Monthly Archives: April 2007

The Innocence Myth

Judge Morris B. Hoffman has another editorial. After publishing the results of a study in January that showed that defendants with private attorneys got better results than those represented by public defenders, today he publishes an editorial in the WSJ that calls innocence a myth. He opens with:

You must also have somehow managed to avoid the increasingly shrill polemics issuing, daily it seems, from our nation’s law schools and their “innocence projects,” which have spent the last 20 years trying to paint a picture of our criminal justice system so dismal that a rightful conviction seems the exception and not the rule.

Notice the use of quotes around innocence projects. Soon thereafter, he cuts to the chase. He asks about the error rate! ERROR RATE!. He even quotes Blackstone’s Ratio. EyeID tackles this wonderfully:

But back to this WSJ article. Hoffman goes on to inquire about the actual rate of innocence. Maybe, after all, these “innocence advocates” and the “liturgies that have grown up around them” (!) are worshipping a false idol, the WSJ author/judge implies. Apparently out to get these pesky innocence proselytizers, who “are strangely silent when it comes to that question” of the actual innocence rate, Hoffman tries to redirect the dialogue to a question of the error rate, which is what really matters “in imperfect complex systems.” Hoffman appears to imply that if the “error rate” — that is, the rate at which innocent people are incarcerated and in some cases, possibly executed — is within an acceptable range, then the innocence projects — which he belittles as both “mythmakers” and “innocence merchants” — are in a tizzy over nothing.But this brings us back to the Blackstone ratio, and a fundamental clash of worldviews that I think is at the heart of this disagreement. 200 innocent people incarcerated for a combined total of 2,475 years in prison is not an “acceptable error rate,” no matter the ratio of wrongfully convicted to “rightfully” convicted. And obviously the work of the Cardozo Innocence Project, and the battalions of others committed to the same cause, do not represent the entirety of the problem. Other innocents remain in prison, and new innocents continue to be put in prison.

The “mythmakers” are silent on the question of the “actual innocence rate” because the problem of innocent people being deprived of their liberty is not a statistical problem; it is a moral problem. This is exactly what Ben Franklin meant when he said that “it is better 100 guilty Persons should escape than that one innocent Person should suffer”: human liberty is not reducible to a mundane statistical formulation. Innocence advocates are silent on the question of the actual innocence rate not because they fear the answer, but because it is fundamentally the wrong question.

Sacre bleu!

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Defense expert busted for possession of p-rn in course of duty

Corey Yung at SexCrimes points out an interesting Ohio opinion, where the defendant’s Motion to Dismiss the indictment was upheld by an appellate court. The defendant had been charged with various counts of possession of child p-rnography. The court appointed a digital imaging expert to assist in his defense. The court ordered that the expert be immunized from any prosecution for possession of these materials (which were to be obtained from the prosecutor’s office) and be allowed to re-produce these materials and analyze them.

All well and good. Unfortunately, shortly thereafter (and it is really curious as to how or why this happened),

On June 24, 2005, the Federal Bureau of Investigation (“FBI”) executed a search warrant on [expert]’s residence. The FBI seized [expert]’s computer and several compact discs. Included in the seized material was computer equipment containing potential exhibits [expert] had created for trial and the compact disc containing the images at issue in this matter. An affidavit submitted in support of the search warrant alleged [expert] violated Section 2252A, Title 18, U.S.Code. This federal statute does not contain the exemption for a “proper person” using the material for a bona fide purpose similar to the exemptions contained in the Ohio statutes.

Absolutely bizarre. A quick Lexis search shows that Connecticut does have an “exemption”, if you will. The statute (53a-196g) actually creates a category of affirmative defenses.

In any prosecution for a violation of section 53a-196d, 53a-196e or 53a-196f, it shall be an affirmative defense that (2) the defendant possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.

I have never heard of anyone in Connecticut being prosecuted for something similar. However, I was unable to find a similar exemption in the drug statutes. What about other states? Do you have similar exemptions?

And then there were four…

The death row hunger strike continues, but with one less participant. One of the five has started accepting meals again (names were not released). The others continue to fast. Nothing else has changed.

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Preparing a witness to testify

Most of us, at some point or another, will be conducting a trial. The most essential aspect, of course, is the testimony. Without testimony, there is little evidence, especially in criminal trials. So how do you do it? How do you prepare your witness to testify? Scouring the web, I found two nice articles.

So what are the salient features?

Practice – practice the direct testimony over and over again. I usually do this in four steps:

  1. First, I go over a general outline of the legal standard with the witness and what evidence I need from the witness.
  2. Second, I go over the general outline of the questions I will be asking. Now this is an area where personal preferences come in. Sometimes it may be prudent to give the witness a written list of questions and sometimes just a general sense of where the questioning will go. I prefer the latter.
  3. Then I conduct a lengthy, in-depth direct examination, usually with another attorney playing opposing counsel (for objections and such). This takes time, but is worth the effort.
  4. Finally, a few weeks after step 3, I go over the direct again, just to cement things.

Attentiveness on the stand – This is a must. We’ve all had runaway witnesses that will say more than they should. I always emphasize that it is very important to listen to the question asked and answer only the question asked.

Truthfulness – Obviously, we all know that this is the most important aspect of any witnesses testimony. Absolute and complete truth at any point. Hammer it home. Doesn’t matter what the question is; always the truth. The truth may be that the witness cannot remember, which is perfectly acceptable.

There are several other minor things, but for me, the above “rules” are essential. What about you, O Criminal Defense Bar? Any particular quirks you like to employ? Any techniques you have found useful?

Iowa: It’s like you’re always stuck in second gear*

Iowa was supposed to be on the forefront of the “revisit residency restrictions” movement. Iowa was supposed to be the vanguard of the sensible restrictions movement. Iowa was supposed to show the rest of the country that these draconian laws don’t work and here’s how to do it.

Unfortunately, not so fast. It seems that – as all hot button political issues go – this has become politicized and stuck in a quagmire (For those keeping track, that’s two sitcom references).

Iowa sheriffs and prosecutors on Monday blasted lawmakers for failing to roll back a controversial and politically charged law restricting where sex offenders can live.

“They’re just afraid to take action, and the people of Iowa should be ashamed,” said Story County Sheriff Paul Fitzgerald. “It’s absolutely politics at its worst.”

Earlier this year, the bipartisan panel heard during a series of public meetings from a number of groups – sex offender experts, statewide law enforcement associations, prevention experts and victims – who uniformly criticized the state law banning sex offenders from living within 2,000 feet of schools or child care centers.

However, those on the other side of the aisle are firm in their belief that this is not what the residents of Iowa want.

But Senate Minority Leader Mary Lundby of Marion said Republicans would resist any attempt to repeal the 2,000-foot law, which went into effect in 2005. Lundby said her belief is that people do not support such a move.

“My message hasn’t changed since the beginning of the session,” she said. “We will support additional spending for monitoring (sex offenders) and additional assessment, but people across the aisle don’t want them in their neighborhoods, period.”

It will be very interesting to see how this all plays out – with the end of session on Friday.

See also: SexCrimes and Corrections Sentencing

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*My sincerest apologies to those that had repressed any memory of that song and that show.