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

I recently came across a story because it involved DNA evidence. Evidence had been tested 10 years ago, and the defendant - Stephen Meyers - was identified last year as a match. As is typical,  odds were provided - a  1 in 1.6 million billion chance that the evidence did not come from the defendant.  In preparing for trial, the evidence was retested - and guess what. That one in 1.6 million chance came true - the new tests excluded the defendant! As a result, the case was dismissed.

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing  but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test. Older tests were only able to look at several locations on the DNA molecule; results were given for each location. For example a person might be a type 1.1, 1.4 at location on 1.3, 1.5 at location two. If the defendant has the same types he is excluded. Newer tests look at more locations, which makes it more precise. If the defendant is excluded at any point, then he is excluded - i.e. cleared. Obviously, the more locations you look at, the better the chance of obtaining an exclusion.

What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

In my experience, prosecutors never challenge scientific evidence. If they have a 10 year old t est, they are going to run with it. If it's going to be challenged, it is up to the defense lawyer to do it. Kudos to the prosecutor here, who wasn't willing to blindly accept what the experts told him (even if they were just trying to make the case stronger)

I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

Before the retest there was already plenty of evidence to suggest Meyers was innocent. The description of the suspect was short, fat and balding, while Meyers was tall and skinny. Not to mention almost  no evidence to establish he was even in the same town where the assault occurred. You might thing that is enough, but I have seen far too many cases where defendants were convicted even though they didn't even remotely resemble the description provided. The explanations are usually that the victim was under stress, and that appearances change. In other words, if you are relying on a bad identification you are flirting with disaster.

Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there really is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me put a reason behind my theory.

The problem with burden of proof and  presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feeling that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the counsel table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone charged with  a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

I handle a lot of appeals and post-conviction cases - that includes more than a few innocence cases. There have been more than a few cases I've looked at and wondered how in the world the jury could have convicted the person. Most of the time I think it was nothing more than the defendant couldn't prove someone else committed the crime.

Prosecutors are fond of talking about how difficult it is to overcome of the presumption of innocence, and what  a high burden they have. If the burden was really that high, the would lose a lot more cases. In reality, a guilty verdict is a function of how convinced jurors are, and how willing they are to risk making a mistake - i.e. letting someone who might be guilty go free.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So what does all this mean? It would be nice if jurors recognized these tendencies, but that is probably too much to expect. At a minimum, lawyers must be aware of them so they can attempt to deal with them. 

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me but a reason behind my theory.

The problem with burden of proof and presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feelings that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the council table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting someone back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone convicted of a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

Much of my work involves appeals and post-conviction cases - that includes a fair number of innocence cases. I've looked at more than a few cases and wondered how in the world the jury ever convicted someone. In most of the cases I think it was nothing more than the defendant couldn't prove someone else did it.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So where does that put us? It certainly isn't impossible to win a criminal trial - but it's also not as easy as the State would want you to believe. They often talk about the high burden they have to overcome. In realitiy, in some cases it is the defendant who has the burden - despite what the law says. It would be nice if jurors recognized these tendencies, but that is probably way to much to ask. Lawyers have to recognize them - if you don't, you don't have a chance.

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One of the many things people have difficulty understanding is that police officers can lie with almost complete immunity. They can do whatever it takes to obtain a confession, or get evidence. I’m fairly sure that it’s  something taught in training. One of the most common techniques where there are multiple suspects is to tell one the other has already given a statement.

Apparently there is a limit on what officers can do. It’s all right to lie, but you cross the line when you physically manufacture evidence. The Texas court of criminal appeals recently considered a case where the officer did just that. In order to get a confession he told the defendant that his fingerprints were on the murder weapon, and created a report which showed that.

Texas has a statute which prevents the state from using evidence that was obtained because of some violation of the law. In this case the defendant argued that the officer violated the statute preventing tampering with a government record. The court agreed, and held that although police can use trickery and deception they cannot use false or manufactured documents.

The question you might have is what happens to the police officer? Clearly, he violated the law when he physically altered and you report. The Court of Criminal Appeals even said so. Will he be prosecuted? I seriously doubt it. After all, anything done in the name of law enforcement is fair game. The worst thing that will happen is that he may not be able to use the confession. That is even in question, because the defendant still must prove the confession was the result of the improper conduct.

There clearly is -and always has been - a double standard when it comes to law enforcement. Is it any wonder why some people question the system? A system that allows officers to break the law as long as they are trying to catch someone who is breaking the law. At least we now know there are limits, even if there are no consequences.

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I don't know what to make of the Court of Criminal Appeal's decision this week to reverse Michael Hood's sentence. Earlier in the week  the court was soundly criticized for it's treatment of the affair between the prosecutor and the judge. A cert petition filed in the Supreme Court created great fodder for bloggers. As expected, Scott Greenfield, Jeff Gamso and Grits were among those providing insight. The most interesting post came from Rick Horowitz, who used a lot of **"s to avoid the censors. To me, the most interesting developments was an amicus brief supporting Hood that was filed by 21 former prosecutors and judges. I don't have to tell you how rare it is for a prosecutor to come out in support of a defendant - especially a death penalty defendant.

The Court of Criminal Appeals had done everything it could to downplay the affair; it wasn't really an affair after all, they just got together a few times. Given the court's history, the holding wasn't that big a surprise. What does infuriate me is former Judge Holland's response; she's upset that her reputation is being dragged through the mud - in her mind unfairly. The response isn't that different from Judge Keller's response to her ethics complaint - it was the lawyer's fault.

I don't know why, but it sets me off when I see double standards in play. It seems to be especially prevalent in the criminal justice system. For example, there have been more than a few prosecutors who don't mind going out and drinking to excess, and then driving home. If they get stopped, they would expect special treatment. Instead of empathizing with DWI defendants though, they come into court demanding stiff punishments and refusing to deal. Judges are no different; some get upset if they are someone in their family is treated the same way they treat defendants who appear before them.

Did Judge Holland ever prevent a prosecutor from destroying a defendant's reputation? I seriously doubt it. I also doubt she accepted the all too common excuse that someone else was to blame for their conduct.

The underlying problem in all this is that some in the criminal justice see defendants as different than them. They also may believe they would never be in that situation. In other words, its us versus them. When you see someone as different its easy to treat them badly - you don't even give it a second thought.

I've said before that I sincerely believe we will be judged by how we judge the least among us. Many problems with our criminal justice would be solved it we viewed criminal defendants as our neighbors. Granted, they may have made mistakes, and done some bad things. But so have we all.

 

Continue Reading...

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Many defendants are surprised to learn about the law of parties. The law of parties assigns guilt if you don't directly participate in the offense. Basically, if you do something to aid, encourage or assist the commission of the offense you are guilty. The classic example is the getaway driver in a bank robbery - even though they don't go inside, they are still guilty.

The law of parties is usually fairly straightforward. Of course, any time more than one person is involved there is a potential for problems. The Court of Appeals in El Paso recently addressed one of the problems in State v. Andrew James Cotto and Robertor Corral. The two defendants had been charged along with Joseph Jones with manslaughter. The evidence was that Mr. Corral and Mr. Cotto held the victim down, while Jones strangled him. Mr. Jones went to trial first, and was found not quilty. Although the medical examiner initially testified the death was caused by strangulation, he also testified that asthma or some other respitory condition could not be ruled out as a cause of death.

As you would expect, Mr. Cotto and Mr. Corral were probably pretty happy. They filed a motion to dismiss the charges against them. The legal basis was that the cause of death had already been decided against the State, and therefore the docrtine of "colleteral estoppel" prevented the State from re-litigating the question. Sounds pretty good - and makes sense.

The problem is that the Texas Penal Code - section 7.03 - addresses the issue, at least in part. The state says that  the acquittal of the person for whom you are criminally responsible is not  a defense. In other words, the fact that the bank robber is acquitted doesn't mean you can't be prosecuted.

I won't go into the legal basis of the decision, because it involves fairly complex (and boring) aspects of colleteral estoppel law. The bottom line is that the State can get 3 chances in this case. They didn't get the person who actually choked the victim - now the get to go after the person who held him down.  Maybe they will get at least one out of the three.

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Last year the Supreme Court decided Melendez-Diaz v. Massachussetts, which held the State had to use a live witness to admit lab reports. The prosecutors immediately starting screaming about how much of a burden that was going to be - they were actually going to have to bring in witnesses to testify. There was some evidence that the decision was having an impact on the trial of criminal cases.

So when the Supreme Court decided to hear Briscoe v. Virgina, most assumed the court wanted to back off the holding, or do away with it entirely. There certainly was no other reason to grant review, since the decision was so new there was nothing that needed to be clarified. The only thing that happened since Melendez-Diaz was decided was that a new justice had been added to the court. Like most defense lawyers I thought the decision was going to be short lived.

You don't need a majority vote to grant review in the Supreme Court. Since Melendez-Diaz was a 5-4 decision, there were already 4 votes to overturn it. If Justice Sotomayor came on board, that would be enough to flip the case the other way.

Briscoe was argued only a view weeks ago. During the argument, justice Scalia wondered why there was any need to review the case. The court answered the question today, holding there was no reason to review the case. They summarily vacted the decision of the Virginia court, and send it back to review in light of the decision in Melendez-Diaz.

So what happened? Did Justice Sotomayor indicate she wasn't voting to overturn such a recent decsion? Did the Court second guess itself and decide it shouldn't overturn a case for no reason other than a change in membership. I'm sure we will never know. What we do know is that least for now Melendez-Diaz is still good law, and the confrontation clause is still alive.

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A Texas house committee met last week to discuss changes for handling forensic evidence in court. In typical law professor fashion, a UT professor suggested that Texas adopt the Fry standard, instead of the Daubert standard which is currently used. To his credit, he admitted that the change may not make any practical difference. I concur. BTW - thanks to Scott Benson and Grits for Breakfast for reporting this.

I practice appellate law, and I have a special interest in this. Although I've read the cases numerous times I'm not all that sure what the difference between Fry and Daubert is, and I don't really care. No matter what the standard, the bottom line is that courts are going to admit scienfic evidence in criminal cases. The problem is not the test, but what the courts consider scientific evidence.

My friend - and head of the Innocence Project of Texas - Jeff Blackburn suggested that we reject the test adopted for "soft sciences" - which has been labeled the Nenno test. I agree that has some merit, and maybe thats the best we can hope for. However, I wish we address the question of whether the so called soft sciences should even be allowed in court. In my opinion the term "soft science" should raise a red flag.

