Narcotics field tests subject to Daubert and other tales of scientific evidence

5 Replies

In an opinion released two days ago in State v. Anthony Martinez [PDF], the CT Appellate Court held – in what was apparently an issue of first impression – that those narcotics field tests that officers do to determine whether the “powdery white substance” was indeed cocaine and not talcum powder are subject to the standards “enumerated” in Daubert v. Merrell Dow Pharmaceuticals. In CT, that standard was adopted in State v. Porter and challenges under Daubert are called “Porter challenges” or “Porter hearings”.

Prior to Daubert, the generally accepted standard was the “Frye” standard and it was that the examination or procedure had to be generally accepted in the scientific community. Daubert then altered that standard – and lowered it – to whether the scientific evidence would assist the trier of fact and whether it was scientifically “valid” as opposed to generally accepted by that scientific community.

The irony is that in CT, the defendant wanted the Court to adopt the lower Daubert standard in Porter so as to let in polygraph evidence. The defendant won on Daubert, but lost on polygraph, thus not completely fucking every criminal defendant over for eternity, but only slightly.

What the Supreme Court didn’t do in either Daubert or Porter is define just what the hell “scientific evidence” is, thus opening a gaping door for all sorts of pseudo-scientific testimony (more on that in a bit).

But clearly, dipping a stick into some chemical and then applying a drop of that chemical to a “powdery white substance” to determine if that substance changes color, thus revealing the presence of a narcotic, seems “scientific” enough.

But just because it’s scientific, doesn’t mean a court has to conduct a hearing to determine if it’s valid. Some scientific evidence is so scientifically accepted that it’s a foregone conclusion:

In one line of cases, ‘‘we have concluded that certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary  . . . .’’ Id., 170; see State v. Porter, supra, 241 Conn. 85  n.30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d  1171 (1996) (ordinary fingerprint identification evidence); see also Hayes v. Decker, 263 Conn. 677,687–89,  822 A.2d 228 (2003) (effects of discontinuation of blood pressure medication); State v. Kirsch, 263 Conn. 390, 405, 820 A.2d 236 (2003) (reliability of alcohol blood testing done at hospital well established); State v. Legnani, supra, 109 Conn. App. 418–21 (matching of fired cartridges to magazines on basis of magazine marks).

This, the Appellate Court notes, is not one of them. While the argument the state makes, that these tests have been admitted into evidence in CT Courts for a very long time, is appealing as to their validity, that doesn’t close the inquiry, nor should it. Just because something has been admitted forever doesn’t make it scientifically valid. It just means we defense lawyers have been terrible about objecting to it.

In this case, there was no evidence presented – and indeed the trial court did not allow it – of the scientific method used in these field tests, nor their acceptance in the community or their validity. So the Appellate Court did hold that there was error in this case. But don’t be fooled. It wasn’t that bad. The guy was still guilty as sin, so we don’t care that there was a mistake in his trial. It was found to be harmless error.

—

In the second line of cases ‘‘we have concluded that  certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not ‘scientific’ for the purposes of our admissibility standard for scientific evidence, either before or after Porter.’’ Maher v. Quest  Diagnostics, Inc., supra, 170 n.22; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000) (testimony of criminologist regarding visible characteristics of and  similarities between strands of hair not ‘‘scientific evidence’’ for Porter purposes); State v. Hasan, supra, 205  Conn. 490 (testimony of podiatrist as to likelihood that certain pair of sneakers would fit on defendant’s feet was not ‘‘scientific’’ evidence under Frye).

When evidence is “not scientific” it doesn’t mean that an expert is not permitted to testify about their “expert conclusions”; but just the opposite: that the expert opinion is not subject to a gatekeeping function by the court to determine if that “expert” is an expert or an “expert”.

The big unmentioned area where the State has driven a truck through this hole is the testimony of “child sexual abuse experts” whose job it is to take the facts of a case and opine, based on their training and experience that such behavior is consistent with being sexually abused.

