Archive for February, 2009
Someone else did it: the law of third-party culpability
Feb 26th
This post was initially titled “knock me over with a feather” because the CT Supreme Court actually granted [concurrence] a habeas corpus petition today on the grounds of ineffective assistance of counsel. But to go on and on about that would be petty and I am not a petty person, so I’ll restrict my glee to these opening sentences and instead focus on the merits of the claim instead: that trial counsel was ineffective for failing to present testimony from 4 neutral eyewitnesses who would have supported the third-party culpability defense.
If nothing else, this decision serves as a primer on the law of third-party culpability, so it’s more for me than you.
As with everything else, the inquiry starts and ends with relevance:
Abolition measures picking up steam in states
Feb 25th
I tell you people time and again not to misunderestimate me. I am the national bellweather for things criminal justice related. A few weeks ago, I made the call for abolition of the death penalty in these harsh economic times. It seems that some of you in high places were listening: In the last week or so alone, Montana, New Mexico and Colorado have had at least one chamber of their Congress’ pass measures abolishing the death penalty, a TN commission is scheduled to release a report on the state of the death penalty soon and CT has a public hearing on an abolition bill scheduled for next Monday.
A common theme in all these bills, as highlighted by this NYT story, is the economy and the cost of maintaining the death penalty.
“Junk” science at its worst
Feb 19th
Earlier today I wrote about the NAS report on the state of forensic sciences in labs across the country. One of the findings of the report was that some “areas” of forensic science are unreliable because of the lack of standards, research and scrutiny. One of those areas was the study and comparison of bite-marks.
From Radley Balko at Reason comes the worst possible story of the misuse of this “junk” science. It chronicles the lengths to which two purveryors of this science would go in order to secure convictions. The descriptions and videos are not for the faint of heart.
NAS: Bullshit!
Feb 19th
The NAS just called “bullshit” on many of the forensic techniques used in labs across the country, ranging from fingerprint, blood splatter, hair, arson and fiber analysis to bullet comparisons. The only technique escaping this harsh critique is DNA analysis, which has been the subject of voluminous study and testing.
The report [executive summary] finds fault with almost all aspects of forensic science: from the lack of standards and scientific scrutiny of “accepted” techniques like bitemarks to a lack of any uniform certification standards.
As a result, there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.
Lawyers can and have gone to town questioning experts on the “reliability” and “scrutiny” of their methods, but this report provides another powerful tool in exposing (in some instances) the pure speculation of this type of expert evidence:
The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as “match,” “consistent with,” and “cannot be excluded as the source of” — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.
In addition, any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible — quite the contrary, said the committee. Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.
The recommendation is not to “junk” all this science, but rather to develop it and to acknowledge and admit its limitations:
Margaret Berger, a professor at Brooklyn Law School and a member of the panel, explained: “We’re not saying all these disciplines are useless. We’re saying there is a lot of work that needs to be done.”
Said U.S. Court of Appeals Judge Harry Edwards, co-chairman of the panel: “There are a lot of people who are concerned, and they should be concerned. Forensic science is the handmaiden of the legal system. . . . If you claim to be science, you ought to put yourself to the test.”
For more reading, go here, here and here. Scott has his take here.
Tasing isn’t for cops only
Feb 18th
Now you, too, can tase people from the comfort of your home or your business. This is not a joke.
The box has been banned
Feb 18th
Updating an earlier post, the New Haven board of Alderman approved the ordinance banning the box.
So the breathalyzer is racist!
Feb 18th
caption not necessary
Way back in November 2008, when the world was a rosier place, I asked if the breathalyzer was racist. The post was based on a comment by noted DUI lawyer Jay Ruane, who challenged the use of the Intoxilyzer 5000 by the State of CT. The claim was supported by the research of a Dr. Hlastala, who has found that because the lung capacity of black men is 3% less than that of a white man, the results were inaccurate when testing African-Americans.