I've written before about what science really is. We could solve a lot of problems by limiting scientific evidence to that which is based on scientific principals, and administered by persons with scientific backgrounds - i.e. not police officers. Maybe we could use a test - if two legitimate experts don't agree, its not science.

I know no court is ever going to go this far - and the result is we are going to continue admitting evidence without serious scrutiny. We would much better if instead of worrying about tests, we step back and decide what types of evidence we should admit in cases where a person's life and liberty are on the line.

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One of the common complaints I see from defendants is that one or more of the witnesses against them committed perjury. That generally means that they didn't testify in a manner favorable to the defendant. A common occurrence is where two witnesses disagree about a particular fact - the defendant claims the unfavorable witness committed perjury.

Perjury  does occur - probably with some regularity. But it is one of the most difficult claims to prove. You need compelling evidence to establish that someone testified falsely.

Even if you can establish perjury, the rule has always been that you must still prove the State/government was aware of it. In legal jargon, the claim is the knowing use of perjured testimony, which is a due process violation. A witness may perjure themselves, but unless you can prove the State knew about it, you are generally out of luck.

The Court of Criminal Appeals may have just changed the law on this claim - at least in limited circumstances. The case is Ex Parte Chabot., No. AP-75,940 (12/09/09). Chabot was convicted of murder, and the main witness against him was an accomplice, Gerald Pabst. He claimed he was an unwitting participant, and didn't leave because he was scared of Mr. Chabot. The victim was sexually assauted, and of course Pabst denied having anything to do with that.

Mr. Chabot was able to obtain DNA testing long after he was convicted, and lo and behold it turns out the person who did the sexual assault was Pabst. Therefore, he perjured himself at trial; arguably the state didn't know it, because they believed Pabst when he said he didnt do it.

The court found Chabot's due process rights were violated because his conviction and sentence was "most likely based on perjured testimony." In truth, the only substantive testimony against Chabot came from Pabst.

The court implicitly recognized that if Pabst perjured himself about committing the sexual assault then maybe he also perjured himself about Chabot committing the murder. The case would have been an easy one if Mr. Chabot had been charged with sexual assault. Instead, he was charged with murder, and the court could have easily said that just because he didn't commit the sexual assault doesn't mean he didn't commit the murder. That has been the normal response from the Court in the past, which is one reason why I think this is a significant decision.

The Court's holding is limited, and it probably should be. The convction must be based on the perjured testimony - if it is only a part of the State's case, that is probably not going to be enough.

No matter how limited the holding may be, it is still a step forward for a Court that will never be accused of being defendant friendly. It's also a step forward because its a recognition that innocent people are convicted - something the Court has been reluctant to acknowledge in anything other than slam dunk DNA cases.

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The Supreme Court reversed the 9th Circuit again in McDaniel v. Brown. As with a number of other cases the 9th circuit found for a defendant in a writ of habeas case, and reversed the conviction. That seems to be the recipe for an almost automatic reversal. The opinion was unremarkable except for the discussion of a concept the Court acknowledged as the prosecutor's fallacy.

Mr. Brown was charged with sexual assault. The victim could not identify him, and the evidence was all circumstantial; the type where it could support innocence just as easily as guilt. The most compelling evidence was DNA recovered from sperm on the victim's panties. And it was the DNA evidence that was the focus of the writ proceeding.

Mr. Brown lived with his brother, and there was another brother that also knew the victim. They all lived in the same trailer park, so it was obvious that there would be an issue as to whether the DNA could be attributed to one of the brothers. The argument was over probabilities; according the State's expert, the probability that another person from the general population would have the same DNA profile was 1 in 3,000,000. The defense expert expert said it was more like 1 in 6,500.

The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant is the source of the DNA sample. In other words, you cant take that the above statistic and say the probability that someone other than the defendant committed the offense was 1 in 3,000,000; or that there is a 99.9% chance that the defendant is guilty.

In the end, the interpretation of statistics was not critical to the decision. Even with the lower estimates, the evidence was still sufficient to support the conviction. The case does point out the necessity to challenge State's evidence though. You may need a statistician to do it, but that may be necessary to explain what the numbers mean. After all, 1 in 6,500 is a heck of a lot easier to work with than 1 in 3,000,000.

 

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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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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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I attended the Senate hearing yesterday and listened to the new chairman of Forensic Science Commission - John Bradley - lay out his plans for the commission. Not surprisingly, the representatives wanted answers to two questions; when was the commission going to issue a report on Willingham, and was the late replacement of the commission chair designed to derail the investigation and work that already been done. Neither of those questions was definitely answered, but then what can you expect in a political arena.

Sen. Whitmire - chairman of the committee asked Mr. Bradley if his service as a prosecutor created a possible conflict. His reply was that he was probably more qualified than a defense lawyer, because  he had a statutory obligation to "see that justice is done." He also described himself as sort of a one man innocence project because of the number of cases he had dismissed before they were ever filed.

I've heard for years the argument that prosecutors have an obligation to see that justice is done. No doubt that is the law. The problem is how it is interpreted, and carried out. We know that too often that obligation is not honored. Is a prosecutor who hides evidence seeking justice? What about a prosecutor who has doubts about a case, but decides to "leave it to the jury"?

Most of the time the statement is made to divert someone away from the facts. The statement is really nothing more than "you can trust me to do it right". In other words, I wouldn't be doing this unless the guy was really guilty.

There's another problem with this argument. It creates an "us against them" mentality. Mr. Bradley followed up with the statement that defense lawyer's only have an obligation to their client. The insinuation is that they will do anything to get them off - ethical or not. The underlying argument is that they are on the side of truth and justice; the defense lawyer is on the other side, and you don't need to pay any attention to what they say.

As with any right in the criminal justice system, it is only as strong as the person enforcing it. It would be  nice if all prosecutors took that obligation seriously. There is no doubt that some do. Most of those prosecutors never have to remind people of their obligation - no one has any doubt because they carry it on a daily basis. If you have to remind people, you probably aren't doing too good of a job at carrying it out.

I'll wait and see how Mr. Bradley carries out his job as commission chairman. So far he hasn't done anything and he can't be held accountable for the manner in which he was appointed. I'll keep an open mind, but so far I'm not too hopeful.

 

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I saw a story in the Dallas Morning News this week about two men whose guilt was confirmed following post-conviction DNA testing. What caught my attention was that a hearing was being held to do this.

It's not unusual for DNA tests to come back and confirm a defendnt's guilt. For whatever reason, guilty defendants still insist on DNA tests. I wrote about that some time ago, and still don't have a a good answer. Under the Texas Statute, a defendant can request testing in certain situations. The Statute doesn't provide a remedy - it just authorizes the judge to order a test. If the test comes back in favor of the defendant, you either have to file a writ of habeas corpus or seek a pardon from the governor. The Statute does give the court authority to release a defendant on bond while you are waiting for the court or governor to decide. That is usually done after a hearing.

I don't understand why you need a hearing if guilt is confirmed. Are there different levels of guilt, and the judge is going to say they are more guilty than they were before?

To hold a hearing you need a defendant, which generally means you have to bring them back from prison. Obviously that takes manpower, both for transportation and processing. Most times courts don't want to bring defendants unless they really need to. I'm sure the local sheriff is not happy about increasing the jail population. Apparently this important enough though to devote the resources, as well the court's time.

The obvious answer to the question is that it is all about politics. Dallas County  has led the State and the Country in exonnerations. I guess the District Attorney wants everyone to know they are not opening the jail doors, and still have an interest in prosecuting people.  I'm a big fan of Craig Watkins and the work he has done in ensuring justice for those who have been wrongly convicted. That doesn't mean he can't make mistakes though, and I think this is one.

I can only hope the defendant knows before  he goes to court what the results of his test are.

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Thanks to Scott Benson at Grits for Breakfast for letting us know about the decision holding the head of the Texas Parole Board - Rissie Owens - personally liable for violating an inmates rights. The case involved an inmate who was serving time for a non-sexual offense. As the parole board is fond of doing, they looked through his record and decided he was a sex offender, and imposed sex offender conditions of parole. They did so without a hearing, and without letting him review the evidence they used to  make that decision.

The fact that the board violated his rights wouldn't be enough to impose personal liability though. The problem was that the same judge - Sam Sparks - had previously held (twice), that such hearing were necessary, and ordered the board to provide them. Owens defied those orders, apparently on the advice of her lawyer. Few people have the lack of sense to tell a federal judge to F'off, but she and her legal counsel did. They shouldn't be surprised that the judge didn't appreciate it.

Imposing personal liability on a public official is extremely rare. It's not enough to show they violated they law - you usually have to show something more. It shouldn't be that way though. The doctrine of immunity was meant to protect public officials from frivolous suits that were based on nothing more than policy disagreements, or errors in judgment. It shouldn't protect from them from knowingly violating the law. If everyone else is accountable, why shouldnt they be?

I wonder why the lawyer wasn't sanctioned - admittedly he told his client to ignore the judge. He's not the first lawyer to disagree with a judge's decision; for many of us its an almost daily occurrence. There is a remedy though - which is the appellate system. I assume they have appealed those decisions; if they worried about the impact on other cases they could have tried to get an order putting everything on hold. In other words, there are things they could do short of defying the judge.

What happens is the parole board appeals the decisions, and they are upheld. Are they going to ignore that also?

The problem with immunity is that can create an attitude of arrogance and absolute power. Some Officials equate immunity with wisdom - they lose sight of the fact that they aren't being protected because they always right. Take the wrong type of person, and its easy to imagine the abuses that can follow. It's not a new thought - we have long been told that "absolute power corrupts absolutely". Nowhere is that more apparent than in the criminal justice system.

Any time you talk about crime, people are willing to look the other way. After, we are talking about criminals right? They deserve what they get. That attitude exists until you or someone in your family is in trouble. Then you wonder why you are being treated so unfairly. Don't you know Ms. Owens expects a full hearing before the judge imposes sanctions on her. The same type of hearing she and the board are routinely denying inmates.

Earlier this week we saw an inmate - Richard Miles - released after serving 14 years for a murder he probably didn't commit. He was released because the police didn't disclose evidence that someone else claimed to have committed the offense. Prosecutors have a duty to disclose favorable evidence, and we have recently seen a number of case where they failed to do so. While that can be the subject of separate post, there are seldom consequences to failing to disclose evidence.  A court can find the evidence wasn't material (i.e. important) and uphold the conviction. In short, there are seldom consequences. Would the obligation to disclose evidence be taken more seriously if there were real consequences to not doing so?

Whether or not the award is upheld, it serves a purpose. There are limits, even on public officials. May if liability was imposed more often they would think twice before taken actions they know are either unlawful or at least questionable.