If a complainant does poorly in school, that’s consistent. If a complainant does well in school, that’s consistent. If a complainant discloses abuse immediately after it happens, that’s consistent. If a complainant discloses 5 years later, that’s consistent. If a complainant is left-handed, that’s consistent. If a complainant is right-handed, that’s consistent. You get the picture. And this is permitted, routinely, without limit or caution, because it’s not “scientific” evidence:

We first consider whether the trial court abused its discretion in declining to subject Lanning’s testimony to a Porter hearing. On appeal, the defendant concedes that Lanning’s testimony was not “scientific” but argues that the testimony nevertheless required the trial court to conduct a Porter hearing because it was “other specialized knowledge” within the meaning of § 7-2 of the Connecticut Code of Evidence. The state argues that no Porter hearing was required because Lanning’s testimony was not based on any scientific theory but, rather, on his training and experience in the field of child victimization. We agree with the state that, because Lanning’s testimony was not based on scientific knowledge, the trial court properly determined that a threshold admissibility hearing under Porter was not necessary.

State v. Sorabella. So these “experts” show up in court, talk about the 2000 children they’ve interviewed and in their (anecdotal) experience, what the characteristics are of those that have been abused, which incidentally happen to be every single child they’ve ever examined.

So, clearly, it’s not scientific. More like junk, but whatever.

But that’s not the end of the road. There’s this decision called Kumho Tire Ltd. v. Carmichael, which essentially applies Daubert to “non-scientific” evidence.

In Kumho Tire Co., Ltd., the United States Supreme Court held that a trial court’s gatekeeping function under Daubert applies not only to expert scientific testimony but also to expert testimony based on technical or other specialized knowledge. Id., at 149, 119 S.Ct. 1167. We decline to consider the defendant’s claim, however, because the defendant failed to raise it in the trial court.

That’s from Sorabella again, a shining example of what the CT Supreme Court does best. Surprisingly, in the 7 years since Sorabella has been decided, not one single appeal has challenged the admissibility of this type of “expert” testimony under Kumho Tire.

That should be next.

 

 

Silence as guilt and the silent death of the Fifth Amendment

5 Replies

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

…

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.

 

33 years in jail is a technicality

2 Replies

People always complain that “criminals” “get off” because of “technicalities”. It’s a great jab and like the best of them, it’s short, it’s catchy and it’s completely ass-backwards.

So in order to counter this, a cottage industry of sorts has sprung up, utilizing the phrase “The Constitution is Not a Technicality”. You can buy stickers and t-shirts and notepads and whatnot.

Because it really isn’t a technicality. What people mean when they say “he got off on a technicality” is that there was a rule of law that mandated a reversal. It means that there was an error made that undermined the fairness of the trial. It means that the Government did something it wasn’t supposed to and was punished for it.

Because if you really want to talk technicalities, you’d have to look in the opposite direction. Technicalities are what the Judicial Branch relies on to ignore constitutional violations. Technicalities are the tools of unjust verdicts and ways to keep Very Bad People in jail. Technicalities are what get people in jail, rather than out.

—

Just ask Jerry Hartfield. Hartfield was convicted in the late 1970s for a murder. Sometime in 1983, Texas’ highest court reversed that conviction and ordered a new trial. When that happens, a man is returned to pre-trial status. Like he’s innocent. Except that sometime in 1983, after he was no longer convicted of anything, the Governor of Texas reduced his “sentence” to life rather than death. A sentence that didn’t exist, you remember.

So, there he sat, Jerry Hartfield, for 33 long years, without a conviction or a trial or a charge or a sentence, until someone, somewhere realized the error [PDF opinion]. The technicality that caused him to spent 3 decades in jail.

—

Just ask Taylor and Gould (well, one of them is now dead, so ask the other), whose convictions were finally reversed by a trial court because they were actually innocent, only for that to be turned right back around by the Supreme Court, because it is not enough to prove that you are innocent, but you must also prove who did it. This is not a joke. That legal standard could be called a technicality. Technically you are innocent, but you haven’t met our impossibly high standard. So sit in jail and die in jail.

—

As any criminal defense lawyer here in CT or any appellate lawyer or anyone who does federal habeas practice.

Courts here at least have increasingly taken the tact of refusing to remedy Constitutional violations because a magic script wasn’t uttered.

You’re on trial for your life. The judge instructs the jury completely incorrectly on the law. You get convicted. On appeal, the courts says “yes, that was a terrible instruction. Yes that probably led the jury to convict you. But you know what? You’re fucked. We aren’t going to review this claim and we aren’t going to correct this Constitutional violation because your lawyer didn’t exactly object to this instruction being given in the manner that it was given.” This is not a joke.

