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

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

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

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

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

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

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

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

This is definitely a story worth following.

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

You probably thought you heard the last of dog scent line-up line-ups right? I'm still amazed that they ever got admitted in the first place - but that's a different topic. The picture of a dog sniffing around and picking someone out is something you would only see in comics. That is of course unless it's the State, and the dogs can provide evidence of guilt.

To say that Deputy Keith Pikett and his magic dogs have been discredited is an understatement. The Innocence Project of Texas was the first point out the problems in a comprehensive report issued in September 2009 . It appears that judges finally got the message, and started excluding the evidence. Which brings us the case of Jason Smith who was indicted for murder in Ft. Bend County - Keith Pikett's home base. Not wanting to give up on a good thing, the State wanted to use scent evidence. The defense filed a motion to exclude, which was granted. Not to be deterred, the State appealed. Their argument was basically that the the same type of evidence had been challenged before and rejected, and that decision had been upheld on appeal. In other words, once admissible always admissible.

Decisions on admitting evidence are reviewed for what is called abuse of discretion. Basically, a judge's ruling is upheld if he had at least some logical reason for his holding. It's an extremely lenient standard, which makes challenging decisions regarding the admission of evidence almost impossible. The State learned this in Smith, and the Court of Appeals refused to overturn the trial judge.

What strikes me about this case is the mental gymnastics the State will go through to justify the use of evidence. To be fair, they aren't alone. Defense lawyers due it too - it's part of human nature. They occupy a different role though, because their position is not supposed to be strictly adversarial. They are supposed to operate with the goal of securing justice. Unfortunately. that often takes a backseat to the desire to win.

No one can seriously claim that dog scent evidence is even remotely reliable. It's time to give it up. Yes, it means you have to discard evidence that nails the defendant - but the problem is that might not be accurate. Find some real evidence and go with that.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

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

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.

 

 

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

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....

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

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.

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