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I'm a little late on getting to this, but another study came out recently questioning the reliability of fingerprints. This one suggests the subjective expectations of examiners play a big role. What's particularly disturbing is that when examiners re-examined prints and were presented with new information about the case they routinely changed their opinions. In other words, the likelihood of a match may depend on the information the examiner has about the case!

I wrote previously about the National Academy of Sciences report on the reliability of fingerprints. That report criticized the lack of research; despite expert's claims about the uniqueness of fingerprints there is no scientific basis for those opinions.

This article raises two disturbing issues. Obviously, one is the effect of bias; they are likely to find what they expect to find. That raises a more fundamental issue though; if the results can be so easily changed, how reliable are. In other words, is it really nothing more than guesswork?

More research is needed. In the meantime, we need to hold their feet to the fire, and force fingerprint examiners to back up their testimony.

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By now many have probably have heard about the Mineola Swingers club prosecutions. Michael Hall at Texas Monthly recently helped educate us on the prosecution  in his story Sex, Lies and Videotapes. The story was nothing short of bizarre - a swingers club in the litte town of Mineola, Texas, which included sex shows by young children. The fact that the story was so bizarre should generally set off alarms, and cause police to use extra care in investigating the charges. Too often it has the exact opposite effect; bizarre means newsworthy, which means publicity. To some officers, such a story is the ticket to a career advancement. They start off thinking how they are going to be the hero, who brings these despciable criminals to justice.

Generally, when big mistakes are made you can trace them back the very beginning. Without completing an investigation the police decide a person is guilty. Instead of looking at evidence to see if it fits their theory, they try to make it fit. If it doesn't fit, they ignore it, and assume it must not be truthful. In many of the recent exonerrations, officers had evidence pointing to the person who actually committed the crime. They chose to ignore it, because they were convinced they had the right person.

In the swinger club we now find out that Texas Ranger Phillip Kelm conducted several interviews of the children which contradict their later statements. Fortunately he was caught by a diligent lawyer, who somehow got ahold of his handwitten notes. Afer denying he interviewed the children on certain dates he was confronted with his notes,and had to admit he did. Of course he claimed to have no recollection of those interviews. That's probably true; he blocked it out because it didn't help his case. The case appears to be unraveling as more details of the investigation come out; unfortunately it is too late for those already convicted.

This case provides several lessons - none of which will be probably be learned. Unfortunately, there are always those who put their careers at the forefrong. I'm the first to admit that goes back ways, but there is more danger when it is someone involved with  prosecution. While they have to investigate, and develop suspects, they also have to be willing to start over when the evidence doesn't support their theory.

The othe lesson is the need for full disclosure and discovery. I don't know how the lawyer got the notes; normally that is not something that would be disclosed in normal discovery. Unless that material is provided, the prosecution gets to mold the facts. Many times - especially in high profile cases - it eventually comes out. Why not get it out before someone's life is destroyed?

Maybe another lesson - and perhaps the most important is for those who look at a case as a way to make their career. Unless you do your job the right way, you may be ending that career you want so badly.

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The Dallas Morning News recently had a story about an English teacher who had been accused of sexually assaulting a student. Unfortunately, there is nothing unusual about that. However, the story quickly took an unusual turn. The following day the alleged victim contacted the reporter who covered the story, and explained that nothing had happened with the teacher. Instead, she said only stated something happened after the police officer refused to accept her denials.

You might wonder how that can happen. The fact is that does, and there probably a number of reasons for that. Most people are intimidated by police officers; young people are probably more intimidated. Most have been taught to respect authority, which certainly includes police.

As this case demonstrates, sometimes police won't take no for answer. In that situation, you have two options; either stick to your story, and be uncomfortable, or tell them what they already believe. You might wonder why they don't just get up and leave, but do you really think a teenager is going to do that.

Many times police investigators have made up their mind about what happened. Many times they are right, but when they aren't bad things can happen. Psychologists call this "overconfidence basis"; you are convinced you are right, and refused to accept the possibility you might be wrong. It can creep up, without any conscious effort - in fact, most people don't realize it's happening. It's a dangerous thing to do when someone's freedom and liberty are on the line. You often hear police officers say they can tell when someone is lying to them. There is no doubt they have a lot of experience in interviewing people. However, the fact is that no one, no matter how experienced, is good at discerning the truth. Research suggests that at best some of us may be right slightly more often than we wrong.

It's not hard to uncover the roots of wrongful convictions; this is it. In almost every case there was evidence that could established someone's innocence. The evidence was either ignored, or not followed up on because the police were sure they had the right person. Sometimes they were absolutely sure, which points out another problem. The more convinced you are of something doesn't mean you are more likely to be right.

Police officers have to make decisions, and form judgments. You can't expect them not to. Like anyone else, they can make mistakes. The best we can hope for is they recognize the possibility that they may not be right.

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McLennan County has hopped onto the bandwagon, and will have "no refusal weekend" over memorial day. That means if you are arrested for DWI you won't have the refuse to provide a breath or blood sample. If you do they will get a search warrant and obtain a blood sample. There are so many things wrong with this that I don't even know where to start.

As you would expect, this is being touted as a way to keep drunk drivers off the road. I realize that politicians and law enforcement have a problem with logic, but this goes to the extreme. How does this prevent DWI? You have already arrested the person; they are already off the street. Maybe the argument is that it will deter people from driving while drunk; if so, where is the evidence of that? Other counties have implement this policy - have they seen a drop in DWI arrests? I seriously doubt it. Most people don't rational decisions, especially after they have been drinking. Do you really think someeone is going to not drink, or not drive, because they don't want to give a blood sample? Most people don't think they are going to caught in the first place.

There is another flaw in this argument. and that is that people get off DWI charges because they refuse the tests. That is true in some cases, but who's to say those people wouldn't pass a blood test. The reality is that most people arrested for DWI end up getting a conviction. Maybe this will increase the odds, but probably not by much. The bigger question is whether it is worth it.

I also wonder about what happens while officers are getting warrants, and taking defendants to have their blood drawn? They certainly aren't on the streets. Maybe your chances aren't as great of getting caught, because the officer won't be on the street? If you are going to abandon logic, you can just as easily this will increase the number of drunk drivers on the road.

The biggest problem I have with this is what it says about our criminal justice system. We give all citizens certain rights. Is that a burden to law enforcement - sure it is. It would  be a lot easier to arrest someone, and force them to give a confession - by force if necessary. Our country was founded because we wanted to get away from that. Is forcing you to provide a blood sample that much different. Rights are eroded a little at a time - is this the first step.

The legislature has said you consent to giving a sample if you drive, and if you don't you are penalized. We are now saying that you don't have the right to refuse. I have a problem with that. People always complain about judges making the law; isn't that what they are doing here? If the legislature wants to change the law, they are free to do so - after debate, and subject to getting voted out of office of course. We shouldn't be circumventing the process though, and going through the back door.

No one should drive while you are intoxicated; unfortunately, some do. However, there must be limits to solving crime; I would suggest the limit is when the government has to violate your body. Are the streets really going to be safer this weekend? I seriously doubt.

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Last week it was reported that Walmart agreed to pay  nearly 2 million dollars and improve security in its stores in order to avoid prosecution for the trampling death of a temporary worker. The death occurred on the Friday after Thanksgiving, when hundreds of bargain hunters were lured to the store with the promise of low prices. Shortly after the incident the Nassau County DA stated they were launching an investigation, and considering criminal charges.

I'm sure a criminal prosecution would have been difficult, and I can understand why the DA went this route. I'm sure Walmart had great lawyers, who had unlimited resources at their disposal. What bothers me about the settlement is the double standard Walmart this standard demonstrates. Its not the double standard of rich and poor defendants, which certainly exists. Instead, it is the difference between how Walmart treats offenders, and  how they want to be treated.

As you can probably imagine, Walmart has more than its fair shair of shoplifters. Most criminal defense lawyers have handled at least one case where the person shoplifted from Walmart. As you might expect, Walmart has a policy.  They seldom lose anything, since most shoplifters are inept, and get caught walking out of the store. However, Walmart, has found a way to make money out of this. They routinely send demand letters to shoplifters, requesting payment of a civil penalty, to compenstate them for their trouble in catching you. Sadly, many people pay the money, and assume that is the end of the problems. Of course its not; the case is still prosecuted, and Walmart will not agree to "drop charges".  Unlike Walmart, most people can't get by with simply paying a fine. They still have to go court, and defend against the theft charges. Most end up with a theft conviction, which has long lasting consequences.

Many who shoplift do it out of necessity or stupidity. I can't guess how many students I have seen caught at Walmart. If they can't avoid a conviction, they end up with a mark that is devasting to their career plans. Most would gladly do anything to avoid that; including paying money, and doing community service.

I'm sure it would never occur to them, but now that Walmart knows what it is like to be a criminal defendant, wouldn't it be nice if they showed the compassion and understanding they were shown.

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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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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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Several people have already commented on the  story about Dallas police office Robert Powell, who wasvplaced on administrative leave for his conduct in stopping Houston Texas running back Ryan Moats. Moats was on the way to take his wife and other relatives to see his mother in law who was dying at a Plano hospital. Powell pursued Moats until he stopped in the hospital parking lot. While his clearly upset ran into the hospital, Moats proceeded to harass Moats for approximately 15 minutes. He has now apologized for his conduct.

The video of this stop has been posted on you tube and can be found here.  The question I have is what factor what race played in this stop and Powell's subsequent actions. This was in Plano, a relatively affluent suburb of Dallas, and Moats was a young black man driving a nice car. I wonder if a 50 something white male (like me) would have been treated the same. I don't really think so.

Granted, Moats could have behaved differently. But he was trying to get to see his mother-in-law, and was probably already upset - his wife certainly was. It's not surprising he just wanted to get his ticket and get into the hospital - which he says several times. (by the way, his mother in law died) He was in the hospital parking lot, and its clear they were there for a reason. You have to believe Powell wanted to something more than issue a ticket - he even pulled his gun during the stop. Watch the video, and form your own opinion.

I also think there was another factor at play here. Traffic stops are often nothing more than an opportunity to look for evidence. Yes, race is a factor in this also; the statistics are clear that black driver are more likely to be asked for consent to search their vehicle. Many times, they are looking for evidence of something more than the traffic violation; are you nervous, don't have a story that makes sense, smell of alcohol? If they can't find a reason, then they ask if you mind if they look in the car. It happens every day, in a high percentage of stops. My bet is that Powell didn't think he was going just write a ticket and leave; he could have done that and brought it to him inside the hospital. He thought he was going to be taking him to jail, and made that threat several times during the stop.