Constitutional violations in Connecticut are falling by the wayside, unreviewed, ignored and forgotten because the Courts have created an impossible standard for defense attorneys. If we don’t object, in the heat of the battle, to the exact wording of the language that the jury is instructed on, or if we don’t object in the correct way, then the Court elevates form over substances and ignores the claims.

That’s a technicality.

—

In a recent, similarly mind-boggling opinion, the Connecticut Supreme Court once again refused to decide a claim of a Constitutional violation because the defense attorney didn’t object in the specific manner raised on appeal. In State v. Jorge P. [PDF], the issue was the testimony of an expert witness who would testify as to the injuries suffered by the complainant. Before that testimony, the defense attorney asked for a ruling precluding the witness from opining on the truthfulness of the allegations. The judge delayed that ruling until the witness actually testified. The defense attorney then renewed that objection later on. The prosecutor assured the court that the witness would do no such thing.

Of course, the witness did exactly that, stating in his medical opinion that the victim was indeed, abused.

Do you think that claim should be reviewed on appeal? That a court should decide whether that testimony was properly admitted?

You would think. The Connecticut Supreme Court didn’t think so. There used to be a rule of law, that once you objected to something, you didn’t have to keep objecting over and over. You “took an exception” and that was that for appeal purposes. Now, apparently, in their bid to made it monumentally difficult for any citizen of this state to obtain fair review of Constitutional violations, the Court has resorted to nitpicking on the most menial and mean kind.

It’s a technicality. Because a Constitutional violation is a Constitutional violation regardless of whether it’s been “preserved” in the right way or not.

But when you turn the criminal justice system into a game of “gotcha”, and you have the power to keep changing the rules at will, well, then, is it no surprise that we always lose?

J’Accuse, or: why you really shouldn’t trust the government

2 Replies

If you see something, say something. Edward Snowden did and now apparently the country’s atwitter about whether Big Brother is so in the Orwellian sense or in the run of the mill older brother who knows better and looks out for you so the other kids don’t pick on you sense.

Many of you – a full 37% according to one survey – are quite okay with Uncle Sam having a complete record of your lives. Some of you even go beyond that; so far as to say that you’d be okay with giving your Government your DNA.

Some of you have argued that we need to appease the Government Gods now, lest there be another attack that will utterly destroy whatever freedoms and liberties we have left and make things much worse.

I am here to tell you that this is utter madness.

Consider this scenario: you are at the DMV, to obtain or renew a driver’s license, something that a vast majority of Americans have or have had. Along with the form, you are given two other things: one waiver form and one swab. It is now a condition of obtaining a driver’s license or any other form of government ID or assistance that you sign a waiver and provide a swab of DNA. The waiver states that you hereby give the United States Government and all its agencies and its employees and its departments the authority to obtain, monitor, record, collect and store your phone calls, your text messages, your passwords, your emails, your photos, your music and your thoughts. You further waive all Fourth Amendment challenges and Fifth Amendment privileges and Sixth Amendment rights. You can keep your gun.

Do you sign that piece of paper?

I can sense some of you shivering. Why is PRISM any different? Why is Maryland v. King any different?

Consider what the Government can do today: it – if you are a Verizon customer – knows who you called, when you called and for how long you called them. It knows who you’re emailing, what you’re buying, what you’re selling, what you eat, where you eat, when you eat, who you text and quite possibly what you text.

They say they’re doing this legally – although the Electronic Frontier Foundation has just managed a big win – but it’s in a court you can’t see or can’t go to or can’t be told about. A court, by the way, that has rejected only 0.03% subpoenas, which aren’t based on the tried and true standard of probable cause, but an even lower – if that’s possible -standard.

“But it’s legal” some of you say and so Snowden is a traitor, guilty of espionage. True. But anti-miscegenation laws were legal. Anti gay-marriage laws are legal. The death penalty is legal. Abortion is legal.

What’s legal isn’t always right. And it’s certainly not right when it’s done in secret unbeknownst to the vast populace.

So what, you say. I haven’t done anything; so I have nothing to hide. Take my phone calls. Take my DNA.

To which I say, great, can I have your credit card numbers and your social security number too? No? You mistrust me, a solitary individual against whom you have recourse, yet you willingly subjugate yourself to a faceless, untouchable government?

