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

The Supreme Court decision yesterday in Kansas v. Ventris was not a shock. The Court held that the prosecution could use a statement obtained in violation of the right to counsel to impeach a defendant. The State had placed an informant in the cell with Ventris and told him to listen up. Eventually, Ventris made an admission that he killed the victims. At trial he testified differently, and the Sate was allowed to use the admission he made to the informant.

Kansas conceded that the admission was obtained in violation of the the right to counsel, and therefore could not be used in the case in chief. However, they successfully argued that it could be used to impeach him. After, all he shouldn't be allowed to get up on the stand and get away with perjury should he?

The initial problem I see with that argument is that assumes the statement the informant will testify to is truthful. A jail cell is not exactly the place where people bare their souls. There is lot of bragging and self-promotion, mostly in the interest of self-preservation. Perhaps more importantly, informants are not pillars of the community known for their honesty. They don't get anything out of saying someone denied committing the offense; they only get a benefit if they tell the police something useful to the investigation. Needless to say, you can't believe everything they say.

There is a more fundamental problem with this holding. When a statement is obtained in this manner the police are deliberately choosing to violate the law. They know it's unlawful, and they do it anyway. Why should courts reward that conduct. When anyone else chooses to do something unlawful, they get prosecuted. The State gets a free pass, and obtains a benefit - maybe not the benefit they really want, but  a benefit nonetheless. It's simply one more example of the police getting a "pass".

Justice Stevens and Justice Ginsburg were the only two who had a problem with this. In his dissent, Justice Stevens said:

Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process....Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerablein all cases. I respectfully dissent.

That's a quote worth saving.

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I am still trying to figure out the impact of yesterday's decision in Cone v. Bell. The case has an unusual fact pattern - due in large part to the State's inconsistent arguments - which may limit its application to other cases. One thing I did take out of the case was the desire to make sure we understand how limited the constitutional obligation to disclose favorable evidence really is (in legal terms - Brady material)

The majority opinion noted in a footnote that a prosecutor's ethical obligations are broader than the requirements of Brady. The ABA standards require prosecutors to disclose any evidence that is "favorable" to a defendant. In contrast, Brady only requires the disclosure of "material" evidence. That is is signficant distinction, because what is material depends on who you ask. Prosecutors seldom think anything is material because the evidence is overwhelming. Most of the time the Courts agree, since you have to prove the evidence would probably alter the outcome.

It was not only interesting that the Court pointed out this distinction, it was also interesting that Justice Roberts addressed the distinction in his short concurring opinion. He wanted to make sure the Courts knew they should use the constitutional test, and not some other standards.

The judge who presided over the Sen. Stevens trial knows too well the distinction. He has written a letter suggesting the federal rules be changed to require disclosure of favorable evidence. Obviously,  he's had the opportunity to witness first hand the problems with leaving too much discretion in the hands of prosecutors.

Whatever else Court held, they pointed out again that a prosecutor can comply with the constution without complying with the rules of ethics. I'm sure that's a great comfort to defendants.

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Last week the court denied relief for Troy Davis. His case has bounced back and forth in the courts. Since his original conviction, he has obtained recantation's from several of the government's witnesses, as well as an admission from someone that they actually committed the offense. Needless to say, the litigation has focused on whether Davis is innocent or not.

The court affirmed the conviction and corresponding death sentence, by a vote of 2 to 1. As a result, there is a very real possibility that he will be executed even in light of evidence that at least raises questions about his guilt.

The legal system is not designed to judge shades of guilt or innocence. You are either guilty or not. In most cases that may be sufficient.Many people are willing to live with the possibility that guilt may not be firmly and clearly established (i.e. beyond all doubt as prosecutors are fond of reminding jurors). However, where death is involved, there should be an alternative approach.

No one can seriously argue at this point that juries never make mistakes. They do the best they can, with the evidence presented. In many cases there may be new evidence developed during the post-conviction process. What a jury would do with that is nothing more than a guess; a guess that's not being made by jurors, but instead by courts. In those cases, they are making life and death decisions, based entirely on what they THINK a jury would do.