People violate traffic laws every day, and deserve tickets. They don't deserve to be harassed, and subjected to a full blown investigation. Sure, there are reasons to do that sometimes. But that is the exception, and not the norm. Unfortunately, it is reversed in many places. This was an especially egregious cases, and we heard about. I'm willing to be there a lot more like it we never hear about. The problem is the underlying attitudes and perceptions that officers take into the stop.

It's not too surprising that no one has tried to defend Powell's actions, and the response from his employer was immediate. Dallas police chief  David said he was emabarrased and humiliated and “It’s hard to find the right word and still be professional in my role as the police chief". Needless to say,his future doesn't look to bright. I would hope this be a lesson, but I doubt it will be. Most will say I would never do that. Maybe that wouldn't, but as long as your motivation is something other than issuing a ticket, the possibility is always there.

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One of the joys of a criminal defense practice is the client who "knows the law". Never mind that they didn't make it past the 9th grade, weren't that great in school when they did go. I mean how difficult can the law. All you have to do is know how to read. And if you don't understand what is going on, there is always someone in jail who does.

I cannot estimate the number of legal "debates" I have had over the years with clients. I take a different approach than many lawyers; I don't profess to know everything, and leave open the possiblity that somone may come across something truly useful. I've never had a client bring me something I didn't already know, but I have benefited occassionally from the different insight they bring.

I have the same discussion with everyone, which starts with something like "there's is a reason why you have to go to law school for 3 years". You often lawyers refer to being taught to think like a lawyer; while that is not always a good thing, there is a different approach you have to learn. Law school is not so much about learning the law - most of us have long since forgotten everything we learned in law school. If you went to law school 28 years ago (like me), what you learned is probably no longer what the law is now. What you learn is how to approach and analyze issues, and uncover the answer. in short, you learn a process, so you can find the relevant know when you don't already know it.

I also point out that I have taught in a law school - I taught a post-conviction procedure for several years. Law students are some of the "best and brightest" from their colleges. They had to have good grades, and score high on the LSAT to get in. Most breezed through high school with little effort. In short, these are some really smart people. Even so, I never had a student who I would turn a case over to without supervision. Since post-conviction procedure is a technical and complex area, I also never had a student who didn't have some difficulty in understanding the legal concepts - and these were students who already had at least 1 years, and most 2 years of law school under the belt. The point of that is if a really bright person with a college degree and some law school has difficulty understanding certain legal concepts, what hope does someone have with far less education and experience.

I also like to point out that the worst person to analyze a case is the individual involved. There is a reason why lawyers go to other lawyers when they have legal problems. You cannot objectively analyze a case when you are personally involved.

I've also tried to use the analogy to medicine. I'm not a genius, but I'm fairly bright. I had a high GPA and managed to get into and graduate from law school. I have the ability to read a medical treatise, and understand some of it; but I would never try to tell my doctor how to treat me, much less tell someone else what his doctor should be doing. I might ask questions, but I accept the answer, because I know he how everything "fits together".

Of course, all of this seldom dissuades them. They have read something, or someone has told them something, and they know its right. Fortunately most clients will eventually accept your advice; their willingness to do is generally dependent on the degree of trust you've built it. That is why one of the most important things a criminal defense lawyer should do is develop a relationship with their client.

Several years ago I had a situation which still bothers me. My client was facing a possible sentence of life without parole because the government had filed a sentencing enhancement. After a lot of work, I was able to get the government to agree to withdraw the enhancement. The client was facing a lengthy sentence, but it beat spending the rest of his life in prison. The problem was that he refused to believe the judge could sentence him to life. We discussed the issue for hours; we went over and over the statutes, and I provided him with research showing how the courts dealt with the issue. The problem was that he had a buddy, who had a case just like his; his buddy had his sentence reversed, and sent back to court. Of course, he couldn't remember the buddy's name, but he knew it was the same. He also a few case cites - I looked them up, and showed them to him. They were good cases - they just didn't have anything to do with his case. We went round and around; he would tell me he believed me, but he knew the judge couldn't  sentence him to life. We ended up going to trial; he got convicted and sentenced to life.

If there was ever a situation where someone was sentenced for being stupid, this was it. I know there wasn't anything more I could have done, but I'm still bothered by that  case. He let someone talk him into to making a incredibly bad decision. His buddy didn't have to do the time - he did.I know the decision was ultimately his, but he had some help. 

 I've been at this for 28 years, and I haven't found a good solution for it yet. There are always those who are going to not trust their lawyers. Our job as lawyers is to develop that relationship, so our clients know we have their best interests in mind, and we are fighting for them. For clients, either trust your lawyer, or find someone you do trust. Don't trust the guy who dropped out high school, but says he "knows the law". After all, if he is so smart, why is he still sitting in jail there with you?

 

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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.

 

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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.

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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.

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I recently heard a prosecutor make the comment that a defendant was "wasting his time" because he wanted to go to trial. Sadly, I've also heard defense lawyers say the same thing. Usually its a case where the evidence of guilt is overwhelming, and there is no realistic chance to win. Sometimes its a case where the prosecutor has made an offer that's more than reasonable - i.e, less than the defendant will probably get from a jury or judge.

Such comments are always centered on the interests of the prosecutor and the defense attorney. Prosecutors usually have too many cases, which is why they make offers in the first place. They look at the situation as taking up time they could devote to another case - one they feel really does need to be tried. Some Defense lawyers on the other hand don't like to get stomped on, and don't like to handle cases they know they have no shot at.

What both forget too often is the interests of the defendant. Defense lawyers too often think they have to make all the decisions, because after all they are  the lawyer. Clearly, they do have to provide their insights and experience. However, the decision on whether or not to go to trial is not one the lawyer gets to make; its up to the client.

So why might a defendant want to go to trial in a hopeless case? No doubt, there are some who are incapable of assessing the situation rationally. Just like people who go in every week and purchase lottery tickets, they think they might hit the jackpot. Sometimes hope is immune from common sense.

But there are other defendants who just want their day in court. Maybe they've also copped out and taken pleas, and they are tired of it. Or maybe they just thing its time to get up and fight for themselves. If thats what they want, it's our job to give it to them.

I've had cases where the defendant just wanted to fight. Sometimes we came out better, sometimes worse. Even in those cases where they came out worse though (i.e they got more time than offer), I don't think some regretted it. That was the price they paid for their day in Court. They were appreciative that someone would get in a fight for them, even when the situation appeared hopeless

We need to remember the system doesn't just exist for the lawyers. It's really all about the defendants. When all they want is to fight, we need to give them the opportunity, and not complain about it. In other words, look at the situation from your client's eyes - after all, that is who you are representing. And for the prosecutor, your job is to try the case; you might learn something too.

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The local Waco paper published an interview with Baylor Law Professor Mark Osler. Mark (who is a really good guy by the way) was the attorney who wrote the briefs in Spears. Before coming to Baylor, Mark was a federal prosecutor in Detroit. As such, he saw a lot of crack defendants, and recognized the irrational disparity between sentences for crack and powder cocaine.

What struck me about the interview was the story he told about a routine sentencing in a crack case. The judge asked the defendant's lawyer if he wanted to make the usual futile to the crack guidelines. The lawyer proceeded to launch into a 20 minute argument setting out the lack of any basis for the disparity, as well as the racial discrimination created by the guidelines. According to Mark, he realized at some point during the argument that something needed to be done to change the guideline. Since he has come to Baylor he has embarked on a mission to do just that, which culminated with Spears.

So what do I get out of this story? The need to persevere, and continue banging your head against the wall. There is no doubt the same objections had been routinely made in case after case, with the same results. There is probably also no doubt that the lawyer had no expectation that his objection would be successful. More than a few lawyers had probably even been chastized for making those objections. The lawyer did his job  though, and  although he didn't win in that case, his objection achieved something he probably could have never imagined.

Too often lawyers give up, and don't make objections they know they are going to lose Change is slow most of the time, especially with the law. Lawyers made the same objections for years to the Texas Special issues, and were eventually successful in Penry. Without lawyers to push that issue, as well as others, we would never see change.

So if you know the law is wrong, don't give up. Keep making the objection, even when you know it's futile. Sooner or later someone may listen - as in this situation, it may be someone you never expected.

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I'm late jumping in on this, but I've been in trial for the last two weeks. It seems everyone has put forth their opinion on the impact of Herring v. United States, where the court held an innocent mistake was not enough to invoke the application of the Fourth Amendment. A good collection of those posts can be found  here. Predictably, some have declared the decision the death of the Fourth Amendment. I wasn't surprised by the decision; I would have been if they decided for the defendant. However, I don't think it spells the end of the exclusionary rule; I think the court won't abandon it, because it makes them feel like they are doing something to uphold the Fourth Amendment.

The rationale for the exclusionary rule is that it acts as a deterrent. The argument is that if there is no sanction, there is no reason for the police to comply. The rationale makes sense; a rule without a remedy is basically no rule. The court recognized though that the consequences of excluding evidence can be detrimental to law enforcement; you are keeping out what is probably the most probative and relevant evidence of guilt. The court basically adopted a sort of balancing approach. As a result, concepts such as good faith have emerged.

In Herring, the defendant was stopped, and placed under arrest when the officers were told there was an outstanding warrant. Evidence of illegal activity was recovered, and he was prosecuted. It turned out there was no valid warrant at the time; it had been withdrawn, and the clerk had not removed it from the system. Mr. Herring moved to suppress the evidence recovered following his arrest, arguing there was no probable cause to arrest him, because there was not a valid warrant. The Supreme Court held that the mistake by the record's clerk was not enough to invoke the application of the exclusionary rule.

In the decision, the Court concluded that application of the exclusionary rule in this circumstances would not encourage better record keeping. The court viewed the incident as a mistake, that was at best negligence. It was not not the sort of deliberate or reckless act the exclusionary rule was designed to curb.

The question is how far this ruling is going to be applied. I don't know how often mistakes like this are made. I know I've had a couple of similar situations over the years. Mistakes are going to be made, but I don't I do not think that relieves agencies of responsibility for the actions. For example, an agency couldn't adopt a policy of not removing old warrants, because that would establish some type of systemic problem. There may also be an issue if the agency knows there are widespread problems with their records. However, what about less compelling situations.