All it takes is an accusation. J’Accuse and now you’re condemned to navigate the panopticon, where they know everything and see everything. You know who decides what is a crime and what isn’t? The government. You know who decides who has broken the law? The government. You know who decides whether to prosecute an individual? The government. You know who puts on evidence to prove that someone is guilty of a crime (and usually wins)? The government. You know who uses DNA to prove guilt? The government. You know has people (jurors) blindly following its dictates? The government. You know who you signed over your privacy, your personal information, your DNA to? The government.

Think they won’t use it against you tomorrow if they suddenly dislike you?

If you answer yes, ask yourself why. Is it because you trust the government to do the right thing? Or is it because you’re privileged and you don’t think this sort of thing will happen to you?

But the Government isn’t seeking data on “non-privileged” people. It’s all of us. You. Me. The guy down the street. You may think you’re different than me or my typical client. The government doesn’t. They’re the ones who you think will protect you, yet they’ve already proven that they see no difference between you and a criminal.

And your blind obeisance isn’t helping. The greater deference you give to the government, the more emboldened it becomes. There aren’t, it seems, any more internal checks on the abuses of power by politicians. In that we are becoming like the rest of the nascent countries in the world. But for them it’s a progression; for us it’s a regression.

When you let all governmental action pass unchallenged, without critique or scrutiny that is more than perfunctory lip service. When you refuse to stop and really think about what your Government is doing in your name – not to you, but to others - that you are doing a disservice not only to yourself, but to everyone else. If you stop believing in the Constitution, why should those in power continue to?

Unfortunately, the more rights you give up, the less rights you retain. So where are you going to hide now, now that you’ve given away all your rights? Maybe you can join Ben Franklin, in his grave, while he rolls, because you’ve just given up your liberty for some temporary safety and you’re never getting it back.

Since you asked: why the Government spying on you is your fault

6 Replies

20130605-223824.jpg

It seems now that our government is spying on us. The NSA, once concerned with foreign intelligence, is using the Foreign Intelligence Surveillance Court to get subpoenas that require cell phone companies to had over the cell phone records of all its customers. The order itself is secret. This is happening to you – if you are a Verizon “customer” – without your knowledge. The government now knows everyone who you called and who called you starting on April 25.

Why? I don’t know and the way things have been since 2001, I suspect they don’t have to give a reason.

The Guardian broke the story:

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

That’s you. That’s not me; I don’t have AT&T, but tomorrow may well bring different news.

A while back, Aaron Swarz died and I asked, what makes you think you’re so special? Here’s your answer: you’re not. You have willingly handed over every ounce of liberty to the Government in the name of security and you now have neither.

You asked why I do this job that I do. This is why. You ask how I can defend these horrible people. This is why. You ask why we shouldn’t just rush to judgment, execute people without due process of law because they’re “animals”. This is why.

You rejoice when people are convicted in the face of violations of the law because they’re bad people. You rejoice when legislatures “reform” the justice system to make it faster and easier to convict and execute. You mock me and ridicule me and insult me and threaten me when I stand between the Government and the individual accused of a crime. You ignore me when I stand up and shout about the evisceration of individual freedoms and liberties because you have the taste of blood on your lips and because you are afraid of recognizing that life is neither black nor white and it would upset your rhetoric to admit that people are people: good, bad and a little bit of everything else too.

You thought you were better than everyone else; you thought that it would never happen to you because you’re not “a criminal”. You thought that “those people” deserved whatever they got. You thought that your rights were different than the rights of those you hated or reviled. You thought the Constitution was a “technicality”. You cheered when the cloak of the protections it offers was slowly and systematically shrunk in the name of protecting our children, protecting our streets, protecting our borders until it afforded no more modesty than the proverbial fig leaf because you somehow were unable to comprehend that a corner cut here and right curtailed there are permanent acts that cannot be undone.

And now here you lie, naked, the Government spying on you and your activities. What are you going to do about it? Are you going to set about repairing the damage or are you going to shrug and turn the other cheek? I know where I’ll be: in court, fighting for your rights, my rights. Someone has to save us from yourself.