Perhaps motivated by this claim or the increasing cost of maintaining the I-5000, CT is now moving to another device to measure BAC: the equally crappily named Alcotest 7110 MK III-C. (Who comes up with these names? Seriously? Why can’t they be named BAC test machine 1 and 2?) At a cost of almost $1 million, the BAC TM1 will be replaced by the BAC TM2, at which point we will start investigating the reliability of that instrument (more on that after the jump). But first, a quote from the State Police:
Lie to me: Why thank you, I already am
Feb 18th
As if CSI wasn’t enough, lawyers now have another TV show to deal with when it comes to jurors and their ability to make credibility assessments. A new show, starring the inimitible Tim Roth, Lie to Me, purports to bring to the fore the “science” of lie detection through observation. The show does this in rather cheesy ways (the cheesy way that would look good on “Psych”, but not befitting a slick network production), by “highlighting” or zooming in on the subject’s facial tics. This gives Roth (and the viewer) a clue that the subject is acting in a not-so-truthful manner.
The show itself is based on four decades of research by Paul Ekman of the University of California. He serves as a consultant to the show. Ekman has been researching body language and the art (or is it science) of lie detection for a long time, copiously compiling data after research study after research study.
His finding? It doesn’t work. You can’t do it.
How much time is enough? (now with poll)
Feb 16th
I’ve spent pretty much all day thinking about the “trial list” and when I’ve managed to move onto other pursuits, it comes back into focus. For those not “in the know”, a trial list is a list of cases presumed “ready” to go to trial in a given court. The exact practice differs from court to court, but the general idea is that if you’re unable to come to a resolution, the matter will be placed on the “trial list” and then you will be given a certain period of notice before jury selection starts. In some instances, this “notice” could be as short as 48 hours (or is it 24?).
I’ve been told by the Texas Tornado that they too have a similar process where they have to check in every morning for a period of two weeks or so to find out if they’re picking a jury that day.
If this seems somewhat bizarre to you, that’s because it is.
More free advice from Gideon: cross-examination techniques
Feb 16th
learn from the master
Update: Since none o’y'all want to show your appreciation for this fine Free InformationTM, I had to pull out all the stops and insert this picture of J. Scalia. Now comment, or he’ll tell you how rude you are.
Original: We, here at A Public Defender, are a magnanimous sort. We have some amount of knowledge and we like to share it, however infantile or irrelevant or useless or wrong it may be. It is one of our hallmarks and we know you love us for it.
After all, who else would give poor, overworked, overwhelmed and overburdened law students some nifty pointers on objections. Who else would divulge the secrets of the law school experience and share our collective wisdom gained through that process?
No one, that’s who.
So, kids, sit back, grab some popcorn, uncork that Rioja (that’s for you Charon), light that joint*, shoot that dope* and get ready to learn.
This time, we won’t be presenting you with a list. Lists are so 2008. I’ve got something better. A live demonstration. All you ever need to know about cross-examinations and objection techniques and biased judges and, of course, how to roll over, is in this video. You can thank me in the comments.
(The video, unfortunately, is below the jump, because some people are still stuck in 1954, using IE6, which apparently can’t handle a simple Flash embed and crashes constantly. For those of you using IE6 [seems to work in IE7] (and really, please shoot yourself now), you can watch the video here. HT)
Monday Morning Jumpstart
Feb 16th
You know, on this day off, I finally decided to get back to posting a Jumpstart, but then I realized that the Texas Torndao was hosting Blawg Review this week. So I mosied on over there, and sure enough, he’s got it all. He’s done a terrific job of covering the week’s criminal law blog posts and news stories, so anything I write here will be duplicative.
It’s a day off, so make yourself useful and head on over to Blawg Review 199. It’ll keep you busy all day, I promise.
Sunday Stupidity: Caught on tape edition
Feb 15th
I report, you decide:
[youtube]http://www.youtube.com/watch?v=cykFet6nEpQ[/youtube]
Proof that sex offenders make people act crazy (with update)
Feb 13th
Title Bout: Ohio v. USA
Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.
A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering.
And thus, the tug-of-war between the Federal Government and the State of Ohio begins. Whose requirements prevail? Or will it all be disregarded because the object of this “war” is to get a heinous, evil, dangerous, disgusting, despicable sex offender to register his whereabouts? Some counties in Ohio have had the testicular fortitude to tell the Feds to stick it, but unfortunately not the county in which Doe resides.
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