The problem with the Court's reasoning thoughout the years is they assume decisons are thought out, and rational. In reality, most decisions to search or arrest are made on the spur of the moment. They are also made by people who do not have signficant legal training. Rarely are issues clear cut; more often than not, there is no readily available answer. Just look at how much time lawyers and judges spend assessing a situation, and determing the applicable law. The more exceptions you have, the more you encourage police to ignore the fourth amendment. If all you have to do is claim you were mistaken, why would you ever forego a search or arrest.

The job of protecting the Fourth Amendment is left to the courts; not the police. If its worth protecting, then we should do everything we can to ensure compliance. The more exceptions you create, the more you encourage its violation. After all, until the wrong decision truly has consequences, you  have no reason to take it seriously.

So my prediction is we will continue to have a exclusionary rule, so the Court can claim it is protecting the constitution. And the Fourth amendment will continue to violated on a daily basis because there is no reason not to.

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Ask anyone in the criminal justice system what a plea of "not guilty" means, and they will probably tell you it means I am putting the government to it's proof. The first thing that happens after charges if filed is that  a defendant is arraigned, and asked to enter a plea. You don't expect anyone to enter a guilty plea at that point. It appears though that some people view a not guilty plea as a denial of guilt, and question the ethics of entering that plea when you are really guilty.

Scott Greenfield at Simple Justice provided his usual keen insight into the ongoing discussion about the "two most loaded words in the courtroom". He was responding in part to a post by a former defense lawyer turned prosecutor who argued that a defendant who actually committed the offense acts immorally by entering a not guilty plea. I can't add to Scott's discussion of the futility in trying to impose absolute moral guidelines onto an issue that is not absolute. I do want to pose some of my own questions though.

If we are to impose absolute morality into a criminal case, shouldn't it apply to both sides. Prosecutors know by now the problems with eyewitness identifications. At best, the far from accurate; at worst, they are no more reliable than chance. Does a prosecutor have a moral obligation to bring that information to a jury; does he violate some type of moral code when he argues that a defendant is guilty, where the only evidence is an eyewitness? What about where there are reasons to question the accuracy of the identification?

One of the legal obligations prosecutors have is to disclose exculpatory evidence. What is exculpatory is often in the eye of the beholder. Most prosecutors think there is nothing exculpatory in their file. In fact, at least under the legal definition, there is probably a lot; basically anything which points to someone else, or impeaches a witness's credibility can be exculpatory. Does a prosecutor lie when he says there is nothing exculpatory in the file?

Our system is an adversarial one. Many prosecutors take that to an extreme, and believe it is not their job to determine guilt or innocence, but it is up to the court or the jury. If they have doubts about a defendant's guilt, whether strong or not, do they act immorally when arguing for a conviction?

As Scott points out, there are few absolutes in the criminal justice. A person may commit an act, that may actually be less serious than what he is charged with. Does he have to admit to committing the act, and leave it up to the judge to decide what the appropriate offense is?

This is not something distinctive about the criminal justice system. The same process exists in the civil system. If you are sued, something like a general denial is entered. Is that immoral, if you actually did what you are being sued for?

Let's also look at the flip side of this. If a juror finds you not guilty, most people recognize that means the state didn't meet its burden of proof. However, under the morality approach, does it actually mean you are innocent.

As I stated before, our justice system is an adversarial one. It requires advocates on both sides. The day the defense lawyer becomes a representative of the prosecutor is the day our freedoms are lost. There are other systems that don't involve criminal defense lawyers - however, those trying to impose morality in this decision would never agree to live under those systems.

Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.

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Bell County is hopping on the DWI bandwagon for New Years. According to a press release, if you are suspected of driving while intoxicated and refuse a breath test, they are going to obtain a warrant for your blood. Unfortunately, this is not something they just came up with on their own; many other jurisdictions have already implemented this policy. It may not be publicly announced, but it is becoming more common that a refusal to take the breath test is not going to be accepted.

This is being justified as tactic to get drunk drivers of the streets. If you think about that for even a few seconds, it is clear that is not the reason for doing this. It is nothing more than a tactic to obtain more convictions. The driver is already off the street; he has been arrested, and taken to jail. He/she is also off the streets, because their license is taken, and will be suspended for at least 180 days. The only reason to forcibly draw blood is to get more evidence for a conviction. They already have at least probable cause, or they wouldn't have arrested the person.

There's another problem I see with this proposal, which is how many drunk drivers get away while the police officer is taking someone to the hospital to have their blood drawn. They are off the streets for a longer period of time, during which time there are probably people driving under the influence.

I certainly don't advocate driving while intoxicated. Personally, I don't think you have any business driving after you have had anything to drink, even if you aren't legally intoxicated. I don't drink, so it's not something I'm worried about. But I am worried about forcing people to provide evidence to possibly convict them.

The legislature knew people would be hesitant to submit to breath tests, and tried to provide an incentive to take one; your license won't be suspended for as long. They also recognized that in some cases, such as accidents, blood tests should be mandated. They have never approved blood tests in all cases though - if so, the warnings need to be rewritten - do you want to give a breath test or blood or test - you are getting one of them.

I wonder if the new policy is going to include the warning that they are not going to take no for an answer. It doesn't seem fair to me to let someone refuse a test, make them take a blood test, and then suspend the license for the refusal. Even if the blood test was negative, your license could still be suspended for refusing the breath test. At least you should know what is going to happen if you refuse.

Please drink responsibly - not only during the new year celebrations, but all year. But be aware that if you are arrest, you may not really have the right to refuse to be tested.

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I recently had a case where there was physical evidence that had not been tested. The police didn't test it because the case against the defendant seemed strong. The evidence could exonerate him, and my client insisted it be tested. We went over the risks, the biggest being that he was going to make the State's case for them if came back as him. Without DNA testing, we could still argue he was not involved, or at least that there was a reasonable doubt of guilt. With the evidence, there would be no doubt. We also went over the reliability of the tests, and how the odds weren't with him. He continued to insist he was innocent, and we sent the evidence off to be tested. It came back today, and sure enough, there is now no doubt whatsoever that he's guilty.

This is not the first time I've had this happen. I can understand rolling the dice with a polygraph. They aren't admissible, and if you fail, its not going to hurt you in court. With DNA tests though, the evidence is admissible. More importantly, its far more reliable than a polygraph. You aren't going to get lucky on a DNA test - they best you could for would that the results were inconclusive.

So why do people insist they are innocent, when there is no doubt they are guilty? I don't have any scientific support, but I think that are some people who can actually convince themselves of something. The more they tell themselves they aren't guilty, the more they believe.

Of course, I also think that are people who just don't believe their lawyer (yes, its really true). If you tell them the tests are accurate, and its going to prove their guilt, they aren't going to believe you. Maybe some just feel like they don't have anything to lose, and want to roll the dice - even the odds against them are astronomical.

I've resigned myself to the fact that this is something I will probably never understand. Maybe I don't want. to.

This situation also highlights something else we have to deal with - some clients seem determined to everything they can to sabotage their case. Unfortunately, they are often the first to blame everything on the lawyer. I guess if being a criminal defense lawyer was easy, everyone would want to do it.

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Thanks to Grits for this post. Most police departments rely on confidential informants out of necessity. The people who know about crime are usually are the ones involved in it. Some departments rely on informants more than others; its easy to make a case with an informant, and some officers may become too dependent on them. Such apparently is the case in Albuquerque, N.M., which ran this ad recently:

The Albuquerque Police Department put a want ad in the city's weekly newspaper for "people that hang out with crooks to do part-time work."

"Make some extra cash! Drug use OK. Criminal record? Not a problem." The ad in the Weekly Alibi prompted 93 calls during its two-week run before it was taken down last week, police spokesman John Walsh said.

He said some calls yielded valuable information in a drug investigation and two violent crime cases. Walsh said the ad will run again "as soon as the detectives feel they need the help" and it could become a model for other agencies

This story is from USA Today - if it was from anywhere else, I would have trouble believing it.

I can see all sorts of problem with this tactic, the most significant one being people willing to manufacture information to make some extra cash. We all know times are hard, and this is an offer of easy money. The ad targets drug users, and those with criminal records, which are probably either people not working, or having a hard time finding a job. You hope they verify any information they get before making an arrest, but if they are having to advertise for informants you have to wonder.

The problems with informants have been well documented. Behind faulty eyewitness identifications, they are one of the biggest factors involved in wrongful convictions. Most of those involved in the criminal justice system are looking at ways to limit their use, not expand it. So I hope this isn't a tactic picked up by other departments.
 

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I've written before about the unreliability of eyewitness testimony. Most people (including jurors and prosecutors) believe eyewitness testimony is generally reliable. In fact, most prosecutors are ecstatic when they have a case with an eyewitness. We have seen countless examples during the last several years of identifications that were clearly wrong. Even with that knowledge, the reliability of eyewitness testimony is still accepted, and difficult to overcome.

A humorous example of a mistaken identification occurred in a Dallas Courtroom. The following is from a story in Texas Lawyer:

On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."

This case points out something more than the unreliability of eyewitness testimony. It points out something all defense lawyers know - the witness knows someone seated at the other side of the table is the defendant. It's generally not to hard to figure out which one it is - you can usually tell which one is the lawyer and which one is the defendant. Here, the witness was apparently confused. There is no doubt she wasn't basing her identification on what she saw at the time - she was basing it on who in the courtroom was fit the description the best.

This also points out a problem with lineups - witnesses pick the person who best fits the person they saw. This is why everyone recommends sequential lineups, where the witness is shown one picture at a time.

One of the things that bothers me about this case is the action of the prosecutor. The job of the prosecutor is to see that justice is done. If the only evidence was the victim's identification, is it justice to prosecute someone whose identity is suspect? Too often prosecutor's rely on juries to make the decision on guilt, and they did so here. In doing so, they abdicate their responsibility. More importantly, most jurors believe prosecutors have no doubt about a defendant's guilt. Too often, that enters their decision, and could have done so in this case. Thankfully jurors saw the case for what it was, and returned a not guilty verdict.

I wish that the more of these stories that come out, the more the public would start question the reliability of eyewitness identification. Unfortunately, there hasn't been much impact so far, and I don't see it changing. That is why it is critical that we adopt practices that will ensure identifications are as accurate as possible.

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Several weeks ago the trial of a prominent local civic leader ended abruptly with a guilty plea. While a mid-trial plea is not unusual, how this one came about was. Before the trial started, the judge refused to accept a plea that included 9 years in prison, and restitution. Apparently, the judge indicated he was not going to accept any plea that did not include at least 15 years in prison. At the time though, that was not even a possibility; the State had dismissed several counts that reduced the charges from a first degree felony to a third degree, and therefore the maximum punishment possible was ten years.