Meet and greet the right to effective assistance

Leave a reply

Florida’s Supreme Court, in what can only be described alternatively as “remarkable” and “yeah, no shit”, just last week decided that being “overworked” is a state that can lead to ethical violations and public defenders who are so “overburdened” can be permitted to refuse appointments en masse.

The story started with the public defenders in the Eleventh Judicial Circuit of Florida being horribly overworked and overburdened with high caseloads – hello, welcome to the state of being – and decided to refuse appointments in all third degree felony cases, some 21 in all.

We’re overworked, they said, like you’ve always said. So now that chicken has come home to roost. We’re so overworked, they said, that we can’t possibly effectively represent all these clients. We can’t investigate, we can’t meet with the clients, we don’t have time to talk to each client. We have to “triage”, which means give priority to the oldest and most difficult cases first, which means, if you’re keeping track, that clients sit in jail for shitloads of time without meeting lawyers and without having any work done on their cases.

So, the Florida Supreme Court said [PDF], this is not tenable. Such representation puts defense attorneys in the position of having to provide representation below constitutional standards.

So we will allow defense attorneys to withdraw and perhaps appoint other attorneys.

Defense attorneys. The gatekeepers of justice. The benchmark for what is Constitutional and what isn’t. The overreliance on Gideon as a test for the efficacy of the system. The new mantra of Appellate Courts seems to be “if defense counsel didn’t object, it must’ve been okay”. Nevermind that defense counsel was frazzled, unaware, overburdened and overworked.

Then we come to this choice quote, sure to be repeated in every story about this decision:

Witnesses from the Public Defender’s office described “meet and greet pleas” as being routine procedure. The assistant public defender meets the defendant for the first time at arraignment during a few minutes in the courtroom or hallway and knows nothing about the case except for the arrest form provided by the state attorney, yet is expected to counsel the defendant about the State’s plea offer.

In this regard, the public defenders serve “as mere conduits for plea offers.” The witnesses also described engaging in “triage” with their cases – giving priority to the cases of defendants in custody, leaving out-of-custody defendants effectively without representation for lengthy periods subsequent to arraignment.

The witnesses also testified that the attorneys almost never visited the crime scenes, were unable to properly investigate or interview witnesses themselves, often had other attorneys conduct their depositions, and were often unprepared to proceed to trial when the case was called. Thus, the circumstances presented here involve – 34 – some measure of nonrepresentation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment.

Great stuff. You know what’s missing? Any acknowledgment that the defense attorney is but a bit player in this game. That a share of the responsibility and blame lies with the prosecutors and judges.

Meet and greet pleas? You know why they happen? Because judges and prosecutors make “arraignment only” plea offers. Because they say: “take this non-jail time offer today or you’ll never get it back”. The defense attorney, reading a police report for the first time, cannot refuse to tell his client of the offer, nor can any sane attorney counsel his client otherwise.

But that’s not the attorney’s fault, nor is it the fault of high caseloads. They know nothing about the case in these meet and great pleas. You know why? Because they’re given no discovery. The State doesn’t turn it over for a while and in some cases it’s always a fight. But apparently that’s the public defender’s fault.

Are we overworked? Yes. Are we overburdened? Yes. Is there a conflict of interest? Yes. But it would be nice to see that the system actually acknowledged all the problems instead of making us the gatekeepers of fairness, which is a neat trick, if you think about it, because when it comes down to it, we control nothing.

Maybe now the right to effective assistance of counsel will mean something in Florida. Time to pay attention to those other rights.

—–
Compare and contrast the Connecticut Supreme Court which said, inexplicably, that there is no conflict when two members of the same office represent two co-defendants, one of whom was snitching on the other.

Also compare the FL Supreme Court’s cognitive dissonance when dealing with death row lawyers who are overworked and overburdened. Apparently death is different.

Sometimes, justice requires a bit of luck

3 Replies

JamesWalder Joseph Frey has spent a lot of time in jail. Some of it for crimes he committed and a lot of it for one crime he always said he didn’t. In 1991, he was fingered as the suspect in a brutal break-in and rape of a student at knifepoint. Just this week, a judge in Wisconsin reversed his conviction. But, in 1994:

He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.

That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.

The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.

The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.

And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.

There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.

But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:

After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.

Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:

“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”  “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”

I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?

Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.

A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective Fife Charley.

And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.

Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.

It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.

How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?

So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?

—

Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.