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

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing  - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.

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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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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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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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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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