The judge was upset with the State for dismissing the charges, and accused them of trying to circumvent his authority. He eventually gave in, and at a break told the parties he was willing to reconsider the plea agreement. After additional negotiations, she accepted what appeared to be the original agreement.

The case raises questions about what role the judge has or should play in plea bargaining. The law is fairly clear that a judge cannot participate in plea bargaining; the question is when a judge steps over the bounds. A judge has the ultimately authority to accept or reject a plea agreement, so there was no problem with the judge refusing to accept the agreement. A judge walks a fine line when he states why he won't accept an agreement, especially when he indicates what he will accept. The line is far from clear, but at some point a court will declare a judge became too involved in the plea negotiations.

Why can't a judge take part in plea bargaining? The most basic reason is the inequality in power; neither side wants to alienate the judge who is presiding over the case. Another reason is based on the division of functions in the criminal justice system; the judge is supposed to be impartial, and not take sides. When the judge takes part in plea bargaining he comes down in favor of one side - usually its on the prosecution side. That position has to be  based on assumptions about the case, which may or may not be accurate. Also, a judge should be neutral; that neutrality is questioned when he takes a position on plea bargaining. If negotiations fall through, the court's decisions may be questioned since he has already indicated his position on the case.

The division of functions also  means the State controls what to charge. In this case, there was nothing improper about the State dismissing charges. They knew the facts, and based on that knowledge would have an opinion on what a proper resolution should be. If someone doesn't like the decision, there is a political solution; you can not  re-elect the prosecutor. The judge may not like the decision, but their job is to judge the case brought before them. They cannot, and should not, tell the State what charges to file. In this case.

The criminal justice system functions smoothly most of the time. It can fall apart though when one of the parties steps outside their role. When judges side with either the prosecution or defense, there are problems. The job of a judge is to be neutral and impartial; it is not to see that someone is prosecuted, or avoids punishment.

I'm sure there is more to the story in this case, as there are in most cases. While it should play no part in a judge's decision making, public sentiment appears to be equally divided; some think she got off too easy, while some think she was punished too harshly. Perhaps that is the definition of a fair and reasonable resolution.

 

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Its not surprising that there is a lot of discussion about the conviction of Sen. Ted Stevens. He's generated a lot of it, by taking the offensive and refusing to accept the verdict. Despite requests to resign, he kept his name on the ballot, and insisted he has not been convicted. The voters apparently weren't too concerned, as he was re-elected with a convincing margin. the big question now is how long can he keep his seat.

The answer to that question depends in part on whether he has  actually been convicted yet A criminal conviction generally involves two things - a judgment and sentence. Right now Sen. Stevens has been convicted, but not sentenced. So currently  there is not a final conviction. Once he is sentenced though, what happens?

There is no doubt he will appeal, and it doesn't look like he is going to lack for issues. At the top will be the juror who was excused after lying about her father's death.

Under the federal sentencing guidelines, he's sure to get penitentiary time; to stay out, he will have to get an appeal bond, which is not automatic in federal court. To obtain an appeal bond, you have to convince the court that there is good chance your appeal is going to be successful. His status as a United States Senator is not supposed to be a factor, but it would be hard to ignore. It certainly worked for Wesley Snipes, who was allowed to stay out while he appealed his conviction.

Whether or not he keeps his seat may depend on whether he stays out - obviously he can't serve if he is in jail. The question will be what happens if he stays out - he will have a conviction, but in most situations it is not considered a final conviction because there is always the chance it could be reversed on appeal. Ultimately it will be up to Congress - although he's been in a long time, it probably isn't going to help that the Democrats took control.

The answer to the question is that he probably will be treated differently. But then, would he have been prosecuted if he had been anyone else?

A few of the posts on this issue are collected at Sentencing Law and Policy.

 

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Even if you've never taken one, you probably know polygraphs are not admissible in court. The reason is that they are not considered accurate enough to be used in a court proceeding. That has been always been the law, even though some defendants have recently tried to get in favorable results.

For something that's not recognized as reliable, we place an awful lot of emphasis on them. District Attorneys routinely offer polygraphs, and agree to dismiss charges if the person passes. Generally those are cases where there is no physical evidence, and the case depends on witness testimony. Sexual assault cases are probably the most common. You can safely assume they wouldn't agree to do that if they didn't think they were reliable. The flip side is also true - if you fail, they have no doubt you are guilty.

A recent post contains an article that raises questions about just how accurate polygraphs. Apparently drug cartels are using polygraphs to sniff out undercover operatives. As a result, officers are being trained on how to pass a polygraph. There's no doubt these are highly trained officers, who have undergone a significant amount of training. The fact that they can do it though tells you something. At a minimum, it tells you they are not always accurate.

Even with their limitations, don't expect polygraphs to go away. We all want a quick, easy way to determine if someone is truthful. Even with all the advancement in science, we still can't uncover someone's thoughts. It's good to remember though that they are not always infallible, and not automatically assume someone is lying if they fail a polygraph.

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The Texas Department of Public Safety has suspended the certification of an independent contractor who improperlly certified breath test results. Not surprisingly, this has generated a number of comments. Grits contains stories from both the Dallas Morning News and Houston Chronicle. Another blog list the agencies that are effected. Unfortunately, this is one more example of an expert who was too lazy to do the work. Fortunately they were caught, but this points out again the problems with blindly accepting expert opinions. It also points the need to scrutinize experts more carefully, and ensure they are qualified, and doing the work they claim they are doing.

This big question is what is going to happen to those cases where this expert testified. For defendants who plead guilty the answer is "it depends". In a writ of habeas corpus you have to establish harm. In this case, the harm would in the failure to actually certify the machine. In a guilty plea, By pleading guilty, you did not challenge the breath test, and therefore you are probably going to have to establish the machine's reading was not accurate. That is impossible to do, since sample are not maintained, and there would be nothing to re-test.

Another way to evaluate guilty plea cases though is whether you would have plead guilty if you knew the machines had not been probably certified. The answer is probably no, since the breath test results would not be admissible. Of course, if the evidence was overwhelming, the answer is probably different. To prevail on this claim, you would have to establish a duty on the State to disclose the evidence. They are charged with knowledge of whatever law enforcement knows, so even if the prosecutor didn't know about the problem, that is not a valid excuse. Generally though you have to make a request for the evidence,  which is usually a Request of Favorable or Exculpatory Evidence. If no request was made, you may not be able to establish the claim.

For defendants who went to trial, they will probably be able to obtain relief. The machines have to be certified if the test results are going to be admissible, and therefore the expert would have committed perjury in testifying that the machine was properly certified.

For any claim, you are going to have to able to establish the machine in your case was not properly certified.  How difficult that is going to be remains to be seen. Hopefully DPS will identify those cases involving improper certifications and notify the defendants and their lawyer.

The effects of this are not going to be fully known. If you think your case may be one effected you should check it out.

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Since I started blogging, I've come across many things I might never have known about - at least not until later. One of the best blogs is Grits for Breakfast, written by Scott Henson. He recently posted on an effort by the Texas Attorney General to re-instate TDPS roadblocks.  In 1994 the Courts held roadblocks were illegal, unless they were conducted pursuant to statewide standards. The court was obviously concerned over the intrusive nature of roadblocks, and wanted to make sure they were conducted only when necessary, and not merely as another tool of law enforcement (i.e. to catch DWI offenders). Since then, there have been no statewide standards, although there are plans to pass legislation in the upcoming session to authorize roadblocks.

In an effort to shortcut the legislative process, the attorney general is proposing to implement guidelines through the Texas Department of Public Safety. The plan is to establish guidelines that would authorize roadblocks by not just TDPS, but also by local police departments. The proposal is currently open for comments, and hopefully they will get a lot.

We have all set through traffic accidents, and know how frustrating that is. We know its unavoidable though, and live with it. How would you like to have to deal that on Friday and Saturday nights, when you are trying to get somewhere. Roadblocks have their place, but they should only be used in those rare occasions when its absolutely necessary. Let's hope common sense prevails, even though we are dealing with politicians.

 

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The Dallas Morning has started a series addressing the use of faulty eyewitness identifications in the Dallas County exonerations. The second article addressed the use of "show ups, which were involved in 3 of the 19 exonerations. For those that don't know, a show up is when a victim is shown a single person, and asked if that is the person who committed the offense. The suspect is almost always in police custody, and many times is sitting in a police car. It doesn't take a rocket scientist to figure out that is someone the police think may have committed the offense.

The problems with show ups are obvious - there is a preference to pick the person you are looking at. If the police don't get the right person, there is good chance the wrong person will be picked. Almost 40 years, the Supreme Court held one person show ups were dangerously suggestive, and discourage their use. Ten years ago the justice recommended stricter limits on the use of show ups. Despite all those admonishments, police continue to use show ups.

Why are police continuing to use. Part of the reason may be a lack of training and education, although its to believe even the worst trained officer wouldn't recognize the problems. The bigger reason is probably that they are easy; you don't have to really do anything, and you can resolve the case quickly. There's problem also an unstated mindset; they believe the have the right person, and don't have any doubts about it. Many probably also continue to believe that eyewitness identifications are always accurate, and the victim wouldn't pick someone out if it wasn't the person who committed the crime.

I think there is also another reason why police continue to use show ups. Prosecutors continue to accept them, and judges don't exclude them. If you can use it, why not do so. Prosecutors and judges rarely even question show ups, which means there is no reason for police to make sure they are carefully done. Jurors also seldom question them, and have no problem convicting people on such questionable identifications.

I don't have any hope that show ups will go away, although there is some hope. State Senator Rodney Elllis has stated that he will introduce a package of reforms, addressing the cause of wrongful convictions. That includes show ups, which he would like to see prohibited. Hopefully that will at least keep the issue before the public. in the end, education may be the best solution. If the public can be convinced of the dangers of show ups, prosecutors will have to listen.

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I recently wrote about the O.J. Simpson verdict, and the number of jurors who knew about his prior murder trial. I know it comes as a surprise to many people to find out someone can be on a jury even when they know the parties, or know something about the case. One of the things you have to educate clients about is who can serve on a jury, and how you select them. We often hear people refer to a "jury of your peers". The fact is you never get a "jury of your peers" - unless you define peer to mean any member of the community.

Generally, anyone over 18 years of age, and who doesn't have a felony conviction, or theft conviction, is eligible to serve as a juror. You also have to be of sound mind (which is clearly subjective), and be able to read and write. In the past, you had to be a registered voter, but that is no longer the case; now you only have to be qualified to register. There are certain exemptions you can claim, but you don't have to. People over 65, those taking care of small children and full-time students can claim an exemption from jury service.

