lineup so there is no way to influence the selection.

I have no doubt such changes will improve the process. Even with better procedures though, I think you still have to accept that mistakes are going to be made. Human memory is not like a camera; you cannot simply go back and recreate what you saw. It is influenced by a number of variables. most of which you are not aware of. The bottom line is that identifications are not perfect, and everyone seems to know that except prosecutors and investigators. Personally, I think they know it, they just don't care. The easy way to close a case is with an identification. Usually any further investigation stop, and the case is closed. Often times, as in Cole's case, investigators ignore evidence which should have caused them to question the identification.

Maybe we need a corroberation requirement, like we have with accomplice witnesses. You cannot obtain a conviction without other evidence that supports guilt. Over time, perhaps that would cause a change in tactics. Instead of throwing someone into a line up with nothing more than a hunch, maybe they would wait until they had other evidence. More importantly, maybe investigation would continue after the identification is made. Identifications would be treated as nothing more than circumstantial evidence.

Until we recognize the inaccuracy of identifications, the problem is going to remain. No matter how many cases of mistaken identification  are reported, police and the general public still believe its accurate. The tendency is to look at those cases as aberration. If we could ever get accurate statistics, the truth may be that an accurate identification is the exception. After all, think of all the things going in most crimes; its no wonder that the ability to accurately recall what someone looks like is diminished.

I hope these changes come about. However, I also hope that's not the end, and everyone expects the problem is fixed. As long as police can close a case without a substantial amount of work they are going to do; its only human nature. Cases will continue to be closed with identifications, and probably many will be wrong. We still have a long way to go.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

One of the so called issues both political parties are fond of is "family values"; its something everyone wants to appear strong on. Of course the politicians who advocate the strongest are generally the ones who have no idea of what it is. Like most issues, politicians are selective as to when they think family values are important. One area where its never talked about is immigration. Not only is it never talked about, you could say our immigration policies - and especially the criminal statutees - are anti family values!

Living in Waco, Texas, we don't see many prosecutions for immigration violations. There are a few though, and the ones I have been involved with have been disturbing. Everyone knows its a crime to come into the country illegally. The penalties become more serious if you have been previously deported. If you have a felony conviction, the sentences can approach those handed out in serious drug cases. What's disturbing about many of these cases is that are imprisoning people for doing nothing more than trying to be with, and support their families.

I have seen defendants who came over here when they were children. For various reasons they never became citizens, and end up in trouble - often minor offense like shoplifting.  Some don't even speak spanish, and have no family in Mexico. Yet we imprison them, and deport them; we basically send them off to a foreign country, with no support net. It's not surprising that many choose to come back.

I recognize that these people broke the law, and the fault is mainly theirs. However, you can't ignore the fact that they have made lives in this country. They've raised their families, and been productive members of society. They have been good workers, and contributed to the community. When it comes time to sentence them or deport them though, none of that matters.

If you are really serious about family issues, let's be consistent. Instead of tearing families apart, we should spend some time worrying about how to keep them together.

• Email This
• Print
• Comments
• Trackbacks
• Share Link