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

I started following the situation in Arizona out of curiousity more than anything else. I'm sure I'm like most lawyers and couldn't imagine a court bailiff going through my file while my back was turned. I'm pretty sure that where I practice the bailiff would be fired immediately. Not so in Arizona with sheriff Joe Arpaio. Not only did he not fire him, he threatened the judge, and started a criminal investigation. The situation has deteriorated quickly, and appears that it is now a battle between the sheriff and the courts and the lawyers - from where I sit it looks like the sheriff has the upper hand.

It probably took me longer than most, but my curiosity has progressed to concerned. Thanks to Rick Horowitz I started thinking about how serious this could become. The problem is that sheriff Joe is enormously popular. His popularity is the result him seizing on people's fears - in this case its fear of immigrants and fear of crime. He has people convinced he is protecting him; I understand he is thinking about running for Governor, and would probably be the favorite.

It's natural  for people to be afraid - everyone is afraid of the unknown, and those who are different from them. We all view people like Hitler in hindsight (and no I'm not comparing sheriff Joe to Hitler - at least yet), with knowledge of the evil he did. We forget how he got to the position of power - he seized on people's fears. He was enormously popular in Germany, and successfully convinced everyone that it was them against everyone else - e.g. jews, catholics, people of color, etc..  The world was aware of him for a long time before he finally forced their hand, and made them react. I'm sure the prevailing view was that's something that doesn't effect me; after all, it's clear across the ocean.

In the United States we have seen the influence of the Klan. Seizing on fear of those who are different they convinced the majority that blacks were different, and could be treated differently. The treatment didn't extend to discrimination, but violence.

What can we learn from history? I think it's that we cannot turn a blind eye simply because evil is not right before us. I have always been amazed about how entertwined the Klan and religion were. For the most part they believed they were acting in accordance with God's will, and the bible was part of their beliefs. I'm sure there were many who attended the lynching on Saturday night, and sat in the pews on Sunday morning - maybe as deacons and preachers. The same thing happened with Germany; most denomimations, including the Catholic Church, have acknowledged they could have done far more than they did.

My question now is where are people of conscience - and the church - in Arizona? My guess is they are voting overwhelming for sheriff Joe. They have let their own fears overshadow their beliefs in convictions. They either don't see - or refuse to recognize - the incongruity. The rest of the United States doesn't get a pass either.

Those who profess to believe too often ignore the passage from Matthew where Jesus says we will be judged by how we treat the least among us. (I doubt Christianity has a monopoly on this - I just don't know enough to quote other beliefs). The least among us includes immigrants, and criminal defendants (yes they are people). If you really want to distill that teaching, just assume it applies to anyone who is different.

I often wonder what I would done if I had been alive when Jesus walked the earth. He was clearly a rebel - he was on the outside attacking authority. And those in authority were so convinced they were right they rejected him. I worry that I would have been right there with the Pharisees.

I also wonder whether I would recognize Jesus if he appeared today. I'm sure he wouldn't fit our perceptions of him; he would probably be homeless, and dirty. In short, he wouldn't look like us. I'm pretty sure if Jesus shows up in Arizona he's going to be arrested and living in a tent.

Some of the lawyers in Arizona have had enough, are calling for a rally tomorrow. They know the repercussions; some have already been called in for questioning and threatened with obstruction. Most recently sheriff Joe has threatened to investigate the State bar. Despite that, some brave lawyers are going to stand up and be counted for what is right. I wish I could be there - I will be there in spirit. Let's hope thier example turns the spotlight on what happens - before its too late.

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Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

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Hopefully by now everyone recognizes the problems with eyewitness identifications - the problem being that they are not always reliable. A substantial amount of research has been conducted, and they all reach the same result. Even the National Institute of Justice weighed in several years and acknowledged the problems, and suggested reforms.