The term jury selection is a misnomer. No one gets to "select" jurors they want. A more accurate term would be de-selection. Each side is given a certain number of "peremptory" challenges. A party can use those to remove a juror for whatever reason they want. The only restriction is that you cannot remove a juror solely because of race. The number of peremptory challenges depends on the type of case. in felony cases, each side gets 10, while in misdemeanor cases each side gets 5.

The process of jury selection is called "voir dire", which basically means to speak the truth. Each side is allowed a certain amount of time to ask questions. The questions are generally aimed at uncovering the jurors' attitudes about issues that are important to the case. The questions are also directed toward uncovering jurors who may not be qualified to serve.

The process of removing a potential juror is through a challenge for cause. The grounds for such a challenge are generally set forth in the Code of Criminal Procedure. Art. 35.16 contains roughly 11 reasons for disqualifying a juror.  Those include being related to a person in the case, being a witness, or having served on the grand jury that returned the indictment. Most of those challenges are fairly straightforward, and easy to decide.  The tougher challenges are those that are more subjective.

One ground is that the juror has a bias or prejudice in favor of, or against the defendant. That can include many things. A potential juror may have a bias against the law - such as the right to testify. They might also have a bias for or against certain types of witnesses, such as police officers. A juror's prior experiences may also cause them to be biased against all defendants, or those charged with certain types of crimes. It is not unusual for individuals or family members who were involved in similar case (especially sexual assault), to be unable to serve. Ultimately, these decisions are made by the juror; they are the only ones who can know whether someone is going to interfere with their service.

Another basis is that the person has heard about the case, and based upon what they heard, made up their mind. Knowing something about a case does not disqualify a person. In highly publicized cases (i.e. O.J. Simpson), it is not unusual for many jurors to know something about the case. A juror is not disqualified unless they have already made their mind. Again, this is a decision that is ultimately left the individual juror.

After removing jurors with biases, and each side removing jurors they  believe may  favor the other side, the hope is you are left with in impartial jury. The process has problems. Lawyers need to have the opportunity and ability to uncover potential biases. Jurors also have to be honest, and willing to disclose their true beliefs. Once selected, jurors have to fairly evaluate the evidence, and set aside their personal attitudes and beliefs.

We need to always remember how lucky we are to have a jury system, where cases are decided by ordinary citizens. Some people want to limit,or take away that right. Let's hope they are never successful.

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Was the O.J. Simpson guilty verdict payback for the acquittal in his murder case. According to CNN, 5 jurors believed he was guilty of the murder charge. Most of the jurors had heard about the murder case, and a few agreed with the verdict.

The fact that so many jurors knew about the previous case might surprise some people. Many believe you are not qualified to be a juror if you know something about the defendant, or their case. Knowledge does not disqualify a potential juror; the critical question is whether the juror has already made up their mind, or whether the knowledge would influence their decision. You have to rely on the juror to make that determination, and unfortunately there is no way to determine whether they are being honest No doubt some jurors lie to get on juries, but I have to believe the vast majority honestly answer the questions.

According to one of O.J.'s attorneys, the guilty verdict was payback for the previous acquittal. Of course, we will never know whether there were other motives involved; I'm sure no one would ever to admit to that, even if were true. I think the facts suggest this wasn't the case though. The most telling fact is that the jurors deliberated for 13 hours. That is a long time for a criminal jury to deliberate; many cases are decided in a few hours or less. The fact that they deliberated so long suggests they carefully considered the evidence; if they already had their minds made up, you would expect the decision to be fairly quick. Another factor is the quality of the evidence. You didn't have scientific evidence, and more importantly, you had witnesses who were there when it happened. The question for the jury was whether they were telling the truth, which they obviously decided he did.

It will be interesting to see what happens at sentencing. I doubt few people will feel sorry for him if he gets a substantial amount of time.

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In the last session of the legislature they revised the self defense statute, to allow a person to use deadly force in defense of his home. The law was named the "castle doctrine" - i.e., your home is your castle.

A jury in El Paso apparently relied on this defense, and found a defendant not guilty in the death of a 13 year old boy. I'm sure the legislature had in situations where someone breaks into your home, and you believe you are about to be attacked. The facts in this case were far from that. The following is an excerpt from the AP story:

Gonzalez had endured several break-ins at his trailer when the four boys, ranging in age from 11 to 15, broke in. Gonzalez, who was in a nearby building at the time, went into the trailer and confronted the boys with a 16-gauge shotgun. Then he forced the boys, who were unarmed, to their knees, attorneys on both sides say.

The boys say they were begging for forgiveness when Gonzalez hit them with the barrel of the shotgun and kicked them repeatedly. Then, the medical examiner testified, Anguiano was shot in the back at close range. Two mashed Twinkies and some cookies were stuffed in the pockets of his shorts.

Another boy, Jesus Soto Jr., now 16, testified that Gonzalez ordered them at gunpoint to take Anguiano's body outside.

Gonzalez said he thought Anguiano was lunging at him when he fired the shotgun.

Death for stealing twinkies seems a little extreme, even for the most extreme supporters of "law and order". Reading between the lines, what looks like happened was that the defendant got mad, and lost his cool. While I wasn't there, I find it difficult to believe he thought his life was in danger from a group of teenagers on their knees, with a pocketful of twinkies.

The defense lawyer did an excellent job for his client. In the end, the jury determines whether someone acted in self defense. As a citizen though, it doesn't look like a case for self defense. No matter how you look at it, death for a 13 year old breaking into a house doesn't seem justified.

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Grits had an interesting post on a seldom mentioned factor in causes of wrongful convictions. Innocent until Reported Guilty cited two articles that suggest improved reporting can be a protection against wrongful convictions. Steve Wienberg suggested that reporting on wrongful convictions is not a bleeding heart,liberal activity. Instead, it ensures that criminals will be punished for their crimes.As we have seen with many of the exonerations, when you convict an innocent person, the real criminal remains free, and in all likelihood will continue committing crimes. If you want to get tough on crime, make sure you prosecute the right person.

Rob Warden points out that most reporting is sensationalized, and is usually directed and orchestrated by the police and prosecutors. Until recently, claims of innocence were met with outright hostility; if you were lucky, they were only met with skepticism.

Weinberg also noted something I've always known; prosecutors tend to get a free pass. They are rarely questioned, and reporters believe whatever they tell them. In contrast, many reporters treat criminal defense lawyers exactly the opposite; they don't believe what they tell them. I think the problem is with the underlying assumption most reporters have, which is shared by the general public; they assume the person is guilty, or else they wouldn't have been charged.

As with anything, you cannot generalize, because there are many good reporters. Several of the exonerations are the result of work done by investigative reporters. Led by the pioneering program at Northwestern, more journalism schools are starting innocence programs; St. Thomas in Houston is one of those programs. Reporters are also responsible for getting out the information on exonerations, and keeping it before the public.

In the end, everyone bears responsibility when the criminal justice breaks down - even reporters.

 

 

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A Florida youth minister and father of four, Tallie Gainer,  ended up as the defendant in a felony bad check case. He was arrested in front of his family, exhausted his savings, and lost out on a business opportunity. On the surface, the story doesn't sound that remarkable. However, there is more to it, and the rest of the story points out several problems with the criminal justice system.

The ordeal started when Gainer left his wallet at a restaurant. Someone using his ID subsequently went into a bank, and tried to cash a check. The transaction didn't go through, but the attempt was the basis of the criminal charge. Gainer was subsequently arrested after he was identified through photographs, and the teller identified him. What followed was unfortunately not uncommon for a criminal case. Gainer's lawyer tried to explain his wallet was taken, but of course, who is going to listen to a criminal? Fortunately for Gainer, the teller took a fingerprint because she suspected something was not right. Unfortunately for Gainer, the fingerprint did not get examined for 8 months. When it came back as not Gainer's, the charges were dismissed. That was not before his life was turned upside down, and he was financially bankrupted.

So what went wrong. Clearly, there was something less than a thorough investigation.  As with many cases, the police got an eyewitness ID, and closed the case. Despite all the research pointing out the fallibility of such identifications, police still accept them without question. If they had tried to verify the ID, Gainer would have been spared the embarrassment and costs of being charged in a criminal case.

Gainer is suing the police department, but that probably is not going to be successful. Police have immunity from such suits, unless they act intentionally. They can make serious mistakes - like here - and there is nothing anyone can do about. Hopefully, he at least got an apology......

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A hearing was held this week was held in Waco, Texas to determine whether the trial of a local civic leader should be moved out of McLennan County. The individual was  head of a local civic organization, and is accused of taking thousands of dollars. Few cases have generated this much coverage in Waco; reporters have even camped outside her house, and were there when she was arrested, and released from jail. Her attorneys are concerned that the coverage will prevent her from getting a fair trial, and tried to get the case moved. The judge denied the motion, which means the case will remain in Waco.

I've had many defendants tell me they needed to get their cases moved. Usually its because there have been a couple of news stories about the case, or they may think the judge is biased against them.. Few cases are notorious enough to even pursue a motion. Despite what most defendants think, potential jurors rarely know anything about the cases are selected for. Even if a few do know something, the burden for obtaining a change of venue is almost impossible to overcome.

So what it does it take to move a case to another county? The law is fairly broad - you have to establish the publicity has been so extensive that you cannot get a fair trial. Publicity alone is not enough; it has to be negative publicity, or coverage which leaves no doubt that the defendant is guilty. You try to establish that through affidavits from members of the community, and producing evidence of the coverage. Of course, if you submit an affidavit, the State is probably going to submit affidavits from people who believe your client can receive a fair trial. I've always thought that was silly way to handle the issue, because you are going to be able to find someone on both sides. I don't see how such affidavits can help a court decide whether the defendant can receive a trial; he can only do that by seeing the publicity and coverage, which as a member of the community, he has probably already seen.

This is one of the areas where a judge has almost total discretion. There are only a handful of cases that have been reversed because the court refused to grant a change of venue. The bottom line is that if the judge wants to try the case, he can. I've been involved in two change of venue cases. One was a capital murder defendant, who was being tried a second time; the first case generated a lot of publicity, and the court felt it was only fair to move it out of the county. The other was Kenneth McDuff, who had been accused of kidnapping a convenience clerk. It took several weeks to apprehend him, during which time there was constant coverage of his past, which included a prior conviction for capital murder. I have no doubt the judge (the same one in both cases) could have denied the motion to change venue in both those cases, but he knew that was not the right thing to do.