Troy Davis's case represents the problem with establishing innocence. Once a jury finds a person guilty, a presumption of guilt is created. Overcoming that presumption is difficult, if not impossible to do. As in Davis's case, many times a defendant may obtain a recantation from a witness. While most people would think that's significant, courts look at recantations skeptically. Especially when it occurs long after the trial, courts place little faith in them. Seldom will someone obtain relief if all they have is a recantation.

Admissions of guilt are also looked at step typically, especially if the person can no longer be prosecuted for the offense. Recently, a defendant in Dallas was released after being exonerated through DNA evidence. Another person had claimed credit for the offense years earlier. Had the authorities taken that seriously, they could have ensured the right person was convicted. As it turned out, limitations had run, and no one was ultimately prosecuted for the crime. I can understand why prosecutors look at such claims with skepticism. However, they must do more than dismiss them outright. Somehow they must at least consider the possibility that they may be credible, and at least do some type of investigation.

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The Supreme Court heard arguments this week in the case of a 13 year old girl who was strip searched for drugs based on a tip from another student. Some of us are well beyond 13, and its easy to lose site of modest kids are at that age. If you have, or have had a teenager, you know the lengths they will go to make sure no one sees them without their clothes. So you can imagine how humiliating and traumatic it must have been for this young girl to have to remove her undergarments in front of stangers; all to see whether she had a couple of tylenol.

During arguments it appears the Court lost sight of what is actually involved. Instead, they talked about what kids will put in their undergarments. One justice even wondered if there was a difference between panties and a bra. If it was anyone else talking about these things they  investigation would be launched.

What I am having a hard time understanding is the rational for such a search. The court talked about the need to protect school officials and other students. I can't argue with that; we know too well what can happen when students bring weapons to school. What I don't understand is why you need to search their underwear for weapons. Unless there is something I don't know, can't you determine whether some has a weapon by patting them down. I thought that was why we had Terry stops, so officers could be sure a suspect wasn't armed. Is there some weapon so small you couldn't find it in through a pat down.

What is really sad to me about this case is that we are even debating it. We are talking about violating a 13 children here. Have we come to the point where even that is sacrificed to the war on drugs?

I'm not suggesting a full body is never proper. However, I think you need something more than unsupported hunch, or speculation. Before you go to those lenghts, you should be sure that you are going to find something.

Students still have some rights at school. Let's hope the court recognizes that.

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I have been recovering from several trials, so I'm weighing in a little late (as in 1 day - you gotta love the blawgosphere). Others have already discussed what the decision in Arizona v. Gant really means, and its implications. I join those who suggest that you have to look at the specific facts, especially the fact the car was parked on private property. What I want to address are what I think are the broader implications of the decision.

The court has been engaged in a steady attack on the Fourth Amendment for several years. Every time they have taken up a Fourth Amendment case, they have used it to chip away at its protections. It was only a few months ago that they decided it didn't matter if the warrant you were being arrested on had been withdrawn, and not removed from the computer system. So to me the decision here was a welcome surprise; the Court took the opportunity to hold that the Fourth Amendment still means something. For those who have suggested its ultimate demise, this is a welcome sign.

This was far from a cut and dried case; in fact, the vast majority of courts that have have addressed the issue (i.e. searches of vehicles incident to arrest) held contrary to the court's ultimate decision. I don't think I was the only one that predicted the Court would take this opportunity to affirm that interpretation, and broaden the authority to search. I'm happy to be wrong!

The other thing I take from this case is the acknowledgement that police officers do not always act as they should. The court acknowledged it's prior holdings had been used to trample on individual rights, to the extent that anyone stopped for a minor traffic violation was subject to a full vehicle search. They also recognized that police are not above manipulating the situation to do what they want. In fact, Justice Scalla argued for a different rule because he suspects police will now manipulate the arrest to ensure they can still search the car. Perhaps this is a broader trend in society as a whole. Personally, I think it is because it is because efforts to bring to light those situations where officers abuse their power. Many people - including now the court - now believe those are no longer isolated incidents.