Just how unreliable (or reliable) are eyewitness ID's. No one will ever know the true number. We do know that 75% of the DNA exonerations involved eyewitness IDs. Since DNA is available in only a handful of cases, you have to figure the percentages are pretty high. Some have suggested its roughly 50% - or the equivalent of chance.

We do know there are a number of factors that  cause eyewitness IDs to be less reliable. Those include the presence of a weapon, and identifying someone of another race. We also know the manner in which the line-up is conducted has a tremendous influence - the ideal is individual pictures, presented by someone who knows nothing about the case. We also know something about how witnesses view their testimony; most are absolutely convinced they are right. The research is clear that certainty does not equate with accuracy.

So what impact has all this knowledge had on the criminal justice - absolutely none. Only a few states have implemented changes in procedure. More importantly, courts appear to have completely ignored this knowledge.

A recent law review article attempted to study the impact the research has had on judicial decisions. They chose cases where the ID was challenged, and there was no (or little corroborating evidence). In all the cases the defendants were convicted, and appealed. The goal was to determine whether the courts were applying the research in deciding these cases. The answer was an overwhelming NO. Not only were the courts not recognizing the problems with eyewitness, they were using factors that have been soundly rejected. In upholding the identifications a number of courts noted the witness was certain about the identification. A total of 96 cases were studied - all decided within the last year. Relief was granted in only two of those - and that was not based on problems with the ID.

So what does that tell you? According to the author of the article it suggests that innocent people are  still being convicted on bad IDs. And it looks like that is not going to change anytime soon.

I think we have to recognize that the general public still sees eyewitness testimony as sound. While they are willing to acknowledge people can be mistaken, they are not willing to say the witness in their case is mistaken. We have all seen cases where the evidence  presented by a defendant was almost overwhelming, but not enough to overcome the eyewitness. That means you cannot  simply leave these cases to juries.So what's the answer?

The final responisibility is with the courts and the legislature. The legislature needs to mandate changes to cut dowon on the possiblity of error. That's not going to be enough to solve the problem though. Judges still have to do their jobs - that means throwing out IDs in bad cases. They can't simply take the easy road, and leave it the jury. Lawyers also have to keep pressing the issue, and challenging IDs.

So let's get out there and do something.

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Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

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Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't  know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

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The regular college football season is now over; for college football fans like me we now have to find something else to do on Saturdays. There is still the bowl season, and the Heisman race. Unlike most years, the Heisman race is wide open. Until he turned in a horrible peformance against Nebraska my guy - Colt McCoy - was in the lead. Now it's anyone's guess.

This past weekend was not only the last regular season game for McCoy, it was also the last regular season game for Florida quarterback Tim Tebow - who won the Heisman two years ago. For those who don't know, many claim Tebow is the best college football history in history.

McCoy, Tebow, and last years winner - Sam Bradford - all have one thing in common; they appear to be extraordinary young men. They volunteer in their communities, go on mission trips, and have a strong faith. You would think that would be a source of praise - and pride. Instead, it has become a source of criticism. More than a few people have questioned whether the appearance is genuine - in other words, some feel it is just an act.. When Colt McCoy kneeled down with his  head down (like he was praying) I'm sure many viewed that as less than genuine.

Obviously I don't know any of those three; I assume - and I hope - that the appearances are genuine. I certainly don't have anything to suggest they aren't.

I don't think this something peculiar to college football fans; instead, it's a reflection of society in general. We have come to the point where we assume everyone is bad or evil. If they appear to be good, it is just an act. If that's true, what does it say about our jurors. We already know that most people think criminal defendants are "different" from them. Obviously they did something wrong, or they wouldn't be where they are - right? Do we have a chance of overcoming those presumptions?

What does that does it tell us. To me, it says that attempting to convince jurors our clients are really good people is probably not going to be effective. We certainly need to try, but don't put all your eggs in one basket. Maybe we need to play off those feelings. After all, police officers and prosecutors are just like everyone else; why should jurors assume they are out doing the right thing.

Recognizing trends is something we have to do, and deal with. You can learn something from everything - even college football.

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