There is a lot to be said for trying defendants before their peers. However, that shouldn't trump the right to a fair trial. If there is some chance the potential jurors will have already made up their minds, a court should not hesitate to move the case to another county that has not been subjected to the publicity.

Defendants in high profiles cases are are in a tough enough position - they don't need the added problem of fighting both the facts, and the  press.

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I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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One of the statements defense lawyers hear often is "how can they convict me if they don't have any evidence" Usually its followed by all they have is someone who says I committed the crime.

I have never yet understood where this idea comes from. Some defendants continue to believe that unless there is a video of the crime, there is no evidence; I even had a client one time who did not believe a video of a drug transaction was evidence, because you couldn't clearly see who was on the tape.

The answer to the question of course is that witness testimony is evidence. Whether it be the victim of a robbery, or a sexual assault, their testimony and identification is evidence. In fact, it is what is referred to as direct evidence. You can argue about  whether the identification is accurate, or whether the allegation is false, but you can't argue its not evidence.

It is even harder to explain circumstantial evidence. At least for the last 10 years, there is no difference in Texas between direct and circumstantial evidence. The issue for the jury is whether they believe the defendant is guilty beyond a reasonable doubt. For example, you might have a burglary where property taken from a residence is pawned a few hours after the burglary. One logical conclusion is that only the burglar would have the property that quickly. Of course, there could be other explanations, and it would be up to the jury to decide whether they thought that was sufficient.

In these days of CSI, there is also a belief that you can't get a conviction without physical evidence. Especially in sexual assault cases, many defendants refuse to believe they can be convicted without  physical evidence. The lack of physical evidence can be significant, but not always. If the victim promptly reports the assault, and immediately goes to the hospital, you would expect there to be some evidence. If the assault isn't reported for several days, you wouldn't expect to find any physical evidence. Defendants aren't alone on this. Prosecutors have been complaining for several years  about the "CSI effect" - jurors who refuse to convict without physical evidence.

The bottom line is you have to use at least a little common sense. There's always evidence - the question is whether its enough to convince a jury beyond a reasonable doubt.

 

 

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I've been out for a week, and am glad to be back. I spent 3 1/2 days at sign language school, which was  a grueling experience. Not being able to talk is bad enough - its made when worse when you have trouble communicating through sign. I learned a lot though - including the fact that  it's a lot harder to pick up another language though when you get older!

I read an article this morning which made a point I had not thought about. The article was about the Jon Benet Ramsey case, and how the parents had been "presumed guilty" all these years, only to be finally cleared. That case is a perfect example of why the presumption of innocence is little more than a myth.

Attend any criminal trial, and during jury selection you will probably hear defense lawyers spending a lot of time talking about the presumption of innocence. While it's an issue you need to point out, I don't think most people (jurors included), really believe it. If they answered honestly, they would say "yeah, I think he probably did it - why would they arrest him if he didn't do anything wrong". If you ask Mr. Ramsey, I'm sure he would say few people afforded him the presumption of innocence. Outside of his friends,  most people probably suspected he had some involvement. He had to live under a cloud of suspicion for years, and his wife died with it  still hanging over her.

Even with news of all the exonerations in the past several years, most people still think that if someone is arrested, they are probably guilty. That's probably human nature,  because most of the time they are guilty.  That's not an excuse though to brand someone a criminal, without hearing all the evidence. We need to do a better job of giving people the "benefit of the doubt". If you do that consistently, maybe it's a little easier to give meaning to the presumption of innocence if you are called to serve on a jury.

We need to take this case, and others like it, to remind everyone how important it is in our justice system to have the presumption of innocence.

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Yesterday I posted about the Fort Worth area teenager who was arrested for delivering drug laced cookies to several police departments. He didn't stay long in jail. It seems like the police jumped the gun - tests done on cookies taken to two of the departments were negative for drugs. I guess it was just a bad batch of cookies.

What is bothersome about this story is how the police apparently arrested this young man with no evidence. You would hope that if they were charging someone with lacing cookies with drugs, they would verify there were drugs. Maybe it was the fact that he  was doing community service that caused them to assume he was responsible.

While the standard for issuing an arrest warrant is low (probable cause instead of beyond a reasonable doubt), you would hope that a magistrate would want some hard evidence - that is supposed to be one of the "checks" in our justice system. Unfortunately, too often they simply accept the word of the police who request the warrant.

The end result is that this action could destroy this young man's future, at least in the short term. He was arrested, and charged with a serious offense. Not only was he arrested, the story was picked up by the Associated Press. So instead of only a few people knowing about, thousands did. He probably will be remembered for a long time as the kid who delivered drug laced cookies to the police - the general public has a way of forgetting that someone was cleared of charges.

In many cases, the criminal justice system works -  sometimes, though, it is too slow. No matter what the law says, the stigma of being arrested is something that doesn't go away. That is why the government should make sure they have the evidence before they brand someone as a criminal.

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I was in court the other day, and caught part of a hearing where a defendant was complaining about his lawyer. One of the complaints is one we hear all the time - he hasn't showed me all the evidence the State has against me. The judge tried to explain to him the rules of discovery, but like most people, he found it hard to believe.

I think  most people would agree that there is nothing more serious than facing a loss of your liberty. If you are going to have to defend yourself, you want to know what evidence the government has. Most people believe you are entitled to that - after all, we always hear about all these "rights" criminals are supposed to have. How can a proceeding be fair if you don't know what evidence is?

The reality is that there is no such thing as discovery in criminal cases. Under the rules, the State only has to provide copies of your client's statements, and any expert reports (e.g. drug analysis, DNA results, etc..) They do not have to provide offense reports, or witness statements. You are only entitled to those after the witness testifies - so you can cross-examine them. There's an old joke about waiting to try the case to find out what the facts are, but that could happen.

Thankfully, most prosecutors will open their files, and allow lawyers to look at what they have. You have to then sit down, and take notes on what you see. Some more enlightened prosecutors actually provide copies of whatever they have.  Not only is that fairer, it also helps resolve cases. It's hard to decide what to do when you don't know what the evidence. It's also impossible to advise a client on whether or not to go to trial when all you have is the prosecutor's assurance that he is guilty. You need to know what the evidence is, and the prosecutor is in total control of the flow of information.

In contrast to what you have access to in criminal cases, in civil cases you can obtain almost anything. Most of the time is civil litigation is devoted to discovery. You can file interrogatories, requests for production and take depositions. In the process you can learn everything about the case, and the parties. You can sue someone for $1,000.00 and find out almost everything about them. If you look at the rules of discovery, you would think civil cases are  more important than criminal cases.

Discovery reform has been addressed in the last several sessions of the legislature, without much success. Prosecutors are obviously reluctant to turn over what they have - they like it the way it is. As with most criminal justice issues, anything that appears to be favor criminal defendants is opposed. That belief system will rarely succumb to logic and common sense.

The fact is that adopting uniform rules of discovery would streamline the criminal justice process. Access to information can do nothing but help move cases along. When you know what the evidence is, you can make an informed decision. Providing that information early means cases can be resolved quicker. Even if the case has to go to trial, what's wrong with a defendant knowing all the evidence?

The legislature will meet again soon, and you can always hope this session will produce something. I'm not going to hold my breath though....

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Mark Bennett recently posted on the long awaited exoneration of James Blair. That story has been covered elsewhere. In case you don't know, Blair was convicted and sentenced to death for murdering Ashley Estelle. Many people at least know Ashley's name because of Ashley's law, which was enacted as a result of her death. A critical piece of evidence against Blair were hairs, which the State claimed matched Blair. Scientific tests were subsequently able to exclude Blair. More recently, genetic material under her fingernails also excluded Blair. After an exhaustive re-investigation, Collin County District Attorney John Roach finally concluded that there was not enough evidence to prosecute Blair again.
The investigation included 5,000 man hours, and almost $50,000. Mr. Bennett's comment was that more money was probably spent on the investigation than was spent on Mr. Blair's original defense.  He's not the first to point out the lack of resources devoted to defending capital defendants. You only have to  look at high profile celebrity prosecutions to discover what a difference money makes. Resources (which includes money and time) make a difference in most cases. Unless you  have an extremely wealthy client, defendants are always at a disadvantage.

I don't have the answer, but I can identify the problem. You only have to look at the recent exonerations to see what a difference money and time can make;although certainly not all, many of those wrongfully convicted may have been cleared if they had access to all the resources the government used to prosecute them.  Unless we devote the resources to defending those whose liberty the government is trying to take away, there is always going to be injustice.

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it's not too surprising that almost everyone is commenting on the Dallas district attorneys recommendation that prosecutors be held responsible for not disclosing favorable information.  While I certainly agree with Mr. Watkin's idea, I have somewhat different take on the issue.

Those of us who have practiced for a number of years, learned long ago that prosecutors never think anything is exculpatory.  I have even seen prosecutors argue that an identification of someone else is not exculpatory, because the police excluded that person as a suspect.  The obvious problem with putting the burden on the prosecution is that they always believe the defendant is guilty.  If you think someone is guilty, how can you ever believe something is exculpatory?  The standard practice has been to ask the court to review the file, and make an independent determination.  Sometimes that works, but again I have seen information that I believed was exculpatory, but not disclosed.

Civil lawyers are always appalled to learn about the discovery available in a criminal cases.  You can sue someone for a few hundred dollars  and be able to learn everything about them.  However, you can be fighting for your life, and not be told anything about the charges against you.  How can anyone think that is fair?  We can solve a lot of the problems simply by requiring the state to furnish defense lawyers with every thing they have.  There may be privacy issues,  but those can be dealt with.  If you are trying to take away someone's freedom, there is no reason why they should not know everything you know.  Of course, the prosecutors still may not know some things if the investigators don't pass that on.  But it certainly would be better than it is now.

We've been talking about everything else to prevent convicting the innocent.  There is no telling how many convictions could have been avoided, if only the defense had access to everything the prosecution knew.  This is a simple fix, and there is really no good reason why it shouldn't be implemented.  That's probably exactly why we will never see it happen.

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Sometimes its hard to come up with a defense a jury will believe. You generally need something more than I "didn't do it". Most good lawyers develop a "theme of the case" early on, and use that them throughout the entire trial. Sometime you have to think outside the box. Just how far "outside the box" is shown by a Japanese lawyer. His client, a Japanese professional model, had been charged with trespass. It was alleged she kicked a hole in the door of her boyfriend's apartment, and entered. Apparently she is fairly well endowed, which was the basis of the defense. Although she was convicted, the Appellate court acquitted her. They found that given the size of her bust, she could not have squeezed through the door. You have to wonder what kind of evidence they presented at trial?

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