I don't expect great changes, and don't believe we we are going back to the era of the Warran court. However, I do think it is a positive development. Citizens still have rights, and the court has recognized that those rights sometimes trump the interests of law enforcement. It's a good start.

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Last week Bridget Lee was released from prison after spending 9 months for murder. According to the pathologist, Corinne Stern, the infant was suffocated. It turns out the infant was stillborn - having died from complications caused by pneumonia.

Lee's attorney apparently did what all attorneys should do - he obtained his own expert to review the autopsy. He then presented his findings to the District Attorney, who to his credit took them seriously. He had other experts review the case; by the time it was over, six independent experts determined there was no murder.

There are couple of things that trouble me about this case. One is that Dr. Stern is still at work - she is now conducting autopsies in Webb County. The other is the apparent complete lack of review of such findings. The autopsy in this case was signed off by the other pathologists in the medical examiner's office. You would think that if they looked at the findings at all, they would have questions; one of her findings was bruising on the face and mouth, which turned out to be decomposition. Apparently the other signatures don't mean what you think. I guess they are signing off on the form of the report, and not the results.

This is simply one more instance of a scientist getting it wrong. No matter what their credentials, we cannot blindly accept the conclusions of someone who claims to be an expert, especially when their conclusion determines whether someone is guilty or innocent. Alabama authorities are reviewing the other autopsies she performed while there; let's hope there was an isolated incident, and there aren't others in prison who shouldn't be there.

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Yesterday a District Court judge in Austin - Charlie Baird - issued an opinion formally exonerating Timothy Cole of rape. What's historic is that Cole died in prison; as far as I know, no one has ever been exonerated after their death. Thank's to Grits, you can view the opinion here.

Cole was convicted of raping MIchelle Mallin, who had positively identified him. Mallin was present at the hearing - flying in from out of state with her husband - and has been a vocal supporter of Cole's family. She also has become a vocal supporter of innocence reform legislation.

Baird was critical of the police investigation, which he said zeroed in on Cole and ignored clues that could have led investigators elsewhere. He also took the opportunity to pitch legislative reform, including revising eyewitness identification procedures, and improving access to the courts for those pursuing innocence claims. That's a start, but I don't think its near enough. We need to change our mindset, which is far harder to do.

Cole's case has a happy ending - largely because of the resolve of his family. They were able to convince the Texas Innocence Project to take the case - I doubt it took much persuasion. The actual rapist had been trying for several years to take responsibility, and exonerate. He had written letters to everyone he could think of, and they were all ignored. Unfortunately, that is not uncommon. Authorities have to deal with hundreds of such claims - and the vast majority are groundless. However, some have merit, and they get dismissed far too easily. Somehow, we need a system to identify those claims that need to be investigated. Providing money is a good start - we cannot expect a few lawyers to shoulder the responsibility of providing representation in these cases - there is so much pro bono work you can do; you still have to pay the bills.

Criminal defense lawyers don't get a pass on this. I handle post-conviction litigation and supervise a innocence clinic at Baylor Law School. I cannot guess at the number of letters I've received from inmates declaring their innocence. Unfortunately, I've received a few letters from people who were able to obtain relief from someone who listened to them. I try to take each claim seriously, but its human nature to become jaded when so many turn out to be false.

We can set up the best system humans can devise, but it will still be run by people. Unless those in the system take it seriously, there are still going to be those who fall through the cracks. How you do that I don't know. I do know that when you see cases like Timothy Cole you look at things a little differently - at least for awhile. We need to constantly remind ourselves that there many other Timothy Cole's out there - trying to get someone to listen.

I realize not everyone who says they are innocent actually is - most probably aren't. I also recognize that there are probably a lot of innocent people who are never going to be able to prove their innocence, even with the best team of lawyers. No matter  what system you devise, there will always be those who can't meet their burden.

Timothy Cole was lucky (if you can call dying in prison a convicted rapist lucky) - there's no doubt there are others that are not so lucky. I believe the legislature has finally realized - after years of prodding - that something needs to be done. Thank you to everyone involvied in obtaining this result - it should be a lesson to us all.

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